October 28, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
SHAQUANA M. WALKER, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2013
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 11-02-0074.
Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein,
Assistant Deputy Public Defender, of counsel and on the brief).
John T. Lenahan, Salem County Prosecutor, attorney for respondent (Joseph Rutala, Assistant Prosecutor, on the brief).
Before Judges Harris and Guadagno.
Tried to a jury, defendant Shaquana M. Walker was convicted of unlawful possession of a handgun. She was sentenced to a five-year term, with no parole eligibility for three years. On appeal, defendant raises the following points:
BECAUSE THE ADMISSION OF FALSE AND HIGHLY PREJUDICIAL EVIDENCE, WHICH SUGGESTED THAT DEFENDANT HAD A PRIOR GUN-POSSESSION CONVICTION, VIOLATED HER RIGHT TO DUE PROCESS AND A FAIR TRIAL, THE JUDGE ABUSED HIS DISCRETION BY FAILING TO ORDER A MISTRIAL SUA SPONTE. U.S. CONST., AMENDS. V AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10) (NOT RAISED BELOW).
THE FAILURE OF DEFENDANT'S ATTORNEY TO REDACT THE OFFENDING STATEMENT FROM THE VIDEO THAT WAS PLAYED TO THE JURY CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PAR. 10.
We have considered these arguments in the light of the applicable law and find them unpersuasive.
On May 12, 2010, New Jersey State Troopers Eric Ariza and Daniel Cunning were on patrol at approximately 1:20 a.m., when they spotted a vehicle driven by Marcus Reddick swerving across the center and right lines. The troopers stopped Reddick's vehicle and, after conducting field sobriety tests, determined he was intoxicated. Reddick was arrested and placed in the troopers' car.
Trooper Cunning then questioned defendant who was sitting in the front passenger seat. When he learned that she had an outstanding warrant, Trooper Cunning asked defendant to get out of the car and placed her under arrest. After handcuffing her, Cunning noticed defendant had a handgun in the waistband of her pants. He removed the gun and handed it to Ariza who secured it in the trunk of the troopers' car. Defendant told Cunning the gun belonged to Reddick. Defendant and Reddick were transported to the trooper barracks where they were both interviewed. Defendant waived her Miranda rights and consented to a taped interview, where she again claimed the gun belonged to Reddick. Reddick denied the gun was his.
Defendant was indicted and charged with one count of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). At trial, Trooper Ariza was the first witness called by the State. During his direct examination, the prosecutor introduced the tape recording of defendant's post-arrest interview. The trial court asked if there was any objection and defendant's counsel had none. The court inquired further:
THE COURT: And I'm assuming, since counsel didn't tell me, that nothing needs to be redacted on this? Is that --
[DEFENDANT'S COUNSEL]: No.
THE COURT: -- correct? Is that correct [counsel]?
[DEFENDANT'S COUNSEL]: No, Your honor.
THE COURT: It's not correct?
[DEFENDANT'S CONSEL]: No, it is correct.
THE COURT: Thanks.
[DEFENDANT'S COUNSEL]: Nothing needs to be redacted.
The prosecutor then played the video of defendant's interview for the jury. About halfway through the twenty-minute tape, Trooper Ariza is heard asking defendant if she had ever been charged with weapons possession before. Defendant repeatedly denied ever being charged. Then Ariza asked her if she had ever been arrested "for anything." Defendant replied, only traffic infractions. Ariza then asked if someone, perhaps a relative, could have used her name and date of birth when they were arrested. Defendant again denied any knowledge of that. Ariza then conceded the information he had might be "our mistake" and he would "double check."
When the video ended, the prosecutor continued to question Ariza but made no mention of the conversation regarding defendant's prior arrests.
On cross-examination, defendant's counsel briefly questioned him on the subject:
[DEFENDANT'S COUNSEL]: Were you one of the people who conducted the videotaped interview of Ms. Walker?
[ARIZA]: Yes. Yes, I was.
[DEFENDANT'S COUNSEL]: And at that time when you -- there was some reference made to past gun charges?
[ARIZA]: Yes, sir.
[DEFENDANT'S COUNSEL]: At the time that you were questioning her, Ms. Walker hadn't been convicted of any gun charges. Is that correct?
[ARIZA]: Yes, that is correct.
On re-direct, the prosecutor returned to the issue of defendant's record:
[PROSECUTOR]: And you were also questioned on cross and you answered no, that she did not have a weapons conviction; correct?
[ARIZA]: That is correct.
[PROSECUTOR]: Okay. But you were aware that she had been arrested for a weapons offense; correct?
[ARIZA]: That is correct.
Defendant's counsel promptly objected and the trial court conducted a sidebar conference. The court rejected the prosecutor's claim that defendant's counsel had opened the door during his questioning of Ariza or that the evidence was relevant to Ariza's credibility, and noted that evidence of an arrest without a conviction was "specifically precluded." The court said a mistrial might be appropriate but defendant had not objected to the portion of the taped interview where Ariza questioned defendant about prior arrests. The court suggested that defendant's counsel had not objected to the tape for "strategy reasons." The court sustained the objection and indicated it was disinclined to give the jury any instruction, as that would be "re-ringing the bell, " but would do so if defendant's counsel requested. Counsel firmly declined the court's offer, stating, "No, don't give the instruction."
Defendant now argues that the trial court's failure to sua sponte declare a mistrial was an abuse of discretion. We disagree.
When a defendant fails to raise an issue at trial, appellate review is governed by the plain error standard. R. 2:10-2. "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result. . . ." Ibid.; see State v. Galicia, 210 N.J. 364, 386 (2012).
Although the State may prove a prior conviction to affect the credibility of a witness, N.J.S.A. 2A:81-12, State v. Sands, 76 N.J. 127, 147 (1978), it can only do so if there was, in fact, such a conviction. Inquiry concerning an arrest, or any reference to simply an arrest, is prohibited. State v. Cooper, 10 N.J. 532, 555-56 (1952); State v. Searles, 82 N.J.Super. 210, 215 (App. Div. 1964).
The prosecutor's question to Ariza whether he was aware that defendant had been arrested for a weapons offense, and Ariza's affirmative response, were clearly improper. The trial court properly sustained defendant's objection and rejected the prosecutor's argument that defendant had "opened the door" by his counsel's earlier questioning of Ariza.
The "opening the door" doctrine does not permit admission of evidence where the probative value is substantially outweighed by the risk of undue prejudice. State v. James, 144 N.J. 538, 554 (1996). Moreover, because the doctrine is curative in nature, it can be used only to prevent prejudice, not inject prejudice. State v. Vandeweaghe, 177 N.J. 229, 238 (2003). As the court noted, defendant's counsel was pursuing a specific strategy in the brief questioning. The video contained a reference to prior weapons charges and counsel merely confirmed, through his brief questioning of Ariza, that defendant had not been convicted of any gun charges. The questioning did not constitute an attack on Ariza's credibility, as claimed by the prosecutor, nor did it result in any prejudice to the State permitting the introduction of defendant's arrest record.
Whether the prosecutor's question and Ariza's response constitute plain error depends on whether the brief testimony, which was stricken from the record, was nevertheless clearly capable of producing an unjust result. Further examination of the trial proofs is necessary.
Defendant did not deny possessing the handgun. Rather, defendant claimed it was Reddick's gun and he gave it to her when the troopers pulled the car over. Defendant's counsel failed to object to the portion of defendant's taped interview where she was questioned about a prior charge of gun possession. He then questioned Ariza to confirm that defendant had no convictions for weapons possession, and then questioned him extensively on the information contained in defendant's NCICprint out.
During counsel's summation, he argued that the NCIC database did not indicate whether defendant had a permit for the gun: "We've gone from May 2010 and nobody's bothered to check whether there's a permit for Ms. Walker. . . ." Thus, he argued, Ariza had provided "inaccurate information" to the jury. Counsel also argued to the jury that defendant was worthy of belief because she had never been convicted of a crime.
It is clear that defendant's failure to object to the admission of the unredacted video was purposeful and part of an overall trial strategy.
After the court sustained the objection to the prosecutor's question and Ariza's response, the court offered curative instructions, which defendant refused. When the court charged the jury, it included an instruction that the jury may consider Reddick's prior convictions "in determining the credibility or the believability of Mr. Reddick's testimony." The court then instructed the jury as to the questioning of defendant on the video:
On that same issue, you heard some statement during the videotaped statement made by Ms. Walker. You are -- regarding the possibility of prior arrests on weapons offenses.
You are to disregard any statement by the troopers alleging that Ms. Walker had been previously charge[d] with a weapons offense, during the taped interview.
It has no bearing on the State's burden to prove beyond a reasonable doubt whether or not she's guilty or not guilty of the charges alleged in the Indictment. That should not be considered in any way or for any purpose.
We conclude that this charge adequately addressed the brief reference regarding defendant's prior arrest. We are also satisfied that the testimony did not amount to plain error and did not contribute to the jury's verdict. The verdict was the practically inevitable product of the compelling evidence demonstrating defendant's guilt. See State v. Miscavage, 62 N.J. 294, 301 (1973).