Opinion
DOCKET NO. A-3840-13T1 DOCKET NO. A-4302-13T1
02-13-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TODD C. FORD, a/k/a CURTIS FORD, TY FORD, DUTCH FORD, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. DOMONIQUE HINES, Defendant-Appellant.
Frank Pugliese, Assistant Deputy Public Defender, argued the cause for appellant Todd C. Ford (Joseph E. Krakora, Public Defender, attorney; Mr. Pugliese, of counsel and on the brief). Nabil N. Kassem argued the cause for appellant Domonique Hines (Kassem & Associates, P.C., attorneys; Mr. Kassem and Dominique J. Carroll, on the brief). Danielle R. Pennino, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Ms. Pennino, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Reisner, Koblitz and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 10-12-0725. Frank Pugliese, Assistant Deputy Public Defender, argued the cause for appellant Todd C. Ford (Joseph E. Krakora, Public Defender, attorney; Mr. Pugliese, of counsel and on the brief). Nabil N. Kassem argued the cause for appellant Domonique Hines (Kassem & Associates, P.C., attorneys; Mr. Kassem and Dominique J. Carroll, on the brief). Danielle R. Pennino, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Ms. Pennino, of counsel and on the brief). PER CURIAM
These two appeals are consolidated for the purpose of writing one opinion. A jury convicted defendant Todd C. Ford of second-degree attempted armed robbery, N.J.S.A 2C:5-1 and N.J.S.A. 2C:15-1; second-degree conspiracy to commit armed robbery, N.J.S.A 2C:5-2 and N.J.S.A. 2C:15-1; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). Ford was sentenced to an aggregate extended term of sixteen years imprisonment with an eighty-five percent parole bar, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. At the joint trial, his half-sister, co-defendant Domonique Hines, was convicted of second-degree conspiracy to commit armed robbery and sentenced to six years in prison with an eighty-five percent parole bar, pursuant to NERA. The judge severed the trial of the third co-defendant, Damon Jones, prior to trial. Jones subsequently accepted a plea offer from the State and is not involved in this appeal.
On appeal, Ford and Hines primarily raise issues relating to evidentiary rulings and failures to charge the jury. Hines also argues that her trial should have been severed so that she could use Ford's testimony exculpating her. Based on the errors committed during the trial, as well as the failure to sever, we are compelled to reverse and remand for a new trial as to both defendants.
I
During December 2007, Jones was staying with his long-time friend, M.B., who was a drug dealer and, the State alleged, the intended victim of a robbery. Jones was the target of electronic surveillance.
We use initials to preserve the anonymity of the State's alleged victim.
The wire-tap had been authorized in September 2007 based on a robbery and murder, for which Jones and Ford were suspects. Jones pled guilty to conspiracy to commit robbery and agreed to testify against Ford in exchange for the dismissal of the murder charge. Ford was then acquitted in that earlier murder trial. This jury was properly not informed of that background.
M.B. testified for the State that on the morning of December 19, 2007, he and Jones made a plan to meet up later in the day and go together to Vineland to meet one of Jones' contacts to buy marijuana. After listening to the conversations between Jones and Ford that day, the police suspected that they were planning to rob M.B., not sell him drugs. Acting upon this suspicion, police set up a surveillance operation of M.B.'s silver Mercedes and the white Oldsmobile that Ford was riding in. The police continued to monitor Jones' phone conversations.
Ford and Jones had several phone conversations discussing a plan that will make "easy" and "guaranteed" money. Ford then called Hines, identifying himself as "Zone," telling her he needed her help with something and that there were "a couple of dollars" in it for her. The reason for the planned meeting was not spelled out in the calls, although Ford's counsel argued to the jury that it seemed as though a drug deal was being discussed.
Sometime after 1:30 p.m., M.B., driving his silver Mercedes, picked Jones up and they drove to Vineland. M.B. testified that he had between $1500 and $1600 in cash in his pocket and another $9430 in cash in the glove compartment of his silver Mercedes. M.B. claimed that despite his ownership of the car, he was unaware that there was money in the glove compartment at the time because his "kids' mother put it in there" and did not tell him.
M.B. conceded that, as part of his agreement to testify against defendants, and plead guilty to certain charges, he received $6400 back from the money that was seized by the State.
Bridgeton Police Department Sergeant Rick Pierce was assigned to surveille M.B.'s silver Mercedes. Pierce observed the Mercedes leaving Jones' apartment building that afternoon with M.B. driving and Jones in the passenger seat. Pierce followed the Mercedes, lost track of it, and then relocated the car at a pizza restaurant parking lot in Vineland. Pierce saw the Oldsmobile following closely behind the Mercedes when the Mercedes left the pizza restaurant parking lot. Pierce continued to follow both cars until they reached Vineland Kosher Poultry (Kosher Poultry).
Several police units were on the scene and stopped M.B.'s Mercedes in the parking lot of Kosher Poultry, at which point the Oldsmobile fled the scene. M.B. and Jones were removed from the Mercedes and both were arrested.
Police units pursued the Oldsmobile. Detective Steven O'Neill testified at trial that when the Oldsmobile fled from Kosher Poultry, it passed his unmarked car going at approximately 50 mph. O'Neill was able to see into the Oldsmobile as it passed him and he saw a male passenger, who he recognized as Ford, and a female driver, who he did not recognize. O'Neill observed Ford throw yellow plastic bags, a clear bag containing a powdered substance that dissipated in the air, a handgun and a "gun magazine" from the car. At that point, O'Neill discontinued his pursuit and pulled to the side of the road to stay with the .45 caliber handgun while other police officers continued to pursue the Oldsmobile.
A tractor-trailer blocked the Oldsmobile in the roadway, allowing the police to capture Ford and Hines. Detective Scott Collins, who also followed the Oldsmobile, identified the female driver as Hines in court.
Hines' driver's license was seized from the floorboard of the driver's side of the Oldsmobile. The Mercedes contained not only the $9430 in the glove compartment, but also a Tylenol bottle containing both a "white rock substance" and a green vegetative substance, a shoebox containing several cell phones and chargers found in the trunk, and a plastic bag containing seventy clear yellow plastic baggies.
Defendants did not testify or present witnesses.
Ford raises the following issues on appeal:
POINT I: A NEW TRIAL SHOULD BE GRANTED BECAUSE THE CONFRONTATION CLAUSE WAS REPEATEDLY VIOLATED BY THE PROSECUTOR'S COMMENTS AND THE TESTIMONY OF ITS WITNESSES REVEALING THAT THE STATE'S MONTHS-LONG SURVEILLANCE HAD TARGETED THE DEFENDANTS, INCLUDING AN EXPRESS REFERENCE TO THE PRE-ARREST SUSPICIONS THE POLICE HAD CONCERNING THE SPECIFIC CRIMES FOR WHICH DEFENDANTS WERE BEING TRIED, THEREBY SUGGESTING THAT THE POLICE HAD PRIOR REPORTS ABOUT DEFENDANTS' WRONGDOING FROM OUT-OF-COURT DECLARANTS. ADDITIONALLY, THESE ERRORS WERE COMPOUNDED BY THE ABSENCE OF A LIMITING INSTRUCTION AND THE COURT'S FINAL INSTRUCTION ON THE EXISTENCE OF THE WIRE-TAP WARRANT. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARA. 10. (Partially Raised Below)
POINT II: AFTER CORRECTLY RULING THAT DETECTIVE HAGER WAS NOT QUALIFIED TO IDENTIFY THE VOICE HEARD ON THE TAPES AS BELONGING TO DEFENDANT, THE COURT FAILED TO INSTRUCT THE JURY TO DISREGARD THE DETECTIVE'S PRE-RULING TESTIMONY IDENTIFYING DEFENDANT'S VOICE AS
THAT WHICH IS HEARD ON THE TAPES. (Not Raised Below)
POINT III: THE FACTS ADDUCED AT TRIAL FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT THAT DEFENDANT COMMITTED BOTH AN ATTEMPTED ROBBERY AND CONSPIRACY TO COMMIT ROBBERY. THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL ON BOTH CONVICTIONS AS EACH ARE AGAINST THE WEIGHT OF THE EVIDENCE.
POINT IV: TRIAL COUNSEL'S FAILURE TO ACCURATELY ADVISE DEFENDANT OF HIS SENTENCING EXPOSURE CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL WHICH LED DIRECTLY TO DEFENDANT'S ELECTION TO REJECT THE STATE'S PLEA OFFER AND PROCEED TO TRIAL.
A. DEFENDANT ESTABLISHED THAT COUNSEL'S INCORRECT ADVICE CONCERNING DEFENDANT'S SENTENCING EXPOSURE WAS NOT REASONABLE UNDER PREVAILING PROFESSIONAL NORMS.
B. DEFENDANT ESTABLISHED THAT ABSENT DEFENSE COUNSEL'S INCORRECT ADVICE CONCERNING HIS SENTENCING EXPOSURE THERE EXISTS A REASONABLE PROBABILITY THAT HE WOULD HAVE ACCEPTED THE STATE'S FINAL PLEA OFFER WHICH WOULD HAVE REQUIRED HIM TO SERVE A CONSIDERABLY LOWER TERM IN PRISON.
C. THE MATTER SHOULD BE REMANDED FOR A HEARING TO DETERMINE WHETHER DEFENDANT WOULD HAVE ACCEPTED THE STATE'S PLEA IF COUNSEL HAD GIVEN HIM CORRECT ADVICE ABOUT THE MANDATORY EXTENDED TERM.
Hines raises the following issues on appeal:
POINT I: THE TRIAL COURT ERRED IN ADMITTING RECORDINGS OF TWO TELEPHONE CALLS BETWEEN MESSRS. FORD AND JONES AND AN UNIDENTIFIED FEMALE ALLEGED TO BE DOMONIQUE HINES BECAUSE THE STATE FAILED TO PROVIDE ANY FOUNDATION TO PROPERLY ESTABLISH THAT MS. HINES WAS THE UNIDENTIFIED FEMALE ON THE CALLS.
A. Assuming arguendo the recordings used against Ms. Hines were properly authenticated, the court erred by admitting inadmissible hearsay.
B. Assuming arguendo the recordings used against Ms. Hines were properly authenticated and fit into a hearsay exception, the same should have been excluded under N.J.R.E. 403.
POINT II: THE TRIAL COURT'S ERRONEOUS DENIAL OF MS. HINES' MOTION FOR SEVERANCE IMPERMISSIBLY DEPRIVED MS. HINES OF MATERIAL AND EXCULPATORY EVIDENCE.
POINT III: THE STATE'S DELIBERATE WITHOLDING OF EXCULPATORY EVIDENCE FROM THE GRAND JURY AND PRESENTATION OF FALSE AND MISLEADING TESTIMONY PREJUDICED MS. HINES' FEDERAL AND STATE CONSTITUTIONAL RIGHT TO AN UNTAINTED GRAND JURY PROCESS, VIOLATED MS. HINES' STATE AND FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS, AND REQUIRES REVERSAL OF HER CONVICTION. (Not Raised Below).
POINT IV: THE TRIAL COURT ERRONEOUSLY APPLIED THE LAW WITH RESPECT TO ANALYZING MS. HINES' MOTION FOR A DIRECTED VERDICT, SPECIFICALLY BY MISAPPLYING THE TEST SET FORTH IN STATE V. REYES AS THE STATE'S EVIDENCE FELL SHORT OF WHAT WAS NECESSARY TO SUSTAIN MS. HINES' CONVICTION. (Not Raised Below).
POINT V: THE TRIAL COURT ERRONEOUSLY DETERMINED THAT THE ABSENCE OF MARIJUANA AT THE ALLEGED CRIME SCENE WAS EVIDENCE OF MS. HINES' GUILT. (Not Raised Below).
POINT VI: THE TRIAL COURT'S FAILURE TO EXCUSE OR EVEN VOIR DIRE JUROR NUMBER 13 AFTER THE JUROR IMPREMISSIBLY UTILIZED HIS CELL PHONE DURING COURT PROCEEDINGS DEPRIVED MS. HINES OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL BY AN IMPARTIAL JURY. (Not Raised Below).
POINT VII: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HER SIXTH AND FOURTEENTH AMENDMENT RIGHTS BOTH DURING PRE-TRIAL MOTIONS AND AT TRIAL. (Not Raised Below).
A. Defendant was denied her federal and state constitutional rights to the effective assistance of counsel due to the failure of her trial attorney to object to Det. Collins' inflammatory and prejudicial statements such as Ms. Hines was "definitely involved."
B. Defendant was denied her federal and state constitutional rights to the effective assistance of counsel due to the failure of her trial attorney to request a proper voir dire of juror number 13.
C. Defendant was denied her federal and state constitutional rights to the effective assistance of counsel due to the failure of her trial attorney to file a pre-trial motion to dismiss the indictment based upon the state's failure to provide the grand jury with exculpatory evidence.
POINT VIII: THE BANKSTON ERROR, WHICH OCCURRED WHEN DET. COLLINS TESTIFIED MS. HINES "WAS DEFINITELY INVOLVED", WAS SO HARMFUL TO THIS CASE, ESPECIALLY WHERE NO EVIDENCE, DIRECT OR OTHERWISE, LINKED MS. HINES TO THE CRIME - THAT IT CONSTITUTES PLAIN ERROR, NECESSITATING REVERSAL OF HER CONVICTION. (Not Raised Below).
POINT IX: THE PROSECUTOR'S SUMMATION, DURING WHICH HE: (1) IMPROPERLY BOLSTERED THE CREDIBILITY OF THE STATE'S WITNESSES; AND (2) EXALTED HIS ROLE AS PROSECUTOR WAS SO IMPROPERLY PREJUDICIAL TO MS. HINES AS TO REQUIRE REVERSAL. (Not Raised Below)
A. The prosecutor's summation, during which he improperly bolstered the credibility of the
state's witnesses, deprived Ms. Hines of a fair trial.
B. The prosecutor's summation, during which he exalted his role as prosecutor and disparaged defense counsel, deprived Ms. Hines of a fair trial under the guarantees of the state and federal constitutions and improperly prejudiced the jury.
POINT X: DEFENDANT'S CONVICTION SHOULD BE REVERSES ON THE BASIS OF CUMULATIVE ERROR. (Not Raised Below)
II
Ford argues in Point I of his brief that he should be granted a new trial because his confrontation rights, as laid out in State v. Bankston, 63 N.J. 263 (1973), were repeatedly violated by the prosecutor's comments and the testimony of police witnesses about the wire-tap and physical surveillance of the defendants. Ford cites the following exchange between Officer O'Neill and the prosecutor as being particularly problematic:
Q. Can you explain to us the circumstances of when you saw that white Oldsmobile on Elm Road?
A. Yes. During that time period, I was reassigned from Pittsgrove Township to the City of Vineland, to conduct — to assist with conducting surveillance regarding a potential robbery that was going to occur.
Bankston severely limits the prefatory information an officer may provide when explaining an investigation:
[T]he hearsay rule is not violated when a police officer explains the reason he
approached a suspect or went to the scene of the crime by stating that he did so "upon information received." Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct. However, when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule. Moreover, the admission of such testimony violates the accused's Sixth Amendment right to be confronted by witnesses against him.
. . . .
When the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay.
[Bankston, supra, 63 N.J. at 268-71 (emphasis added) (citations omitted).]
In Branch, defendant was arrested and charged with burglary and robbery. State v. Branch, 182 N.J. 338, 342-43 (2005). At trial, a detective testified that he developed defendant as a suspect and placed his picture in a photo array based on information received from an unknown source. Id. at 347. The detective also testified to the out-of-court descriptions of the burglar given by two non-testifying witnesses. Id. at 354. Applying the precepts held in Bankston, the Branch court held that this testimony was inadmissible hearsay that violated the defendant's confrontation rights, finding no legitimate need or reason for the detective to tell the jury this gratuitous information. Id. at 348.
Here, like in Branch, O'Neill's testimony that he was conducting surveillance "based on a potential robbery that was going to take place" was a gratuitous statement because there was no allegation that the police acted arbitrarily. Testimony that O'Neill was summoned to conduct surveillance of defendants "'based on information received' would have been sufficient to explain his actions." State v. Irving, 114 N.J. 427, 447 (1989). The reason why detectives were conducting the mobile surveillance was irrelevant and highly prejudicial to Ford. Branch, supra, 182 N.J. at 352. O'Neill's testimony implied that the police had information suggestive of Ford's guilt of a robbery from an unknown source who did not testify at trial, thus violating Ford's confrontation rights.
Ford's defense counsel did not make a timely objection to O'Neill's testimony, thus the issue must be resolved under the plain error rule. R. 2:10-2. Reversal based on plain error requires us to find that the error is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Williams, 168 N.J. 323, 336 (2001).
The State's case against Ford was not only largely circumstantial, but it hung on the dubious credibility of M.B., an admitted drug dealer who testified as part of a plea agreement with the State. Given that no robbery occurred, the evidentiary support for that particular crime, rather than an attempted drug sale, was particularly thin. O'Neill's improper testimony, given the weakness of the State's case, had "the clear capacity to bring about an unjust result." State v. G.V., 162 N.J. 252, 280 (2000). We must therefore reverse Ford's convictions on this basis alone.
III
We will nonetheless discuss another issue raised by Ford that also undercut the validity of the jury verdict. At trial, Sergeant Carl Heger of the Millville City Police Department testified that from September to December 2007, he participated in a wire-tap monitor of Jones' phone. Heger testified that during the course of the operation, he became familiar with Ford's voice and that he identified Ford's voice on the tapes. The State then attempted to play the tapes of the wire-tap conversations for Heger to identify the voices as belonging to Ford and Jones. Hines objected on the basis that Heger lacked a proper foundation to make the identification. Ford did not initially join in this objection.
Portions of the transcript of a sidebar conversation concerning this issue were marked "inaudible."
A Rule 104 hearing concerning the admissibility of Heger's identification of the voices on the tape was conducted without the jury present. Heger admitted during the hearing that he had never heard Ford's voice outside of the taped conversations. The trial judge ruled that Heger was not qualified to authenticate Ford's voice on the tape, but did not then tell the jury to disregard Heger's prior voice identification testimony.
Ford argues in Point II of his brief that he was deprived of a fair trial because the trial judge failed to instruct the jury to disregard Heger's pre-Rule 104 hearing testimony. Heger had testified:
Q. Over the course of monitoring the calls, did you have an opportunity to become familiar with an individual who was in communication with Mr. Jones, by the name of Todd Ford?
A. Yes.
Q. Did you ever listen to phone calls where Mr. Ford was a participant?
A. Yes.
Q. Had you become familiar with Mr. Ford's voice over the course of the investigation?
A. Yes.
Q. Did you recognize [what] you believed to be Mr. Ford's voice, over the series of the 18 calls, some of the 18 calls that I played for you?
A. Yes.
The judge erred by not instructing the jury to disregard Heger's testimony identifying Ford's voice on the wire-tap. Defendant categorizes his claim as "plain error," although Hines' objecting to the voice identifications made by Heger, which prompted a Rule 104 hearing, brought to the judge's attention a defense objection to Heger's identification. Defendant did not specifically seek an instruction telling the jury to disregard the earlier voice identification, but it cannot be said that the defense did not bring the issue of the voice identification to the attention of the court, giving the court the "opportunity to take curative action." State v. Frost, 158 N.J. 76, 84 (1999).
This admission of improper opinion evidence as to the voice identification coupled with the improper Bankston violation taints the validity of the verdict beyond repair in light of the minimal evidence presented by the State. The State relied on M.B.'s testimony that he thought he was buying marijuana although no marijuana was located in the Oldsmobile to demonstrate that Ford must have participated in a plan to rob M.B. Items were thrown out of the window of the Oldsmobile, including an unknown powder that was blown away. M.B. may have been going to buy the white powder, and not marijuana, or Ford could have been prepared to lead M.B. to drugs hidden in a different location. M.B.'s testimony that he was unaware of the $9430 in the glove compartment of his car, was inherently suspicious. In fact, the State argued that defendants were aware of the large amount of cash in the car, even though M.B. testified it was a surprise to him. As an admitted drug dealer with prior criminal convictions, who was testifying as part of a plea agreement, M.B.'s credibility was questionable even without the inherent unreasonableness of his testimony regarding the money.
The failure to advise the jury to disregard the officer's identification of Ford's voice is further reason to reverse Ford's convictions.
IV
Hines argues on appeal that the State's evidence was insufficient to prove she was involved with any criminal activity, and certainly not an armed robbery. The day of the arrest, Ford told the police his half-sister Hines was not involved. She was released that night with no charges and was not initially indicted with Ford and Jones. Ford was first indicted in April 2008 with Jones alone as his co-defendant. Hines was indicted with co-defendant William Hill for the first time in February 2009 for first-degree conspiracy to commit an armed robbery. In June 2009, she was indicted in a superseding indictment, which charged her and Hill with second-degree conspiracy to commit an armed robbery, and charged Hines alone with the additional charges of second-degree eluding and fourth-degree obstruction of justice. Finally, in December 2010, Hines was indicted with Ford and Jones in the indictment for which she was tried, charging those three crimes with the additional charge of second-degree attempted armed robbery and fourth-degree resisting arrest by flight. According to Ford, Hines, his half-sister, was six months pregnant at the time of his arrest on these charges in December 2007.
The record does not reveal what Hill's involvement was. --------
The evidentiary issues Ford raises impacted Hines' trial as well. She was tried jointly with Ford, and if the jury had determined that insufficient proofs of an attempted robbery had been presented, it would have exonerated both defendants. In addition, Detective Collins, who identified Hines as the driver of the Oldsmobile, also improperly testified that Hines "was definitely involved." Although not objected to by defense counsel at the time, and thus constituting plain error, the detective's opinion was particularly prejudicial given the lack of other evidence of Hines' involvement in any criminal activity.
As well as these evidentiary issues, Hines argues in Point II of her brief that the denial of her pre-trial severance motion unfairly denied her the exculpatory evidence of Ford's pre-trial testimony. We review this decision under the abuse of discretion standard. State v. Sanchez, 143 N.J. 273, 295 (1996). The trial court denied her severance motion only because it was filed too close in time to the beginning of trial.
She had raised the issue years earlier, however, to rebut the State's request for joinder. The motion judge determined that joinder was proper, reasoning that any proffered testimony from Ford at a separate trial would "likely be perjury." The motion judge based his decision on language in State v. Sanchez, which states that severance should be denied if the court is not persuaded that "the reliability and trustworthiness of the proffered testimony significantly outweigh the risk of perjury." Sanchez, supra, 143 N.J. at 292. The motion judge stated that he had already made a finding from Ford's two-day testimony in another motion hearing that Ford was "wholly not credible" and that if the court "allowed [Ford] to testify separately, [the court is] going to hear perjury."
Two or more defendants may be tried jointly "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." R. 3:7-7. There is a "general preference to try co-defendants jointly," State v. Robinson, 253 N.J. Super. 346, 364 (App. Div.), certif. denied, 130 N.J. 6 (2012), particularly when "much of the same evidence is needed to prosecute each defendant," State v. Brown, 118 N.J. 595, 605 (1990). "Nevertheless, a single joint trial, however desirable from the point of view of efficient and expeditious criminal adjudication, may not be had at the expense of a defendant's right to a fundamentally fair trial." Sanchez, supra, 143 N.J. at 290; Rule 3:15-2(b).
The Sanchez court addressed the factors governing a severance motion based on obtaining the exculpatory testimony of a co-defendant. Sanchez, supra, 143 N.J. at 283. The court adopted a standard that the "trial court should sever a joint trial if the court is reasonably certain that (1) the defendant will call his [or her] codefendant as a witness in a separate trial; (2) the codefendant, although unwilling to testify at a joint trial, will testify at a separate trial either prior or subsequent to his [or her] own trial; and (3) the codefendant's proffered testimony will be credible and substantially exculpatory." Id. at 293.
Hines satisfied the first prong of the Sanchez test. During Ford's post-arrest interview, he denied Hines' involvement in any criminal activity, telling the interrogating officer that "[Hines] ain't got nothing to do with shit man." Ford also testified in a pre-trial hearing that Hines had no knowledge of or involvement in any criminal behavior and that he simply asked her to give him a ride. Thus, it also seems extremely likely that Ford would have testified on behalf of Hines at a separate trial, satisfying prong two of the Sanchez test.
With regard to the third prong of the Sanchez test, the believability of Ford's testimony, the police did not initially charge Hines, nor was she indicted with Ford and Jones in their first indictment. Even assuming Hines was the woman in the wiretapped conversations, those conversations do not make clear that Hines knew anything about any plan that Jones and Ford had, beyond agreeing to do Ford a favor for money. Ford's proffered testimony could not fairly be viewed as a "patent fabrication." Sanchez, supra, 143 N.J. at 292. The joint trial precluded Hines from using Ford's exculpatory testimony. The fact that an earlier motion judge had found Ford to be incredible based on Ford's testimony at a pre-trial evidentiary hearing about another issue, should not have deprived Hines of calling him as a witness in the case against her, where the State had minimal evidence of her participation in an alleged attempted robbery. The jury should have determined whether it believed Ford as to these particular facts. The judge misapplied his discretion in denying Hines' severance motion.
We are constrained to reverse her conviction as well, both because Hines was deprived of a separate trial, and because evidentiary issues infected the joint trial, causing a reasonable doubt as to the validity of the verdict. Because we reverse all convictions against both defendants, we need not consider additional issues raised by defendants.
Both defendants' convictions are reversed and remanded for further proceedings. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION