January 4, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYRON G. SINGLETON, DEFENDANT-APPELLANT.
On appeal from the Superior Court Of New Jersey, Law Division, Warren County, Indictment No. 08-02-0063.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 8, 2010 - Decided: Before Judges Cuff and Fasciale.
Defendant, Tyron G. Singleton, appeals from a judgment of conviction for third-degree terroristic threats, N.J.S.A. 2C:12-3a, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b, and third-degree theft of movable property, N.J.S.A. 2C:20-3a. During his summation, the assistant prosecutor misstated the law, the judge failed to correct the misstatement, and the judge raised the concept of other crimes evidence in front of the jury unnecessarily. We reverse.
On September 7, 2007, the victim spent several hours at a bar with her friends Dan Fitzsimons and Michelle Peterson. At 2:00 a.m., the victim, Fitzsimons, Peterson, and some other friends, walked a block or two to the victim's house. The bouncer, Albert Bianco, joined them at the house after he closed the bar.
The victim noticed defendant standing outside her house when she arrived. She had recognized him from being at the bar, but did not invite him to her house. Defendant walked into her house without permission. Bianco asked him if he was looking for someone, and Fitzsimons and Bianco asked him to leave. Before he left, and while the victim was upstairs, defendant rummaged through a purse, stole Peterson's cell phone and then left.
Shortly after leaving, defendant returned, asked for his cell phone, and stated that he did not want to search for it. The group at the house looked for the phone without any success.
Defendant left, returned thirty minutes later, barged through the door with a gun, threatened to use it, and continued to demand his phone. Eventually, defendant left but remained in the front yard and argued with other occupants of the house. The victim warned defendant that the police would arrive if he did not stop yelling. Defendant then walked away and hid his gun behind a tire of a nearby car.
Lieutenant James Faulborn responded to a radio dispatch of a man waving a gun, noticed defendant standing in the middle of the street, and heard a number of people state "that's him, that's the guy." Lieutenant Faulborn then handcuffed defendant, frisked him, and placed him in a police car. No weapon was found on defendant, but the lieutenant located the loaded gun from behind the tire. The lieutenant also recovered from defendant Peterson's stolen cell phone.
Defendant did not testify but his trial counsel conceded in his summation that defendant possessed the gun and had stolen Peterson's cell phone.
After the jury trial, defendant was convicted of all charges. On October 16, 2008, the judge imposed a five-year state prison term, with three years of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6c, on the conviction for second-degree possession of a weapon for an unlawful purpose, and concurrent three-year prison terms on the other convictions.
On appeal, defendant raises the following points:
POINT I THE PROSECUTOR'S OPENING AND CLOSING STATEMENTS WERE SO GROSSLY PREJUDICIAL AS TO DEPRIVE DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Partially Raised Below.)
POINT II THE STATE'S FAILURE TO COMPLY WITH THE APPLICABLE RULES OF DISCOVERY SO PREJUDICED DEFENDANT'S ABILITY TO PREPARE A DEFENSE AS TO DEPRIVE HIM OF HIS CONSTITUTIONALLY PROTECTED RIGHTS TO DUE PROCESS AND A FAIR TRIAL
POINT III THE COURT'S FAILURE TO PROVIDE AN AMELIORATIVE INSTRUCTION TO THE JURY AFTER A WITNESS VOLUNTEERED INADMISSIBLE AND HIGHLY PREJUDICIAL INFORMATION CONSTITUTED ERROR
POINT IV BECAUSE THE THEFT OF WHICH DEFENDANT WAS CONVICTED WAS A DISORDERLY PERSONS OFFENSE, THE THREE-YEAR TERM IMPOSED MUST BE AMENDED TO A TERM OF SIX MONTHS. (Not Raised Below.)
POINT V THE COURT ERRED BY FAILING TO MERGE THE OFFENSE OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WITH THE OFFENSE OF TERRORISTIC THREATS (Not Raised Below.)
We begin by addressing defendant's argument that the assistant prosecutor misstated the law in his summation and that the judge failed to address that misstatement. The effect of the misstatement was that a unanimous vote was required to acquit defendant. The assistant prosecutor stated in his summation:
And beyond a reasonable doubt, and it's a heck of a standard, beyond a reasonable doubt, who's able to prove that, that's like, you have to actually have a reasonable doubt unanimously in your mind, a reasonable doubt that this man wasn't the guy who did it, who possessed it and threatened with it, either the witnesses lied, or they misidentified him, or all of those things.
That's reasonable doubt.
"Prosecutors should not make inaccurate legal or factual assertions during a trial." State v. Frost, 158 N.J. 76, 85 (1999); State v. Rodriguez, 365 N.J. Super. 38, 48 (App. Div. 2003)("Prosecutors may not make inaccurate factual or legal assertions during summation, and they must confine their remarks to evidence revealed during the trial, and reasonable inferences to be drawn from the evidence."), certif. denied, 180 N.J. 150 (2004).
The assistant prosecutor explained that to acquit defendant the jury had to find reasonable doubt as to his identification. That is not so. Although defense counsel did not object when the misstatement was made, he did request a mistrial at the end of summations because he contended that the summation by the assistant prosecutor was "inflammatory."
Here, the judge omitted important language from the final charge to the jury. He did not charge the jury, as he was required to do, that "[a]ny ideas you have of what the law is or what the law should be or any statements by the attorneys as to what the law may be, must be disregarded by you, if they are in conflict with my charge." New Jersey Model Jury Charge Criminal, "Final Charge" (2009). As a result, there was an inconsistency between the misstatement and the judge's charge on reasonable doubt. "An essential ingredient of a fair trial is that a jury receive adequate and understandable instructions." State v. Martin, 119 N.J. 2, 15 (1990). "Correct jury instructions are 'at the heart of the proper execution of the jury function in a criminal trial.'" State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Alexander, 136 N.J. 563, 571 (1994)). It has long been recognized that the "'charge is a road map to guide the jury and without an appropriate charge a jury can take a wrong turn in its deliberations.'" State v. Cuni, 303 N.J. Super. 584, 603 (App. Div.), certif. denied, 152 N.J. 12 (1997), aff'd, 159 N.J. 584 (1999) (quoting State v. Gartland, 149 N.J. 456, 475 (1997)).
The assistant prosecutor's misstatement, coupled with the judge's failure to instruct the jury to disregard any inconsistent statements made by counsel about the law, led to the possibility of an unjust result "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Overton, 357 N.J. Super. 387, 396 (App. Div.) (quoting State v. Macon, 57 N.J. 325, 336 (1971)), certif. denied, 177 N.J. 219 (2003).
Next, defendant argues that the judge erred by introducing the notion in front of the jury that defendant may have committed another crime. During the direct examination of Bianco, the following exchange occurred:
Q: Did [defendant] cause any problems [at the bar] that evening?
A: He was giving one girl -Defense counsel: Objection as to relevance, [404(b)] and I can go on.
Assistant prosecutor: Well, judge [defense counsel] brought that out -Court: If it's going to raise the issue of another crime, I don't want to hear about it. It -Q: Commit another crime here?
A: No. It wasn't a crime.
Q: What happened with him -Defense counsel: Sidebar, Your Honor. Assistant prosecutor: Judge, it goes to his-Court: Let's go to sidebar and tell me what happened. I don't want the jury to be corrupted by some crime that he may have committed at the bar. Come on. (Indiscernible sidebar)
Court: Okay. Next question.
Assistant prosecutor: All right. We'll skip over that. (emphasis added)
The judge stated in front of the jury twice that he did not want them to hear a crime that defendant may have committed at the bar. By not conducting an immediate sidebar conference to address any potential N.J.R.E. 404(b) issues, the jury heard that counsel would skip over a subject -- defendant committing another crime at the bar -- that the judge did not want them to hear. Under these circumstances, defendant was prejudiced by the appearance of a deliberate attempt to conceal other crimes evidence.
We conclude that a new trial is required because the assistant prosecutor misstated the law in his summation, the trial judge omitted a critical portion of the final charge that would have addressed the misstatement, and other crimes evidence was unnecessarily introduced before the jury. As a result, we do not reach the remaining issues presented by defendant.
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