September 6, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES LOWE, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-02-0311.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 6, 2011
Before Judges Cuff, Sapp-Peterson, and Simonelli.
A jury convicted defendant of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a. In a subsequent proceeding conducted immediately afterwards, the jury also convicted defendant of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. We reverse.
Including jury selection, this was a short, two-day trial. Jersey City police officer Hennessey and his partner were dispatched to the corner of Myrtle and Bergen Avenues based upon a report that a suspect wanted in connection with a prior shooting might be at that location. The officers were given a description that the suspect was wearing a purple sweater. Upon their arrival at the location, they saw two men, one of whom met the description of the suspect, and another person later identified as defendant. The officers exited their vehicle and Officer Hennessey's partner walked over to the suspect while Officer Hennessey turned his attention to defendant, who immediately yelled, "oh, shit, narco" and then "took off running" past him. Believing that defendant was involved in narcotics, he started to chase defendant and, during the chase, observed that defendant kept reaching into his waistband, which raised the officer's awareness. He then observed "the handle or what appeared to be a handle of a gun." At this point, the officer was approximately ten feet away from defendant.
Officer Hennessey pursued defendant into an alley where defendant climbed over a fence, at which point defendant's baseball cap came off, and he then climbed a second fence. Officer Hennessey testified, "I see him -- he -- as he's going over the fence, he's just trying to get that gun, get rid of the gun. And then he gets into the yard, and he gets rid of the gun and climbs the fence back over." Other officers arrived in the area and a perimeter was formed. When defendant came back from the yard, he went down the basement stairs of one of the houses where Officer Hennessey and another officer found him hiding. With the assistance of a K-9 dog, Frodo, officers found a gun in the yard shortly thereafter. According to the testimony of Frodo's partner, K-9 Officer Louis Mecka, Frodo is a scent-trained dog with expertise in explosives such as "black powder, smokeless powder[,] which is your typical gunpowder[.]"
Under cross-examination, Officer Hennessey acknowledged that he did not actually see defendant discard the gun. He also acknowledged that his testimony that he kicked through the first fence in pursuit of defendant was inconsistent with his testimony at the suppression hearing, where he testified that he climbed over the first fence, but could not climb over the second fence because it was barbed wire.
In his testimony, defendant confirmed that when he saw the police, he uttered the expletive and said "narco." He explained that he immediately started to run because he had just purchased drugs and was on probation. He also acknowledged that he ran down an alley, but denied that he climbed over any fences. Rather, defendant testified that when he went down the alley, he reached the fence with the barbed wire on it and knew that he could not get over it. He then tried to leave the alley, but the officer already had his gun out and told him to get down, at which point he surrendered. He denied possessing any weapon that evening. Also, during direct examination, defendant disclosed his previous indictable convictions and the sentences imposed for each of the three convictions.
Under cross-examination, in addition to questioning defendant about the specific areas of his testimony where he disagreed with Officer Hennessey's testimony, the prosecutor questioned defendant about each of his prior convictions, specifically, the nature of each conviction and the sentences imposed.
On appeal, defendant raises the following points for our consideration:
THE COURT BELOW SHOULD HAVE GRANTED LOWE'S MOTION TO SUPPRESS BECAUSE HE WAS SEIZED BY THE POLICE BEFORE THE OFFICER SAW THE GUN IN HIS WAISTBAND.
A. THE OFFICER SEIZED LOWE WHEN HE COMMANDED HIM TO STOP.
B. THE OFFICER COMMANDED LOWE TO STOP BEFORE HE SAW THE GUN.
C. THE TRIAL COURT'S REMARKS WERE NOT FINDINGS OF FACT.
D. BECAUSE THE OFFICER COMMANDED LOWE TO STOP BEFORE SEEING THE GUN, THE OFFICER SEIZED LOWE WITHOUT REASONABLE SUSPICION.
E. THE EXCLUSIONARY RULE REQUIRES THE SUPPRESSION OF THE GUN.
LOWE'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE STATE'S IMPROPER USE OF HIS PRIOR RECORD TO ATTACK HIS CHARACTER AND BECAUSE THE STATE IMPROPERLY VOUCHED FOR THE CREDIBILITY OF ITS POLICE WITNESSES.
A. THE ABILITY OF THE STATE TO USE A DEFENDANT'S PRIOR CONVICTIONS FOR IMPEACHMENT PURPOSES IS LIMITED.
B. THE STATE IMPROPERLY USED LOWE'S PRIOR CONVICTIONS TO ATTACK HIS CHARACTER AND TO DEMONSTRATE A PROPENSITY TOWARD CRIMINALITY.
C. THE STATE IMPROPERLY VOUCHED FOR THE CREDIBILITY OF THE POLICE OFFICER WHO TESTIFIED.
THE COURT BELOW IMPROPERLY GAVE A FLIGHT CHARGE WITHOUT INCLUDING LOWE'S EXPLANATION FOR FLEEING THE SCENE.
THE VERDICT SHEET GIVEN TO THE JURY REFERENCED COUNTS TWO AND FIVE, LEAVING THE JURORS TO IMPROPERLY INFER THAT LOWE HAD BEEN CHARGED WITH ADDITIONAL CRIMES. (NOT RAISED BELOW).
THE COURT BELOW IMPROPERLY DOUBLE-COUNTED LOWE'S PRIOR RECORD FOR SENTENCING PURPOSES AND FAILED TO GIVE AN ADEQUATE STATEMENT OF REASONS AT SENTENCING.
A. THE COURT BELOW IMPROPERLY DOUBLE-COUNTED LOWE'S PRIOR CONVICTIONS FOR SENTENCING PURPOSES.
B. IN THE ALTERNATIVE, THE TRIAL COURT'S STATEMENT OF REASONS WAS INADEQUATE TO SUPPORT THE SENTENCE IMPOSED.
When a defendant elects to testify, the court may admit evidence of prior convictions as bearing upon the jury's consideration of a defendant's credibility viewed in the context of a defendant's prior disregard for the bounds of law evidenced by the prior convictions. State v. Sands, 76 N.J. 127, 143 (1978). The admissibility of prior convictions for credibility purposes is left to the sound discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of discretion. Id. at 147. We conclude the trial court did not abuse its discretion in admitting the prior convictions here. See Id. at 144.
Once admitted for credibility purposes, a defendant may be questioned relative to the degree and nature of the offense, as well as the sentence imposed, and a prosecutor may also comment upon the convictions during summation as bearing upon the jury's assessment of a defendant's credibility. State v. Harris, 141 N.J. 525, 559 (1995); State v. Witcher, 58 N.J. Super. 464, 496 (App. Div. 1959). A prosecutor's comments may not, however, be so repetitive that it shifts the jury's consideration of the convictions for credibility purposes to its consideration of the prior convictions as inferentially establishing that a defendant is a hardened criminal. State v. Johnson, 65 N.J. 388, 391-92 (1974).
Defendant testified that he fled police because he had just engaged in a narcotics transaction and that he discarded the recently purchased narcotics, not a weapon, during the chase. He denied possessing the gun. Officer Hennessey acknowledged during cross-examination that he did not actually see defendant discard the gun into the yard where it was eventually recovered by Frodo.
Officer Hennessey also acknowledged that his trial testimony that he kicked through the first fence in pursuing defendant because it was a barbed wire fence, was inconsistent with his earlier testimony during the suppression hearing. There, he testified that he climbed over the first fence while pursuing defendant but was unable to climb over the second fence because it was a barbed wire fence. This inconsistency was important inasmuch as Officer Hennessey testified that defendant discarded the gun over the second fence. Further, although Officer Hennessey testified that defendant climbed over a barbed wire fence and was certain that defendant sustained cuts to his hands, his police report did not include any reference to injuries. Finally, Officer Hennessey did not recall whether the gun was dusted for fingerprints. Thus, defendant's credibility was pivotal to his defense because of the vastly different accounts of what happened once Officer Hennessey pursued him into the alley.
On direct examination, defendant disclosed the convictions and the sentences imposed. On cross-examination, the prosecutor again questioned defendant, without objection from the defense, relative to his prior criminal record. However, unlike the prosecutor in Johnson, who did not ask the defendant a single question related to the offense for which he was being tried, here, the prosecutor asked defendant more than two dozen, albeit very short, questions related to the underlying offenses before he revisited defendant's prior criminal record. Id. at 391.
In revisiting those prior convictions, the prosecutor was not, however, attempting to make a complete record of the prior convictions for the jury by, for example, questioning defendant about the degree of the crime or the sentence imposed. Defendant had already disclosed the degree, nature, and sentences imposed for each prior conviction. See State v. Hicks, 283 N.J. Super. 301, 307-08 (App. Div. 1995) (noting that State v. Brunson, 132 N.J. 377 (1993), did not depart from controlling precedent permitting a defendant to be cross-examined on sentencing), certif. denied, 143 N.J. 327 (1996). Thus, the effect of the questions on cross-examination was to once again put before the jury that defendant was a three-time convicted felon. Because defendant failed to object to this line of questioning during cross-examination, we conclude, under the plain error standard, that standing alone, this questioning was not capable of producing an unjust result. R. 2:10-2.
The prosecutor's summation was not lengthy and contained four references to defendant's prior convictions. Each reference was tied to defendant's credibility. In one instance, the jury was asked to compare his testimony, as a three-time convicted felon, against the testimony of two officers whose combined "experience" as police officers was twenty years. The difficulty with this comparison is that the nature of the testimony from the police witnesses, particularly Officer Hennessey, was not dependent upon any particular experience of the officers. While Officer Hennessey's experience is what led him to believe that defendant's outburst of "narco" meant that defendant may have been involved in some narcotics activities, this was not a disputed issue. Defendant testified that he had just engaged in illegal narcotics activities when the officers arrived at the scene. Beyond this testimony, nothing in Officer Hennessey's testimony involved the jury's consideration of any particular experience of Officer Hennessey or any other officer, including K-9 Officer Mecka. Officer Mecka's testimony focused upon the expertise of his partner, K-9 dog Frodo.
Thus, in the absence of any "experience" testimony from the officers, other than the number of years they had been serving as police officers, asking the jury to compare their twenty years of experience as police officers was no more than an indirect way of asking the jury to find them more credible than defendant because of their status as police officers. The prosecutor, however, did not repeat this comment regarding the police officers' experience; nor did defense counsel object to this aspect of the summation. Consequently, any error in permitting this comment was not, under the plain error standard, capable of producing an unjust result. R. 2:10-2.
Following these remarks, the prosecutor repeated three more times that defendant was a three-time convicted felon, but each time referencing these convictions in the context of assessing defendant's credibility. Although defense counsel objected to these repeated references, the court overruled the objections.
When we view each of the references to defendant's prior convictions separately, that is, references during cross-examination and references during summation, the references were not unduly prejudicial to defendant. When viewed in the context of the total trial, which, from jury selection to final verdict, encompassed two days, what comes across is the prosecutor "harping" upon the prior convictions. Johnson, supra, 65 N.J. at 391-92. The cumulative effect of this conduct denied defendant a fair trial where defendant's credibility was critical to his defense and because of the "vastly different accounts" as to what occurred once Officer Hennessey pursued defendant into the alley. State v. Hamilton, 193 N.J. 255, 256 (2008). "Credibility, of the utmost importance for any witness, takes on heightened significance when the witness is the defendant in a criminal trial." Ibid. The court's subsequent instruction to the jury that its consideration of defendant's prior convictions as bearing solely upon its assessment of his credibility was insufficient to cure the undue prejudice to defendant resulting from the prosecutor's repeated references to defendant's prior convictions in this short trial.
In view of our reversal and remand for a new trial, we briefly comment upon the remaining points advanced. At any new trial, defendant is entitled to a flight charge that includes his explanation that he was fleeing from the scene because he had just engaged in narcotics activities and was on probation. The verdict sheet should not refer to the charges subject to deliberations as to Counts Two and Five. Turning to defendant's contention that the trial court should have granted his suppression motion, we disagree.
Unquestionably, Officer Hennessey's testimony clearly established that he ordered defendant to stop before observing the gun handle protruding from his waistband. Under both the federal and New Jersey constitutions, persons enjoy the right to be free from unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. When determining whether that right has been violated, a "court must consider whether 'in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave.'" State v. Stovall, 170 N.J. 346, 355 (2002) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980)). Therefore, a totality of the circumstances analysis is the linchpin to determining whether there has been a seizure that violates the protections afforded under both the federal and New Jersey constitutions. State v. Davis, 104 N.J. 490, 498 (1986) (stating that a court must consider the totality of the circumstances surrounding a detention). Thus, defendant's reliance upon State v. Crawley, 187 N.J. 440, 450, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006), for the proposition that a person has been seized for constitutional purposes as soon as an officer commands that person to stop is misplaced. Crawley did not address whether the investigatory stop that led to the defendant's charge and conviction for obstruction of the administration of law, N.J.S.A. 2C:29-1, met the constitutional standard for a valid seizure. Crawley, supra, 187 N.J. at 451.
Applying a totality of circumstances analysis here, Officer Hennessey had a reasonable and articulable suspicion to order defendant to stop, irrespective of his subsequent observation of the gun protruding from defendant's waist. He, along with his partner, had been detailed to an area where they were told they might find a suspect wanted in connection with a shooting. Upon their arrival at the location, they observed the suspect and defendant at the location. Defendant was walking away from the suspect. As soon as Officer Hennessey and his partner exited their vehicle with their badges exposed, defendant "took off running at a high rate of speed . . . and shouted, "oh, shit, narco." Officer Hennessey, at that point, suspected, "A, [defendant's] trying to alert other people in the area that the narcos were in the area; and, B, he's -- he could be involved[,]" meaning that defendant was attempting to notify the person who was the target of Officer Hennessey's investigation or "anybody else . . . that might be selling drugs in the area." These are sufficient facts from which Officer Hennessey established "reasonable and particularized suspicion" that defendant "has just engaged in, or was about to engage in, criminal activity." Stovall, supra, 170 N.J. at 356. Therefore, defendant's seizure met the constitutional standard.
Reversed and remanded for a new trial or further proceedings consistent with this opinion. We do not retain jurisdiction.
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