September 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
OMAR BRIDGES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 05-11-2686 and 05-11-2687.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 28, 2010
Before Judges Cuff, Payne and Waugh.
Defendant Omar Bridges was charged and tried by a jury under two indictments. Under Indictment No. 05-11-2686, defendant was found guilty of first degree attempted murder, N.J.S.A. 2C:11-3, N.J.S.A. 2C:5-2 (Count One); two counts of second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Counts Two and Four); third degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b (Count Five); second degree unlawful possession of a firearm, N.J.S.A. 2C:39-4a (Count Six); second degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5f (Count Seven); third degree receiving stolen property, N.J.S.A. 2C:20-7 (Count Nine); and second degree eluding, N.J.S.A. 2C:29-2b (Count Ten). Under Indictment No. 05-11-2687, a jury found defendant guilty of second degree certain person not to have weapons, N.J.S.A. 2C:39-7b.
On Indictment No. 05-11-2686, the judge merged Count Two with Count One and Count Six with Counts One and Four. On Count One, defendant was sentenced to a twenty-year term of imprisonment with an 85% No Early Release Act (NERA)*fn1 period of parole ineligibility. On Count Four defendant was sentenced to a term of ten years imprisonment subject to NERA, consecutive to Count One. On Count Five, defendant was sentenced to a five-year term of imprisonment, consecutive to Count One. On Count Seven, defendant was sentenced to a five-year term of imprisonment with a two-year six-month period of parole ineligibility, consecutive to Count One. On Counts Nine and Ten, defendant was sentenced to five-year terms of imprisonment, concurrent to Count One. On the certain person not to have a weapon charge in Indictment No. 05-11-2687, defendant was sentenced to a ten-year term of imprisonment with a five-year period of parole ineligibility, consecutive to Count One of Indictment No. 05-11-2686. His aggregate term is fifty years in prison with a thirty-three-year period of parole ineligibility.
Defendant was the passenger in a stolen Jaguar when a gun battle erupted between pursuing police officers and the occupants of the Jaguar. One of the officers was shot in the shoulder and face. The evidence against defendant consisted of defendant's cell phone found several blocks from the shootout near a gun and gloves, and eyewitness testimony by one of the pursuing police officers and a co-defendant, Alphonse Ollie. The State's witnesses contend defendant was sitting in the back seat of the Jaguar and was the only person to fire at the officers. Defendant asserts he was in the front seat and Ollie was the shooter.
We reverse and remand for a new trial due to the absence of a jury charge to guide the jury's evaluation of the wounded police officer's identification of defendant and the persistent denigration of defense counsel by the prosecutor, repeated efforts to have defendant characterize the State's witnesses as liars, the prosecutor's disparagement of defendant as a liar, and several instances of wholly improper comments during the prosecutor's summation.
At about 3:45 a.m. on October 9, 2004, Police Officers Eduardo Patinho and Kimberly Gsavatich were on routine patrol in Newark. As they approached the intersection of Orange Street and Boyden Street, they observed an exchange of gunfire between the occupants of a silver Jaguar and a black Subaru.*fn2 Both officers witnessed shots being fired at the Subaru from the passenger seat behind the driver of the Jaguar.
Officer Patinho, the driver of the squad car, testified he pulled within half a car length from the Jaguar. Officer Gsavatich, who testified that she and Officer Patinho approached within one car length of the Jaguar, observed four people in the Jaguar. Although she recorded four passengers in the Jaguar in her report prepared shortly after the incident, she equivocated on the number on redirect examination.
As the officers approached, both vehicles sped away. The Subaru drove southbound on Boyden Street, and the Jaguar drove westbound on Orange Street. The officers activated their sirens and spotlight and pursued the Jaguar, at times reaching speeds between ninety and 100 miles per hour. During the pursuit, the Jaguar hit the rear of a tractor trailer but continued. Both the Jaguar and the squad car went airborne after passing over a railroad crossing and hitting an embankment. This caused the Jaguar to "bottom out its transmission." The Jaguar continued very slowly until it finally stopped approximately ten yards from the intersection of 6th Street and 7th Avenue.
Officer Patinho stopped the squad car behind the Jaguar, and both officers exited the car with their weapons drawn. Patinho walked towards the driver's side of the Jaguar; Officer Gsavatich walked towards the passenger side. Patinho ordered all of the occupants in the vehicle to show him their hands. The passenger in the rear driver side seat "peeked" his head out of the window, fired a gun through the open back window and struck Officer Patinho in the shoulder. Patinho was approximately ten feet from the car. Patinho testified he did not clearly see the gun or the shooter because the shooter was crouching down in the back seat as he fired. Nevertheless, he was able to identify defendant as the rear driver side passenger. He testified he saw defendant when he "peeked out" the window immediately prior to firing.
Both officers immediately opened fire concentrating on the rear driver's side of the car. Patinho, shot in the mouth and bleeding profusely, continued to fire his gun until his ammunition was spent. He then returned to the police car, sat on the ground, and awaited medical assistance.
Both officers saw the driver and the front passenger of the Jaguar exit the car and run. Gsavatich never saw the purported shooter get out of the car or where he went. She never saw his face, and did not identify him at trial.
Arthur Hilton, a security officer at the Garden Spires Housing complex in Newark, was notified at approximately 3:50 a.m. that a man, later identified as defendant, hopped over the complex's steel fence. Hilton observed defendant on the security monitor enter and exit two buildings before he proceeded to the security office. Defendant asked Hilton if he could call for a cab, and Hilton lent him his cell phone. A cab pulled up a few minutes later; defendant left the complex in the taxi at 4:18 a.m.
Detective Thomas Kelly of the Essex County Prosecutor's Office arrived on the scene at approximately 6 a.m. He observed seven or eight bullet holes in the Jaguar dispersed throughout the rear driver's side door, quarter panel and windshield. He reported that officers recovered a total of twenty-two shell casings in the vicinity of the Jaguar and police vehicle. Thirteen came from Patinho's gun, two from Gsavatich's gun. Only one nine millimeter shell casing was discovered inside the Jaguar, seven non-police casings were found on the street. Additionally, Detective Kelly testified that he and other officers found five nine millimeter shell casings at the scene of the initial shootout between the Jaguar and the Subaru near the intersection of Orange and Boyden and two more at the intersection of North 5th Street and 7th Avenue. Officers also found a silver Nextel cell phone lodged between the driver's side seat and the door abutment of the Jaguar. Detective Kelly later determined that the phone belonged to co-defendant Ollie.
Officers also found blood in the back of the Jaguar. The blood did not match defendant's DNA. Blood samples were not taken from the co-defendants.
Police recovered the Subaru later on the morning of the shootout. No one was found inside the vehicle. It bore two bullet holes, one through the windshield and one through the passenger side door.
Defendant was injured during the exchange of shots. Shortly before 7:00 a.m., co-defendant Ollie asked his girlfriend, Kimberly Moore, to assist defendant. Moore, a nursing assistant, informed Ollie she could not remove a bullet, but gave him a first aid kit.
At this time, Ollie told Moore that he lost his phone when he was running from the police and defendant was with him at the time. In her statement to police, Moore reported that Ollie told her defendant was shot in the leg and another person was shot in the "butt." She did not know the identity of the other wounded person.
By 8:30 or 9 a.m., defendant was on his way to a hospital in Easton, Pennsylvania by car. The trip was organized by Johntaya Turner, a friend of defendant. When they arrived at Easton Hospital, defendant sought only emergency care. He identified himself to an emergency room nurse as Shariff Johnson and said he was shot in a nearby club. Defendant eventually consented to emergency surgery.
The next day, Detective Barry Golazeski of the North Hampton County District Attorney's Office interviewed defendant at the hospital. Detective Golazeski testified defendant identified himself as Shariff Johnson and stated he lived in Nagituck, Connecticut. Defendant told the detective he was shot when an argument erupted in a bar in Easton, but he did not immediately realize he was injured. Golazeski took defendant's photograph and fingerprints and later discovered his true name and address.
Further investigation revealed a person, Nelson Nieves, who observed four people running from the Jaguar, two running up 7th Avenue and two running down it. Johntaya Turner, the woman who drove defendant to the hospital, also identified a photograph of DeShawn Davis, also known as "Nitti," who defendant maintained was also in the back of the Jaguar. He has never been located.
Alfred Santiago, who lives approximately two-and-a-half blocks from the shootout between the occupants of the Jaguar and police, found a gun in a pile of trash approximately four or five feet behind his house. Police recovered a loaded Tech Nine gun, two gray Nike batting gloves, and a Motorola cell phone approximately fifteen to twenty feet from the gun. Police were unable to recover any fingerprints from any of these items. The gloves were tested for DNA, but the results only proved that the wearer was male. The cell phone belonged to defendant.
Co-defendant Ollie was arrested on October 12, 2006. At trial, Ollie admitted he had entered a plea agreement and had not been sentenced.*fn3 He explained that his nickname was "Speedy" due to his ability to steal cars quickly. He admitted he stole the Jaguar from the Sheraton Hotel. He testified he was with defendant and Kareef Ford, known to him as "Shoeshine," when he stole the car. Ollie returned to Newark around midnight and went to a Bloods street gang meeting at Minks, a local bar. When he left the meeting at approximately 2 a.m., members of a rival gang, the Crips, pulled up in a black Subaru and asked him, "what was cracking." Ollie testified the statement is disrespectful to Bloods, so he found defendant and co-defendant Rasheem Woods and they searched for the Subaru.
Ollie identified himself as the driver of the Jaguar. Woods sat in the front seat; defendant sat behind Woods armed with a Tech Nine. He further stated that, when they found the Subaru, defendant shot at it and an unidentified blue car. As he drove down Orange Street towards 1st Street, Ollie noticed the sirens and lights of a police car behind the Jaguar. He sped away.
Ollie recounted the high-speed attempt to elude the police and how the Jaguar stopped after its oil pan was damaged. According to Ollie, he fled immediately on foot. During his flight, he heard shots behind him. Ollie also testified that Woods climbed out of the front passenger-side window, and defendant also got out of the car. He insisted neither he nor Woods had a weapon, and defendant was the only one who fired at the police. Ollie said that the next time he saw defendant was at defendant's mother's house, and defendant was bleeding from a gun shot wound.
Defendant testified on his own behalf and admitted that he drove Ollie and Shoeshine to the Sheraton Hotel where they stole the Jaguar. He asserted that Ollie and Shoeshine drove off in the Jaguar and he did not see Ollie again until approximately 11:30 p.m. in Newark when Ollie and his friends were playing "chase" with the occupants of the Subaru. Defendant said he also saw Ollie and Woods later that night at Minks, and he left with them at approximately 2:50 a.m. Woods, or "Rocky" as defendant referred to him throughout his testimony, was going to drive him to his girlfriend's house. He also said he lent Ollie his cell phone.
Defendant testified that Woods drove and he was in the front passenger seat. He explained he is six feet six inches tall and never sits in the back seat of any car because he cannot fit. Defendant maintained that Ollie was in the back behind Woods and Nitti was in the seat behind him. Defendant said he was drunk, fell asleep, and awoke to the sound of gun shots as they approached his girlfriend's house near the Orange Street and Boyden Avenue intersection. The next thing defendant knew, they were being chased by police.
Defendant insisted when the car came to a stop on 6th Street, Ollie was the shooter. He said he climbed out of the car window and felt a burning sensation in his stomach, but continued to run around the car and down 7th Avenue. He claimed that Nitti was also injured. Defendant testified he went to the Spires Housing complex to get a ride home from a friend. When he learned his friend was not at home, he borrowed a cell phone, called a cab, and went home.
Defendant explained that he did not feel any pain until the next day, and did not realize he was bleeding until he showered and saw blood. He then called Turner to pick him up. Turner, Ollie, Woods, and Nicole, a friend of Turner, arrived shortly thereafter. Ollie went to his girlfriend's house to get a medical bag and, when he came back, reported that his girlfriend refused to help. Defendant testified he went to Latesha Green's home because her mother was a nurse, but her mother just looked at the wound. Turner then arranged a meeting at a gas station and they left from there to go to a hospital.
On appeal, defendant raises the following arguments:
BECAUSE THE IDENTITY OF THE SHOOTER WAS THE CENTRAL ISSUE IN THIS CASE, AND BECAUSE THE ONLY IDENTIFICATIONS OF THE DEFENDANT WERE EXTREMELY UNRELIABLE, THE TRIAL COURT'S FAILURE TO GIVE THE JURY AN IDENTIFICATION CHARGE AND INSTRUCT THEM THAT THE STATE HAD TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND WAS CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT IN THIS CASE. U.S. CONST., AMENDS. VI, XIV; N.J. CONST., (1947), ART I., 1, 9, 10 (Not Raised Below).
THE ACCOMPLICE LIABILITY CHARGE, WHICH WAS GIVEN OVER THE OBJECTION OF DEFENSE COUNSEL, WAS INAPPLICABLE HERE AND SERVED ONLY TO CONFUSE THE JURY, DENYING THE DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. Const., Amend. XIV; N.J. Const., Art. 1, ¶ 10.
THE PROSECUTOR'S OUTRAGEOUS AND PERVASIVE MISCONDUCT DENIED THE DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10. (Partially Raised Below).
A. The Prosecutor Repeatedly Denigrated the Defense and The Defense Attorney.
B. The Prosecutor Persisted in Calling the Defendant A Liar and Tried to Goad the Defendant into Labeling State's Witnesses as Liars.
C. The Prosecutor Impermissibly Vouched For His Witnesses.
D. The Prosecutor Misstated Law and Facts.
E. The Prosecutor Improperly Appealed to the Jury to Do Its Duty.
BECAUSE, AS THE TRIAL COURT ACKNOWLEDGED, DEFENDANT WAS NOT THE DRIVER OF THE CAR AND THE STATE PRESENTED NO EVIDENCE THAT HE SOLICITED OR AIDED THE DRIVER TO ELUDE THE POLICE, THE CHARGE OF ELUDING SHOULD HAVE BEEN DISMISSED AND MUST BE REVERSED. (Not Raised Below).
In a pro se supplemental brief, defendant raises the following arguments:
UNITED STATES SUPREME COURT DECISION IN HOLMES V. SOUTH CAROLINA AND THE NEW JERSEY DECISIONS, STATE V. COOK AND DEMARCO REQUIRE THIS COURT TO REVERSE AND REMAND FOR NEW TRIAL.
DEFENDANT WAS DENIED THE RIGHT TO CONFRONT THE DNA ANALYST IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION AND AGAINST THE N.J. CONST. ART. 1 PARAGRAPH 10.
WHERE THE STATE HAS DELIBERATELY WITHHELD EVIDENCE OF A POTENTIAL CLAIM AND EVEN DENIED THE EXISTENCE OF EVIDENCE OF THE CLAIM, THE INTEREST OF JUSTICE REQUIRE THAT THE STATE BE BARRED FROM OBJECTING TO THE ASSERTION OF THE CLAIM ONCE RELEVANT EVIDENCE COME TO LIGHT.
Defendant argues the jury charge is flawed in two respects. First, he contends the trial judge should have provided a sua sponte instruction on the issue of identification. Second, he argues that the judge erred in providing an accomplice liability charge. Under the circumstances of this case, we hold that the judge properly delivered an accomplice liability charge but should have provided an instruction to guide the jury's evaluation of Officer Patinho's identification of defendant as the shooter.
It is well settled that appropriate and proper jury charges are essential in a criminal case to assure a fair trial. State v. Reddish, 181 N.J. 553, 613 (2004); State v. Green, 86 N.J. 281, 287 (1981). When a defendant identifies an error in the charge, we must evaluate the charge in its entirety. State v. Figueroa, 190 N.J. 219, 246 (2007); State v. Wilbely, 63 N.J. 420 (1973).
Although a flawed jury charge is a poor candidate for rehabilitation or the application of the harmless error rule, State v. Simon, 79 N.J. 191, 206 (1979), a defendant must still demonstrate that the error affected the outcome of the jury's deliberations, State v. Jordan, 147 N.J. 409, 422 (1997). When a defendant fails to object to the alleged error at trial, we must apply the plain error standard of review. Thus, we must determine whether any error contributed to an unjust and unwarranted result. State v. Macon, 57 N.J. 325, 333 (1971); R. 2:10-2.
A. The Accomplice Liability Charge
Defendant argues there was no basis to provide an accomplice liability charge. In support of this argument, he concentrates solely on his testimony in which he recounted he was a passenger in the front seat of the Jaguar and had fallen asleep. He awoke as the encounter with the black Subaru erupted into gunfire. Having been unaware of the search for the Subaru and the purpose of that search, he reasons he was simply present at the scene and an innocent bystander as gunfire erupted, and the driver fled from the scene and embarked on a high speed chase. We disagree.
When a charge is requested by a party, the trial judge is required to review the record and provide the requested charge if there is sufficient evidence in the record to allow the jury to reasonably find the existence of each element of the offense as a principal or an accomplice. State v. Wilder, 193 N.J. 398, 406-07 (2008); State v. Roach, 146 N.J. 208, 223 (1996). Accomplice liability need not be charged in the indictment.
State v. Hakim, 205 N.J. Super. 385, 388 (App. Div. 1988). "Where the evidence indicates a rational basis for accomplice liability, the judge can charge the jury on that basis even though the indictment does not expressly allege" such a theory of liability, and the trial judge may do so "even without the request of either party." Ibid. Accord State v. Mancine, 124 N.J. 232, 256-57 (1991). See also, State v. Savage, 172 N.J. 374, 396-98 (2002) (explaining the different tests for requested and unrequested jury charges in the context of charging lesser-included offenses). When an instruction is given that "'correctly states the law, but is inapplicable to the facts or issues before the court . . . prejudice must be shown in order to constitute it reversible error.'" State v. Moore, 330 N.J. Super. 535, 542 (App. Div.) (quoting State v. Thomas, 76 N.J. 344, 365 (1978)), certif. denied, 165 N.J. 531 (2000).
If the trial record supports a conviction as a principal, an accomplice, or a co-conspirator, the judge should charge the jury on each theory. Roach, supra, 146 N.J. at 223. Here, the trial record clearly supported an accomplice liability instruction. Defendant would have us discount all other evidence in the case and accept his version of events as true. That is not the applicable standard. The trial judge must focus on the entire record not simply the testimony offered by one witness. In short, this argument is without merit.
Defendant also argues that the trial judge should have provided an identification charge to guide the jury's evaluation of the testimony of Officer Patinho and co-defendant Ollie. The State responds that the extensive credibility instruction provided by the trial judge adequately addressed his concerns. Given Officer Patinho's limited opportunity to view the shooter, an identification charge was critical to allow the jury to properly evaluate the in-court identification by the victim of his assailant.
We evaluate this claim of error in accordance with the plain error standard. Macon, supra, 57 N.J. at 337-38; R. 2:10-2. We will not consider error harmful unless it contributed to an unfair result. Macon, supra, 57 N.J. at 337-38.
"It is well established . . . that when identification is a critical issue in the case, the trial court is obligated to give the jury a discrete and specific instruction that provides appropriate guidelines to focus the jury's attention on how to analyze and consider the trustworthiness of eyewitness identification." State v. Cromedy, 158 N.J. 112, 128 (1999). Accord State v. Walker, 322 N.J. Super. 535, 546 (App. Div.), certif. denied, 162 N.J. 487 (1999). Whether an omission of an identification charge rises to plain error requires an analysis of the facts of each case. State v. Benthall, 182 N.J. 373, 386 (2005); State v. Green, 86 N.J. 281, 289 (1981). We must consider the entire trial record and the summations of all counsel. Walker, supra, 322 N.J. Super. at 547. A proper charge is particularly required when one or both counsel consider identification a critical issue and argue elements that should be weighed by the jury in its evaluation of any identification. Id. at 547, 549.
It is abundantly clear that identification was a central and critical issue in the case. The State had to prove that defendant was the person firing a weapon at Officer Patinho and Officer Gsavatich and the person who shot Officer Patinho. In doing so, it relied principally on the testimony of Patinho, who testified that he saw the passenger riding behind the driver briefly "peek" out of the rear passenger side window. Based on that glimpse, Patinho identified defendant at trial as the shooter. Yet, the jury received no instructions on the elements it should consider in its evaluation of this identification. They were not instructed to consider the time-of-day, lighting, the amount of time the victim had to view his assailant, whether the assailant was previously known to the victim, and a host of other salient factors for the jury's consideration.
Furthermore, defense counsel discussed the shortcomings of the identification extensively during his summation and the prosecutor commenced his summation on this issue. This discussion should have alerted the trial judge to the centrality of the issue, assuming the use of the term "peek" by the victim had not already done so. Furthermore, counsels' discussion in the summation is not a substitute to an explicit instruction by the trial judge of the myriad factors that should be part of the evaluation of this critical element of the State's evidence. Walker, supra, 322 N.J. Super. at 547.
Notably, this court has held, in other cases with considerably longer periods of interaction between the victim and assailant, that the omission of an identification charge was not only error, but plain error. In State v. Frey, 194 N.J. Super. 326, 329 (App. Div. 1984), the victim had an opportunity to view the defendant before she was blindfolded. She identified her assailant one week later. We held that "[t]he absence of any eyewitness other than the victim and defendant's denial of guilt made it essential for the court to instruct the jury on identification." Ibid. We noted the limited time the victim had to view the perpetrator before her eyes were taped, and that hair, blood and saliva samples found at the scene did not conclusively match those of the defendant. Ibid.
In State v. Davis, 363 N.J. Super. 556, 559-60 (App. Div. 2003), we reversed the defendant's conviction due to the omission of an identification instruction even though the defendant had been identified by two police officers. One officer identified the defendant from a single photograph twenty-five minutes after the defendant allegedly sold him drugs during an undercover operation. Ibid. A second officer testified that he drove by the sale location shortly after the transaction and recognized the defendant as someone he knew from other occasions. Id. at 560. We held that the trial judge erred because "he gave no instruction whatsoever as to the State's obligation to prove identification beyond a reasonable doubt." Ibid.
Here, Patinho was remarkably candid when he described his view of the person in the rear passenger seat as a "peek." In addition to the fleeting opportunity to view the shooter, there were other circumstances that counseled caution in attributing decisive weight to this identification. It was dark, the officers and the occupants of both cars had just completed a high speed pursuit through the darkened streets of Newark, Patinho never identified defendant until trial, and his partner was unable to identify anyone in the Jaguar. To be sure, Ollie also testified that defendant was the shooter, but he testified following conclusion of a favorable plea agreement and in anticipation of substantially less prison time than defendant.
Furthermore, the evidence establishing defendant as the shooter cannot be considered overwhelming. Defendant admitted he was a passenger in the car. Thus, the discovery of items linked to him in the vicinity of the shootout and his escape from the scene do not establish he was the shooter. His placement in the car and his involvement in the shooting were the critical elements to be proved by the State. The fact of his injury is not conclusive of his place in the car or his role in the episode. The number of shots fired that pierced the car suggest that anyone in the car was at risk of being shot no matter their place in the vehicle or role in the episode. The State offered no expert testimony linking defendant's injury and its theory that he was the driver-side, rear-seat passenger. Thus, the omission of an identification charge was a critical error.
We disagree, however, with the contention that the trial judge was also required to fashion an identification charge regarding Ollie's testimony about defendant's involvement in this escapade. As noted, defendant's presence in the vehicle was never in doubt. He was also known to Ollie. Thus, the judge, who has the obligation to instruct the jury on critical issues in the case, and the jury, which was required to evaluate his testimony, had no need for counsel on how to evaluate Ollie's identification of defendant. In fact, Ollie did not so much identify defendant as to explain the involvement of a person known to him in a criminal act. The extensive credibility instruction provided by the trial judge was sufficient to guide the jury's evaluation of Ollie's testimony.
In summary, we hold that the omission of an identification charge on Officer Patinho's identification of defendant was a critical error in this case. We need not decide whether that error standing alone requires a new trial. As we discuss in the next section of this opinion, the prosecutor's persistent denigration of defendant and his attorney throughout the trial and in his summation, and his "call to arms" in the summation, coupled with the omission of an identification instruction, require a new trial.
Defendant argues that the prosecutor engaged in misconduct throughout the trial, and that misconduct requires a new trial. Specifically, defendant highlights comments made by the prosecutor in the presence of the jury that questioned defense counsel's knowledge of the rules of procedure and evidence, thereby demeaning his competence. Defendant also contends that the prosecutor erred by calling defendant a liar and attempting to have defendant characterize the State's witnesses as liars. In addition, defendant identifies various statements in the summation that bolstered the credibility of the State's witnesses, denigrated defendant and his attorney, and challenged the jury to do their duty and protect society from the scourge of public gunfights. Regrettably, we agree with defendant that this experienced prosecutor engaged in multiple acts of misconduct that cumulatively cannot be countenanced and require a new trial.
All persons accused of crimes are guaranteed the right to a fair trial. U.S. Const., amend. VI; N.J. Const. art. I, ¶ 10. It is well settled that, when a prosecutor engages in improper conduct during a trial, such behavior can erode a defendant's right to a fair trial. E.g. State v. Wakefield, 190 N.J. 397, 446 (2007), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L.Ed. 2d 817 (2008); State v. Frost, 158 N.J. 76, 83-84 (1999). A prosecutor occupies a unique position in the criminal justice system because his role is not to obtain convictions, but to see that defendants are treated fairly and that justice is done. State v. Ramseur, 106 N.J. 123, 320 (1987). As such, the prosecutor must balance that role while vigorously and forcefully presenting the State's case. Ibid. An appellate court must be mindful of this balancing act when it considers whether the prosecutor exceeded the bounds of proper conduct. Ibid.
Additionally, "Prosecutors are afforded considerable leeway in their closing arguments. . . ." Frost, supra, 158 N.J. at 82. There remain, however, limitations on what a prosecutor may say during summation. A prosecutor must confine [his or her] comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence. . . . [I]f a prosecutor's arguments are based on the facts of the case and reasonable inferences therefrom, what is said in discussing them, "by way of comment, denunciation or appeal, will afford no ground for reversal." [State v. Smith, 167 N.J. 158, 178 (2001) (quoting State v. Johnson (Johnson I), 31 N.J. 489, 510 (1960)) (internal citations omitted).]
Additionally, prosecutors are permitted to "respond to an issue or argument raised by defense counsel." State v. Johnson (Johnson II), 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 587 (1996).
To warrant a new trial, the prosecutor's conduct must have been "so egregious as to deprive defendant of a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 187 L.Ed. 2d 89 (2001). In determining whether a defendant's right to a fair trial has been denied, the court should look at whether defense counsel timely objected, whether the remark was withdrawn promptly, whether the trial judge ordered the remarks stricken, and whether the judge instructed the jury to disregard them. Ramseur, supra, 106 N.J. at 322. If no objection was made, the statements are generally considered not prejudicial. State v. Josephs, 174 N.J. 44, 124 (2003); Timmendequas, supra, 161 N.J. at 576 (citing Ramseur, supra, 106 N.J. at 322-23).
A. Comments During Trial
Defendant argues that the prosecutor laced his responses to various objections or requests made by defense counsel with sarcasm and personal attacks against defense counsel. Defendant contends these comments denigrated his attorney and cast his defense in a negative light.
During cross-examination of Patinho, the prosecutor stated in open court that an inquiry by defense counsel about the existence of a report revealed that defense counsel was not familiar with the rules of procedure. The following exchange occurred:
[Defense Counsel]: Were you ever interviewed by any police?
[Officer Patinho]: Afterwards by the detectives.
[Defense Counsel]: What detectives?
[Officer Patinho]: Det. Palermo, Mark Palermo
[Defense Counsel]: Is there a report to that effect?
[Officer Patinho]: I don't know sir. [Defense
Counsel]: Is there a report to that effect, Mr. Prosecutor[?] If there is, I'd like to have it.
[Prosecutor]: [Defense Counsel] ought to know better than that. If he doesn't I would ask the court to instruct him.
[Defense Counsel]: I don't have it. If there's a report--[Prosecutor]: These questions should be directed to the witness.
[Defense Counsel]: He said he doesn't know.
He said he doesn't know so I am asking [the prosecutor] if there's a report, I would like to have it.
[Prosecutor]: Judge, [Defense Counsel] knows -- maybe we should explain what the rules of court are to [Defense Counsel]. Apparently, he doesn't know them. [Emphasis added.]
During the cross-examination of Ollie, defense counsel inquired whether Ollie knew that defendant had been arrested in Pennsylvania. When Ollie responded, "No," defense counsel asked if he knew that "Mr. Rasheem Woods had a card from the officer in Pennsylvania?" The prosecutor objected, and the following exchange took place:
[Defense Counsel]: What's the objection? You don't like what the answer is going to be? What's the objection, counsel? Tell me, what is the objection?
[Prosecutor]: [Defense Counsel] is assuming facts not in evidence.
[Defense Counsel]: There is going to be evidence tomorrow.
[Prosecutor]: Would the Court admonish [Defense Counsel] that he is acting unprofessional? He is attempting to put evidence before the jury which is unsworn. [Emphasis added.]
Without the judge ruling on the objection or responding to the prosecutor's entreaty, defense counsel asked again whether Ollie knew that Woods had a card from the police officer in Pennsylvania who had arrested defendant. The trial judge inquired about the relevance of this information, defense counsel responded, and the trial judge ultimately sustained the earlier objection. In between, the following exchange occurred:
[Defense Counsel]: Because if Mr. Woods knows Mr. Bridges was arrested, I would suspect he would tell Mr. Ollie.
[Prosecutor]: That's an awful lot of assumptions.
[Defense Counsel]: He can answer the question, counselor.
[Prosecutor]: Judge, again [Defense Counsel] has this rather annoying habit of directing questions or comments to me. [Defense
Counsel]: He wrote the book on annoying but we're not getting into that.
[Prosecutor]: After all, your Honor, we do have certain rules of courtroom decorum and I lost count of how many times [Defense Counsel] has violated them. [Emphasis added.]
Then, as defense counsel asked Ollie questions about the interaction between the occupants of the Jaguar and the black Subaru, the prosecutor stated in the presence of the jury, "Honestly at some point in time, you know, is [defense counsel] going to ask a question that's relevant to this?" Obviously interpreting this remark as an objection, the trial judge responded, "He is trying to get a feel for what the scene looked like."
As the cross-examination of Ollie proceeded, defense counsel posed a series of questions to Ollie about a prior statement he had given. After the trial judge sustained an objection on the ground of relevancy, defense counsel directed a response to the prosecutor in which he stated, "This is called credibility, counsel." The prosecutor responded, "You know, maybe [Defense Counsel] would like to take the stand here. He does like speaking in front of the jury and he does like carrying on. Maybe he should take the stand." At least three other similar exchanges occurred during the cross-examination of Ollie.
During defense counsel's summation, the prosecutor repeatedly interrupted to request the judge to admonish counsel. For example, during defense counsel's comments about Officer Patinho's identification of defendant as the shooter, he asked the jury, "Do you have any reason to believe that he knows what he's talking about? You have confidence in that identification? One second look at half a face?" The prosecutor objected and stated, "I think [Defense Counsel] started off with a second now we are down to a half." The trial judge simply responded that the objection was noted.
In addition, defense counsel commented that police did not take a swab of blood on the front seat of the Jaguar because it was an old stain. The prosecutor objected on the basis that the record did not address this issue. The objection was sustained but defense counsel stated, "Does anybody here think they would have taken a swab of old blood?" The prosecutor objected again, the judge sustained the objection, and a further exchange occurred between the prosecutor and defense counsel. The exchange ended with the following statement by the prosecutor: "If [Defense Counsel] wants to conduct himself like this, I am going to ask the Court to admonish him again in front of the jury because, Judge --" At this point the judge instructed defense counsel "to move on."
At one point, defense counsel admitted he forgot the address where the gun was found. The prosecutor interjected with the address. During the summation, defense counsel made a reference to a photograph of a phone that he believed had been admitted in evidence. It seems that defense counsel addressed the following comment to the prosecutor, "You remember wasn't there[ ] a photo of. . . ." To which the prosecutor responded, "I don't know what [Defense Counsel] is trying to pull here." Another contentious exchange occurred before the judge instructed the jury "to ignore those comments and this dialog."
Finally, as defense counsel neared the end of his summation, the prosecutor asked, "How much longer is counsel going to be?" and the first words out of his mouth in his summation was, "Good afternoon. How many weeks has it been now?" Juror No. Three responded, "Three."
A prosecutor is prohibited from "cast[ing] unjustified aspersions on the defense or defense counsel." Smith, supra, 167 N.J. at 177. "Defense counsel should not be subjected to disparaging remarks for simply doing his or her job." Frost, supra, 158 N.J. at 86. In Frost, the Court held the prosecutor's comments during summation that "defense counsel's closing arguments were 'lawyer talk'" and that defense counsel "hoped that one or more jurors 'had a bad taste in [their] mouth towards officers'" were improper. Ibid. Similarly, prosecutorial misconduct occurred where a prosecutor remarked to the jury "that defendant's calling of character witnesses was 'quite shameless.'" State v. Neal, 361 N.J. Super. 522, 535 (App. Div. 2003).
At no time did defense counsel object to the comments made by the prosecutor. Defense counsel repeatedly responded directly to the prosecutor in response to objections and sarcastic comments uttered by the prosecutor rather than directing his responses to the trial judge. Occasionally, the judge instructed the jury to ignore the verbal exchanges between counsel. The net effect of these many exchanges, however, was to denigrate the competence of defense counsel. The prosecutor openly stated that defense counsel was not knowledgeable of the rules of procedure or courtroom conduct. There are a variety of ways to legitimally undermine a defense; denigrating the competence of defense counsel is not one of them.
B. Cross-Examination of Defendant
Defendant testified at trial. Our review of his testimony suggests that the jury could have reasonably concluded that defendant was a smart aleck, who treated the many serious charges against him in a cavalier fashion. This attitude, however, did not serve as the basis for the prosecutor's sustained attempt to have defendant characterize the State's witnesses as liars and to seek an acknowledgement from defendant that he, too, was a liar.
A prosecutor may attempt to persuade the jury that a witness is not credible and in doing so, "a prosecutor may point out discrepancies in a witness's testimony or a witness's interests in presenting a particular version of events." Johnson II, supra, 287 N.J. Super. at 267. It is, however, improper for a prosecutor to use derogatory epithets such as "liar" to categorize a defendant. State v. Pennington, 119 N.J. 547, 576-77 (1990). The Supreme Court has explained that "'[b]y no stretch of the imagination can it be said that describing defendant as a "coward," "liar," or "jackal" is not derogatory. . . . Epithets are especially egregious when . . . the prosecutor pursues a persistent pattern of misconduct throughout the trial.'" Wakefield, supra, 190 N.J. 397, 466-67 (2007) (quoting Pennington, supra, 119 N.J. at 577).
It is impermissible to ask one witness to comment as to whether another witness is telling the truth. State v. Bunch, 180 N.J. 534, 549 (2004). In Bunch, the Court found the following question to be improper: "So basically you want this jury to believe that everything that the officers came in here and testified to is untrue?" Ibid. See also State v. Frisby, 174 N.J. 583, 594 (2002) (explaining that "the assessment of another witness's credibility is prohibited"). In Bunch, the Court found that the comment was not reversible error because of the overwhelming amount of evidence against the defendant. Bunch, supra, 180 N.J. at 549.
Here, the prosecutor's cross-examination of defendant commenced with the following exchange:
[Prosecutor] Mr. Defendant, you are a liar; are you not?
[Defendant]: No, I ain't no liar. [Prosecutor] You're not a liar?
[Prosecutor] Are you sure?
At various other points in the cross-examination, the prosecutor insinuated that defendant was lying or focused on instances in which defendant admitted he had lied.
One such instance occurred when defendant admitted he gave a false name to the nurse at the hospital in Pennsylvania. The prosecutor asked defendant, "And anybody that lies about something as basic as that would lie about something that is more important, isn't that right?"
During his summation, the prosecutor told the jury that defendant started lying in Pennsylvania and "didn't stop until he hit the stand." He also argued that someone who would lie about his name would lie about anything, and stated that defendant "lied to your faces and told you it was [Ollie] when the evidence points to one person and one person only and it is him."
The prosecutor also asked defendant to characterize Patinho as a liar in the following exchange:
[Prosecutor]: That's a question.
[Defendant]: I am answering it right now.
He would have seen me doing this. He would have said that I did it. [Prosecutor]: He did.
[Defendant]: Not twenty-seven months and twenty days after it happened. He had two years and some change to say that I did it.
He came and talked to you and the only thing he said is I did it.
[Prosecutor]: Yeah. And he said that in front of these ladies and gentlemen of the jury.
A prosecutor is barred from asking a defendant to characterize the truth or falsity of another witness. The prosecutor may also not call the defendant a liar. Doing so not only disparages the defendant but also reveals to the jury the prosecutor's assessment of the credibility of a particular witness. The prosecutor did both in this trial.
C. The Prosecutor's Summation
Defendant also argues that the prosecutor improperly bolstered the credibility of Officer Patinho, and issued an improper "call to arms." It is a close question whether the prosecutor improperly bolstered the credibility of Officer Patinho; we have no doubt, however, that the conclusion of the summation is a prohibited "call to arms." A prosecutor may not express a personal belief or opinion as to the credibility of a State witness. State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993). It is also improper to lionize a police witness as a good man who leaves his family to work and face danger day and night. State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991).
Here, the prosecutor opened his summation with a frontal attack on defendant's contention that Officer Patinho could not possibly have been able to identify defendant as the shooter. We underscore the portion of the summation cited by defendant as error but quote extensively from the comments that preceded these remarks to place the entire statement in context. The prosecutor argued:
Well, I started thinking they were chasing that car at ninety to one hundred miles an hour up Orange Street at four in the morning. What if they had said, you know, this pursuit is too dangerous, we're going to break it off. We're not going to risk our lives or the lives of anyone else coming along in this pursuit. We're going to break it off. What would anyone have known?
You think Sgt. Robles would have known? Deputy Chief Zisa of the Command Post? Do you think he would have known? They wouldn't have known. Besides it would have been a judgment call on their part. Too dangerous, we broke it off. But that is not what they did, is it? They went in pursuit of that car at ninety to one hundred miles an hour knowing that the rear seat passenger was heavily armed and had already fired on another car. They did their jobs. The ones who would have known that they were derelict in their duty if they hadn't pursued that car were the two officers right there. They would have known.
They went out and they did their job. Now, when the car came to a stop at 6th and 7th, they knew that the rear seat passenger was heavily armed. They had already seen him fire on that Sub[a]ru. They got out of the car with their weapons drawn and they advanced upon it. They did their job knowing what they were walking into. They did their jobs.
What happens? The first shot fired, first round out of the car and what happens? All together now. Patinho gets hit through the shoulder, through and through shot. What did they do then? Did they waiver? Did they falter? Did they retreat? No. They stood up as close as I am to you right now and they opened fire. They shot it out at point blank range.
What did Eddie Patinho say to you? "He was trying to kill me, I was trying to kill him." Life reduced to the basic elements. Kill or be killed. Live or die. That's what it came down [t]o.
After the gun jammed and the defendant cleared the weapon and he fired again and hit Patinho in the face, what did he do? Did he falter? Did he waiver or did he retreat? He doesn't do any of that. He stood up there, didn't even seek cover and he fired until he was empty. Even then, even then, did he falter? Does he waiver? Did he retreat?
He tried to reload his weapon, wasn't able to do so. Why? His hands were so full of blood. Fired off thirteen rounds and his partner, after he was hit fired another four. Why does she stop shooting? She didn't have a target. Suspect in the back had slumped down. You don't just shoot at a car. That's a great way to burn up your ammo and you're left with nothing.
She didn't have a target. She stopped shooting. She went to the aid of her partner. Car rolled down the street and came to a stop right here on the corner. You saw on the photographs.
Ladies and gentlemen of the jury, these two officers did their jobs in the face of all of that. They did their jobs.
[Defense Counsel] asked a question before and said basically how could Officer Patinho remember this face that he saw? He wanted you to believe it was just a second that he saw him. It was more than that.
Let me digress for a second. This morning before you came here, did you brush your teeth? Did you comb your hair? Did you put on your make up? Gentlemen, did you shave? Do all that in front of a mirror this morning?
How many times in the course of the day do you look in a mirror and maybe you see a little more gray in the hair, see another line there, you know, maybe I need a hair cut? What do you think Officer Patinho sees every day when he looks in the mirror? He sees what you saw, [he] sees the scar there.
[DEFENSE COUNSEL]: I am going to object. This has nothing to do with evidence, Judge. It's engineered to create passion and emotion.
[THE PROSECUTOR]: I am about to get to the point very quickly. The jury had the opportunity to observe Mr. Patinho and his injuries.
[DEFENSE COUNSEL]: I understand that, Judge.
THE COURT: He's commenting upon the injuries.
[THE PROSECUTOR]: He sees that scar and do you think that he remembers that morning every time he looks at that? Do you think that he doesn't relive that every time that he looks in the mirror and sees that? That is a permanent reminder.
Ladies and gentlemen of the jury, the question is not how could he ever forget the face? He stood and he looked in the face of death. That is not an exag[g]eration. That was in the form of that man sitting right there. Him and his Tech Nine spitting out rounds out of the window.
The question, ladies and gentlemen of the jury is not how could you remember? The question is how do you ever forget? Until the day he dies he's never going to forget that. [Defense counsel] -- no, better yet, the defendant's on the stand yesterday would have you believe that we spent two years preparing this man to testify to point him out.
Look at this man, ladies and gentlemen of the jury. Take a look at him. He's sitting right here now. This is the man along with his partner who went in pursuit of suspects ninety to one hundred miles an hour about a mile, confront them at gun point, stood toe to toe and shot it out with them.
Do you think a man like this is going to come in here and misidentify someone? [Defense counsel] was right. The shooter should pay. Do you think that these two officers are going to come in here and identify someone who wasn't the shooter? Do any of you think that man would do that? Oh, he wants the guy who did that to him. Sure he does and he knows who it was. He pointed him out to you.
Ladies and gentlemen of the jury, there is nothing like gun fire directed at you to focus your attention and the defendant fired not once, not twice, he fired at least eight times. Remember how many shell casings were found. One was found in the car, seven were found outside. He had to lean out to fire the weapon. [Emphasis added.]
The prosecutor never alluded to any consequences to either officer if they lied to the jury. The prosecutor did, however, come dangerously close to telling this jury that these officers, who risked their lives and faced down these dangerous men to protect the public every day, made them more worthy of belief. As in Engel, we cannot condone any suggestion that these officers are entitled to enhanced credibility simply due to their status as police officers. Read as a whole, however, this portion of the summation is a direct response to defense counsel's strong argument that the circumstances of his encounter with defendant could never provide the basis for an accurate identification. Although it is a close question, we are not persuaded that the prosecutor crossed the line.
Defendant also argues that the closing portion of the prosecutor's summation was a prohibited "call to arms." While a prosecutor is "expected to make vigorous and forceful closing arguments to juries," Smith, supra, 167 N.J. at 177, prosecutors must refrain from making inflammatory and highly emotional appeals that "possess the capacity to anger and arouse the jury and thereby divert them from their solemn responsibility to render a verdict based on the evidence." State v. Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993). There is a class of these comments commonly referred to as "send a message to the community" or "call to arms" comments. See Neal, supra, 361 N.J. Super. at 537 (where defendant, former Board of Education member, appealed conviction for perjury resulting from investigation into improper expenditures). "[P]rosecutors are not permitted to encourage juries to convict . . . on the basis of societal duty. . . ." Josephs, supra, 174 N.J. at 125. Such comments have been held to constitute prosecutorial misconduct because their intent is "to promote a sense of partisanship with the jury that is incompatible with the jury's function." Neal, supra, 361 N.J. Super. at 537. These types of comments "improperly divert jurors' attention from the facts of the case. . . ." Id. at 537-38.
The prosecutor closed his summation with the following comment:
Ladies and gentlemen of the jury, a crime has been committed, very serious and very deadly crime. There is something that you can do about that. You can see that justice is done. These two officers, they were on duty and it's now time for you to do your duty.
I am not asking you to stand up against desperate criminals as they are shooting at you. I am not asking you to do that. I am going to ask you to see that justice is done.
Now, ladies and gentlemen of the jury, the last question I will ask of you is simply this: It's a question and you're the only ones that can answer it. Are you going to see that justice is done in this case?
This is precisely the argument condemned by the Supreme Court. See Josephs, supra, 174 N.J. at 125 (condemning a plea to accept and discharge the jury's duty to society).
On the other hand, we find no error to the prosecutor's argument that defense counsel's argument defied logic.
Most of the comments cited by defendant as prosecutorial error come before us as plain error. Defense counsel objected rarely. The lack of objection suggests that defense counsel did not consider the sarcastic and caustic remarks or the call to arms in the summation as detrimental to his case. Frost, supra, 158 N.J. at 84; Ramseur, supra, 106 N.J. at 323. The lack of objection also deprived the trial judge the opportunity to craft an effective charge to deflect the barbs and minimize any prejudice to the defense. Frost, supra, 158 N.J. at 84.
Some of the sarcastic remarks by the prosecutor were in response to comments directed at him by defense counsel. The trial judge should have instructed defense counsel to direct any and all remarks to him not to the prosecutor. The failure to do so allowed the improper exchanges between the attorneys to persist throughout the trial. Of greater significance, however, was the tenor of the remarks by the prosecutor. Repeatedly, he uttered sarcastic, caustic and demeaning remarks. The content and tone of the comments clearly suggested to the jury that defense counsel was inept, and it could not rely on his efforts to mount a defense to these serious charges.
The problem created by the prosecutor's disparaging remarks was compounded by his summation in which he came perilously close to vouching for the credibility of the officers and then issued an unmitigated call to arms. Cumulatively, we have a trial record that disparaged defense counsel and the defense, improperly challenged defendant to characterize the State's witnesses as liars, disparaged defendant as a liar, suggested that the defense wasted the jury's valuable time, and closed with a call for the jury to discharge its duty to society. These cumulative errors by the prosecutor raise grave doubts that defendant received a fair trial. Coupled with the failure to give an identification charge to guide the jury's evaluation of Patinho's in-court identification of defendant as the shooter, we must reverse and remand for a new trial.
Reversed and remanded.