December 17, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STACK WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-05-1545 and 06-06-1701. Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief). Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 17, 2010
Before Judges Fisher, Simonelli and Fasciale.
At the conclusion of a jury trial involving charges contained in different indictments, defendant was convicted of two separate groups of offenses that were committed months apart and in different locations -- a December 2005 robbery in Newark and a February 2006 carjacking in East Orange. In appealing his convictions, defendant argues primarily that the judge erred by joining the separate indictments and having one trial. We agree and reverse.
In the first incident, on December 16, 2005, defendant robbed A.R. in her Newark office. Defendant walked into A.R.'s office with a black handgun, wore a stocking or mask over his face, demanded her car keys, and took her purse. Defendant was indicted and charged with first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a.
In the second incident, on February 11, 2006, defendant observed L.H. and L.C. sitting in L.H.'s car in front of a store in East Orange. When L.H. exited the car to enter the store, defendant approached the car, opened the driver's door, showed L.C. a handgun, and asked her to exit. Defendant drove away after L.C. exited the car.
Later that night, East Orange police located the car, conducted surveillance, and observed defendant and his girlfriend get into the car. The police approached the car and attempted to talk to defendant. Defendant attempted to flee, and punched and kicked the officers, but was eventually detained and handcuffed. Defendant's girlfriend consented to a search of an apartment she shared with defendant and the police located A.R.'s belongings in it.
As a result of the February 11 incident, defendant was indicted and charged with first-degree carjacking, N.J.S.A. 2C:15-2; first-degree robbery, N.J.S.A. 2C:15-1; two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree resisting arrest, N.J.S.A. 2C:29-2; and fourth-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(4).
On July 2, 2007, the assistant prosecutor sought a joint trial on both indictments. She argued that "[i]t is in the interest of the State and judicial economy to try these cases together because the proofs, particularly the proofs pertaining to recovery of evidence, the proceeds will be used in both cases." Defendant's attorney countered that it would be "overwhelmingly prejudicial" to try both sets of charges simultaneously. He argued that the two crimes occurred two months apart, at different locations, in dissimilar ways. The judge concluded:
Counsel, I am concerned about this matter. One of these offenses took place in February of 2006. The other offense took place some three months prior to that; that is, December of 2005.
My concern is that these are not alleged to be similar type offenses, as [defense counsel] has pointed out. Clearly what ties these two together is . . . that the proceeds from these events were found at the arrest of the defendant for the carjacking.
. . . I'm concerned about the differences and the only similarity. I'm inclined to grant the motion for joinder, but I would like to revisit that and the Rule.
On July 20, 2007, the judge stated that he "will allow these two matters to be joined for purposes of trial."
On October 26, 2007, the jury found defendant guilty of all charges except two aggravated assault counts in the carjacking indictment. The judge also dismissed the hindering charge. On December 14, 2007, the judge sentenced defendant to an aggregate of thirty-five years in state prison with eighty-five percent parole ineligibility, pursuant to N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following points:
BECAUSE THE COURT ERRED IN JOINING FOR TRIAL CHARGES INVOLVING TWO UNRELATED INCIDENTS THAT OCCURRED MONTHS APART, DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. HIS CONVICTIONS MUST BE REVERSED
BECAUSE THE IDENTIFICATION PROCEDURE CONDUCTED BY POLICE ON FREEMAN AVENUE WAS SO IMPERMISSIBLY SUGGESTIVE AS TO LEAD TO A SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION, AND BECAUSE IT IRREPARABLY TAINTED ALL OTHER IDENTIFICATIONS MADE OF DEFENDANT, ALL CONVICTIONS MUST BE REVERSED
THE COURT ERRED IN ITS REFUSAL TO GRANT A MISTRIAL WHEN OFFICER BOYD, IN RESPONSE TO A QUESTION AS TO DEFENDANT'S PAST OR PRESENT USE OF AN ALIAS, REPLIED THAT HE HAD OBTAINED INFORMATION THROUGH A "RECORD CHECK" OF DEFENDANT
BECAUSE THE POLICE LACKED THE BASIS FOR A REASONABLE BELIEF THAT CARLA ROBINSON HAD AUTHORITY TO CONSENT TO A SEARCH OF THE APARTMENT, THE COURT ERRED IN DENYING THE MOTION TO SUPPRESS EVIDENCE FOUND THEREIN
BECAUSE LAWFUL POSSESSION OF A PAINTBALL GUN DOES NOT REQUIRE A PERMIT, THE CHARGES OF UNLAWFUL POSSESSION OF A WEAPON MUST BE AMENDED FROM THIRD TO FOURTH DEGREE
Before undertaking our analysis on defendant's joinder argument, we have carefully reviewed the record and the arguments presented by counsel and conclude that defendant's challenge to the identification procedure and motion to suppress are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Rule 3:7-6 permits the joinder of two or more offenses in a single indictment when the offenses "are of the same or similar character or are based on the same act or transaction" or are part of a continuing scheme. A defendant may seek severance when joinder is potentially prejudicial. R. 3:15-2(b). A court should not take such a motion lightly because of the highly prejudicial nature of other-crimes or wrongs evidence. State v. Baker, 49 N.J. 103, 105, cert. denied, 389 U.S. 868, 88 S. Ct. 141, 19 L. Ed. 2d 144 (1967). "Whether a severance should be granted is a matter of the discretion of the trial judge, and we defer to that decision absent an abuse of discretion." State v. Urcinoli, 321 N.J. Super. 519, 541 (App. Div.), certif. denied, 162 N.J. 132 (1999); State v. Chenique-Puey, 145 N.J. 334, 341 (1996); State v. Mance, 300 N.J. Super. 37, 53 (App. Div. 1997).
"Our courts have said that although separate and distinctive crimes which are the same or similar in character may be joined for the purpose of trial in the interests of judicial economy, where there exists a real 'possibility of prejudice to [a] defendant, a trial severance of the offenses should be granted.'" State v. Krivacska, 341 N.J. Super. 1, 38 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002) (quoting State v. Reldan, 167 N.J. Super. 595, 597 (Law Div. 1979), rev'd on other grounds, 185 N.J. Super. 494 (App. Div. 1982)). "A key factor in determining whether joinder of two or more offenses in a single trial is prejudicial is 'whether the evidence of those other acts would be admissible in separate trials under N.J.R.E. 404(b).'" Krivacska, supra, 341 N.J.
Super. at 38 (quoting State v. Moore, 113 N.J. 239, 274 (1988)). "Central to the inquiry is 'whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" Chenique-Puey, supra, 145 N.J. at 341 (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)).
N.J.R.E. 404(b) provides, in relevant part:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
The rule is one of exclusion, rather than inclusion. State v. Nance, 148 N.J. 376, 386 (1997). As such, courts should exclude evidence when offered simply to show a defendant has a propensity to commit criminal acts or is generally a bad person. Krivacska, supra, 341 N.J. Super. at 39.
By its very terms, the rule permits use of this evidence if offered for a particular purpose, those being: "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident . . . ." N.J.R.E. 404(b). "Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue especially where the prosecution's access to significant information is limited." Krivacska, supra, 341 N.J. Super. at 39.
In State v. Cofield, 127 N.J. 328, 338 (1992) the Supreme Court adopted a four-prong test to "avoid the over-use of extrinsic evidence of other crimes or wrongs[.]" To be admissible, the evidence must be: "(1) admissible as relevant to a material issue, (2) similar in kind and reasonably close in time to the act alleged, (3) clear and convincing, and (4) of sufficient probative value not to be outweighed by its apparent prejudice." Krivacska, supra, 341 N.J. Super. at 39-40 (citing Cofield, supra, 127 N.J. at 338). Here, no Cofield analysis was performed.
The robbery and carjacking are not "of the same or similar character or are based on the same act or transaction," and they are not part of a continuing scheme or plan. In the robbery, defendant wore a mask, went into an office building, and stole a purse from one victim. Two months later, in a different location, defendant did not wear a mask and drove away in the victim's car. While a handgun was used in both crimes, there was nothing else connecting the two. The fact that A.R.'s belongings were found in defendant's apartment does not mean that the robbery and carjacking were similar, based on the same act, or part of a continuing scheme and did not establish any of the elements to the crimes charged in the carjacking case. There is no common thread that binds the two incidents together.
Furthermore, a real "possibility of prejudice" to defendant accrued when both cases were tried together. The jury heard detailed evidence regarding a separate nine-count indictment involving a carjacking, crimes of violence, and weapons-related offenses. Hearing that evidence may have effected the weight of A.R.'s in-court and out-of-court identifications. While wearing the mask, defendant instructed A.R. not to look at him. He told her to walk to the back of the office, she did, and defendant left her office. That day and again a few days later, A.R. stated that she was unable to identify who robbed her. Despite her initial inability to identify defendant, A.R. identified him. Even though A.R.'s identification of defendant was arguably questionable, the jury may have concluded defendant robbed A.R. because they heard detailed evidence of other crimes from the second incident. If the cases were tried separately, and the jury rejected A.R.'s identification of defendant, then he would be acquitted of robbery but convicted potentially of the lesser included offense of receiving stolen property. Defendant was therefore prejudiced.
We conclude that the judge abused his discretion by joining both cases because of the overwhelming prejudice to defendant. As a result, we do not reach the arguments contained in defendant's Points III and V. We therefore reverse defendant's convictions and remand for separate trials. We do not retain jurisdiction.
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