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State v. Yough

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 3, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STANFORD YOUGH, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-04-0402.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 6, 2010

Before Judges Fisher, Sapp-Peterson and Espinosa.

Defendant, Stanford Yough, appeals his conviction for second-degree robbery, N.J.S.A. 2C:15-1(b), and the fifteen-year aggregate term of imprisonment imposed, along with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). We reverse.

On appeal, he raises the following points for our consideration:

POINT ONE

THE PROSECUTOR'S INFLAMMATORY AND PREJUDICIAL CLOSING STATEMENT, COUPLED WITH THE TRIAL COURT'S FAILURE TO ISSUE A CURATIVE INSTRUCTION TO THE JURY, DEPRIVED THE DEFENDANT OF A FAIR TRIAL AND REQUIRES THE REVERSAL OF HIS CONVICTION (NOT RAISED BELOW).

POINT TWO

THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO GIVE A CURATIVE INSTRUCTION TO THE JURY AFTER ALVA'S TESTIMONY THAT HE HAD SEEN THE DEFENDANT ON SEVERAL PRIOR OCCASIONS IN PLACES THAT "DEALS IN DRUGS" (NOT RAISED BELOW).

POINT THREE

THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT'S MOTION FOR A MISTRIAL, OR, ALTERNATIVELY, BY ISSUING A CURATIVE INSTRUCTION, AFTER ALVA TESTIFIED THAT THE DEFENDANT HAD THREATENED HIM AFTER THE ROBBERY (RAISED IN PART BELOW).

POINT FOUR

DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL'S REFERENCES TO DEFENDANT'S INCARCERATION IN PASSAIC COUNTY JAIL, HAVING HIS "BAIL YANKED" AND, BY IMPLICATION, DEFENDANT'S MUG SHOT, DURING TRIAL COUNSEL'S CROSS-EXAMINATION OF THE WITNESSES (NOT RAISED BELOW).

POINT FIVE

THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO ISSUE A MISTRIAL SUA SPONTE AFTER NUMEROUS PREJUDICIAL REMARKS MADE BY DEFENSE COUNSEL (NOT RAISED BELOW).

POINT SIX

DEFENDANT'S ROBBERY CONVICTION MUST BE REVERSED BECAUSE THE JURY'S GUILTY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).

POINT SEVEN

THE TRIAL COURT ABUSED ITS DISCRETION IN HOLDING THAT THE DEFENDANT'S 1991 AND 1992 NEW YORK ROBBERY CONVICTIONS WERE NOT REMOTE AND, THEREFORE, ADMISSIBLE FOR PURPOSES OF IMPEACHING THE DEFENDANT'S TESTIMONY AT TRIAL.

POINT EIGHT

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL ON THE GROUNDS OF THE PROSECUTION'S ALLEGED DISCOVERY VIOLATION, OR ALTERNATIVELY, GRANTING AN EVIDENTIARY HEARING ON WHETHER THE PROSECUTION FAILED TO DISCLOSE RELEVANT EVIDENCE.

POINT NINE

THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING THE DEFENDANT AS A PERSISTENT OFFENDER AND IMPOSING AN EXTENDED TERM OF FIFTEEN YEARS IMPRISONMENT.

POINT TEN

THE ACCUMULATION OF ERRORS DEMAND THAT THE DEFENDANT BE RETRIED.

POINT ELEVEN

ALL ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF, IF ANY, MUST BE CONSIDERED IN SUPPORT OF THE INSTANT APPEAL.

Defendant also filed a pro se supplemental brief. It does not, however, comply with Rule 2:6-2(a)(1), which states that "the brief of the appellant shall contain... the point headings to be argued." The best we can glean from the pro se submission is that defendant contends the credibility of the State's witnesses was "questionable" and that he was "[un]aware of this incident and also that [he is] the wrong person."

I.

In Point Three, defendant urges that the court abused its discretion when it denied defendant's motion for a mistrial after the victim, Cesar Alva, during trial, responded to a question from the prosecutor with an answer indicating he saw defendant after the robbery on other occasions, including one occasion when defendant pointed and growled at him and another occasion when defendant choked him. We agree.

The robbery occurred around 1:00 a.m. on October 10, 2005. Shortly thereafter, Alva told police that he had been robbed and beaten by three assailants. He described his main attacker as a "black male, about 5'11", 200 pounds, bald head, very light complexed [sic]... he was wearing a grey sweat suit, and in his 20's[.]" Police were unable to locate the suspects that evening. Approximately one week after the robbery, Alva provided police with a written statement recounting the events surrounding the robbery. In his statement, he indicated that one of his attackers was a person, later identified as defendant, that he had seen "on the street near West Broadway and Main Street" in the past. Shortly before the robbery, that person came into a restaurant while he was ordering food and asked him for money. He initially told the person "no," but later relented and gave the person fifty cents. When the individual left, Alva saw him standing with a group of men and pointing at him while talking to these men. In the statement, he also indicated that prior to the robbery, he had seen this individual "two or three or maybe more" times.

At trial, however, Alva testified that he had seen the person about ten to fifteen times and identified defendant in court as that person. In an effort to impeach Alva, defense counsel confronted him with his earlier statement:

Q: Do you remember being asked a question, how many times have you seen him? Do you remember being asked that question by the Detective, when you -- I'm not talking about --

A: Yes.

Q: -- what you say -

A: Yes.

Q: -- is the truth now.

A: Yes, yes.

Q: I'm just asking, --

A: Yes.

Q: -- do you remember being asked, --

A: Okay.

Q: -- how many times have you seen him? Were you asked that question?

A: Can ask you -

Q: Yes or no.

A: -- can I give you that -

Q: No.

A: -- that question?

After this initial questioning, the court intervened and directed Alva to "just answer the question" when defense counsel poses a question and that if he needed to "bring out more information," the prosecutor would be given an opportunity to ask him more questions. Defense counsel then continued with his questioning:

Q: But you do remember being asked, on the night of the 19th, --

A: Uh-huh.

Q: -- 12 days after the incident, how many times have you seen him? Do you remember being asked that question?

A: Yes.

Q: And do you remember saying two or three, maybe more?

A: Yes.

Q: You remember saying two or three, maybe more?

A: Yes, yes, yes.

Q: But the Prosecutor asked you the same question; and you said, ten, maybe fifteen times?

A: Because he -- I see him many times on the street. And he come and he point at me like this and talk to another people like this, like this, (makes growling sound) like this.

Q: And that explains the --A. He followed me and -- okay.

THE COURT: No, No. You can keep answering. You -- you could explain your answer.

THE WITNESS: Well, another day I saw him, he was jogging.

[DEFENSE COUNSEL]: Your Honor, he's not --

THE WITNESS: Very dressed -

[DEFENSE COUNSEL]: -- Your Honor --

THE WITNESS: -- dressed very nice. Then, he very nicely dressed. He changed from anything.

[DEFENSE COUNSEL]: Your Honor, I'd like to be heard about --

THE WITNESS: And, when he -- when he choked me --

THE COURT: You want to be heard?

[DEFENSE COUNSEL]: Yes.

Defense counsel argued that the witness was being unresponsive, noting that he had not asked the witness an open-ended question, the witness was getting into an area about which the defense was unaware and into "an area that should have been given to [him] in discovery, if [the witness] is gonna [sic] have specific events and stuff like that." In response, the court concluded that the initial questioning about the number of times Alva saw defendant "invited the witness to explain why he said ten or fifteen times" and that Alva's response was not unresponsive. The prosecutor, in response to the court's inquiry as to whether Alva offered the State "anything contrary to in [sic] any substance to what he said in the discovery materials and did he in any way offer anything exculpatory or in your opinion anything that constituted Brady,"*fn1 stated: "Of course not judge." The court accepted this representation from the prosecutor as an officer of the court and determined not to proceed any further with the issue. Defense counsel, however, requested the opportunity to question Alva about the events he was describing. The court agreed and determined to conduct an N.J.R.E. 104 (Rule 104) hearing outside of the presence of the jury.

During the Rule 104 hearing, Alva explained that he had seen defendant ten to fifteen times after he had given his initial statement to the police a week following the robbery. However, he indicated that defendant did not see him on many occasions, only that he saw defendant. He also indicated that on one occasion when defendant did see him, such as in a store, defendant said: "Hello, buddy. And then he go and talk to another people. And saw him buy a stuff -- clothes and stuff[.]" Alva testified further that defendant tried to "[h]ide, hide. That --... -- that's the word." Alva also believed that he told the trial prosecutor that he had seen defendant after he gave the statement, and the prosecutor immediately represented to the court: "He didn't, Judge."

The court shortly thereafter asked the prosecutor whether he recalled Alva saying anything to him, to which the prosecutor responded, "No judge." Defense counsel attempted to address the court, but the court interrupted him, advising that if counsel wished to have a Brady hearing at some other time, the court would entertain the matter. Defense counsel then wanted to place on the record conversations he had with the prosecutor, and the court indicated to counsel: "That'll be fine. That'll be fine. Did you interview this witness at any time prior to today?" Defense counsel responded that he did not believe he was under any obligation to answer questions if the court was not requiring the prosecutor to do so. Defense counsel also expressed his belief that the trial had been tainted by Alva's testimony, implying that defendant had threatened him, essentially witness tampering, and the unlikelihood that defendant could get a fair trial because "[t]his jury now thinks that my client has threatened this guy." The court did not press defense counsel to answer its question, but thereafter denied the mistrial motion, finding that nothing improper or prejudicial had occurred.

After the court's ruling, defense counsel raised what he perceived as an additional problem caused by Alva's trial testimony, namely, in his opening statement he had indicated to the jury that Alva had not seen defendant in two years, and in light of Alva's trial testimony, that defense had been "completely kill[ed]." The court, having been reminded of defense counsel's opening, reversed its ruling that the State could attempt to have the witness explain what appeared to be an inconsistency between the statement and trial testimony and ruled that the prosecutor would not be permitted to do so. Both counsel subsequently represented to the court that they did not intend to delve into the circumstances surrounding the alleged post-robbery encounters.

When testimony before the jury resumed, the prosecutor, albeit indirectly, revisited the matter, but only in relation to the number of times Alva saw defendant, not as to the circumstances:

Q: I just wanted to briefly cover one of the questions that you were asked on cross. I want to make sure that the whole thing is in the record. You were asked the question, "how many times have you seen him?" Do you see that there? Can you read that in English, "how many times have you seen him?"

A: Yes.

Q: And 'A,' means that answer.

A: Yes.

Q: "Two or three, maybe more."

A: Yes.

Q: You said that to the --A. Yes.

Q: -- to Detective Barone?

A: Yes.

Q: But then -- then you were asked the next question, "Q," you see it?

A: Uh-huh.

Q: "Under what circumstances did you see him?"

A: Yes, yes.

Q: And "A," answer, "I always saw him on the street" -

A: Uh-huh

Q: -- "near West Broadway and Main Street. He just hangs out there, but I never talk to him." Is that your answer?

A: Yes.

Q: So, did you see him more than two or three times?

A: Yes.

Defense counsel did not engage in any re-cross-examination of Alva on this subject. That portion of Alva's testimony about defendant "pointing" at him and "choking" him was not raised by the prosecutor in his summation, and the only reference to how many times Alva saw defendant following the incident was raised by defense counsel in his closing argument. Defense counsel sought no curative instruction from the court regarding Alva's testimony that defendant choked him, pointed at him and made a growling sound; nor did defense counsel object to the court's jury charge.

In addition to arguing that the court abused its discretion in denying a mistrial, defendant, for the first time, argues that Alva's testimony about the pointing, choking, and growling constitutes prior bad acts. While there is no question that the jury heard Alva's testimony about other contacts defendant had with him, during the Rule 104 hearing, Alva's testimony did not clarify when those encounters occurred. The questioning of Alva during the Rule 104 hearing focused upon the number of times he allegedly saw defendant and whether the State had engaged in any Brady violations, which the court chose not to resolve at that time. Thus, it is unclear whether this testimony was impermissible prior bad acts, N.J.R.E. 404(b), res gestae*fn2 evidence or, as defense counsel suggested, evidence of witness tampering. The record, however, demonstrates that the jury could have reasonably inferred from Alva's testimony that these encounters, if they occurred, happened after the robbery, unquestionably suggesting that defendant was attempting to intimidate Alva following the robbery, a circumstance that could bolster Alva's testimony of his certainty that defendant was one of the persons who robbed him during the early morning hours of October 10, 2005.

A mistrial is an extraordinary remedy that should be granted only to prevent a manifest injustice. State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994) (citing State v. Lozada, 257 N.J. Super. 260, 277 (App. Div. 1992)), certif. denied, 139 N.J. 442 (1995). A mistrial is warranted only when an error cannot be remedied by an instruction to the jury or some other curative action. State v. Winter, 96 N.J. 640, 646-47 (1984). A denial of a mistrial motion is reviewed on appeal under an abuse of discretion standard. Id. at 647 (noting that a mistrial is "peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting").

Here, defense counsel never asked Alva under what circumstances he saw defendant. Rather, defense counsel merely asked Alva whether, during his interview with police, he remembered being asked how many times he had seen defendant and responding "two or three, maybe more." When he proceeded to talk about the pointing and growling, defense counsel did not object but attempted to ask, "And that explains the --." Alva then proceeded to testify about defendant following him, but before completing this testimony, Alva says, "okay." Apparently, the "okay" response was the result of Alva receiving some signal from either the prosecutor or defense counsel to stop his testimony at that point. However, because the court interjected and told Alva that he could keep answering and that he "could explain [his] answer," Alva then proceeded to testify about seeing defendant on another occasion being "very nicely dressed," at which point defense counsel asked to be heard. Apparently, before the court could respond to defense counsel's request, Alva continued with his testimony and then testified, "And, when he choked me --[,]" prompting the court at that point to intervene and ask defense counsel whether he wished to be heard.

The court, in denying the mistrial motion, concluded that defense counsel had invited the responses and found nothing improper about the responses. We disagree.

First, the record clearly demonstrates Alva's responses were not invited by defense counsel's questions. Moreover, the answers were completely unresponsive and, at the very least, suggestive of inadmissible prior bad acts or worse, as defense counsel argued before the court, witness tampering. Had the court ruled that Alva's testimony was unresponsive, defense counsel would then have been poised to seek to strike the testimony and request a curative instruction. In light of the court's erroneous ruling, however, the inadmissible and highly prejudicial evidence was not susceptible of being cured by a cautionary or limiting instruction. Id. at 646-47.

Once the trial court determined that Alva's responses were "invited" by defense counsel's questions and not "improper" or "prejudicial," there was nothing to cure or to strike. The sole witness to the robbery was Alva, whose credibility was critical to the State's case. There was no other direct or indirect evidence implicating defendant other than Officer Hicks' testimony that he knew defendant from patrolling the area around the restaurant. That defendant frequented the area is hardly sufficient to sustain a robbery conviction. State v. Kamienski, 254 N.J. Super. 75, 97 (App. Div.), certif. denied, 130 N.J. 18 (1992); Model Jury Charge (Criminal), "Liability for Another's Conduct" (1995) ("Mere presence at or near the scene does not make one a participant in the crime[.]"). Therefore, Alva's testimony suggesting post-robbery encounters with defendant where defendant threatened him was especially damaging because it had the capacity to improperly bolster Alva's identification of defendant.

There is no dispute that identification was critical to the State proving its case against defendant. Defense counsel's theory of defense was misidentification. Alva described his main attacker as a "black male, about 5'11", 200 pounds, bald head, very light complexed [sic]... he was wearing a grey sweat suit, and in his 20's[.]" There was testimony from Officer Hicks, under cross-examination, that the photograph of defendant that Alva selected, at least in his opinion, did not depict someone in his twenties. The parties stipulated that the photograph of defendant had been taken on November 16, 2003, two years prior to the robbery and when defendant was forty-five years old, twice the age of the description Alva gave police of his assailant. Because the jury's determination of Alva's credibility was crucial to the State meeting its burden of proof beyond a reasonable doubt, the court's erroneous ruling effectively aided the State in bolstering Alva's testimony. The jury was more likely to find Alva's identification testimony more reliable when his photographic identification is considered, along with testimony that suggested on subsequent occasions, defendant had pointed and growled at him and also choked him. Thus, the court's ruling that this testimony was "responsive," not "improper," and not "prejudicial," was sufficiently egregious, resulting in substantial prejudice to defendant that was incapable of dissipation by other remedial measures. Winter, supra, 96 N.J. at 646-47. We are therefore constrained to reverse defendant's conviction and remand for a new trial.

In view of this determination, we deem it unnecessary to consider the remaining points advanced by defendant.

Reversed and remanded for a new trial.

ESPINOSA, J.S.C., t/a, dissenting.

A trial court "should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997). Because the trial court "has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting," State v. Winter, 96 N.J. 640, 647 (1984), an appellate court "should defer to the decision of the trial court [and] will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of discretion that results in a manifest injustice." Harvey, supra,, 151 N.J. at 205. See also State v. Kueny, 411 N.J. Super. 392, 403 (App. Div. 2010); State v. Thompson, 405 N.J. Super. 76, 83 (App. Div.), certif. denied, 199 N.J. 133 (2009).

The alleged error here is that a prejudicial comment was volunteered by the victim during cross-examination. When, as here, "an error is not of constitutional dimension, 'it shall be disregarded by the appellate court 'unless it is of a nature as to have been clearly capable of producing an unjust result[.]" Winter, supra, 96 N.J. 640, 647-648 (quoting State v. LaPorte, 62 N.J. 312, 318-19 (1973)). Even when the error involves evidence that is clearly inadmissible or prejudicial, a mistrial is not warranted unless this standard is met. E.g., Winter, supra, 96 N.J. at 644 (Supreme Court reversed Appellate Division and reinstated conviction, affirming trial court's denial of mistrial based upon medical examiner's reference to victim's statement, "she's trying to murder me," made after court had ruled such evidence inadmissible); La Porte, supra, 62 N.J. at 318-19 (Supreme Court reinstated conviction in capital murder case, in part finding that mistrial not required by introduction of investigator's reference to polygraph results as basis for eliminating another as suspect, despite fact that such evidence was clearly inadmissible); State v. Brown, 325 N.J. Super. 447, 452 (App. Div. 1999) (affirming trial court's denial of motion for mistrial based on "clearly inadmissible" hearsay evidence of identifications by non-testifying juveniles), certif. denied, 163 N.J. 76 (2000). Even in a case involving allegations of willful misconduct by the prosecutor, the Supreme Court stated, "Because motions for mistrial based on misconduct should be granted only where manifest injustice would otherwise result, the trial court was correct that none of these complained of acts, even to the extent that they did constitute improper actions, warranted declaring a mistrial." State v. LaBrutto, 114 N.J. 187, 207 (1989) (citation omitted).

As the majority has observed, the credibility of Alva's identification of defendant was a central issue in this case.

In Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382 (1972), and United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 1940, 18 L.Ed. 2d 1149, 1165 (1967), the Supreme Court set forth the following factors as relevant to a consideration of the trustworthiness of an identification: (1) the witness's opportunity to view the person who committed the offense at the time of the offense; (2) the witness's degree of attention to the perpetrator at the time of the offense; (3) the accuracy of any description the witness gave prior to identifying the perpetrator; (4) the degree of certainty expressed by the witness in making any identification; (5) the length of time between the witness' observation of the offense and the first identification. See also State v. Madison, 109 N.J. 223, 239-240 (1988). See also State v. Cherry, 289 N.J. Super. 503, 520 (App. Div. 1995).

Although there were inconsistencies between Alva's initial description of his assailant and defendant's appearance, consideration of the remaining factors here strongly supports the trustworthiness of Alva's identification.

First, Alva selected defendant's photograph just seven days after the robbery. At the pretrial conference, defense counsel conceded that there was no evidence of any suggestive procedures to warrant an evidentiary hearing. See Wade, supra, 388 U.S. 218, 87 S.Ct. 1926, L.Ed. 2d 1149. Alva also made an in-court identification of defendant.

Alva's testimony of the events before and during the robbery shows that he had repeated and sustained opportunities to observe his assailant and did so with a heightened concern for his safety.

He testified that defendant approached him in the restaurant and asked him for fifty cents. When Alva declined, defendant followed him to the window where Alva placed his order. Defendant remained in close proximity, peering over his shoulder to see the contents of Alva's wallet. After Alva paid for the chicken, defendant again engaged him in conversation, asking him for a dollar. Alva said that he would give him fifty cents and put the coins on a shelf. Defendant said, "you have a dollar." Alva replied, "I don't have a dollar. You asked me for fifty cents." He then said that if defendant did not want the fifty cents, he would take it. Defendant then said, "no, no, no, no," took the fifty cents and went outside the restaurant. As Alva was waiting for his chicken, he observed defendant standing outside, talking to two other men and pointing to him inside the store. He was concerned that they were going to assault him. When he left the store and walked toward his car, he was attacked. The assailants punched him, causing him to fall to the ground, where they continued to punch and kick him. Alva testified that he saw defendant's face as he was lying on the ground. Alva asked him to stop and asked what he wanted. Defendant answered that he wanted Alva's wallet. Alva testified that he saw defendant's face again when he stood up to hand defendant his wallet. He engaged in further conversation with defendant, asking to keep his wallet and personal papers. Defendant agreed.

Alva's testimony therefore establishes that he became aware of defendant by his persistent requests for money; that defendant's conduct caused him to be concerned for his safety; that as a result, he continued to observe defendant even after he left the restaurant to stand with two men outside; that he had at least two opportunities to observe defendant's face during the course of the robbery and had a final face to face conversation with defendant about keeping his wallet. These observations were made not casually but with an escalating concern for his personal safety that caused Alva to be more alert about defendant's movements.

Alva also testified to his certainty in identifying defendant. Describing the statement he gave to the police, he said:

He asked me many, many, many times if I'm sure, I'm sure. And I said, I swear to God, you can kill me, this is the guy. You - you ask me the same thing and all the time I'm going to say yes, he - he is.

There was, then, a strong evidential basis for the jury to accept Alva's identification of defendant as trustworthy. The jury also had the opportunity to weigh to what extent they should discredit Alva's testimony based upon defense counsel's vigorous attacks. Defense counsel challenged him by pointing out inconsistencies between his initial description of the robber and defendant's appearance, and whether Alva could recall certain details of the robber's appearance on the night of the robbery. Therefore, the jury had a full and fair opportunity to assess the credibility of Alva's identification.

It was during that cross-examination that counsel questioned Alva about an apparent inconsistency between his statement to the police that he had seen defendant two or three times before the robbery and his answer to the prosecutor that he had seen defendant "Like ten, fifteen times. Many times." Here, it should be noted that English is Alva's second language and that he testified in English with an interpreter on standby to assist if needed. The transcript of the inception of this line of questioning indicates that defense counsel and the witness interrupted each other to the point that the court intervened and instructed the witness to answer the question as posed by counsel. It was in response to defense counsel's question regarding the disparity in the two answers that Alva provided the testimony that was an apparent attempt to explain the disparity: stating that he had seen defendant "many times on the street. And he come and he point at me like this and talk to another people like this, like this[.]" Alva made a growling sound to accompany this statement. Alva also stated that he had seen defendant on another day, jogging and very nicely dressed. Once again, the transcript reflects that defense counsel repeatedly interrupted as Alva attempted to explain. It was during this series of interruptions that Alva made the fleeting comment, "when he choked me" that was not even part of a completed sentence.

The court questioned Alva out of the presence of the jury so that counsel would not be further surprised by any explanation he offered to explain the disparity. Although defense counsel complained of surprise, he declined to answer the court when asked whether he had interviewed Alva prior to trial. While he argued that his question required only a simple yes or no answer from Alva, his question did not demand such a response.

The trial judge engaged in a protracted discussion with counsel on this issue and set forth his impressions:

On cross, [defense counsel] confronted [Alva] with his prior statement and asked him, if he recalled being asked how many times he'd see[n] this person who attacked him. And the answer was two or three, maybe more. And [defense counsel] followed that -- and he - - he acknowledged that yes, he had said that. [Defense counsel] followed that question with today, you told the Prosecutor, you said you had seen him ten or fifteen times. And the witness basically started to say ["]yes. Let me explain how I - - why I said ten or fifteen times today. I've seen him on different occasions, when he's pointed at me. I've seen him at different locations.["] And he started to give the answer. My impression, and the reason I didn't stop him, this question invited the witness to explain why he said ten or fifteen times today.

....

I don't think the answer was unresponsive.... [I]n essence, what you're doing is, you prepondered [sic] a question, the witness started to answer it. You['re] objecting on the grounds that his answer is not responsive and he's going beyond the scope of the question that was presented. I don't see this particular point that way. Because, in [e]ffect you're impeaching the witness, in [e]ffect saying, to him, you'[v]e said something that's inconsistent with your testimony today. He has the right to say ["]no, wait a minute. I'm not saying something today that's inconsistent. Let me explain to you why these two answers are consistent.["]

Finding that nothing improper or prejudicial had occurred, the court denied the motion for a mistrial. Initially, the court stated that if the defense wanted to clarify Alva's statements, it would be permitted to do so and that the prosecution would be only permitted to do so on a limited basis and that, if either side elected to do so, he would give a limiting instruction to the jury.

At this point, defense counsel stated that he had made an opening statement "totally about the fact that [Alva] hasn't seen [defendant] in 2 years" and that this development "completely kills our defense." A review of defense counsel's opening statement reveals this characterization to be a gross exaggeration, as he made only fleeting references to "two years" in his opening:

[T]his will be the first time he's actually seen Mr. Yough, unless you believe he didn't make a mistake almost 2 years ago.... But it's not that he ID'd Stanford Yough 2 years ago. He picked a picture out of a bunch of pictures, and said, that looks like him."

Solicitously, the trial court altered its ruling to address this concern and, noting that the defense did not want to explore this area further on cross-examination, directed the prosecutor to refrain from further questioning in this area on re-direct. There was no request for a limiting instruction, an apparent strategic decision not to highlight Alva's comment.

The evidence of defendant's guilt was strong. Alva was able to observe him over an extended period of time and was unwavering in his identification. If believed, his testimony was sufficient to convict defendant. The comments complained of were fleeting in nature and made during an apparently heated exchange in which the witness and defense counsel continually interrupted each other. It is difficult to appreciate how a reference to defendant choking Alva that was not even part of a complete sentence could unfairly prejudice defendant within the context of testimony that he repeatedly punched and kicked a fifty-two year old man whose physical ailments made it difficult for him to either sit or walk. The trial judge's opportunity to get the feel of the case at the time the comments were made is plainly superior to an appellate court's reading of a cold transcript. I am also unpersuaded that manifest injustice was created because Alva's testimony contradicted defense counsel's imprudent and passing reference to the passage of two years in his opening. Giving appropriate deference to the trial judge's feel for the case, his thoughtful consideration of the issue, and the strength of Alva's identification of defendant, I cannot conclude that a mistrial was required here "to prevent an obvious failure of justice." Harvey, supra, 151 N.J. at 205. Therefore, I respectfully dissent.


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