On appeal from the Superior Court, Appellate Division.
The opinion of the court was delivered by: Justice Albin
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
State of New Jersey v. Stanford Yough
Argued September 27, 2011
Decided November 30, 2011
ALBIN, J., writing for a unanimous Court.
The Court considers whether the trial court erred in denying a motion for a mistrial after the victim of a robbery testified that he observed the perpetrator more times than he had indicated in his statement to the police.
According to his trial testimony, on October 10, 2005, at approximately 1:00 a.m., Cesar Alva entered a restaurant in Paterson and was approached by defendant Stanford Yough, who asked him for fifty cents. Alva replied that he did not have the change. After Alva paid for his order, defendant again approached him and asked for a dollar. Alva said that he did not have one, but placed fifty cents on a nearby shelf. Defendant took the change and went outside where he conferred with two other men while pointing at Alva. After picking up his order, Alva left the restaurant and walked toward his car. He had not gone more than twenty feet when defendant and his two cohorts knocked him down and began kicking and pummeling him. Defendant ordered the men to stop the assault and demanded that Alva turn over his wallet. Defendant rifled through the wallet, causing Alva's money to spill to the ground. The three men collected the money, defendant returned Alva's empty wallet, and the men left the scene.
Alva drove to another location and called the police. He reported the robbery and gave the officer a description of the perpetrator. A week later, Alva went to the police department where he looked through books of photographs. Alva selected defendant's photograph, stating that he had "no doubt" he was the man who robbed him. Two days later, Alva gave a statement to a detective in which he confirmed his identification of defendant.
At the 2007 trial, Alva testified during his direct examination that he was certain defendant was one of his attackers, and stated that he had seen defendant in Paterson many times--ten or fifteen. On cross-examination, defense counsel highlighted the inconsistency between Alva's direct testimony and the statement he had given the detective two years earlier in which he stated that he had observed defendant "two or three, maybe more" times before the robbery. Alva, whose native language is Spanish, responded that he had seen defendant "many times on the street. And he come and he point at me like this and talk to another people like this, (makes growling noise) like this." In fractured sentences, Alva mentioned that he had seen defendant jogging, had seen him "dressed very nice," and injected "when he choked me." While Alva made these fragmented statements, defense counsel and the judge were talking over him. Defense counsel asked the judge for the opportunity to be heard, and the judge responded affirmatively. After the jury was dismissed, defense counsel expressed concern that Alva was going to testify that he saw defendant after the robbery, and suggested a discovery violation by the State for failing to advise him of the encounters.
The trial court conducted a Rule 104 hearing to determine what testimony Alva would give to the jury. Alva explained that he saw defendant ten or fifteen times, but it was unclear whether all of those times were after he gave his statement to the detective. Alva also was not certain whether he had told the prosecutor about the post-robbery encounters. At no point during the hearing did Alva mention that defendant had choked or threatened him after the robbery. After the hearing concluded, defense counsel moved for a mistrial, claiming that Alva's testimony before the jury that defendant was "pointing at him some other time" was the equivalent of threatening him and implicated witness tampering. The court denied the motion, finding an ambiguity in Alva's testimony before the jury. The judge gave defense counsel the opportunity to explore before the jury the conflict between Alva's statement to the police and his courtroom testimony about the encounters, but counsel responded that if the prosecutor left the issue alone he did not see a discovery violation "yet." The judge barred the prosecutor from questioning Alva about the times he had seen defendant since the robbery and instructed Alva not to mention that he saw defendant after he gave his statement to the police. For the remainder of Alva's cross-examination, defense counsel probed the merits of his identification of defendant, including discrepancies between Alva's description of him at the time of the robbery and his appearance at trial. No mention was made of the fact that Alva had seen defendant on a number of occasions after the robbery and Alva was not permitted to explain the conflict between his statement to police and his trial testimony.
During his summation, defense counsel argued that Alva told the police one week after the robbery that he had seen defendant two or three times, maybe more, and embellished his in-court testimony by stating that he had seen him ten to fifteen times. Defense counsel argued that Alva, having convinced himself that his identification was correct, made those statements in court because he wanted the jury to convict defendant. Neither defense counsel nor the prosecutor intimated that Alva had seen defendant after the robbery. In charging the jury on identification, the judge instructed the jury that it could consider Alva's testimony that he knew the perpetrator from having seen him before the incident. The instructions did not suggest that Alva observed defendant after the robbery. Defense counsel did not object to the jury charge or request a limiting instruction on the use of Alva's testimony. The jury found defendant guilty of second-degree robbery in violation of N.J.S.A. 2C:15-1(a)(1). The trial court determined that defendant was a persistent offender and imposed a fifteen-year term of imprisonment subject to the No Early Release Act.
In an unpublished opinion, a split Appellate Division panel reversed defendant's conviction and remanded for a new trial. The two-judge majority held that the trial judge should have granted the motion for a mistrial based on Alva's unresponsive and prejudicial answers during the cross-examination. The majority found that the jury could have reasonably inferred from Alva's testimony that defendant engaged in post-robbery acts of intimidation or witness tampering, thereby exposing the jury to inadmissible bad-acts evidence. The majority also asserted that the post-robbery sightings improperly bolstered Alva's identification of defendant. Despite defense counsel's failure to object to Alva's testimony as prior bad-acts evidence or to the jury charge, and his failure to seek a curative charge, the majority found that the inadmissible and highly prejudicial evidence undermined the fairness of the trial to the extent that cautionary or limiting instructions were not a feasible alternative. The dissenting judge disagreed, pointing out that defense counsel thoroughly cross-examined Alva about inconsistencies in his description of defendant and the number of times he claimed to have seen him, and the jury had a full opportunity to assess the credibility of Alva's identification. The dissenting judge did not find prejudicial the challenged portion of the cross-examination, which was part of a choppy colloquy interspersed with interruptions, and she pointed to the fact that defense counsel did not object to or request a curative instruction for Alva's reference to choking or growling. In light of Alva's observation of defendant over an extended period of time and his unwavering identification, and based on the deference that is due a trial court's evidential rulings, the dissenting judge concluded that a mistrial was not required.
Because the State appealed as of right based on the dissent in the Appellate Division, Rule 2:2-1(2)(2), the issues before the Supreme Court were limited to those raised in the dissenting opinion.
HELD: The trial court did not err in denying defendant Stanford Yough's motion for a mistrial after the victim testified on direct and cross-examination that he observed defendant more times than he had indicated in his statement to the police. No errors occurred during those exchanges that were clearly capable of producing an unjust result.
1. A trial is an extemporaneous production whose course is often unpredictable. In any trial, inadmissible evidence frequently, often unavoidably, comes to the attention of the jury. Attorneys making strategic decisions based on information within their exclusive ken are in the best position to gauge when to object to a perceived error and whether to request a curative instruction. Whether testimony or a comment by counsel is prejudicial and whether it can be neutralized through a curative instruction or undermines the fairness of a trial are matters peculiarly within the competence of the trial judge. A mistrial should be granted only when necessary to prevent an obvious failure of justice, and an appellate court should not reverse a trial court's denial of a mistrial motion absent a clear showing that the defendant suffered actual harm or the court otherwise abused its discretion. When inadmissible evidence erroneously comes before the jury, an appellate court should not order a new trial unless the error was clearly capable of producing an unjust result. (pp. 15-16)
2. In reviewing the challenged testimony, all that matters is what the jury heard, not what counsel and the court learned through the Rule 104 hearing. Based on Alva's testimony to the jury, defense counsel's argument to the jury, and the trial court's jury charge, the Court concludes that the jury could not have reasonably inferred that Alva had an encounter with or was threatened by defendant after the robbery. All the jury heard and could have reasonably understood was that during the initial investigation Alva told the detective that he had seen defendant two, three or more times before the robbery, and that he increased that number to ten to fifteen during his trial testimony. When defense counsel attempted to probe and exploit that inconsistency, Alva's testimony became a series of broken and disjointed sentences as defense counsel and the judge talked over him. Only at the Rule 104 hearing did it become clear that Alva observed defendant after the robbery. Thereafter, defense counsel rejected an invitation to pursue Alva's claim of post-robbery encounters, the prosecutor was barred from correcting the discrepancy and never intimated in any way that Alva had observed defendant after the robbery, and defense counsel was permitted to fully exploit the discrepancy. The defense also received the benefit of a favorable jury charge that the jury could consider Alva's testimony that he had seen the perpetrator before the robbery occurred. If defense counsel believed that the jury had been exposed to post-robbery, other-crimes evidence in violation of evidence rules, he could have asked for a curative or limiting instruction. His failure to do so suggests that defense counsel believed he had constrained the post-robbery narrative to his advantage or that any possible error was of no moment. (pp. 16-22)
3. The Court takes issue with the characterization of Alva's testimony by defense counsel and by the Appellate Division majority that defendant intimidated Alva by growling at him sometime after the robbery when the two encountered each other on the street. At no time did Alva testify that defendant "growled at him." Instead, Alva stated that defendant pointed at him as he talked with other people and made a noise that the court transcriber interpreted as growling. Given the Court's review of that portion of the sound-recorded proceedings, it finds that there may be some basis to the State's argument that the transcript was inaccurate. However, any such challenge should have been brought before the trial court or the Clerk of the Appellate Division, pursuant to Rule 2:5-5(a). In any event, the Court is satisfied that settling the record would not alter the outcome of the case. (pp. 22-25)
4. Because defense counsel claimed surprise, the court acceded to his request to withhold from the jury testimony that would have explained the discrepancy between Alva's statement to police and his in-court testimony. As a consequence, defense counsel was able to exploit inconsistencies without fear of contradiction. That hardly worked to defendant's detriment. Moreover, defense counsel did not object to the court's jury charge or request any limiting or curative instruction. The trial court did not abuse its discretion in denying defendant's motion for a mistrial, and the Court does not find any error clearly capable of producing an unjust result. (p. 26)
The judgment of the Appellate Division granting defendant a new trial is REVERSED, and the matter is REMANDED to that court for consideration of the remaining issues raised in his appeal.
CHIEF JUSTICE RABNER and JUSTICES LONG, HOENS, and PATTERSON join in JUSTICE ALBIN's opinion. JUSTICE LaVECCHIA and JUDGE WEFING, temporarily assigned, did not participate.
Argued September 27, 2011
JUSTICE ALBIN delivered the opinion of the Court. Trials are not perfectly orchestrated productions. The testimony of witnesses may not always be predictable, particularly in criminal cases where depositions are not a typical tool of discovery. On the stand, a witness may give testimony that is different from or more expansive than an outof-court statement recorded by the police. In many instances, discrepancies will advantage a defense attorney attempting to discredit a witness -- but not always. Every witness's digression from a prior statement cannot be grist for the granting of a new-trial motion.
In this case, the victim of a robbery testified at trial that he observed defendant more times than he had indicated in his statement to the police and, in response to cross-examination, gave more details about his sightings of defendant. A split panel of the Appellate Division reversed defendant's robbery conviction, finding that a mistrial should have been granted because the victim suggested at trial for the first time that defendant threatened or intimidated him following the robbery and that no curative instruction was given. We do not believe that a fair reading of the victim's testimony before the jury implicates post-robbery bad-act evidence or that defendant was unfairly prejudiced by that testimony. Although the victim testified at a hearing out of the presence of the jury that he had observed and encountered defendant after the robbery, because of defense counsel's claim of surprise, the prosecutor was prohibited from revealing that information to the jury.
We are in agreement with the panel's dissenting judge who concluded that the trial court did not abuse its discretion in declining to grant a mistrial. Accordingly, we reverse the Appellate Division's grant of a new trial and reinstate defendant's conviction.
On August 3, 2007, a Passaic County jury found defendant Stanford Yough guilty of second-degree robbery in violation of N.J.S.A. 2C:15-1(a)(1). The trial court determined that defendant was a persistent offender, N.J.S.A. 2C:44-3(a), and imposed a fifteen-year term of ...