Opinion
DOCKET NO. A-2268-13T3
01-29-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. THOMAS GIBERSON, Defendant-Appellant.
Steven Hernandez, attorney for appellant (Thomas Cannavo, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-03-0784. Steven Hernandez, attorney for appellant (Thomas Cannavo, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
After a jury trial, defendant appeals from his conviction for fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3a. We affirm.
We discern the following facts from the evidence adduced at trial. Trooper Allen Lewis responded to a car accident at a toll plaza. One of the drivers (the "driver") reported to the trooper that he dropped his wallet following the accident. Shortly thereafter, defendant, a toll plaza supervisor, returned the driver's wallet, which he had found earlier on the ground. The returned wallet was missing $400.
Trooper Lewis recovered video surveillance from the toll plaza which showed defendant picking the wallet up from the ground and bringing it into a toll booth. The video also showed another toll booth worker (the "co-worker") entering the same toll booth.
A detective interviewed defendant and videotaped his statement. The State played the DVD of the statement at trial, and presented the jury with a transcript of that statement. The transcript contained a comment made by the detective, who did not testify at trial: "I'm not asking you if you [t]ook the money ['cause] I know that you did." Defendant maintained in the interview and at trial that there was no money in the wallet when he found it. The police did not interview the co-worker.
On appeal, defendant argues the following points:
POINT I
FAILURE BY THE STATE TO DISCLOSE CLEARLY EXCULPATORY EVIDENCE AND TELLING "HALF[-
]TRUTHS" TO THE GRAND JURY REQUIRE DISMISSAL OF THE THEFT INDICTMENT WITH PREJUDICE.
POINT II
THE MISCONDUCT OF THE PROSECUTOR AT ALL PHASES OF THE TRIAL DEPRIVED DEFENDANT OF A FAIR TRIAL AND JUSTIFIES REVERSAL OF THE THEFT CONVICTION.
POINT III
THE COURT COMMITTED PLAIN ERROR BY ALLOWING THE JURY TO RECEIVE THE TRANSCRIPT OF THE DEFENDANT'S STATEMENT BECAUSE IT INCLUDED AN ACCUSATION BY [THE DETECTIVE] THAT HE KNEW DEFENDANT TOOK THE MONEY. THE TEPID AND SINGULAR CAUTIONARY INSTRUCTION TO THE JURY DID NOT AND COULD NOT RECTIFY THE EXTREME PREJUDICE OF THIS STATEMENT.
POINT IV
THE ADMISSION OF THE NON-TESTIFYING DETECTIVE['S] HIGHLY PREJUDICIAL STATEMENT AS TO DEFENDANT'S ULTIMATE GUILT ALSO VIOLATED DEFENDANT'S RIGHT TO CONFRONTATION AND CONSTITUTES PLAIN ERROR.
POINT V
THE CUMULATIVE ERRORS BY THE COURT AND PROSECUTOR VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND CONSTITUTE REVERSIBLE ERROR.
I.
We reject defendant's argument that the State's failure to inform the grand jury of the presence of the co-worker in the toll booth warrants dismissal of the indictment with prejudice.
We apply an abuse-of-discretion standard when reviewing a trial court's decision on a motion to dismiss an indictment. State v. Morrison, 188 N.J. 2, 11 (2006). The "indictment should be disturbed only on the clearest and plainest ground and only when the indictment is manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996) (internal citations and quotation marks omitted). Rarely "will a prosecutor's failure to present exculpatory evidence to a grand jury constitute grounds for challenging an indictment[,]" id. at 239, and even then, dismissal is warranted only if the error was "clearly capable of producing an unjust result." State v. Hogan, 336 N.J. Super. 319, 344 (App. Div.), certif. denied, 167 N.J. 635 (2001) (requiring a "showing that the grand jury would have reached a different result but for the prosecutor's error").
Additionally, the State "may not deceive the grand jury or present its evidence in a way that is tantamount to telling the grand jury a 'half-truth.'" Hogan, supra, 144 N.J. at 236. Instead, the State must provide such evidence in its possession "that is credible, material, and so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused." Ibid. As such, the prosecution is required to present any evidence that "both directly negates the guilt of the accused and is clearly exculpatory." Id. at 237.
There was no abuse of discretion here. In declining to dismiss the indictment, the judge found
that there was sufficient evidence before the grand jury to establish a prima facie case. Any argument made by defense counsel in connection with . . . the probative value of the videotape being contrary to the State's position really is a matter of argument that's best heard by a petit jury.
I don't find anything that was left out that would clearly exonerate the defendant under the Hogan decision. Nor do I find that the presentation was fundamentally unfair, such as would deprive the grand jury of its decision-making function.
We recognize that the record indicates that the video shows both the co-worker and defendant entering the booth where the wallet was located. However, that someone else also had access to the wallet during the relevant time frame does not directly negate defendant's guilt or "squarely refute[] an element of [theft]." Hogan, supra, 144 N.J. at 237; see also N.J.S.A. 2C:20-3a (indicating that "[a] person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof").
The parties did not produce the video on appeal.
An accused's self-serving statement denying involvement in a crime, recantation evidence, and identification of a person other than the defendant by two witnesses as the murderer where three other persons who testified before the grand jury identified the defendant, have all been held not clearly exculpatory. See Hogan, supra, 144 N.J. at 237-240; State v. Cook, 330 N.J. Super. 395, 410 (App. Div.), certif. denied, 165 N.J. 486 (2000). Likewise, the judge here was correct in finding that the possibility of another individual being the perpetrator did not "clearly exonerate" defendant.
Defendant additionally argues that Trooper Lewis told the grand jury "half-truths". However, these alleged "half-truths" — whether defendant made inconsistent statements about personnel other than defendant having access to the booth where the wallet was located and whether a violation alarm occurred requiring defendant to go into the booth — were minor factual disputes not material to the State's prima facie case against defendant. The role of a grand jury is "not to weigh evidence presented by each party, but rather to investigate potential defendants and decide whether a criminal proceeding should be commenced." Hogan, supra, 144 N.J. at 235. "Credibility determinations and resolution of factual disputes are reserved almost exclusively for the petit jury." Ibid.
Defendant points to three instances of prosecutorial misconduct that deprived him of his right to a fair trial. We conclude that even if the statements were improper, they did not deprive defendant of a fair trial.
To determine whether a prosecutor's improper comments in summation warrant reversal, we must assess whether the impropriety was "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In making this assessment, we must "consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 ( 1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The prosecution's duty to achieve justice does not preclude a prosecutor from presenting the State's case in a "'vigorous and forceful'" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)).
During opening statements, the prosecutor told the jury that defendant stated during the investigation that he "was the only person that had the ability to get in that tollbooth." Defendant argues this is contradictory to his actual statement that "[the co-worker] is really the only one with any right to go into the [toll booth]."
Although the prosecutor's description of defendant's statement could be considered contradictory to defendant's actual statement, the prosecutor nevertheless played a recording of the entire interview to the jurors and also gave them the transcript of the interview in its entirety. The prosecutor also played the video showing the co-worker entering the booth and Trooper Lewis testified to the same. Furthermore, the judge instructed the jury that "what is said in an opening statement is not evidence. The evidence will only come from the witnesses who testified and from whatever documents or tangible items that are received in evidence." Therefore, the jury is presumed to have followed the court's instructions and properly considered the evidence presented at trial such that defendant was not deprived of a fair trial. State v. Smith, 212 N.J. 365, 409 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
Likewise, the prosecutor telling the jury during summation that "two technology experts" contradicted defendant's testimony, when only one expert testified at trial, also does not warrant reversal. This was a simple misstatement and does not amount to reversible error.
Finally, defendant argues that the prosecutor attempted to establish Trooper Lewis as an expert in credibility assessments in order to impermissibly opine on the driver's credibility in contravention of State v. McLean, 205 N.J. 438, 461 (2011), which held that the lay opinion rule does not authorize a police officer to opine on defendant's guilt. During direct examination of Trooper Lewis, the prosecutor asked:
[Prosecutor]: Tell us about some of that training.
[Trooper Lewis]: At the New Jersey State Police Academy in Sea Girt regarding investigative criminal traffic matters.
[Prosecutor]: Did you receive any specialized training in interrogations?
[Trooper Lewis]: Yes.
[Prosecutor]: Can you explain some of—that for us?
[Trooper Lewis]: Went to interrogation schools offered by the state police throughout our career, I've attended a few of them, and also the training we had at the academy regarding courtroom testimony.
[Prosecutor]: Within that training, did you learn how to assess someone's credibility that you're interviewing?
Defendant argues that Trooper Lewis then used his "expertise" to impermissibly assess the credibility of the driver:
So I continued to ask him . . . and I'm probing him to see if he's telling me the truth. And I'm looking into this man's eyes and he's telling me . . . and from my training, when I interview you as I'm looking at you now, that's how I look at you. I don't take my sight off of you. I'm looking, and every answer, every question that I gave him, every answer that he responded to was dead on, he was adamant, he was emotional, he was passionate about his money being gone.Defense counsel objected and the judge immediately instructed the jury that, "there's been a lot of hearsay, [counsel]. I will sustain the objection as it refers to, or that portion of the statement where the witness offers an opinion as to the credibility of the victim and I'll ask the jury to disregard that." Furthermore, the driver also testified at trial, thus allowing the jury to perform its own credibility assessment of the driver.
Defendant also argues that the prosecutor impermissibly elicited Trooper Lewis' opinion as to his conclusion after watching the video:
[Prosecutor]: What did you conclude — what were your thoughts after watching this video?
[Trooper Lewis]: My thought, [defendant] took the wallet.
[Prosecutor]: Why had you concluded that?
[Trooper Lewis]: From his actions when he approached the toll plaza and bending over
and picking up an object from the ground quickly and moving into the tollbooth.
. . . .
[Prosecutor]: Did someone else enter that same booth where the defendant took the wallet?
[Trooper Lewis]: Yes.
[Prosecutor]: Why didn't you ask that person any questions?
[Trooper Lewis]: First, [defendant] was the person of interest.
[Defense Counsel]: I object to the leading nature of the question because there wasn't any indication, there wasn't a foundation set for that particular question.
The Court: Well, it['s] not a leading question, it's a why question, but since the response seems to be passing the witness in a role of giving an opinion about the inferences to be drawn from the evidence, I'll sustain on that basis.
Later, the prosecutor returned to this line of questioning, which the judge cut short on his own:
[Prosecutor]: . . . [W]hat . . . led you to not conduct further interviews?
[Trooper Lewis]: Well, [defendant] advised us that when he initially located the wallet and looked into the wallet, he said that there was no money in the wallet, and then he placed the wallet into the tollbooth. So regardless of how many people —
The Court: Hold on a moment here. . . . I think this is intruding too much on the jury's ambit.
Here, the statements do not individually or collectively rise to the level of egregiousness necessary for a new trial. Defense counsel made timely objections and the judge sustained each objection and instructed the jury to disregard them. The judge also instructed the jury at the conclusion of trial:
Now, at the outset of the trial, I explained to you that you are the judges of the facts, and as judges of the facts, you determine the credibility of the witnesses as well as the weight to be attached to their testimony. You and you alone are the sole exclusive judges of the evidence. Regardless of what counsel said or I may say in recalling the evidence in this case, it is your recollection that must guide you as judges of the facts. Arguments, statements, remarks, openings and summations of counsel are not evidence.
. . . .
Now, any testimony I may have had occasion to strike is not evidence and shall not enter into your final deliberations. You may recall there were one or two instances where I told you to disregard the response the witness gave. Disregarding it means that even though you may remember the testimony, you are not to use it in your discussion or deliberations.
Therefore, the prosecutor's conduct did not reach the level of reversible error. See Ramseur, supra, 106 N.J. at 323 (indicating that over the course of a long trial with numerous objections on many issues, when the judge gives proper jury instructions, even improper comments may not "reach the level of reversible error").
III.
Defendant argues for the first time that the court's curative instruction in lieu of redacting a portion of defendant's statement where the detective opined on defendant's guilt was plain error and violated his right to confrontation. We disagree.
We apply the plain error standard here because defendant did not object at trial. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
As discussed above, a lay witness may not opine on a defendant's guilt. See McLean, supra, 205 N.J. at 461. In the transcript of defendant's statement that was presented to the jury, the detective stated "I'm not asking you if you took the money ['cause] I know that you did." Although defense counsel did not object, the judge issued the following curative instruction on his own:
[T]he transcript is not to be considered evidence itself; it's an aid to your listening to the recording.
Additionally, I've noticed myself I'm looking forward in the transcript that there comes a point in time where the questioner offers an opinion about the guilt of [defendant]. You should disregard that. It's not appropriate for a witness to give an opinion as to guilt or innocence. That's up to you, that's why you're here okay?
Defendant's reliance on State v. Jamerson, 153 N.J. 318 (1998), to argue that the judge's curative instruction was inadequate is misplaced. In that case, the court found that the trial court's general instruction on expert testimony when charging the jury at the end of trial to be insufficient, id. at 342, whereas here, the judge promptly and specifically instructed the jury to disregard the detective's opinion before the jury even received the transcript.
Furthermore, when asked if defense counsel had any issues with the language in the transcript, defense counsel stated that presenting the transcript to the jury was "reasonable" and that he "would acquiesce." See State v. Harper, 128 N.J. Super. 270, 277 (App. Div.) ("Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal."), certif. denied, 65 N.J. 574 (1974). Therefore, there was no error, much less plain error here.
Defendant's contention that the admission of the detective's opinion in the transcript violated his right to confrontation similarly fails. The Confrontation Clause has been interpreted to exclude the statements of witnesses who are unavailable for trial and where the defendant did not have a prior opportunity to cross examine the witness. Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177, 197 (2004 ); State v. Branch, 182 N.J. 338, 368 (2005). The judge properly instructed the jury to disregard the detective's opinion and therefore this statement was never admitted in the first instance. See Smith, supra, 212 N.J. at 409 (noting that a jury is presumed to have followed the court's instructions).
We conclude by noting that "'[a] defendant is entitled to a fair trial but not a perfect one.'" State v. Loftin, 146 N.J. 295, 397 (1996) (quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593, 605 (1953)). This court has long recognized that reversal due to the cumulative effect of combined trial errors is warranted only when the errors are "substantial and vital[,] . . . possesse[s] a clear capacity to bring about an unjust result, and that fundamental fairness requires a reversal of the conviction." State v. Mack, 86 N.J. Super. 594, 598 (App. Div. 1965). "[E]ven a large number of errors, if inconsequential, may not operate to create an injustice." Pellicer ex rel. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 55 (2009). Accordingly, none of defendant's assertions amount to reversible error and as such, the cumulative effect of these supposed errors does not create such an injustice to warrant reversal.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION