On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 05-05-0440 and 05-05-0513.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Miniman and Waugh.
Defendant Terrance Lamont Travers appeals convictions arising out of an indictment charging him with attempted murder, robbery, carjacking, and related weapons offenses. He also appeals the aggregate sentence of twenty-six years of incarceration, subject to an eighty-five percent parole ineligibility period, resulting from those convictions and his plea to one count of an unrelated indictment involving controlled dangerous substances.*fn1
Because we conclude that the prosecutor made improper arguments during summation with respect to the robbery, carjacking, and one of the weapons counts, we reverse those convictions. We affirm as to the lesser-included offense of aggravated assault and the remaining weapons charges. We remand for resentencing in light of our decision and, if the State so elects, retrial on the reversed counts.
The following operative facts and procedural history are found in the record.
On the evening of August 23, 2004, Officer Gairy Robinson of the Trenton Police Department was on "off-duty employment providing police security for the Trenton Housing Authority," along with Police Officers Cynthia Hargis, Marlon T. Parrott, and Bethesda Stokes. At approximately 11:00 p.m., the officers were investigating a disturbance near the Donnelly-Page housing projects in Trenton. While the other officers went into a courtyard to investigate, Robinson remained near their vehicle, which was parked on Martin Luther King Boulevard several feet away from Southard Street.
According to Robinson, a blue Chrysler Pacifica pulled up next to the vehicle, about three to four feet away from where he was standing. Robinson saw Taahira Silver jump out of the vehicle from the front passenger seat. He described her as "crouched down screaming[:] 'He's got a gun. He's going to shoot us. He's going to kill us.'" As Silver ran past Robinson, Travers exited the vehicle from the backseat on the passenger side of the car and started to walk away. Robinson told Travers to stop, but he continued to walk.
Robinson related that he attempted to restrain Travers, but that Travers began running away from him and crossed the street. As Robinson gave chase to Travers, he observed another man exit the vehicle from the rear seat on the driver's side and run past both of them. Robinson chased the two men as they headed down an alleyway next to a school. The second man jumped onto a parked car and over a fence, at which point Robinson lost sight of him.*fn2
Robinson testified that he continued his pursuit of Travers. After Travers made a left turn around the school and into an alley, he fell and Robinson began to catch up to him. As Robinson approached, Travers started to get up from the ground and began shooting at Robinson, who returned fire until Travers fell to the ground again.
Hargis testified that a crowd had gathered in the courtyard where the initial disturbance had taken place, but that the crowd had started dispersing when the officers arrived. Hargis and Parrott testified that, while they were investigating the disturbance, people started running toward them screaming: "He has a gun." Hargis and Parrott ran out of the courtyard and saw Robinson chasing a man down the alley. They proceeded to follow after Robinson.
According to the trial testimony, when Hargis and Parrott arrived at the scene of the shooting, Robinson directed Parrott to put out an alert for the second man. Robinson and Hargis then approached Travers and handcuffed him. Hargis testified that she saw a gun near Travers' hand and kicked it away. Parrott called for an ambulance, and Travers was taken to a hospital.
Stokes testified that she was following the other officers into the courtyard when she heard shots. At that point, she returned to the patrol car, where she observed Silver, who was visibly shaken, and the driver of the Pacifica, Robert LaGuerre, who was bleeding from the side of his head. LaGuerre testified that he subsequently left the scene because he wanted to lie down as the result of his injury.
Silver was taken to police headquarters. Later that night, she guided Trenton Police Sergeant Christopher Doyle to the location where she and LaGuerre had first seen Travers that evening. According to Doyle, he observed a vehicle with flat rear tires parked at the site. The vehicle was registered to Travers' mother.
Doyle and Silver returned to police headquarters, where Silver eventually gave Doyle a statement to the effect that she had been the victim of a carjacking. Although Silver knew Travers, she only knew his street name. After reviewing photographs provided by police, Silver identified Travers as one of the individuals who took part in the carjacking. She also identified LaGuerre as the other victim.
LaGuerre, whom Doyle had initially been unable to locate, came to Trenton police headquarters on August 25, 2004. According to Doyle, LaGuerre had injuries on his head, adjacent to his right ear. Doyle obtained a statement from LaGuerre, in which he identified Travers as one of the carjackers. He stated that Travers had held a gun to Silver's head, and that the other alleged carjacker, Ibriham Blackman, had hit him on the head with a gun.
On May 6, 2005, Travers was indicted for first-degree attempted murder, contrary to N.J.S.A. 2C:11-3 and 2C:5-1 (count one); first-degree carjacking, contrary to N.J.S.A. 2C:15-2 (count two); two counts of first-degree robbery, contrary to N.J.S.A. 2C:15-1 and 2C:2-6 (counts three and four); two counts of second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (counts five and six); and third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b) (count seven).
On May 26, 2005, Travers was indicted on charges of third-degree possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10(a)(1) and 2C:2-6 (count two); third-degree possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(3) and 2C:2-6 (count 3); third-degree possession of a controlled dangerous substance with intent to distribute on or near school property, contrary to N.J.S.A. 2C:35-7, 2C:35-5(a)(1), 2C:35- 5(b)(3) and 2C:2-6 (count four); and second-degree possession of a controlled dangerous substance with intent to distribute on or near a public facility, contrary to N.J.S.A. 2C:35-7.1, 2C:35-5(a)(1), 2C:35-5(b)(3) and 2C:2-6 (count five).*fn3 The second indictment was not related to the first, and involved events alleged to have taken place on a different date.
Prior to trial on the first indictment, Silver and LaGuerre took the position that they had no recollection of the events of August 23 or their subsequent statements to the police. On November 27 and 28, 2007, the trial judge held a Rule 104 hearing to determine whether to admit Silver and LaGuerre's statements at trial. At the hearing, both Silver and LaGuerre testified that they could not recall the incident and that they did not recall giving statements to the police. Doyle testified that he witnessed both of them identify Travers and give their statements, which he personally typed.
Prosecutor's Detective Thomas Watters testified that, during a trial preparation session, he spoke with LaGuerre, who was incarcerated in Pennsylvania. Over a video conference hookup, LaGuerre related essentially the same facts as were contained in his statement, which, according to Watters, LaGuerre did not then have in front of him. Watters also testified that LaGuerre expressed concerns about testifying because he had family members in Trenton and Travers had "people that are loyal to him and that Mr. Travers is a dangerous individual."
Watters testified that LaGuerre was less cooperative during a subsequent video conference, at which time he again expressed concerns about the safety of his family and himself. When Watters transported LaGuerre to Trenton for the trial, LaGuerre told Watters that he was still concerned about his and his family's safety, but that he would cooperate. He stated that he had not been threatened by "Travers or anybody else," but that "he believed someone had gotten to" Silver.
The judge determined that, assuming the witnesses took the same position at trial, relevant portions of their statements would be admissible as past recollection recorded pursuant to N.J.R.E. 803(c)(5). She directed that those portions of the statements be read to the jury, but that the statements themselves not be introduced into evidence because Travers objected.
The judge concluded that the statements were corroborated by physical evidence and observations made by the police officers. She also noted that defense counsel would have an opportunity to cross-examine both witnesses at the trial. Finally, relying on State v. Burns, 192 N.J. 312, 333 (2007) ("[o]nce a witness refuses to testify, the trial court should instruct the jury not to draw any inference against the defendant from that refusal"), the judge stated that the jury would be given an instruction not to draw any negative inferences from the witnesses' lack of recollection.
When defense counsel expressed concern that the State would suggest that Silver and LaGuerre were afraid of Travers, the judge specifically directed that, "unless there is an actual threat that a witness can testify to personally and not as a result of one person hearing a threat extended to another, then there shall be no reference by the State in argument or in form of a question [as to] any threats."
The prosecutor then suggested that he might have to "react" to the defense case and "offer alternative theories as to why things may be the way they are." The judge responded: "Beginning at ground zero here, no suggestion of threat absent testimony that one was actually received; and based on what I heard that doesn't appear to be the case."
The jury trial on the first indictment started on December 3, 2007. LaGuerre testified, as he did at the Rule 104 hearing, that he did not recall the incident that occurred on August 23, 2004, and that he did not recognize the statement that Doyle testified he had given to police. He also testified that he had no recollection of giving the police the information in the statement.
The trial judge permitted the State to read portions of LaGuerre's statement and then ask LaGuerre if he had made them. LaGuerre generally answered that he did not remember. Through that process, the following information was put before the jury:
"I drove up Brunswick Avenue and turned left onto Miller Street. Then I made another left onto Dexter Street. As I turned left onto [Dexter], I saw two guys standing on the sidewalk next to a green car. So I looked and I recognized one of the two guys was Terrance Travers. So I stopped and rolled the window down and said, 'what up, baby?' Terrance Travers said -- that was when my side back door opened up and the guy that had been standing with Terrance Travers on the sidewalk got in and sat behind me. I looked back at the guy and he pulled a gun out and put it to my head. So I turned back looking forward."
. . . "Then, the guy that was sitting in back of me and had a gun to my head said, 'you know what it is. Give it up.' I looked back and saw that Terrance Travers was holding a gun to Taahira's head. Then Terrance Travers said, 'pull off, pull off,' and then the guy with the gun to my head said" . . . .
"Finally, after a shouting match between Terrance Travers and the guy with the gun to my head, I put the car in gear and started driving. When I got to the stop sign, I didn't stop. I just was driving slow, and Terrance Travers told me to turn left, but it was too late for me to turn, so the guy with the gun to my head started hitting me with the gun on the right side of my head by my ear . . . . "
. . . "Then the guy with the gun to my head started smacking me with the gun again in the same spot by my right ear. Then Terrance Travers kept telling me to turn. So when I got to where East Paul Avenue and the Boulevard meet, I turned left on the Boulevard and started driving towards Southard Street. Then Terrance Travers started pushing the gun up against the back of Taahira's head and the guy started smacking me with the gun again by my right ear."
. . . "As I was driving down the Boulevard and getting hit, I kept taking my foot off the gas, so the car was driving real slow. And when we got to where Donnelly Homes is by Martin Luther King, Jr. School, I saw a white car double-parked by where the walk-through is."
"As I got closer to the car, I recognized the car, and knew it was one that the police use to patrol the area of the Donnelly Homes."
"So I stopped next to the white car and saw Officer Gairy standing by the car. When I saw Officer Gairy, me and Taahira started screaming, 'help, they're trying to rob us. They're trying to kill us. They got guns.'"
"After I yelled that, [Travers] jumped out of Taahira's car, and then the guy that had the gun to my head got out of the car and then he started to run. Then Officer Gairy instantly reacted and yelled for them to stop, but they kept on running."
"Then a short female officer ran towards us, and we told her that they were trying to kill us and that I think he left the gun in the back seat. The officer went and looked through the driver's side back door, and I was with her."
. . . "I was holding my head and there was blood coming from [my] head. Then we were standing on the sidewalk near the walk-through by Donnelly Homes, and everybody was telling me to sit down, but I felt so drowsy, I didn't want to sit down. So I hung around for a couple minutes."
"Then I walked through the walk-through holding my head, and I went to the store on Southard Street and waited for my friend to pick me up."
On cross-examination, LaGuerre testified that he had never been questioned by a Trenton police officer. When asked whether he knew why there was $8,400 cash in the Pacifica and why a Trenton Police K-9 dog "hit positive" for drugs in the vehicle, he responded "no" to both questions. He also specifically denied that Travers robbed or carjacked him on August 23, 2004.
Silver's trial testimony was also similar to her testimony at the hearing. She acknowledged that she recognized the statement as "the statement of [her]self" and that the signature on the statement "looks like it could be [hers]." However, she testified that she could not recall giving the statement, that she did not know what occurred on the evening of the incident, and that she did not recognize the answers within the statement.
As was done with LaGuerre, portions of her statement were read to her and she generally denied remembering the questions and answers. The ...