November 8, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SAMUEL N. HAZELTON, JR., DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 09-01-0052.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2012
Before Judges Sapp-Peterson and Haas.
Tried before a jury on a multi-count indictment, defendant was convicted of third-degree conspiracy to distribute a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5 (count one); third-degree possession of CDS, cocaine, N.J.S.A. 2C:35-10a(1) (count two); third-degree distribution of CDS, cocaine, N.J.S.A. 2C:35-5b(3) (count three); and second-degree distributing CDS, cocaine, within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (count four).
At sentencing, the judge merged the conviction for count two into count three. The judge sentenced defendant to eight years in prison on count four; four and one-half years in prison on count one; and four and one-half years in prison on count three. All of the sentences were to run concurrent with each other. Defendant was also assessed appropriate fines and penalties.
On appeal, defendant has raised the following contentions:
THE PROSECUTOR COMMITTED REVERSIBLE MISCONDUCT WHEN SHE: 1) ASKED DEFENDANT WHETHER "EVERYBODY" WHO IDENTIFIED HIM WAS "LYING"; 2) ASSURED THE JURY THAT THE POLICE ARE "OBLIGATED TO TELL THE TRUTH"; 3) QUESTIONED DEFENDANT FOUR TIMES ABOUT HIS "LACK OF INCOME"; AND 4) INTRODUCED REPEATED REFERENCES TO THE FACT THAT DEFENDANT, WHO WAS CHARGED ONLY WITH A DRUG SALE, WAS ARRESTED AS PART OF A "GANGS, GUNS, AND NARCOTICS-RELATED" INITIATIVE. (Not Raised Below).
A. Attacking Defendant's Credibility and
B. Repeatedly Questioning Defendant About His Financial Circumstances at the Time of the Offense.
C. "Gangs and Guns"
THE POLICEMAN'S TESTIMONY SUGGESTING THAT HE KNEW DEFENDANT AND THAT HE SHOWED DEFENDANT'S PHOTOGRAPH TO THE UNDERCOVER OFFICER BECAUSE HE BELIEVED DEFENDANT MATCHED THE DESCRIPTION OF THE PERPETRATOR SHOULD HAVE BEEN EXCLUDED AS PREJUDICIAL. (Not Raised Below).
THE CONVICTIONS FOR CONSPIRACY TO DISTRIBUTE AND DISTRIBUTION SHOULD MERGE. (Not Raised Below).
After reviewing the record in light of the contentions advanced on appeal, we reverse defendant's convictions and sentence and remand to the trial court for further proceedings.
Through the testimony of two witnesses, Detective Angel Santiago of the City of Bridgeton Police Department and Officer Walter Christy of the Salem City Police Department, the State presented the following proofs at trial.
On August 6, 2008, Detective Santiago was working undercover by posing as the owner of a tree-cutting business, who was interested in purchasing drugs on the streets of Salem.
Around 7:45 p.m., he parked his pick-up truck in front of 121 Thompson Street, where four men were standing. Detective Santiago knew three of the men by sight. The fourth man was later identified as defendant. Detective Santiago had never had any contact with defendant prior to August 6.
Detective Santiago asked one of the men, Allen Gresham, for "$20 worth of cocaine." Gresham told him "that the police were in the area and it was hot at that time." Gresham gave the detective a telephone number and told him to call him later. Detective Santiago left Thompson Street and, approximately ten minutes later, he called the number. Gresham answered and instructed Detective Santiago to go to a nearby liquor store on Route 49 in Salem.
Detective Santiago drove to the store's parking lot, where he waited in his truck. About five minutes later, he was approached by an individual on a bicycle, who Detective Santiago identified at trial as defendant. Defendant reached in the truck's passenger window and gave the detective a blue glassine bag containing what the detective recognized as crack cocaine.*fn1
Detective Santiago gave defendant $20. Defendant said his name was "Lucky," and that Detective Santiago should "contact him in the future." Defendant then took his bicycle and walked toward the front of the liquor store. After defendant entered the store, Detective Santiago drove from the scene to a "predetermined debriefing location."
As he drove away, Detective Santiago radioed the back-up team that he had just made a drug purchase. He described the suspect "[a]s an older black male, tall and thin, mid to late 50s, wearing a black shirt, black shorts red trim, and black sneakers." He also advised the officers that the suspect was "on a bicycle."
Officer Christy was one of the officers on the back-up team. After Detective Santiago radioed in the information about the seller, Officer Christy responded to the liquor store, but "didn't see anybody on a bike." He turned down South Third Street, which was "the first side street" near the store, and saw a man on a bicycle. Officer Christy was about ten feet away from the rider and testified that there was still ample lighting at that time of the evening for him to recognize defendant, who was someone he knew from previous encounters. Defendant matched Detective Santiago's description of the seller.
Officer Christy returned to the police station and retrieved a photograph of defendant that was on file. Officer Christy then went to the debriefing location where Detective Santiago was waiting. Officer Christy showed the photograph to Detective Santiago, who stated, "That's the guy." Detective Santiago indicated his identification by signing the photograph.
Defendant was not arrested on the charges involved in this case until October 7, 2008, which was "the roundup" date of the ongoing investigation.
Defendant testified and denied any involvement in the matter. He stated that he was not known as "Lucky." He lived on Thompson Street and believed he had been on Third Street that evening. Defendant testified that he had never seen Detective Santiago before, but he did know Officer Christy.
Defendant contends the prosecutor made inappropriate remarks during opening and closing statements and elicited improper testimony that cumulatively denied him a fair trial. He points to four specific incidents, where the prosecutor: 1) referred to the investigation that led to defendant's arrest as part of a "guns, gangs, and narcotics-related initiative" during the opening, and then elicited testimony from the police officers that they were involved in a "gangs, guns and drugs" task force;
2) vouched for the credibility of Detective Santiago during the closing; 3) asked defendant whether "everybody's lying except for you"; and 4) asked defendant four times about his lack of income. We agree that, cumulatively considered, the challenged references had the clear capacity to prejudice defendant's right to a fair trial. Therefore, under the circumstances of this case, we are compelled to reverse defendant's convictions.
Prosecutorial misconduct is not a basis for reversal unless the conduct was so egregious that it deprived defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Considerable leeway is afforded to prosecutors in presenting their arguments at trial "as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). Accordingly, the prosecutor's statements to the jury must constitute a clear infraction and substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his or her defense in order to warrant a reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).
In general, if a defendant does not object to prosecutorial remarks, they will not be regarded as prejudicial. State v. Josephs, 174 N.J. 44, 124-25 (2002). "[A] failure to make a timely objection indicates defense counsel's belief that the prosecutor's remarks were not prejudicial at the time they were made." Id. at 125. However, the lack of a contemporaneous objection does not obviate a finding of reversible error. State v. Goode, 278 N.J. Super. 85, 91-92 (App. Div. 1994). Reversal of a conviction is warranted if the conduct is so egregious that defendant was denied his right to a fair trial. State v. Ramseur, 106 N.J. 123, 322-23 (1987).
"[P]articular remarks must be appraised in the setting of the whole trial." State v. Bruce, 72 N.J. Super. 247, 252 (App. Div. 1962). "[E]ven when an individual error or a series of errors does not rise to reversible error, when considered in combination, their cumulative effect can cast sufficient doubt on a verdict to require reversal." State v. Jenewicz, 193 N.J. 440, 473 (2008). To warrant reversal of a defendant's conviction, a court must find that "the errors had a disproportionately harmful effect in defendant's trial" sufficient to prejudice "the fairness of defendant's trial and, therefore, cast doubt on the propriety of the jury verdict that was the product of that trial." Id. at 474.
During her opening statement, the prosecutor told the jurors they would hear from Detective Santiago and Officer Christy "that during the summer months of 2008, the Salem County Police Department[,] in conjunction with the Salem County Prosecutor's Office[,] were operating what was called the Salem County Initiative." The prosecutor went on to describe what the Initiative entailed. The prosecutor stated it "was an effort by both agencies to curb the amount of gangs, guns and narcotics-related offenses that were taking - - allegedly taking place in the City of Salem."
The problem with this comment is that there was absolutely no evidence presented in the record that either officer was investigating "gangs" or "gun use" on the date defendant allegedly sold cocaine to Detective Santiago. By linking defendant to such activity, the prosecutor improperly focused the jury's attention on a matter that was absolutely outside the record. Cf. Goode, supra, 278 N.J. Super. at 89 (finding it was plain error for prosecutor to tell the jury this was its "chance to make a difference" in alleviating "the narcotics problem"); State v. Holmes, 255 N.J. Super. 248, 251-52 (App. Div. 1992) (finding plain error in prosecutor's reference to "the particular drug problem that we have in this country, particularly Newark . . ." and referring to "the war on drugs").
After "mention[ing] [the] three purposes of that initiative," the prosecutor did ask the jury to "direct [their] attention to the latter part which is narcotics." However, the damage had already been done. The impact of the reference to "gangs and guns" was then amplified by the prosecutor's questions to both Detective Santiago and Officer Christy. Detective Santiago testified he was working as part of "the Governor's Violent Crime and Drug and Gang Initiative where the various Counties were assigned to conduct narcotic investigations on violent crimes and high-trafficking narcotic areas." Officer Christy explained that, on the date of the investigation, he was "assigned to the Salem County Prosecutor's Office doing a gangs, guns and narcotics Task Force."
Again, there was never any allegation that defendant was involved in a gang, trafficked in guns, or was a suspect in a violent crime. The prosecutor's statements, coupled with the testimony elicited from the officers in support of them, were "improper because they divert[ed] the jurors' attention from the facts of the case before them." Ramseur, supra, 106 N.J. at 322. The references to "gangs and guns," in a case where there were no allegations that either was involved, clearly damaged defendant's right to a fair trial.
Additional damage occurred when, in her closing, the prosecutor improperly vouched for Detective Santiago's credibility. While a prosecutor's statements in summation are not without limits, so long as the prosecutor stays within the evidence and makes reasonable comments based on legitimate inferences that can be drawn from the evidence, he or she is entitled to wide latitude. State v. R.B., 183 N.J. 308, 330 (2005). However, a prosecutor may not express a personal belief about a witness's veracity, or suggest that a police officer would suffer penalties if a jury does not believe his or her testimony. Frost, supra, 158 N.J. at 85.
Here, however, the prosecutor did just that. In his closing statement, defense counsel questioned why Officer Christy had only provided Detective Santiago with one photograph to review in identifying defendant. He also stated that Detective Santiago was "mistaken about what he believes." In response, the prosecutor stated:
You heard . . . Detective Santiago's testimony regarding his training and experience in the field of narcotics and undercover transactions. He's trained to make these identifications either immediately after the transaction has happened or a short time later.
In this case he did it essentially almost immediately after the transaction was done. And [Officer Christy] didn't even have to say anything to him, he just held up his picture and if it wasn't him, it wasn't him and if it was him, it was. And he said, yep, that's the guy. I'll put my initials on it and I'll date it. As a police officer I'm obligated to tell the truth and this is the man who I believe on two separate occasions that night I had conversations with regarding purchasing rock cocaine and who I purchased it from in the lot next to the Salem liquor store.
The prosecutor's comment that Detective Santiago, "[a]s a police officer," was "obligated to tell the truth," was plainly improper, especially in a case where, as here, the critical determination for the jury was the relative credibility of the witnesses. State v. Jones, 104 N.J. Super. 57, 65 (App. Div. 1968), certif. denied, 53 N.J. 354 (1969) (stating that it is "obviously improper" to imply that police testimony should be accepted, "not because of its believability but because the witnesses were policemen").
Contrary to the State's contention, this was not merely a "technical" mistake by the prosecutor. Nor was it an appropriate response to defense counsel's statement that Detective Santiago was "mistaken" in his identification of defendant. Statements by a prosecutor vouching for the credibility of a police witness are wholly inappropriate. Goode, supra, 278 N.J. Super. at 90.
Defendant's right to a fair trial was also adversely affected by the prosecutor improperly asking him whether all of the witnesses who testified, but him, were lying. The following exchange occurred during the prosecutor's cross-examination of defendant:
Q: And you said you never met Detective
Q: You never met Officer Christy, correct? A: I know him.
Q: You know him?
Q: Okay. But you never met Detective
A: No, I haven't.
Q: And you're claiming that you never sold drugs, correct?
Q: You mean correct, you never sold drugs, correct?
Q: And you said you never sold drugs on
August 6, 2009 [sic], correct?
Q: So everybody's lying except for you, correct?
A: I'm not saying that.
A: All I'm saying is I don't and I never did.
A prosecutor may not require one witness, and particularly a defendant, to assess the credibility of another. State v. Bunch, 180 N.J. 534, 549 (2004); State v. Frisby, 174 N.J. 583, 594-95 (2002). The rationale for this rule is obvious. Asking the defendant to assess the credibility of other witnesses "invade[s] the province of the jury and force[s] a witness to testify as to something he cannot know, i.e., whether another is intentionally attempting to mislead the tribunal." United States v. Harris, 471 F.3d 507, 511 (3d Cir. 2006). Additionally, "such questions force defendants into choosing to either undermine their own testimony or essentially accuse another witness of being a liar." Ibid. Thus, the prosecutor's question, requiring defendant to assess the credibility of the testimony of the police officers, was clearly improper.
The State argues that the prosecutor only asked the improper question once and, therefore, the prosecutor's error in posing it should be deemed harmless. We do not agree. This was a very short cross-examination, comprising less than three pages of the trial transcript. The questions quoted above were designed to build up to the critical inquiry, "[s]o everybody's lying except for you, correct?" Read in the context of a case where credibility was the key issue, this improper question was clearly damaging to defendant's right to a fair trial.
The prosecutor's questions that preceded the assessment of credibility inquiry were equally, if not even more, improper. Defendant had worn a work uniform shirt to court. In brief background testimony, defense counsel asked him whether he was employed. Defendant replied he was currently employed at a bakery on the 11:30 p.m. to 7:30 a.m. shift, which explained his attire. The prosecutor objected and asked for a sidebar. She thought that defendant might be about to try to establish an alibi by claiming he was working at the time of the alleged drug sale. However, defense counsel explained defendant was not employed at the time of the offense and, following the sidebar, he asked defendant, "[w]ere you employed at that time?" Defendant replied, "No, I wasn't," and the examination moved on to other areas.
On cross-examination, however, the prosecutor asked four times whether defendant had been employed on August 6, 2008 and about his income:
Q: You said during the time of August 6,
2008, you were not employed, correct?
A: No, I was not.
Q: So that's correct, you were not employed?
Q: You were taking care of your wife?
Q: So you had no form of income?
A: No, I didn't myself, no.
A. We lived off of her Social Security.
Q: But you had no form of income.
A: No, I didn't.
It is well established that a prosecutor may not ask a witness, especially a defendant, about his or her employment or income, where that is not an issue in the case. State v. Mathis, 47 N.J. 455, 469-72 (1966); State v. Terrell, 359 N.J. Super. 241, 247 (App. Div. 2003). "The introduction of evidence regarding whether or not a defendant has a regular source of income is, when a collateral issue, prohibited in any form," because a defendant's poverty or lack of income cannot be used to establish a criminal motive. Terrell, supra, 359 N.J. Super. at 247. As the Supreme Court explained in Mathis, "[u]ndoubtedly a lack of money is logically connected with a crime involving financial gain. The trouble is that it would prove too much against too many." Supra, 47 N.J. at 471.
The State concedes that, "[o]bviously, the transcript would read better if [the prosecutor] had stopped this limited line of questioning a line or two earlier." Nevertheless, it argues the "repetition was prompted by a lack of responsiveness of the defendant." The record, however, does not support this assertion. Defendant had already testified, in response to a question from his attorney designed to respond to the prosecutor's inquiry at sidebar, that he was not employed. There was, therefore, no legitimate basis for the prosecutor to repeatedly ask defendant whether he was employed or had income at the time of the alleged sale. Mathis, supra. Under the circumstances, this was not harmless error.
In sum, our role as an appellate court is clear. "When assessing whether [a] defendant has received a fair trial, we must consider the impact of trial error on defendant's ability fairly to present his defense, and not just excuse error because of the strength of the State's case," or because defense counsel inexplicably failed to object to obviously improper statements and questions by the prosecutor. Jenewicz, supra, 193 N.J. at 473. While a single error may be deemed harmless, a series of errors, when considered in combination, may nevertheless cast sufficient doubt on a verdict to require reversal. Ibid.
Evaluating the cumulative effect of the errors in this case, we conclude they had a disproportionately harmful effect in defendant's trial than they would have, had each been examined individually. The prosecutor's improper comment about the investigation of defendant being related, even indirectly, to "guns and gangs," had no basis in the record. This comment, and the subsequent testimony the prosecutor elicited from each of the police officers underscoring it, had the clear potential to divert the jurors' attention from the facts of the case before them. In a case where credibility was the primary issue, the prosecutor also clearly overstepped the bounds of propriety when she vouched for the truthfulness of one of the police witnesses. While very short in duration, the prosecutor spent her entire cross-examination of defendant either improperly questioning him about his lack of employment or income, or setting him up for a final inappropriate question which asked him to assess the credibility of the police witnesses in comparison to his own.
Viewed cumulatively, these errors prejudiced the overall fairness of defendant's trial and cast doubt on the propriety of the jury verdict that was the product of that trial. Jenewicz, supra. Guided by our constitutional obligation to ensure that defendant has received a fair trial, we have no choice but to reverse. As a consequence, it is unnecessary for us to address defendant's remaining arguments with respect to the process used by the police to identify him and with respect to his sentence.
Reversed and remanded to the trial court for further proceedings.