June 21, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARRYL FRANKLIN, DEFENDANT-APPELLANT
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-04-0796.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 14, 2012 -
Before Judges Axelrad and Ostrer.
A jury found defendant Darryl Franklin guilty of third-degree possession of a weapon, a knife, for an unlawful, purpose, N.J.S.A. 2C:39-4d, and fourth-degree unlawful possession of a weapon, a knife, N.J.S.A. 2C:39-5d, and acquitted him of first degree robbery, N.J.S.A. 2C:15-1.
On this appeal, defendant asserts that four trial errors cumulatively, if not individually, denied him a fair trial: the court abused its discretion in allowing the State to introduce evidence that defendant possessed a hypodermic needle; the court erred when it did not issue a corrective instruction after the alleged victim testified that defendant faced a possible extended term; the court misstated an essential element of the charge on unlawful possession of a weapon; and the court erred in failing to comprehensively instruct the jury on the elements of theft, which was the alleged unlawful purpose for which defendant possessed the knife.
As we agree with defendant's first and third arguments, and conclude the cumulative effect of the errors denied him a fair trial, we reverse his conviction and remand for a new trial.
Jersey City Police Officer Patrick Butler testified that on January 14, 2009, at 11:37 a.m., he responded to a report of a robbery. He interviewed the alleged victim, Gerald DeFrees, at the corner of Union and Ocean Streets. DeFrees said that he was at Salem Lafayette Court when he was robbed at knife-point of $20. Officer Butler drove around the neighborhood with DeFrees in his police vehicle, to search for the robber. After several minutes, DeFrees identified defendant, walking along Bergen Avenue, three-and-a-half blocks from where he met the officer. He was wearing a wool hat and his face was visible.
As Officer Butler and other assisting officers pursued defendant, he tossed a knife into the bed of a passing truck. The knife - a black-handled kitchen knife - was retrieved. Defendant's time of arrest was 11:50 a.m., thirteen minutes after the original police dispatch. Upon his arrest, defendant possessed a hypodermic needle, a wool cap, and a ski mask, but he did not possess $20. As we discuss in greater detail below, the court had denied defendant's pre-trial motion to bar the admission of the hypodermic needle and testimony about it.
The victim testified that it was a cold January morning. He was dressed in a goose-down coat and a snow suit. While he was adjusting his snow pants, a man approached him from behind, put a knife to his throat, and removed $20 from his left pocket. He testified the robber pulled the face mask off after he took the money, so DeFrees was able to see his face. He also testified that he asked the robber to return his money and the robber responded that he would not. DeFrees, who retained his cell-phone, called 911 and an officer responded in five minutes. DeFrees identified the mask and the knife, which police recovered, as the items used in the robbery. DeFrees also asserted he had never met defendant before the incident.
On cross-examination, defense elicited that in DeFrees's initial statement to police, he did not mention the details that the robber removed his mask, he conversed with the robber about getting his money back, or that he, who was six-foot-four-inches tall, was bent over adjusting his pants when defendant, a shorter man, allegedly put a knife to his throat.
Before trial, defense counsel had moved to bar any testimony, particularly from the alleged victim, that defendant was eligible for extended term. The court asked the assistant prosecutor to advise DeFrees not to bring up the matter, and the assistant prosecutor agreed. During trial, the assistant prosecutor elicited testimony of a conversation DeFrees had with defendant when they were both in the county jail. DeFrees asserted defendant asked him to drop the charges against him. Over a defense objection, the court permitted the assistant prosecutor to elicit that defendant sought to avoid jail, without addressing the length of imprisonment defendant faced. The assistant prosecutor then inquired, "When he asked you to drop the charges, he asked you to drop the charges not because he said he was innocent but because of punishment that he could face, correct?" DeFrees agreed.
On cross-examination, the defense established that DeFrees wrote to the defense attorney, seeking a meeting to discuss his desire not to pursue the charge against defendant. However, on redirect, the State elicited that DeFrees wrote the letter at defendant's request, and the witness mentioned defendant's exposure to an extended term.
Q. It [the letter] was regarding a desire not to pursue charges against Mr. Franklin?
Q. Who told you to write that letter?
A. Darryl Franklin.
Q. Okay. It was right around the same time that he might face punishment -
A. Extended term -
Q. - if the charges proceeded.
The State had elicited on direct examination that DeFrees had three prior criminal convictions.
Although DeFrees denied knowing Franklin, the defense elicited testimony from its investigator, who interviewed DeFrees in response to his letter, that DeFrees admitting having known defendant for ten years. Defendant's girlfriend also testified that she was present on six occasions when defendant and DeFrees used drugs together. The State suggested the girlfriend was biased, and raised questions about the reliability of the investigator's report, as the investigator did not transcribe her notes for four months.
The court denied defendant's pretrial motion under N.J.R.E. 403 and 404(b) to bar evidence that he possessed a hypodermic needle upon arrest. Defense counsel argued there were "no facts to support that this hypodermic needle had anything to do with the incident for which he's charged with which is a first degree armed robbery and possession of a knife and possession for unlawful purpose."
The assistant prosecutor responded the evidence was admissible in the bench trial of the disorderly persons charge related to possession of drug paraphernalia, and was relevant to rebut a potential defense argument that defendant did not possess the fruits of the alleged robbery.
Judge, my position is that, first of all, I'm going to be asking the Court to sit as a magistrate on the disorderly persons complaint for the hypodermic needle charge.*fn1
Second of all, I can only presume that . . . part of Ms. Petersen's defense of her client in this case is that when her client was arrested, the alleged amount of money which was the - which was $20 that was allegedly taken from the victim in this case, Mr. DeFrees (phonetic), was not found on . . . the defendant. It's the State's position that that goes directly to the needle inasmuch as the money could have very easily been used to purchase heroin and shoot it right into his arm in the time span between the time of the incident and the time of the arrest. Thus, . . . it's totally germane.
Defense counsel responded that there were no supporting facts in discovery, nor did the State charge, that defendant purchased and used drugs between the time of the alleged robbery and his arrest. The court denied the defense motion, stating, "If the money's an issue, the needle's an issue. I'm going to leave it in the case."
Following the court's ruling, the State elicited proof that defendant possessed the needle; the defense highlighted the fact that defendant did not possess the $20 when arrested; and defendant elicited proof that not only was he an illegal drug user, but so was the victim, and they used drugs together.
Before summations, the trial court denied defense counsel's motion to bar, based on its speculativeness, any express suggestion by the State that defendant used all the $20 to purchase drugs, and then immediately consumed them. The court reasoned, "If you . . . highlight the fact that there's no money, he can give any other explanation for the disappearance of the money. I think it's appropriate at this time." Defense counsel objected there was no evidence that defendant purchased drugs between the alleged robbery and his arrest. The court responded: "Unfortunately - unfortunately, this is in the case. It's - it's a valid argument for the missing money, and it - it could have happened. Maybe the money wasn't taken. I don't know."
Consistent with the court's ruling, the State argued defendant did not possess the $20 because he used it to buy and consume drugs.
If you remember, ladies and gentlemen, at the time of the arrest when this individual was searched, found on his person is a hypodermic needle. You've heard further testimony that this individual is a known narcotics user, specifically heroin and cocaine. You also have information that 15 to 20 minutes passes roughly between the time of the incident and the time of the arrest. Twenty dollars is gone.
Ladies and gentlemen, I would submit to you that that is circumstantial evidence that you can find that a potential place where that $20 went is right into his arm -
MS. PETERSEN: Objection.
THE COURT: I'll allow it.
MR. HURLEY: - or right up his nose.
In delivering the charge on the elements of the unlawful-possession-of-a-weapon charge, the court mistakenly inserted the word "not" in the instruction that the State was required to prove the item was possessed under circumstances leading to the conclusion it was a weapon:
In order to convict the defendant of this crime, the State must prove the following elements beyond a reasonable doubt: that the knife in evidence, S-3, is a weapon; that the defendant possessed the weapon knowingly; and that the defendant possessed - possession of the weapon was under circumstances not manifestly appropriate for a lawful use.
It is not necessary for the State to prove that it was possessed under such circumstances that a reasonable person would recognize that it was likely to be used as a weapon, in other words, under circumstances where it possessed a likely threat of harm to others. [(Emphasis added).]
However, the court did instruct the jury, correctly, that it had to find that possession was not manifestly appropriate for its lawful use.
In charging possession of a weapon for an unlawful purpose, the court instructed the jury that the unlawful purpose alleged was the purpose to commit a theft. The court instructed the jury, "In this case, the State contends that the defendant's unlawful purpose in possessing the weapon was to use it to commit a theft." The court did not further define theft until it charged robbery, and then, it included the following concise definition: "Theft is defined as the unlawful taking or exercise of unlawful control over property of another with purpose to deprive them thereof."
The jury returned a verdict of guilty on the weapons counts, and acquitted defendant of the robbery count. After the court granted the State's motion for an extended term as a persistent offender, N.J.S.A. 2C:44-3a, the court merged the fourth degree weapons count into the third degree weapons count, and sentenced defendant to ten years, with a five-year period of parole eligibility.
Defendant raises the following points on appeal:
IT WAS AN ABUSE OF DISCRETION TO ALLOW INTRODUCTION OF THE HYPODERMIC NEEDLE IN A TRIAL FOR ROBBERY AND WEAPON POSSESSION BECAUSE IT BORE LITTLE TO NO PROBATIVE VALUE, YET TREMENDOUS RISK OF UNDUE PREJUDICE.
THE INSTRUCTION ON POSSESSION OF A KNIFE FOR AN UNLAWFUL PURPOSE WAS FLAWED BECAUSE THE JURY WAS LIMITED TO CONSIDERING ONLY COMMISSION OF THEFT AS THE UNDERLYING UNLAWFUL PURPOSE, BUT WAS GIVEN JUST A SKELETAL THEFT CHARGE WITHIN THE ROBBERY CHARGE. (Not Raised Below).
THE COURT ERRED WHEN IT DID NOT SUA SPONTE CHARGE THE JURY TO DISREGARD DEFREES' TESTIMONY THAT DEFENDANT FACED AN EXTENDED- TERM SENTENCE FOR THE PRESENT CHARGES. (Not Raised Below).
THE COURT'S INSTRUCTION ON UNLAWFUL POSSESSION OF A KNIFE ERRONEOUSLY RELIEVED THE STATE OF ITS BURDEN OF PROVING AN ESSENTIAL ELEMENT OF THE OFFENSE. (Not Raised Below).
THE CUMULATIVE EFFECT OF ERRONEOUS ADMISSION OF UNDULY PREJUDICIAL EVIDENCE AND INSTRUCTIONAL ERRORS DENIED DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL, AND WARRANTS REVERSAL. (Not Raised Below). POINT VI
THE IMPOSITION OF A MAXIMUM EXTENDED TERM WITH MAXIMUM PERIOD OF PAROLE INELIGIBILITY FOR A THIRD-DEGREE OFFENSE WAS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
We agree the court erred in permitting the State to introduce testimony that defendant possessed a hypodermic needle at the time of his arrest. The testimony constituted evidence of "other crimes wrongs, or acts" subject to N.J.R.E. 404(b). The error was compounded when the court allowed the State, over defense objection, to argue the evidence of the needle supported the inference defendant used the $20 taken from the victim to purchase and use drugs before he was arrested. The court also failed to deliver an appropriate instruction, to steer the jury away from using the needle-related evidence to decide defendant had a propensity to commit crimes, or he was a bad person.
Our analysis is guided by well-settled principles governing the use of other-crimes evidence. N.J.R.E. 404(b) states:
[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 of absence of mistake or accident when such matters are relevant to a material issue in dispute.
Admission of other-crimes evidence is guided by a four-prong test:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice. [State v. Cofield, 127 N.J. 328, 338 (1992) (citation omitted).]
When a trial court fails to apply the Cofield factors, an appellate court is obliged to exercise plenary review over the trial court's decision to admit other-crimes evidence. State v. Lykes, 192 N.J. 519, 534 (2007) ("Although we review the admissibility of prior bad acts or other-crimes evidence under the abuse of discretion standard, we conduct a plenary review when a trial court does not analyze the admissibility of other-crimes evidence under State v. Cofield, 127 N.J. 328 (1992).") (citations omitted).
Even if evidence is relevant for "other purposes", the trial judge must "engage in a 'careful and pragmatic evaluation' focusing on 'the specific context in which the evidence is offered' by weighing its probative value against its apparent or undue prejudice.'" State v. Castagna, 400 N.J. Super. 164, 175 (App. Div. 2008) (citation omitted). In determining whether prong one is met, "[t]he other crime evidence must be relevant to an issue genuinely in dispute." State v. G.V., 162 N.J. 252, 258 (2000) (quotation and citation omitted). The other crime evidence must also be "necessary" to prove the disputed issue. Ibid.
Courts also must be mindful that the potential prejudice from other crime evidence is substantial. "Other crime evidence has a unique tendency to turn a jury against the defendant." Id. at 262 (citation and quotation omitted). "There is enormous potential for prejudice in the improper admission of a defendant's prior convictions." Ibid. (citation and quotation omitted). The trial court must precisely explain to the jury "the permitted and prohibited uses of the evidence." Id. at 258. See also State v. Hernandez, 170 N.J. 106, 131 (2001). Comprehensive and careful instructions are needed because "the inherently prejudicial nature of such evidence casts doubt on a jury's ability to follow even the most precise limiting instruction." State v. Stevens, 115 N.J. 289, 309 (1989).
The State bears the burden of showing that the probative value of the other-crimes evidence is not outweighed by its apparent prejudice. Castagna, supra, 400 N.J. Super. at 175. Rule 404(b) is a rule of exclusion; the evidence is not admissible unless the proponent establishes the exception. G.V., supra, 162 N.J. at 257. By contrast, the party seeking to exclude evidence under N.J.R.E. 403 bears the burden to show that the prejudice outweighs the probative value and it does so "substantially." Castagna, supra, 420 N.J. Super. at 174.
As the trial court did not apply these standards, we do so in the exercise of plenary review. We conclude the record does not support the admission of evidence that defendant possessed a hypodermic needle. The State argues the evidence was admissible for two reasons: to establish that the allegedly stolen $20 was not found in defendant's possession because he was an intravenous drug user who used the $20 to purchase and consume drugs; and the evidence was necessary to prove the disorderly persons drug paraphernalia charge tried to the court. We are unpersuaded.
We first dispatch the State's argument that it was necessary to admit proof of defendant's possession of the needle, in the presence of the jury, to establish guilt of the drug paraphernalia charge tried to the court. Despite the assistant prosecutor's argument regarding trial of the disorderly persons offense, the record does not indicate the case was actually submitted to, and decided by the court. Moreover, the court was free to hear, outside the jury's presence, evidence pertaining solely to the disorderly persons offense. "If evidence is held to be admissible with respect to the trial of the complaint but inadmissible with respect to the trial of the criminal offense, the court shall hear that evidence outside of the jury's presence[.]" R. 3:15-3(a)(3).
Turning to application of the Cofield factors, we recognize that proof regarding a defendant's disposition of the fruits of the robbery may be material. Cf. State v. Williams, 190 N.J. 114, 130 (2007) (post-crime attempts to dispose of evidence of use of gun was material and admissible under N.J.R.E. 404(b)). However, the record evidence does not support the conclusion, by clear and convincing evidence, that defendant in fact possessed the $20, and promptly used it to purchase drugs that he then consumed - so he neither possessed $20 nor narcotics when arrested shortly after the alleged robbery. There was no evidence that: illicit drugs were available in the neighborhood at that hour of the late morning; defendant appeared under the influence of $20 worth of narcotics; or he was tested and found to have drugs in his system. There also was no expert testimony regarding: the feasibility of purchasing and ingesting narcotics in the short period of time between the alleged robbery and arrest; the quantity of drugs one could purchase on the street with $20; and the reasonableness that someone would spend all $20 and then consume all $20 worth of narcotics.
Moreover, we are unpersuaded the State met its burden to show the "probative value of the evidence must not be outweighed by its apparent prejudice." Cofield, supra, 127 N.J. at 338. The possession of the hypodermic needle and suggested drug purchase and use were not facts essential to prove the $20 theft, given the victim's testimony. See Stevens, 115 N.J. at 303 ("[A] court should consider not only [other-crimes evidence's] relevance but whether its proffered use in the case can adequately be served by other evidence."). "[I]n deciding whether prejudice outweighs probative value, 'a court must consider the availability of other evidence that can be used to prove the same point.'" State v. Jenkins, 178 N.J. 347, 365 (2004) (quoting State v. Long, 173 N.J. 138, 164 (2002)). It is indisputable that proof that defendant was an abuser of illegal drugs, as demonstrated by his possession of the needle, was prejudicial. Assertions that he actually purchased, possessed and consumed injectable or inhalable drugs added to the prejudice. Although defendant did not possess the $20 when arrested, that did not directly disprove the victim's testimony. On balance, we conclude the prejudice outweighed the probative value of the needle-related evidence and argument.
Also, the court's failure to instruct the jury as to the proper use of the other-crimes evidence exacerbated the prejudice of the evidence. As we observed, the nature of other-crimes evidence requires the most comprehensive and exacting instruction. Here, there was none at all. Consequently, the jury was unrestrained from concluding that defendant was more likely to have unlawfully possessed a weapon, and to do so for an unlawful purpose because he possessed a needle, and perhaps bought and consumed drugs.
The State argues that admission of the evidence of the needle and the suggestion of defendant's drug use was harmless. The State cites that "[a]ppellant conceded his drug use during the trial" by producing "a witness who testified that Appellant used drugs with the victim." We disagree. We think it apparent that the court's in limine ruling allowing the evidence, forced defendant to concede and explain his drug use. Absent the court's ruling, the defense could have elicited proof the alleged victim knew defendant solely through DeFrees's admission to the investigator, who was obviously a more credible witness than defendant's drug-abusing girlfriend.
Our Supreme Court has cautioned against reliance on the harmless error doctrine to excuse the wrongful admission of other-crimes evidence:
"[T]he question whether an error is reason for reversal depends finally upon some degree of possibility that it led to an unjust verdict." State v. Macon, 57 N.J. 325, 335 (1971) . . . . As stated in State v. Simon, 79 N.J. 191, 206 (1979): "Errors impacting directly upon . . . sensitive areas of a criminal trial are poor candidates for rehabilitation under the harmless error philosophy . . . ." For this reason, the rule of harmless error should be summoned only with great caution in dealing with the breach of fundamental procedural safeguards "designed to assure a fair trial." (Citations omitted). "There is widespread agreement that other-crime evidence has a unique tendency to turn a jury against the defendant. The likelihood of prejudice is acute when the proffered evidence is proof of a defendant's uncharged misconduct." State v. Stevens, supra, 115 N.J. at 302. [G.V., supra, 162 N.J. at 262.]
The State's proofs were not overwhelming. That is evident from the jury's rejection of the charge, which depended on the victim's credibility, that defendant used the knife in the course of a robbery. The jury nonetheless found defendant possessed the knife for the unlawful purpose of committing a theft. The court's error was clearly capable of producing an unjust result. R. 2:10-2. See State v. P.S., 202 N.J. 232, 260 (2010). Also, although the proofs were overwhelming that defendant possessed a steak knife, the jury's conclusion that his possession was not manifestly appropriate for its lawful use could have been tainted by wrongfully admitted evidence.
Even if the admission of the other-crimes evidence was not sufficient by itself to warrant reversal, when coupled with the court's error in instructing unlawful-possession-of-a-weapon, the two errors constituted cumulative error warranting a new trial. Accurate and understandable jury instructions are essential to ensure a fair criminal trial and the trial court has "an absolute duty to instruct the jury on the law governing the facts of the case." State v. Concepcion, 111 N.J. 373, 379 (1988). In examining jury charges, the reviewing court must look at the instructions as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973). The Supreme Court has noted that errors in jury instructions "are poor candidates for rehabilitation under the harmless error theory." State v. Harrington, 310 N.J. Super. 272, 277 (App. Div. 1998) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)). It is invariably plain error to fail to charge an element of the offense. State v. Jordan, 147 N.J. 409, 423 (1997). We also evaluate an alleged error in view of the "overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).
Applying these standards, we conclude the erroneous charge contributed to the denial of a fair trial. Even errors that may be harmless when considered separately may together prejudice a defendant and violate his or her right to due process of law. State v. Jenewicz, 193 N.J. 440, 473-74 (2008) (holding that errors' cumulative impact prejudiced the fairness of defendant's trial and therefore cast doubt on the propriety of the jury verdict); State v. Koskovich, 168 N.J. 448, 540 (2001) (holding that cumulative error warranted reversal regardless of the fact that no individual error warranted reversal). We recognize the court's error in charging unlawful possession of a weapon was inadvertent. However, the court's insertion of the word "not" substantially altered the import of the charge; the court instructed the jury that the State was not required to prove defendant possessed the knife under such circumstances that a reasonable person would recognize that it was likely to be used as a weapon, in other words, under circumstances where it posed a likely threat of harm to others. Although the court before, and after, instructed the jury that defendant's possession must be "under circumstances not manifestly appropriate for a lawful use," the ambiguity remained. Nor do we conclude that because the jury found defendant guilty of the possession-for-an-unlawful purpose, the jury must have determined defendant possessed the knife under such circumstances that a reasonable person would recognize that it was likely to be used as a weapon. "In general, it is speculative to forecast what verdict a jury would have returned if properly instructed . . . ." State v. Crisantos, 102 N.J. 265, 273 (1986) (noting power of jury to return arguably inconsistent verdicts).
We briefly address defendant's remaining points. Although DeFrees's mention of defendant's exposure to an "extended term" clearly violated the court's in limine determination, we are unpersuaded by defendant's argument that the jury likely inferred that defendant was a persistent offender. DeFrees' passing reference was likely understood by its common terms to mean simply defendant feared a lengthy or "extended" prison term if convicted, which would hardly be surprising, as he was charged with first degree robbery. Nor do we find any merit in defendant's argument that the court erred in providing only a skeletal definition of theft, in instructing the jury on the charge of possession of a weapon for an unlawful purpose. R. 2:11-3(e)(2). Lastly, given our decision on the admission of other-crimes evidence and the instruction on the unlawful-possession-of-a-weapon charge, we do not reach defendant's challenge to his sentence pursuant to N.J.S.A. 2C:44-3(a).
Reversed and remanded.