On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 09-10-0405.
The opinion of the court was delivered by: Haas, J.S.C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Nugent and Haas.
HAAS, J.S.C. (temporarily assigned).
In this appeal, we address the issue of whether it was plain error for a police officer to provide hearsay testimony explaining why he included defendant's photograph in a photo array and for the prosecutor to highlight that testimony in summation. We also consider whether the trial court was required to instruct the jury on the elements of attempted robbery even though such an instruction was not requested by defendant.
After reviewing the record in light of the contentions advanced on appeal, we determine the police officer's testimony should not have been admitted and that the prosecutor's summation improperly bolstered the officer's testimony in violation of defendant's constitutional right of confrontation. We further conclude it was plain error to fail to instruct the jury on the elements of attempted robbery. We therefore reverse defendant's convictions and remand for a new trial.
The State developed the following proofs at trial. Antoinette Boutros is the owner of a convenience store. On June 29, 2009, Boutros was working by herself at the cash register when she saw a man come into the store "going like real fast in the back of the store." Boutros testified she had seen the man before in the store and his face looked familiar. However, she did not know his name. There were other customers in the store at the time and Boutros continued to assist them.
When the other customers left, the man approached the register with a Reese's candy bar in his hand. He put his hand in his pocket and took out a "grey metal stick." Boutros testified the man shook the stick at her and told her to "open the register, I'm not joking, open the register, and don't you dare touch the phone. I'm going to kill you, I'm going to get you." Boutros had originally believed the man was joking, but after he threatened her, she "pressed the panic button" to alert the police.
Boutros testified she became flustered and she was unable to open the register. As the man continued to threaten her, Boutros told him she would "unplug the register" and that he should "take the whole store, leave me alone, don't touch me." She then ran out of the store. The man followed Boutros outside. He had not taken any money from the register and Boutros testified she did not know whether he had taken the candy bar from the store with him. Once outside, the man told Boutros "I'm going to come back and kill you if you call the police." The man then ran away "really, really fast."
Detective Sergeant Robert Stettner arrived at the scene between five and fifteen minutes after receiving the call. Boutros' husband, Lenny, who was also an owner, was at the store when he arrived. Boutros told the detective there was a surveillance video. The detective reviewed it, but he testified the suspect's face was not visible in the footage.
Several days later, Lenny Boutros called Detective Sergeant Stettner. The detective testified Mr. Boutros told him "a customer of his had either called or come in - - I'm not exactly sure what he said - - but provided the name of [defendant] as the person who" was involved in the incident. Defense counsel did not object to this testimony at trial. Based upon this information, Detective Sergeant Stettner testified he obtained a photo of defendant and included it with five photos of other suspects in a photo array. He then gave the photo array to Detective Teddy Garcia, who showed it to Boutros. When she got to defendant's photo, Boutros said "[t]hat's him, oh my God." Defendant was then arrested.
Tried before a jury on a two-count indictment, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1a(2) (count one); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two). The trial court sentenced defendant to five years in prison, subject to the provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2, on count one; and a concurrent three-year term on count two. Defendant was also assessed appropriate fines and penalties.
On appeal, defendant has raised the following contentions:
THE BANKSTON/BRANCH ERROR, WHICH OCCURRED WHEN THE PROSECUTOR ASKED A DETECTIVE HOW HE "[G]OT A NAME OF A POTENTIAL SUSPECT," AND THE DETECTIVE RESPONDED BY DETAILING MULTIPLE LEVELS OF HEARSAY IMPLICATING DEFENDANT IN THE CRIME, WAS SO HARMFUL TO THIS CASE - - WHERE MISIDENTIFICATION WAS THE DEFENSE - - THAT IT CONSTITUTES PLAIN ERROR, WORTHY OF REVERSAL.
AS WAS THE BASIS FOR REVERSAL IN STATE V. GONZALEZ, THE TRIAL JUDGE CHARGED THE JURY ON ATTEMPTED THEFT AS A BASIS FOR ROBBERY, BUT DID NOT EVER DEFINE EITHER THE ACTUS REUS OR THE MENS REA OF A CRIMINAL ATTEMPT. POINT III
THE TRIAL JUDGE ERRED IN REFUSING THE REQUESTED INSTRUCTION ON THEFT AND/OR ATTEMPTED THEFT AS ...