August 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALBERTO AMELY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-09-1653.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2011
Before Judges Axelrad and Sapp-Peterson.
Following a jury trial, defendant was acquitted of second-degree disarming a police officer, N.J.S.A. 2C:12-11 (Count Three) but found guilty of two counts of fourth-degree aggravated assault upon a police officer, N.J.S.A. 2C:12-1b(5) (Counts One and Two), and one count of third-degree resisting arrest, N.J.S.A. 2C:29-2a(3) (Count Four). At sentencing, the court imposed an aggregate custodial sentence of three years, together with fines and penalties. We affirm.
According to the State's evidence, the convictions arose out of defendant's actions on the evening of August 9, 2008, when his sister called 911 for assistance regarding an "unwanted intoxicated male" in her apartment. When police arrived at the location, defendant was standing in the middle of the street. When the first officer who arrived at the scene, Officer Thomas Guzman, exited his police vehicle, defendant started to shout expletives, approached the officer, and swung at him, striking the officer in the head. A scuffle ensued, and with the assistance of a second officer, Gillberto Simao, who arrived as back-up, defendant was subdued, but not before he grabbed Officer Guzman's holster.
Both officers testified that during the scuffle, defendant grabbed the holster and tugged on it three or four times. Defendant's sister, Maria Amely ("Maria"),*fn1 and her husband, George Gundersen, gave conflicting testimony on this issue. Gundersen testified that defendant grabbed Officer Guzman's belt, not the gun itself, and it appeared that defendant was attempting to keep himself from falling in grabbing the officer's belt. On re-direct, however, the prosecutor confronted Gundersen with his statement taken in February 2010, in which Gundersen stated defendant was reaching for the officer's gun belt. Gundersen then testified that his earlier statement correctly reflected what happened.
Maria's testimony was also at odds with an earlier statement. In August 2009, she was informally interviewed and stated defendant punched both officers and grabbed Officer Guzman's gun. According to her, defendant swung at Officer Guzman but missed and then grabbed the officer's belt. At trial, however, she testified defendant did not charge towards Officer Guzman but swung at him and missed. She also testified defendant grabbed the officer's belt, but later said he grabbed the holster and that she never saw defendant grab the gun.
In addition to bringing out inconsistencies between Maria's and Gundersen's earlier statements and their trial testimony, defense counsel questioned the two witnesses about whether the State, in exchange for their cooperation in connection with defendant's case, made any promises to them related to charges pending against them since November 2009. Both witnesses denied that any such promises had been made to them. They both acknowledged, however, they did not give their formal statements about the incident involving defendant until February 2010, more than eighteen months after the incident and after they had been charged with their pending criminal charges.
Following Gundersen's testimony, the State advised the court that in light of questions posed to Gundersen during cross-examination, it intended to add Assistant Prosecutor Thomas Carver, who was prosecuting the charges against Maria and Gundersen, to its witness list. Defense counsel objected, and the court directed the State to proceed with its other witnesses while it took the issue under consideration. The court ultimately agreed that Carver could testify, but defense counsel could not get into the specifics of the pending charges.
The trial court expressed its position that it was unusual to have an assistant prosecutor testify but permitted the testimony, reasoning that Carver's name has been referred to, the specifics with respect to whether or not there's been this somehow preferential treatment given to these witnesses to testify in this case and he's been pointed out in the court not your typical scenario as well sobeit unusual I think for the limited purposes that he should be permitted to testify if that's what the State wants to do.
Initially, without objection, Carver answered questions about his education and his employment background. He denied making any promises to Gundersen or Amely. On cross- examination, he was questioned at length about bail and arraignment procedures, as well as how cooperation with law enforcement may impact the sentencing of a defendant.
During summation, defense counsel objected to the prosecutor's comment that "defense counsel doesn't care if they're [meaning Maria and Gundersen] innocent or not but yet he asked them about their crime and asked them whether or not they did it in front of you all to take [their] right to remain silent." In response, the prosecutor accused defense counsel of defying the court's order limiting the scope of questions posed to Gundersen and Amely concerning their pending charges. The court instructed the jury to disregard the prosecutor's comment in this regard.
On appeal, defendant raises the following points for our consideration:
THE COURT ERRED IN PERMITTING THE PROSECUTOR TO PRESENT TESTIMONY OF AN ASSISTANT PROSECUTOR AND THREE PROSECUTOR'S INVESTIGATORS TO BUTTRESS THE TESTIMONY OF GUNDERSEN AND MARIA THAT NO PROMISRES WERE MADE TO THEM IN EXCHANGE FOR THEIR TESTIMONY AGAINST DEFENDANT.
THE PROSECUTOR'S USE OF CARVER'S TESTIMONY CONCERNING THE ALLEGATIONS AGAINST MARIA AND GUNDERSEN CONSTITUED PROSECUTORIAL MISCONDUCT WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL.
The evidentiary rulings by the trial court permitting the testimony of the witnesses from the prosecutor's office are reviewed under an abuse of discretion analysis. State v. Buda, 195 N.J. 278, 294 (2008). "Trial court evidentiary determinations are subject to limited appellate scrutiny . . . ." Ibid. (citing Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)). Guided by this limited standard of review, we first note that defendant posed no objection to the three "prosecutor's investigators" who defendant claims the State presented to buttress the testimony of Gundersen and Maria, all of whom testified after defense counsel raised objection to Carver being added to the witness list.
Investigator Marc Levy testified that he took a formal statement from Maria in February 2010. He indicated that at the time he took her statement, he was unaware she had any pending charge, and he denied making any promises to her in exchange for her agreeing to testify at the time of defendant's trial. Investigator Wayne Canastra testified he accompanied Investigator Levy to Maria's residence, where he witnessed Levy taking her formal statement. He told the jury he did not know anything about the charges and denied making any promises to her. He also testified that he was not authorized to make any promises to anyone. Finally, Sergeant Alan Bandic testified he interviewed Maria in August 2009 concerning the underlying charges against defendant. He was asked only one question related to promises, which was posed to him by defense counsel:
Q. When you spoke to her did you know that in the future 90 days from when you were there she would be charged with hindering?
A. No. How would I know that?
Q. You wouldn't make a promise for a future crime?
A. I wouldn't make a promise for a future crime.
Because defendant posed no objection to testimony from these three witnesses, we review the claimed error under the plain error standard, namely, whether permitting this testimony was an error capable of producing an unjust result. R. 2:10-2. We conclude the trial judge did not abuse his discretion in permitting this testimony and therefore no error occurred, let alone one that was capable of producing an unjust result. Ibid.
Turning to the testimony of Thomas Carver, the admission of his testimony was prompted, according to the State, by cross-examination of Gundersen regarding promises that may have been made to him and to Maria in connection with their pending charges in exchange for their testimony at defendant's trial. Both witnesses denied that any such discussions or promises had been made to them. Carver's testimony corroborating their testimony on this issue was extrinsic evidence introduced to support their credibility. N.J.R.E. 607 ("the rule"), provides in pertinent part: "Except as otherwise provided by Rules 405 and 608, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility." N.J.R.E. 405 relates to methods that may be employed to prove a person's character, while N.J.R.E. 608 addresses opinion or reputation evidence on truthfulness utilized to attack or support the credibility of a witness. Neither Rules 405 or 608 are implicated here.
Under the earlier version of the rule, evidence to support the credibility of a witness was only admitted where there had been a claim of recent fabrication. State v. King, 115 N.J. Super. 140, 143 (App. Div.), certif. denied, 59 N.J. 268 (1971). With the 1982 amendment to this rule, there are longer any limitations placed on a party's ability to support the credibility of a witness. See Biunno, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 607 (2012). Thus, a party may introduce extrinsic evidence to support the credibility of a witness unless the proffered evidence is inadmissible for some other reason. State v. Frost, 242 N.J. Super. 601, 613 (App. Div.), certif. denied., 127 N.J. 321 (1990).
Neno v. Clinton, 167 N.J. 573, 580-81 (2001), referenced by defendant, is inapposite, as the trial court there permitted the police officer to testify regarding statements taken from eyewitnesses to a motor vehicle accident and to also render a lay opinion as to the cause of the accident. Because there was no charge of improper motive or influence, and no issue related to inconsistent statements, the Court concluded the trial court improperly admitted the witnesses' statements through the police officer's testimony. Id. at 581. In addition, the Court found that by admitting the hearsay statements through the police officer's testimony before actually hearing the witnesses testify, the jury was given an opportunity to improperly assess the credibility of the statement through the law enforcement officer, which the Court reasoned could result in a jury being "inclined to accord special respect to such a witness. Deference to a police officer in turn may have enhanced the credibility of the statements of [the witnesses]." Id. at 586. Thus, the Court found improper bolstering of the witnesses' testimony through the officer's testimony. Ibid. These are not the circumstances here.
The evidence before the jury disclosed that police took no statement from Maria or Gundersen on the evening of August 9, 2008, the date when defendant's confrontation with police occurred. Nor did Maria or Gundersen appear at the police station to provide a statement to police days later. Maria was not interviewed about the matter until one year later. This interview was followed by a formal statement she gave in February 2010. Investigators took a formal statement from Gundersen during this same time period. Both formal statements were taken several months after criminal charges had been lodged against Maria and Gundersen in an unrelated matter. Defense counsel appropriately explored their potential motivation for providing formal statements to police eighteen months later. As such, Carver's testimony was relevant on the issue of their credibility and was not otherwise inadmissible.
Turning to Carver's testimony regarding his education and employment, this was preliminary background information elicited from him. Because he was being called as a fact witness in his capacity as an assistant prosecutor, rather than as an expert witness, none of the background information regarding his education and employment history was relevant. In any event, defendant did not object to these questions. Any error in permitting these questions, however, was not capable of producing an unjust result. R. 2:10-2.
Finally, we discern no prosecutorial misconduct occasioned by the prosecutor's reference, in summation, to the question posed by defense counsel to Gundersen, whether he and Maria hid Maria's son in the closet when police arrived at her home, the subject matter of their pending charges. Following defense counsel's objection, the court instructed the jury to disregard the comment. Defendant claims the prosecutor's continued comment was tantamount to telling the jury to ignore the court's instruction. We disagree.
Based upon the sidebar conference with counsel, it appears the court's instruction was specifically directed to that part of the prosecutor's summation stating that defense counsel was taking away Maria's and Gundersen's Fifth Amendment privilege against self-incrimination. Following the court's instruction to the jury to disregard the prosecutor's comment, the prosecutor returned to the fact that the jury learned of the nature of the pending charges against Maria and Gundersen. We are satisfied this comment related solely to his point that "you take people as you find them." We conclude that in the context of the entire summation and trial, the prosecutor's statement following the judge's instruction was harmless. State v. McGuire, 419 N.J. Super. 88, 145-46 (App. Div.), certif. denied, 208 N.J. 335 (2011).