July 21, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GLEN A. MAYS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 07-02-0082.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 2, 2011
Before Judges Fuentes, Ashrafi and Nugent.
Defendant Glen Mays appeals his conviction by a jury on charges of attempted murder, aggravated assault, and possession of a weapon for an unlawful purpose. He alleges the following errors in his trial and sentencing:
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY A POLICE OFFICER DURING CROSS-EXAMINATION THAT THE DEFENDANT HAD PREVIOUSLY BEEN ARRESTED IN THE PAST, COMBINED WITH THE TRIAL COURT'S REFUSAL TO PERMIT DEFENSE COUNSEL TO RECTIFY THE ERRONEOUS IMPRESSION LEFT IN THE JURORS' MINDS.
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY ELICITED FROM A STATE'S WITNESS INDICATING THE DEFENDANT HAD THREATENED TO KILL THE ALLEGED VICTIM IN THE PAST.
THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING THE TESTIMONY ADMITTED AT TRIAL PURSUANT TO N.J.R.E. 404(b). (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY RULING THE STATE WOULD BE ENTITLED TO A CLAWANS CHARGE IN THE EVENT THE DEFENSE DID NOT CALL THE DEFENDANT'S SISTER AS A WITNESS.
THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF ATTEMPTED MURDER ARISING OUT OF COUNT I WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN RULING THAT TWO OF THE DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO ATTACK CREDIBILITY.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We find merit in Point IV and conclude the error was prejudicial to a fair trial. We reverse defendant's conviction and remand for a new trial.
In February 2007, a Sussex County Grand Jury returned an indictment against defendant charging first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1) [Count I]; second-degree aggravated assault causing serious bodily injury, N.J.S.A. 2C:12-1b(1) [Count II]; third-degree aggravated assault with a deadly weapon causing bodily injury, N.J.S.A. 2C:12-1b(2) [Count III]; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d [Count IV].
At the trial in April and May 2009, the jury found defendant guilty on all counts. For purposes of sentencing, the court granted the State's motion for a discretionary extended term pursuant to N.J.S.A. 2C:44-3a, finding that defendant was a persistent offender. The court merged all four counts of the indictment and sentenced defendant to twenty-four years in prison with eighty-five percent of the term to be served before eligibility for parole pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The sentence also included money penalties and restitution.
The following evidence was presented at the trial. On September 16, 2004, Darrell Trent was outside at night talking to someone at the Brookside Court Apartments in Newton. A Toyota Corolla driven by defendant's sister, Venus Verges, approached and stopped nearby. Defendant got out of the car and approached Trent. Defendant and Trent were known among their acquaintances to be "enemies" because they had simultaneous relationships with the same woman.
The accounts of what took place that evening differed between prosecution and defense witnesses. According to Trent, defendant began making hostile comments as he approached, and in turn, Trent raised his hands "in a boxing position." Trent testified he swung at defendant, but before he landed a punch, defendant hit him in the stomach. Trent looked down and saw blood gushing from his body. He saw "the blade from what [defendant] was holding cuffed back in his hand," and defendant used the same weapon to "slice" Trent on his index finger. Defendant then returned to the Toyota and rode away with Verges.
Trent walked to a nearby gas station, holding his side and bleeding.
Katherine Vaughan, who was a certified nurse's aide and acquainted with both men, happened to be at the gas station when Trent came there injured. Vaughan saw Trent "bleeding from his side and from his hand," and she used her sweater to apply pressure to Trent's side wound until an ambulance arrived.
In addition to the events at the gas station, Vaughan testified she was present at Timothy Mondesir's residence in the Brookside Court Apartments earlier the same night in the company of defendant and Verges. Although Vaughan did not remember defendant's precise words, she heard defendant say to Mondesir "how he hated [Trent] and how he was going to stab him." Vaughan "thought he was kidding."
Mondesir testified similarly that defendant said that evening he was "[g]oing to stab [Trent] up." Mondesir, too, did not take defendant's threat seriously. He had also heard defendant say he wanted to kill Trent on prior occasions.
When the police located and examined the Toyota Corolla the next morning, they saw visible blood stains on the passenger-side interior door panel. Police witnesses testified that defendant was identified as the assailant by witnesses to the incident who knew him. Defendant was not found until he was arrested on a traffic charge in Virginia two years later and returned to New Jersey to face the charges.
Dr. John O'Brien, general surgeon at Newton Memorial Hospital, testified about Trent's injuries. He testified Trent had a wound on his index finger, but the major injury was a stab incision in his chest. When the doctor first examined Trent, the wound was bleeding and had blood-soaked dressings. He removed the dressings and observed active bleeding from some blood vessels in the muscle. The wound "went from the skin into the fat tissue, through the muscles, between the ribs, into the chest, into the lung, through the lung, and then through what's called the diaphragm . . . into the abdomen on to the top of the liver." Dr. O'Brien testified he surgically inserted a tube in Trent's chest to "suction back approximately 12 hundred cc's of blood [almost a quart and a half] that had been collected in the chest." Trent lost twenty-five to forty percent of his blood as a result of his injuries, and, if he had not received immediate medical treatment, his wounds presented a "substantial risk of death."
Defendant testified and described his version of the fight. He said he approached and questioned Trent after Trent cursed at him while his sister's car was stopped at an intersection. Defendant did not want to fight because he had been previously injured in a car accident and was wearing a large leg brace. As he walked away, Trent threw a bottle at his feet and then sucker-punched him in the back of his head. A fistfight and wrestling ensued, culminating in defendant hitting Trent in the face and head about five times and causing him to be dazed. Defendant denied he used a weapon in the fight. He said the blood stains in the car were from his fists after he punched Trent and caused a bloody nose. He denied fleeing from New Jersey after the incident, testifying he did not come back to Newton and did not speak to family members for two years because he did not have that kind of relationship with them.
Verges testified in the defense case that she was driving with defendant from a gas station to her mother's house when they saw Trent waving down her car. Defendant instructed her to stop and then got out and approached Trent. She witnessed a fistfight between the two. She denied that defendant was an aggressor, although she acknowledged she had seen him in fights before and he was a good fighter. She also denied that he used a weapon. She testified that, following the confrontation, Trent "got up and . . . just walked away like nonchalantly." She said Trent did not appear to be injured and that she "would have noticed" if Trent was bleeding heavily. She denied there was any blood in the interior of her car after the fight, stating that she would have seen blood on the light-colored door panel if it had been there after she drove defendant to the bus station that evening for the last bus to New York. She denied lying to the police that night about the location of her car.
Before proceeding to the meritorious point raised on defendant's appeal, we comment briefly on his other points of trial error.*fn1 In Point I, defendant contends he was prejudiced when a police detective revealed that he had been arrested in the past. He argues that the judge exacerbated the error by sustaining the prosecutor's objection when defense counsel attempted to cross-examine the detective using defendant's criminal record sheet to show that he had not been previously arrested in New Jersey.
The detective did not volunteer that defendant had been previously arrested. See State v. Tilghman, 345 N.J. Super. 571, 578 (App. Div. 2001) (improper for police witness to unnecessarily insert information in his testimony suggesting that the defendant had prior contacts with the police). In fact, the detective's direct examination had nothing to do with defendant's prior police contacts. Defense counsel elicited information about defendant's prior criminal record through what must be charitably described as misdirected cross-examination. Although defendant had been identified to the police through several witnesses acquainted with him, defense counsel pursued a defense of mis-identification in his cross-examination of police witnesses. In doing so, counsel attempted to use police documents pertaining to prior contacts of defendant with the police.
In responding to counsel's cross-examination, the police detective at first appeared to be taking precautions to avoid divulging information about defendant's prior contacts with the police. Cf. State v. Ramos, 217 N.J. Super. 530, 537-38 (App. Div.) (no prejudice in police witness's testimony that he was familiar with defendant based on his general knowledge of people in the neighborhood), certif. denied, 108 N.J. 677 (1987). Any references to other arrests of defendant were invited by defense counsel's persistence and strategic decision to cross-examine the witness as he did. See State v. Loftin, 146 N.J. 295, 365 (1996).
Furthermore, the trial judge's ruling excluding use of defendant's criminal record sheet was intended to prevent any further prejudice to defendant. The fact that defendant had not been previously arrested in New Jersey for a major offense did not erase his prior arrests in other states and the potential of that information being used by the jury to defendant's detriment. There was neither error nor abuse of discretion in the testimony of police witnesses or the trial court's rulings pertaining to defendant's prior arrests.
In Points II and III, defendant argues that the trial court erroneously permitted Vaughan and Mondesir to testify they heard defendant threaten to stab or kill Trent. At trial, defense counsel objected on hearsay grounds to that testimony. In response, the prosecutor and the trial court needlessly focused on the hearsay exception for statements against penal interest, N.J.R.E. 803(c)(25), and the rule of evidence permitting limited admission of other crimes and wrongs evidence, N.J.R.E. 404(b).
The alleged statements of defendant were admissible under N.J.R.E. 803(b)(1) as statements of a party-opponent. There was no hearsay issue. Nor was the court required to conduct an analysis as required in State v. Cofield, 127 N.J. 328, 338, 340-41 (1992), and State v. Marrero, 148 N.J. 469, 483 (1997), for admission of the evidence under N.J.R.E. 404(b). The testimony about defendant's alleged threats to stab or kill Trent was not evidence of other crimes or bad acts. It was direct evidence of defendant's intent to harm Trent. The evidence was probative directly of the charges in this case.
The jury could either believe or disbelieve the testimony of Vaughan and Mondesir, as with any other testimony implicating defendant in commission of the crimes. Neither N.J.R.E. 803(c)(25) nor N.J.R.E. 404(b) were needed for admission of their testimony about defendant's prior statements.
In Point V, defendant argues that the jury's verdict of guilty on attempted murder was against the weight of the evidence. Not only is defendant precluded from raising that argument on appeal because he did not make a motion for a new trial before the trial court, see R. 2:10-1, but also the argument has no merit. There was ample evidence to support the jury's finding that defendant stabbed Trent with a weapon, causing serious injury that could have caused his death. The jury could conclude that defendant intended to kill Trent if, as it had the discretion to do, it credited the testimony of Trent about the unexpected stabbing and the testimony of Vaughan and Mondesir about his earlier statements.
We find a closer question presented by Point VI, pertaining to the trial court's ruling under N.J.R.E. 609 on admissibility of defendant's prior criminal convictions.
N.J.R.E. 609 states: "For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." In State v. Sands, 76 N.J. 127, 144 (1978), the Court held that "whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge," and that such discretion is "broad." The Sands Court further held that "[o]rdinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." Ibid.
Defendant had three prior convictions for criminal offenses: (1) for possession of a controlled dangerous substance in Virginia in 1992, when he was eighteen or nineteen years old, and a subsequent violation of probation charge in 1995 arising out of that conviction, (2) for obstructing governmental administration in New York in 1994, a charge that carried a maximum sentence of one year in custody and for which defendant was sentenced to sixty days in jail, and (3) for identity fraud in Virginia in 2006, also with a maximum potential sentence of one year in prison. He also had a number of intervening offenses that were disposed of through lesser than indictable charges. Defendant argues that the two earlier convictions on indictable offenses were too remote and minor to be admissible to impeach him when he testified at his trial in 2009. The State counters that the trial court acted within its discretion in admitting all three prior convictions and properly sanitized the evidence through limiting instructions in the jury charge.
Because the Supreme Court's discussion of the remoteness issue in Sands is vital to a ruling under N.J.R.E. 609, we quote it at length to restate the factors relevant to the trial court's exercise of discretion:
Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving. In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. Moreover, it is appropriate for the trial court in exercising its discretion to consider intervening convictions between the past conviction and the crime for which the defendant is being tried. When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible. [Sands, supra, 76 at 144-45.]
In this case, the trial court stated defendant's convictions "involve actions of a criminal nature on the part of the defendant in violation of lawful authority in terms of obstruction, in terms of violating supervised probation, and in terms of identity fraud" and "those issues go to the issue of the defendant being truthful in testifying." The court found that "the nature of the convictions in weighing upon defendant's truthfulness was such that any issue of remoteness is defeated."
Although the probative value of lesser-level crimes committed more than fourteen years before the trial may be subject to debate, the trial court's ruling that all three convictions were admissible to impeach defendant was not so unsupported or unreasonable as to constitute an abuse of discretion. See State v. Hayes, 205 N.J. 522, 539 (2011) (to be an abuse of discretion "the judicial action must have been clearly unreasonable in the light of the accompanying and surrounding circumstances . . . [and] a mere difference in judicial opinion concerning the feasibility, expediency or pragmatical propriety of a ruling is [not] synonymous with abuse of judicial discretion") (quoting Smith v. Smith, 17 N.J. Super. 128, 132-33 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952)). We note also that the trial court properly sanitized the use of defendant's prior convictions and instructed the jury on the admissible use of that evidence. We find no reversible error under N.J.R.E. 609.
Defendant was prejudiced at trial, however, when the prosecution requested during the jury charge conference, and the trial court agreed to give, a Clawans adverse inference instruction to the jury if defendant did not call his sister to testify in the defense case.
Under State v. Clawans, 38 N.J. 162, 170-71 (1962), "failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him." The instruction of jurors as to such an adverse inference is proper only when it can be said "with reasonable assurance that it would have been natural for a party to have called the absent witness but for some apprehension about his testimony." State v. Velasquez, 391 N.J. Super. 291, 306 (App. Div. 2007) (quoting Burgess v. United States, 440 F.2d 226, 237 (D.C. Cir. 1970)). In Velasquez, we emphasized "the need for trial courts to exercise caution in authorizing this inference," in particular, against a criminal defendant, who has no burden to produce evidence in his defense. Id. at 306-07.
Subsequently, in State v. Hill, 199 N.J. 545, 566 (2009), our Supreme Court addressed this very concern and held that "Clawans charges generally should not issue against criminal defendants." The Court stated: "It is difficult to foresee a situation where a Clawans charge might play a proper role in a case against a criminal defendant." Ibid. We note that Hill was issued in July 2009, shortly after defendant's trial, but Velasquez was decided two years earlier. The trial court was required to follow Velasquez and, in the circumstances of this case, to decline the prosecution's request for a Clawans charge. This is not "the rare case" that might theoretically have warranted an adverse inference instruction against defendant. See Hill, supra, 199 N.J. at 567.
We also reject the State's argument that the Clawans issue became moot when defense counsel called Verges to testify, and she provided beneficial testimony for the defense. At the charge conference, defense counsel not only protested that he had no control over Verges but also stated he did not want to call her in the defense case because she had already been proven to have lied to the police several times in the course of their investigation after the stabbing. The prosecution's request and the court's ruling put the defense in the position of either calling a witness with questionable credibility that could and did harm the defense or facing the court's "imprimatur" on the State's anticipated closing argument that her testimony would have harmed the defense. See Hill, supra, 199 N.J. at 569.
The prosecution took full advantage of Verges's presence on the witness stand and cross-examined her to its advantage by means of leading questions to demonstrate that her exculpatory version of the events was false. In closing argument, the prosecutor used the obvious falsehoods, such as Verges's denial that blood stains were on the door panel of her car, to discredit the entire defense presentation.
This was not a case where the prosecutor merely commented in closing argument on the failure of the defense to call a witness but the court did not give a Clawans adverse inference instruction. See State v. Wilson, 128 N.J. 233, 243-45 (1992); State v. Irving, 114 N.J. 427, 441 (1989); State v. Carter, 91 N.J. 86, 127-28 (1982). The court ruled it would give a Clawans charge unless the defense called Verges to testify. A Clawans charge "buttress[es] the State's argument" and potentially "lessen[s]" the State's burden of proving the defendant guilty beyond a reasonable doubt. Hill, supra, 199 N.J. at 569. The prosecution's use of the witness's false testimony against defendant was prejudicial error that requires us to grant to defendant a new trial.
Reversed and remanded for a new trial.