Opinion
DOCKET NO. A-5118-11T4
02-27-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY K. PERRY, Defendant-Appellant.
Jason A. Coe, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Coe, of counsel and on the briefs). Elizabeth R. Rebein, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Rebein, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Simonelli and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-12-2110. Jason A. Coe, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Coe, of counsel and on the briefs). Elizabeth R. Rebein, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Rebein, of counsel and on the brief). The opinion of the court was delivered by FUENTES, P.J.A.D.
A Bergen County Grand Jury returned True Bill of Indictment No. 07-12-2110 charging defendant Gregory K. Perry with first degree carjacking, N.J.S.A. 2C:15-2 (count one); first degree robbery, N.J.S.A. 2C:15-1 (count two); third degree theft by unlawful taking, N.J.S.A. 2C:20-3 (count three); third degree terroristic threats, N.J.S.A. 2C:12-3a (count four); third degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h (counts five and six); third degree receiving stolen property, N.J.S.A. 2C:20-7 (counts seven and eight); third degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count nine); second degree escape, N.J.S.A. 2C:29-5 (count ten); third degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a) (count eleven); third degree aggravated assault, N.J.S.A. 2C:12-1b(7) (count twelve); and third degree assault upon a law enforcement officer, N.J.S.A. 2C:12-1b(5) (counts thirteen through sixteen).
At the time this indictment was issued, defendant was serving a sentence in a federal prison in New York State for an unrelated federal conviction for possession of a weapon. Defendant filed a Request for Final Disposition of the New Jersey charges pursuant to the Interstate Agreement on Detainers, N.J.S.A. 2A:159A-1 to -15, which was accepted on behalf of the State by the Bergen County Prosecutor's Office. Upon his return to New Jersey, defendant was initially placed in the custody of the Morris County Prosecutor's Office to address unrelated open charges in that venue. After pleading guilty to the Morris County charges, defendant was transferred to Bergen County to face trial on the charges reflected in this indictment.
Before the trial on these charges began, defendant filed a motion to dismiss the indictment and a separate motion to suppress the results of an out-of-court identification made by the complaining witness of the carjacking, using a photo-array prepared by the Englewood Police Department. These pretrial motions were heard and decided by a judge who did not preside over defendant's trial.
The motion judge conducted a Wade hearing to adjudicate defendant's challenge to the out-of-court identification procedures used by the Englewood Police Department. The judge heard the testimony of Englewood Police Lieutenant Timothy Torell and reviewed the photo-array the complaining witness used to make the identification. The evidence presented at this hearing revealed that: (1) the photo-array was reviewed by the complaining witness on July 23, 2007, more than two months after she was robbed by a man she had never seen before that day; (2) the police officer who supervised the identification procedures and gave the witness the photo-array was also involved in the investigation of the robbery; and (3) although the complaining witness described her assailant as a bald African-American man without facial hair, some of the photographs in the array depicted African-American men with hair and "all seem[ed] to have a small mustache[.]" The motion judge also denied defense counsel's request to call the complaining witness to testify at the Wade hearing. The motion judge denied defendant's motion to suppress the complaining witness's out-of-court identification.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
Defendant also argues the complaining witness was improperly influenced by a show-up in the form of videotape footage taken by a Pathmark surveillance camera that depicts an African-American man making a purchase using the complaining witness's stolen credit card. Defendant did not raise this issue at the Wade hearing. We will thus address this argument applying the plain error standard under Rule 2:10-2.
The judge also denied defendant's motion to dismiss Indictment No. 07-12-2110. However, the judge decided to sever counts ten through sixteen, and ordered that the charges reflected in these counts be tried separately. The judge found these charges related to the charges filed against defendant by the Morris County Prosecutor's Office. The judge determined that permitting counts ten through sixteen to be tried with the remaining counts that arose from events in Bergen County would violate defendant's right to a fair trial and unduly prejudice defendant in violation of N.J.R.E. 404(b). Finally, the motion judge amended count two of the indictment, which originally charged first degree robbery, to second degree robbery. The judge based this ruling on the State's failure to properly charge the grand jurors on the law related to first degree robbery.
The State did not seek interlocutory review of this ruling.
As stated earlier, a different judge presided over the trial. It took four days to select the jury. The State presented evidence over a period of six trial days. At the conclusion of its case in chief, the State agreed to dismiss count seven of the indictment, which charged defendant with third degree theft by knowingly receiving movable property of two specifically named individuals, with a value exceeding $500. The prosecutor represented to the trial court that the witness necessary to prove this charge was not available to testify.
Although the indictment includes the names of the two complaining witnesses, we have opted not to reveal their identities here because the trial court ultimately dismissed this charge against defendant.
After the trial judge informed the jury of the State's decision to dismiss count seven, the judge apprised the jury that "[i]f the State didn't dismiss it the [c]ourt would dismiss it since there's no evidence with respect to those victims today or those charges regarding this defendant."
As part of this appeal, defendant raises a number of arguments concerning the manner in which the trial judge conducted the jury selection process. Specifically, defendant argues the trial court improperly permitted the prosecutor to use peremptory challenges to exclude potential jurors based on their race, in violation of State v. Gilmore, 103 N.J. 508, 517 (1986), overruled in part by State v. Andrews, 216 N.J. 271, 273 (2013), and based on the jurors' religious activities, in violation of State v. Fuller, 182 N.J. 174, 194 (2004). Defendant also argues that the reasons expressed by the prosecutor to justify the exclusion of these jurors did not meet the standards established by the Court in State v. Osorio, 199 N.J. 486, 505-06 (2009).
Although our Supreme Court's holding was predicated in large part on Article I, paragraphs 5, 9, and 10 of the New Jersey Constitution, Gilmore, supra, 103 N.J. at 517, the Court also relied on the United States Supreme Court's holding in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Id. at 519.
After carefully reviewing the extensive record developed before the trial court, including the pretrial motions discussed infra, we are satisfied defendant's conviction cannot stand. The court committed reversible error by failing to sever counts one through five, which related to the carjacking and robbery of a woman named Dianna Gonzalez that allegedly occurred on May 17, 2007, from the remaining counts which involved two separate victims and allegedly occurred on two separate dates in June 2007.
Independent of this error, we are compelled to reverse defendant's conviction because the trial court did not follow the procedures established by the Court in Osorio, supra, 199 N.J. at 505-06, after defendant established a prima facie case that the prosecutor used peremptory challenges to exclude potential jurors from serving on the jury based on their race or religious beliefs, in violation of both defendant's right to a fair trial and the rights of the wrongly excluded jurors under our State's Constitution, as construed by our Supreme Court in Gilmore and Fuller respectively.
I
May 17, 2007 Incident
We will begin our factual recitation with the evidence the State presented to prove the charges reflected in counts one through five of Bergen County Indictment No. 07-12-2110.
At approximately eight o'clock in the morning on May 17, 2007, Dianna Gonzalez left her job to purchase some personal items for herself and for her coworker Jennifer Schroder at the Englewood Shop-Rite. Schroder gave Gonzalez her credit card and authorized her to use it to pay for Schroder's purchases. Gonzalez drove to the supermarket in her four-door blue Nissan Murano SUV.
When Gonzalez reached the Shop-Rite, she parked her car and prepared herself to step out. She was momentarily distracted as she attempted to pick up a CD that had fallen inside the car. As she opened the driver-side door with the car keys in her hand, she was confronted by a man she had not seen before that day. The man stood right by her side facing her. He told her "not to scream, that he would shoot me."
When asked whether the assailant was armed, Gonzalez testified seeing the man "sticking something from his hand." She said the object appeared like a gun to her "because he had said he would shoot me." At this point, Gonzalez said the man began "scrambling for stuff. He wanted my purse . . . whatever I had." He reached over her and she felt him "shoving" her, causing Gonzalez to shove him back. When the prosecutor asked her why she shoved him back, Gonzalez responded, "[b]ecause I felt I was scared that he was going to push me into the car or something."
The assailant ultimately took Gonzalez's purse, the car keys, and earrings she had left on the dashboard of the car. Gonzalez's purse contained her wallet, an undisclosed amount of cash, perfume, a Michael Kors brand wristwatch with a leather band, and her coworker Jennifer Schroder's credit card. The assailant then ran away. Gonzalez testified she was "in shock" immediately after the incident.
Gonzalez testified that she did not have a cell phone or "anything to call the police." Fortunately, "someone had witnessed it and they had called the police." This person stayed with Gonzalez until the police arrived and allowed her to use the cell phone. Englewood Police Officer Tracy Temple responded to the scene "a couple of minutes" later. Gonzalez told Officer Temple that she "had just been robbed, that someone threatened me . . . [and] put a gun towards my rib cage and . . . took everything."
Gonzalez did not recall anything about this bystander; she was not even certain whether the person was a man or a woman.
Gonzalez described her assailant to Officer Temple as a "fairly tall," "slim black male," wearing "[t]wo earrings," "bald," with "no facial hair but facial indentations in his face[.]" He had "an earring in each of his ears" and was wearing a "green or blue" button-down shirt and dark pants. Englewood Police Detectives Peter Schwartz and Vincent Izzard also responded to the scene. They interviewed Gonzalez and located and spoke directly to her coworker Jennifer Schroder at her place of employment.
Detective Schwartz testified that he advised both women to report that their credit cards had been stolen. Both detectives drove Schroder to a nearby TD Bank branch to determine whether they could track any unauthorized activity on her credit card. While at the bank, they learned that the credit card that was taken from Gonzalez's purse had been used recently at a Lukoil gasoline station in Hackensack and again at a nearby Pathmark. The Lukoil station did not have any videotape record of the transaction; station employees were also unable to provide any information regarding who had used the card.
By contrast, Pathmark had a videotape recording of two purchases made by an individual using Schroder's credit card. This transaction took place shortly after the card was taken from Gonzalez. Detective Schwartz testified that Pathmark also provided him with the paper receipt of the transaction, reflecting the purchases were made on "May 17, 2007 [at] 8:12 AM." A Pathmark employee operated the video recorder that played back the videotape record of the transaction.
In the course of her direct examination of Detective Schwartz, the prosecutor used an aerial photograph of the area as it existed in May 2007, to illustrate to the jury the proximity of the Pathmark and the Lukoil station to the location where Gonzalez was robbed.
Only the Pathmark employee who operated the machine and Detectives Schwartz and Izzard were present the first time Gonzalez viewed the videotape. According to Detective Izzard, the recording showed "a black male, clean shaven head, wearing a dark blue button-down shirt" purchasing Pall Mall brand cigarettes with Schroder's credit card. The man's face was obscured due to the location of the security cameras. Gonzalez identified the person on the tape as the man who had assaulted her earlier that morning. She specifically noted that the man on the videotape wore a shirt similar to the shirt worn by her attacker.
Forensic and fingerprint analysis of the credit card signature slip marked "May 17, 2007 8:12 AM" did not yield any evidential material.
The detectives drove Gonzalez to the police station that same day to look at "some mugshot photo books" "of criminals that could have been [her assailant]." Detective Schwartz estimated Gonzalez viewed approximately 200 "mugshots" that day, which were kept bound in two separate books. She was not able to identify her assailant. Gonzalez returned to the Englewood Police station a week after the attack to meet with Sergeant Kenny Collazo, a forensic sketch artist from the State Police.
Gonzalez described her assailant to Sergeant Collazo as a bald African-American man, with "squinty" eyes that were "a little bit slanted." He had an "average" nose; his face was clean-shaven with "pock holes or acne on his cheeks." Although she "could not recall the shape of his eyebrows," she specifically noted that he wore earrings.
That same day, Englewood Police Lieutenant Torell conducted a second photo array procedure. He showed Gonzalez a series of photographs and asked her if she recognized her assailant. This time, Gonzalez told him she was "absolutely sure [defendant] was not in that photo array," because none of the men depicted in these photographs were "clean shaven" or "bald." It is not disputed that defendant's photograph was not among the photographs shown to Gonzalez in this array.
II
June 20-21, 2007 Incident
On June 20, 2007, a woman named Choon Ye Kim reported to the Hackensack Police Department that she had been the victim of a burglary. Detective Robert Lopez responded to the call. Kim told Detective Lopez that her purse and multiple credit cards had been stolen while she was visiting her daughter's home. Detective Lopez advised Kim not to deactivate her credits cards to enable the police to monitor any unauthorized transactions during the investigation. Thereafter, five transactions were made or attempted using Kim's stolen cards; three purchases were made at a Pathmark in Elmwood Park; one at a BJ's Wholesale Club in Paramus; and a final purchase at the Verizon Wireless kiosk located in BJ's.
Hackensack Detectives Lopez, Kevin O'Boyle and Patrick Coffey investigated the unauthorized purchases made at BJ's. They learned that someone had used Kim's card to buy a number of household items. BJ's employees determined these purchases were made by someone using a membership club card registered to defendant. Surveillance videotape from the store's security cameras showed a "black male, mid[-]forties[,] with a bald head and kind of a slender or slim build" making a cash purchase of a watch and a ring." (Emphasis added). The State presented a BJ's receipt documenting this purchase. However, there was no videotape record of any person making a purchase using Kim's stolen credit card at BJ's that day.
On June 23, 2007, Detective Lopez asked fellow Detective Thomas Staron to go to the BJ's store and show a "photo lineup which consisted of six photographs" to BJ's employee George Cedeno. The photographs were labeled A through F. Cedeno worked at the BJ's jewelry counter at the time the surveillance videotape shows a man matching defendant's description purchasing a watch and a ring. Detective Staron testified that Cedeno selected photograph B, which depicted defendant, as the person who used cash to purchase jewelry during his shift on June 20, 2007.
By the time he testified at trial on October 26, 2011, Detective Staron had retired from the Hackensack Police Department. His career as a law enforcement officer spanned over twenty-six years.
Verizon employee Arifur Rahman also testified as a witness for the State. He worked at the Verizon Wireless kiosk on the date and time Kim's credit card was used after it was reported stolen. Rahman testified that he selected defendant's photograph from a photo presented to him on June 22, 2007. Detective O'Boyle testified that he interviewed Rahman and conducted the photo array identification. According to Detective O'Boyle, Rahman identified defendant's photo and indicated that he "saw that person in BJ's" and that he was "absolutely sure" defendant had made a purchase with Kim's stolen credit card on June 20, 2007.
Detective Coffey contacted the "loss prevention manager" of the Elmwood Park Pathmark store in connection with the unauthorized use of Kim's stolen credit cards. Detective Coffey determined that Kim's credit card had been used in three different transactions over a two-day period in June 2007. The first one took place on June 20, 2007, and involved the purchase of Pall Mall cigarettes, gum, and a beverage. The second one occurred on the morning of June 21, 2007, and involved the purchase of bread, a beverage, and "Depends" (a brand name for an adult undergarment worn by people who suffer from urinary incontinence). The third transaction, which occurred within minutes of the second one, again involved the purchase of Pall Mall cigarettes. The trial court granted the State's application to show the jurors still photographs of the videotape by the store's surveillance camera during these three credit card transactions.
Englewood Detective Schwartz testified that on June 22, 2007, Hackensack Police officers contacted the Englewood Police Department to share the results of their investigation of Kim's burglary. Detective Schwartz testified defendant was arrested and charged with the robbery committed against Gonzalez on June 28, 2007. Thus, although not directly stated, the State used this aspect of Detective Schwartz's testimony to create a connection between the May 17, 2007 robbery in Englewood and the June 20, 2007 burglary and subsequent fraudulent use of a credit card in Hackensack. From the State's perspective, the link connecting these two seemingly disparate events was the purchase of Pall Mall cigarettes by the use of a stolen credit card shortly after the theft.
III
Defendant's Arrest
On June 28, 2007, Hackensack Police executed a warrant for defendant's arrest at his Englewood residence. The arrest was carried out without incident. A search of defendant's person incident to his arrest revealed two glassine bags of heroin, an unquantified amount of cash, four pieces of jewelry, two packs of Pall Mall cigarettes, a BJ's receipt for a cash purchase of a watch and ring dated June 20, 2007, a Michael Kors brand watch, a BJ's membership card, and two USB thumb drives. A search of defendant's home did not produce any incriminating evidence. The police officers who searched defendant's car found a mismatched pair of cufflinks, a Pathmark bag containing four packs of Pall Mall cigarettes, and another shopping bag containing several watches. A Hackensack resident who testified as a State's witness identified the cufflinks and several watches as items he had previously reported stolen to the Hackensack Police Department. He estimated the value of these items as "well over five hundred dollars." In fact, he estimated the value of the cufflinks alone as "probably a thousand dollars."
On July 23, 2007, Lieutenant Torell prepared another photo array for Gonzalez's review. He went to Gonzalez's home that same day to determine her availability. Lieutenant Torell spoke with her fiancé, who mentioned Gonzalez's missing Michael Kors watch. On cross-examination by defense counsel, Gonzalez made clear what she had in mind when she reported to the Englewood Police Station thereafter:
GONZALEZ: When the incident first happened I went through several pictures in a book. Lot of pictures of criminals that could have been this person. That was the very, very, very first time.
DEFENSE COUNSEL: Where did you do that?
GONZALEZ: In the police station.
DEFENSE COUNSEL: In the Englewood Police Station?
GONZALEZ: Yeah.
DEFENSE COUNSEL: And picked out no picture of Gregory Perry?
GONZALEZ: At that moment no. Then I was asked to do the sketch later on. Then I saw these pictures later on.
DEFENSE COUNSEL: And we know because we have a date marked on those July 23[,] [2007]?
GONZALEZ: When they caught him.
DEFENSE COUNSEL: About two months later, right?
GONZALEZ: Uh-huh.
DEFENSE COUNSEL: You're not sure sitting here today whether you were shown any other photographs?
GONZALEZ: I saw initial photographs the day of the incident. Later on when they caught the criminal and they wanted me to identify him.
DEFENSE COUNSEL: When you say when they caught the criminal and they wanted you to identify him, can I assume from the way that you said that, that you were informed by the police that someone they found, that somebody fit your description?
GONZALEZ: They found - - I'm assuming they called me in to identify a picture of a person.
DEFENSE COUNSEL: And did you expect, ma'am, to see in the pictures you were shown, did you expect to see the individual that you think robbed you?
GONZALEZ: I hoped.
DEFENSE COUNSEL: You hoped to?
GONZALEZ: Yes.
[(Emphasis added).]
At the station, Lieutenant Torell showed Gonzalez a photograph of the watch recovered in the course of the investigation. She identified it as the watch she had in her purse that was taken from her on May 17, 2007. Lieutenant Torell also showed Gonzalez a photo array the Englewood Police Department had prepared. The array consisted of photographs of African-American men of the same age and physical description previously given by Gonzalez during the early phase of the investigation. Lieutenant Torell read to her the standard instructions and after shuffling the six photographs, he handed her each photograph one at a time.
Although the array contained defendant's photograph, Lieutenant Torell testified he did not disclose this fact to Gonzalez, nor insinuate that any of the photographs in the array included the person found in possession of or was connected to the theft of the Michael Kors watch. After pausing to look more intently at two photographs, Gonzalez selected defendant's photograph as the one depicting her assailant. Gonzalez testified that she "pretty much knew who that person was when I saw the picture." At trial, Lieutenant Torell viewed defendant in the courtroom and described him to the jury as having pock marks on his face and as having missing and gapped teeth.
Defendant decided not to testify in his own defense. He called only one witness after the State rested its case: his then eighty-one-year-old mother, Carrie Perry. Defense counsel called Ms. Perry to rebut Lieutenant Torell's testimony describing defendant as having missing and gapped teeth. Ms. Perry testified that she was in constant contact with her son during the summer of 2007 and that, at that time, he had all of his teeth.
The jury deliberated during the morning session of November 2, 2011, before announcing it had reached a unanimous verdict. The jury acquitted defendant of first degree carjacking, but found him guilty of second degree robbery, third degree theft, third degree terroristic threats, two counts of third degree fraudulent use of a credit card, third degree receiving stolen property, and third degree possession of heroin.
Pursuant to a negotiated plea agreement, defendant thereafter pled guilty to second degree escape. The State agreed to dismiss the remaining counts in the indictment and recommend defendant be sentenced to a five-year term on the escape charge, to run consecutive to the sentence the court would impose based on the jury's verdict.
At the sentencing hearing, the court granted the State's motion seeking an extended term pursuant to N.J.S.A. 2C:43-7.2b on the conviction for second degree robbery. After merging the appropriate offenses, the court sentenced defendant to an aggregate term of thirty-four years with 20.45 years of parole ineligibility and five years of parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
IV
Defendant now appeals raising the following arguments:
POINT I
BECAUSE THE INDICTMENT CHARGED A SERIES OF SEPARATE AND UNRELATED CRIMINAL EPISODES, THE TRIAL COURT SHOULD HAVE GRANTED SEPARATE TRIALS.
POINT II
ONCE PERRY ESTABLISHED AN INFERENCE OF DISCRIMINATION IN THE STATE'S USE OF PEREMPTORY CHALLENGES, IT WAS ERROR FOR THE COURT TO OVERRULE HIS GILMORE OBJECTION WITHOUT MAKING SPECIFIC FINDINGS OF FACT.
POINT III
THE TRIAL COURT SHOULD HAVE SUPPRESSED THE RESULTS OF THE EYEWITNESS INDENTIFICATIONS AS IMPERMISSIBLY SUGGESTIVE AND UNRELIABLE.
A. The Surveillance Video
B. The Photo Array
C. Cutting Short the Wade Hearing
POINT IV
THE STATE'S SUGGESTION THAT THE JURY SHOULD CONVICT PERRY IN ORDER TO PRESERVE JURORS' OWN PERSONAL SAFETY WAS IMPROPER AND PREJUDICIAL. (Not raised below)
POINT V
THE TRIAL COURT ERRONEOUSLY FAILED TO SET FORTH ON THE RECORD ITS REASONS FOR IMPOSING CONSECUTIVE SENTENCES AS REQUIRED BY STATE V. YARBOUGH.
A
Severance
We start our analysis by addressing defendant's argument attacking the trial court's failure to sever the counts in the indictment concerning the May 17, 2007 robbery of Dianna Gonzalez in Englewood from the burglary reported to the Hackensack Police Department on June 20, 2007 by Choon Ye Kim. Specifically, defendant argues the trial court committed reversible error by failing to sever counts two through six of the indictment from counts seven through nine. According to defendant, comingling these two unrelated events deprived him of a fair trial.
The State argues that any prejudice defendant may have endured as a result of trying these matters together did not have the capacity to irreparably taint the jury's verdict. The State maintains that it presented strong and independent evidence of defendant's guilt as to each event, thus permitting "each of the convictions to stand on its own."
As we made clear earlier in this opinion, the judge who decided the pretrial motions did not preside over the trial. In denying, in part, defendant's motion to sever the counts of the indictment that referred to different crimes, the motion judge found that
the June events and the May event are tied. And under [N.J.R.E. 404(b)], it shows also the fact that--there's a common scheme, a common plan. The prejudice does not outweigh the [probative] value and the reason for that is that, the jurors are going to learn of this evidence.
. . . .
[T]hese two events are intertwined, because the police officers continued that investigation after June 28, which led to the photo array. So those two are part of the same case . . . . For judicial economy, we're going to do one trial.
However, the judge granted defendant's motion to sever counts ten through sixteen of the indictment, finding they were "completely unrelated to the May and June incident" and did not "in any way, further or substantiate or have any [probative] value with regards to [the May or June incidents]." In reaching this decision, the motion judge did not consider or apply the legal principles established by the Supreme Court to decide whether severance of multiple offenses listed in a single indictment is necessary. The key concern is to avoid the undue prejudice created by trying unrelated offenses in a single trial.
Here, it is self-evident that the offenses alleged to have taken place on May 17, 2007, and those that allegedly occurred in late June 2007 are factually and legally distinct. As a matter of law enforcement tactics, these two offenses followed a similar investigational path. For purposes of trial, however, the only thing they have in common is that defendant was charged with committing both crimes while in possession of Pall Mall brand cigarettes.
Rule 3:7-6 authorizes the State to charge a defendant with committing "[t]wo or more offenses . . . in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan." (Emphasis added). Rule 3:7-6 also provides a defendant "[r]elief from prejudicial joinder" by seeking relief under Rule 3:15-2, which states:
If for any other reason it appears that a defendant or the State is prejudiced by a
permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief.
[R. 3:15-2(b).]
The trial court has the discretion to grant or deny a motion to sever. State v. Sanchez, 143 N.J. 273, 283 (1996). We will reverse the trial court's denial of a motion to sever only if we are satisfied it constitutes a mistaken exercise of that discretionary authority. Ibid. Here, we are satisfied the motion judge committed reversible error when she denied defendant's motion to sever the counts related to the May 17, 2007 robbery in Englewood from the counts related to the credit card offenses in June 2007 in Hackensack.
The motion judge failed to appreciate the inherent undue prejudice associated with trying together two distinct offenses alleged to have occurred at different times, in two different municipalities, and involving two unrelated victims. As the Supreme Court has recently noted:
The relief afforded by Rule 3:15-2(b) addresses the inherent "'danger[,] when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused's guilt, the sum of it will convince them as to all.'" A court must assess whether
prejudice is present, and its judgment is reviewed for an abuse of discretion. The test for assessing prejudice is "whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges." N.J.R.E. 404(b) requirements must be met, and the evidence of other crimes or bad acts must be "relevant to prove a fact genuinely in dispute and the evidence is necessary as proof of the disputed issue[.]"
[State v. Sterling, 215 N.J. 65, 73 (2013) (alteration in original) (citations omitted).]
The first step in addressing the concerns expressed by the Court in Sterling is to determine whether evidence related to the robbery committed in Englewood on May 17, 2007, would have been admissible under N.J.R.E. 404(b) if the charges related to June 20, 2007 burglary in Hackensack would been have been tried separately. Although framed is this fashion, it is imperative to keep in mind that N.J.R.E. 404(b) is a rule of exclusion, not inclusion. State v. Nance, 148 N.J. 376, 386 (1997).
N.J.R.E. 404(b) states:
Except as otherwise provided by Rule 608(b), [not relevant here] evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
[N.J.R.E. 404(b) (emphasis added).]
The Supreme Court established a four-prong test to determine the admissibility of evidence under N.J.R.E. 404(b):
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[State v. Cofield, 127 N.J. 328, 338 (1992).]
The Court recently reaffirmed the applicability of the Cofield test in the context of deciding a motion to sever under Rule 3:15-2(b). See State v. Weaver, 219 N.J. 131, 150 (2014).
The first prong requires the evidence of the crime to be relevant to a material issue. The evidence of the May 2007 robbery is not relevant to any material issue related to the June 2007 burglary. The robbery occurred over one month earlier, at eight o'clock in the morning, and in the City of Englewood. The assailant in the robbery was in close physical proximity to the victim. The assailant threatened the victim with an object the victim believed was some type of firearm. The items taken from the victim were personal in nature, including a watch that the victim described with particularity. Given the nature of the encounter, the victim was able to give a physical description of the assailant.
The June 20, 2007 offense was reported by a different victim and was described as a burglary committed in her daughter's home located in the City of Hackensack, a municipality situated 5.8 miles west of the City of Englewood. Indeed, the State concedes in its brief before us that these events were separate and distinct crimes warranting separate trials. Despite this concession, the State relies on Sterling, supra, to argue that given the "overwhelming independent evidence of defendant's guilt," we should consider "the introduction of inadmissible evidence against defendant in each of these counts [as] harmless beyond a reasonable doubt." (Emphasis added).
Pursuant to N.J.R.E. 201(b)(2), we take judicial notice of the geography of our State and the distance between these municipalities.
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We disagree. The joinder issues in Sterling, supra, "arose out of one burglary and three other burglary and sexual assault episodes, which occurred over a span of three years." 215 N.J. at 71. The State sought to try the defendant in single trial arguing that the "factual underpinnings to the offenses" were sufficiently similar to bare the indicia of "signature crimes." Ibid. The defendant objected and sought separate trials as to each offense. Ibid. The trial court permitted the State to try the two burglaries and related sexual assaults in a single trial, and the third burglary/sexual assault and separate burglary in a second trial. Ibid.
On appeal, we reversed the defendant's convictions in both trials based on the undue prejudice caused by the joinder of these crimes. Id. at 72. The Supreme Court agreed with our analysis, finding the trial court erroneously applied the joinder rule when it permitted the State to try the defendant in this fashion. Ibid. However, the Court applied the harmless error doctrine to uphold the defendant's conviction in the trial of the two burglaries and the related sexual assaults. Ibid. The Court found "the quality and quantum of the evidence against [the] defendant [in that trial] was of sufficient weight to lead us to conclude that the error, fairly viewed, did not produce an unjust result." Ibid. The Court upheld our reversal of the defendant's conviction in the trial involving the third victim of the burglary/sexual assault and the fourth victim of the unrelated burglary. Ibid.
The Court's application of the harmless error doctrine in Sterling was heavily influenced by recent advancements in DNA evidence identification procedures and emphasized the United States Supreme Court's decision in Maryland v. King, 569 U.S., ___, 133 S. Ct. 1958, 1964, 186 L. Ed. 2d 1, 14 (2013), which described this particular form of DNA identification as having "'unparalleled accuracy' . . . in linking defendants to crimes at which their DNA is found." Sterling, supra, 215 N.J. at 103. That being said, this highly probative, objective scientific evidence was not enough for the Court in Sterling to apply the harmless error doctrine to rescue the jury verdict tainted by the improper admission of other crimes evidence. Writing for the majority of the Court in Sterling, Justice LaVecchia explained the fact-sensitive approach that guided the Court's ultimate decision to apply the harmless error doctrine in that case:
[B]ased on a qualitative analysis of the evidence in this matter, the nuclear DNA evidence in L.R.'s case, viewed in combination with L.R.'s immediate and strong identification of [the] defendant during the May 31, 2005 lineup and her in-court identification, rendered harmless the joinder error. We reach the fact-sensitive determination that the prejudice to [the] defendant from joinder in respect of L.R.'s case was overwhelmed by the strong, independent evidence of his guilt. L.R. made an immediate and unequivocal identification of [the] defendant when she first saw him in the line-up and a second time at trial. Further, the State's forensic expert confirmed that there was "a reasonable degree of scientific certainty"—only one in 30.8 quadrillion individuals in the African-American population, one in 419 quadrillion individuals in the Caucasian population, and one in 2.02 quintillion individuals in the
Hispanic population—that defendant's nuclear DNA matched the DNA swab taken from L.R.'s body only hours after defendant's assault of L.R.
That evidence separates this case from the ordinary one when prejudice from joinder would require a new trial. Though we seek to not serve as the thirteenth juror when performing harmless error analyses, we conclude that on these facts the joinder error is harmless beyond a reasonable doubt because of the strong, independent proof of [the] defendant's guilt. Thus, all convictions relating to [the] defendant's attack of L.R. must stand.
[Sterling, supra, 215 N.J. at 104 (citations omitted).]
In this light, the State's reliance on Sterling here is misplaced. The evidence presented by the State in this case against defendant, as to either the May 2007 robbery or the June 2007 burglary, does not compare to the overwhelming quantum and quality of the evidence the Court relied on in Sterling to apply the harmless error doctrine. Gonzalez's identification of defendant in connection with the May 2007 robbery did not have the unequivocal certainty the victims of the sexual assault had in Sterling nor was the State's case against defendant here bolstered by nearly unimpeachable scientific evidence. In short, the undeniable prejudice that tainted the jury's verdict in this case cannot be cleansed by the doctrine of harmless error.
B
Jury Selection
It took the trial court four days to select the jury who would deliberate and render a verdict in this case. The record reveals the prosecutor used peremptory challenges to exclude from the jury two African-American men and one African-American woman. Ultimately, only one out of the four African-Americans in the venire was qualified to sit as a potential deliberating juror.
Defendant argues that the prosecutor's use of peremptory challenges targeted potential jurors because of their race, in violation of Article I, paragraphs 5, 9, and 10 of the New Jersey Constitution. See Andrews, supra, 216 N.J. at 279-80 (citing Gilmore, supra, 103 N.J. at 517). Defendant also argues the trial judge did not follow the three-step procedural paradigm the Supreme Court established in Osorio, supra, 199 N.J. at 492, for addressing and deciding these kinds of objections. Defendant claims the trial judge did not articulate specific and individualized findings of fact in overruling defendant's objections. Ibid.
The State argues defendant failed to make out a prima facie case of race-based discrimination in the manner in which the prosecutor used peremptory challenges to exclude the three
African-American jurors. Under these circumstances, the State argues the trial judge was not required to provide specific reasons for overruling defense counsel's objections. Alternatively, even if defendant established a prima facie case of race-based discrimination, the State claims the prosecutor provided the trial court with legitimate, race-neutral reasons for striking the African-American members of the venire.
Defendant also argues the prosecutor used peremptory challenges to exclude from the jury any person who demonstrated involvement in any kind of religious activities in violation of Article I, paragraph 5 of the New Jersey Constitution as construed by the Supreme Court in Fuller, supra, 182 N.J. at 194. The State does not address this argument in its response brief. After reviewing the record of the jury selection process, we conclude the trial court rejected defendant's objections to the State's use of peremptory challenges without following the three-step procedural approach established by the Court in Osorio. The record also shows the prosecutor admitted to using a peremptory challenge to exclude from the jury one potential juror based only on the juror being "an avid church goer." Our Supreme Court has made clear that absent evidence showing the potential juror displayed a specific case-sensitive bias favoring defendant, the prosecutor cannot use peremptory challenges to exclude jurors based on their religious beliefs or practices. See Fuller, supra, 182 N.J. at 202. The prosecutor's unequivocal acknowledgement to using peremptory challenges to exclude jurors based on this constitutionally untenable criterion is in and of itself sufficient to vacate defendant's conviction.
We will start our discussion by explaining how the trial court's response to defendant's objections failed to follow the approach the Court endorsed in Osorio. The Court established the following three-prong test in Osorio:
[A] three-step process must be employed whenever it has been asserted that a party has exercised peremptory challenges based on race or ethnicity. Step one requires that, as a threshold matter, the party contesting the exercise of a peremptory challenge must make a prima facie showing that the peremptory challenge was exercised on the basis of race or ethnicity. That burden is slight, as the challenger need only tender sufficient proofs to raise an inference of discrimination. If that burden is met, step two is triggered, and the burden then shifts to the party exercising the peremptory challenge to prove a race- or ethnicity-neutral basis supporting the peremptory challenge. In gauging whether the party exercising the peremptory challenge has acted constitutionally, the trial court must ascertain whether that party has presented a reasoned, neutral basis for the challenge or if the explanations tendered are pretext. Once that analysis is completed, the third step is triggered, requiring that the trial court weigh the proofs adduced in step one against those presented in step two and
determine whether, by a preponderance of the evidence, the party contesting the exercise of a peremptory challenge has proven that the contested peremptory challenge was exercised on unconstitutionally impermissible grounds of presumed group bias.
[Osorio, supra, 199 N.J. at 492-93.]
Here, the record shows the trial judge completely disregarded this three-step approach. The judge responded to defense counsel's challenge in a perfunctory manner, merely indicating the objection was "noted" and "denied" without providing any further explanation. On remand, we expect challenges based on the improper use of peremptory challenges will strictly adhere to the Osorio paradigm. If after applying the Osorio three-prong test the trial judge finds a party has used a peremptory challenge to unconstitutionally exclude a potential juror from serving, the judge should then consider the menu of potential remedies the Supreme Court sanctioned in Andrews, supra, 216 N.J. at 291-93.
As indicated earlier, we are also compelled to reverse defendant's conviction based on the prosecutor's admitted use of a peremptory challenge to exclude a potential juror based on her religious activities. The following colloquy took place at side bar with the juror we identify here as S.H.:
THE COURT: Tell us something about yourself; family life, educational background, what you do for a living, for pleasure?
JUROR: Registered Nurse. I'm the director of staff development. Spare time I go to church, sing in the choir.
THE COURT: Wonderful.
JUROR: I'm back in school. I spend most of my time studying.
THE COURT: Do you believe that our system of criminal justice is a fair and effective system?
JUROR: Yes.
THE COURT: Tell me why you think so.
JUROR: I've never actually had any dealing with the court system but I remember from getting a parking ticket violation and I went to court I thought the judge was very understanding and I thought the fine was substantial but I think it was still fair.
THE COURT: Why would you be a good juror in this case?
JUROR: I have an open mind. I'm not judgmental.
THE COURT: Thank you very much. You can sit down.
[Addresses the prosecutor by name implicitly requesting the State's response or position as to this juror's capacity to serve.]
PROSECUTOR: Thank you, your Honor. The State would like to thank and excuse juror number seven [S.H.].
Later on in the jury selection process defense counsel argued the State improperly used peremptory challenges to exclude potential jurors based on their race. In response to defense counsel's argument, the prosecutor denied she excluded a particular African-American juror because of his race. Instead, she made clear that she has an explicit blanket policy to exclude from the jury all "avid church goer[s]." To bolster her argument, the prosecutor specifically refers to S.H., (who is presumably Caucasian) and stated:
Miss [H.] was an avid church goer. I don't intend to keep, as you can see from anybody I don't keep social workers, I don't keep people who are avid church goers.
When questioned by your Honor she said she had difficulty passing judgment, which is exactly what a juror needs to do in this case. That was my reason.
The trial court denied defendant's motion for mistrial under Gilmore, without acknowledging the prosecutor's astonishing admission of impropriety under Fuller. The judge merely noted "for the record" that he did not "find [S.H.] would be disqualified or I didn't excuse her for cause by what she said here as to difficulty passing judgment. I found that she would be a qualified juror."
As the record clearly shows, nothing in S.H.'s answers to the trial judge's questions showed any indication of a case- sensitive bias based on her religious activities, including singing in the choir. S.H. indicated she was open-minded and not "judgmental." As the trial judge found, there were no bases to exclude S.H. for cause based on her inability to reach a rational judgment based on the evidence. There was also no indication S.H. was unwilling to follow the judge's instructions on the law or to perform her duties as a juror and judge the credibility of the testimony of the witnesses at trial. In short, there was no rational, case-specific basis to exclude S.H. from serving on this jury. The prosecutor's constitutionally untenable policy of automatically disqualifying all "church goers" from serving on this jury was rejected by a unanimous Supreme Court nearly eleven years ago in Fuller.
C
Out-of-Court Identification
Defendant's arguments challenging the identification procedures utilized by the Englewood Police Department and the Hackensack Police Department are not reviewable under the standards the Supreme Court adopted in State v. Henderson, 208 N.J. 208 (2011). As Chief Justice Rabner made clear, "[t]he revised principles in this decision will apply purely prospectively . . . ." Id. at 220.
Under the prevailing standard at the time these two law enforcement agencies investigated these crimes, a reviewing court was required to follow the two-step analysis set forth in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977). As adopted by our Supreme Court in State v. Madison, 109 N.J. 223, 232-33 (1998), a reviewing court was first required to determine whether the procedure in question was "in fact impermissibly suggestive." "'What is being tested in the preliminary inquiry as to admissibility is whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer.'" State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 935 S. Ct. 1396, 35 L. Ed. 2d 602 (1973)).
If the court finds the procedures impermissibly suggestive, it must decide "whether the objectionable procedure resulted in a 'very substantial likelihood of irreparable misidentification.'" Madison, supra, 109 N.J. at 232 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). The court must focus on whether facts prove the reliability of the identification, despite the possibly unduly suggestive nature of the procedures employed. Ibid. See also Manson, supra, 4 32 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154 ("[R]eliability is the linchpin in determining the admissibility of identification testimony[.]").
The reliability determination is made through an analysis of the totality of the circumstances, including: (1) the witness's opportunity to view the assailant during the commission of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the assailant; (4) the witness's level of certainty at the time of the identification; and (5) the time between the commission of the offense and the identification. Madison, supra, 109 N.J. at 239-40 (citing Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).
Under the Manson/Madison test, a defendant bears the burden of proving "by a preponderance of the evidence 'that the identification procedure was suggestive so as to result in a substantial likelihood of misidentification.'" State v. Janowski, 375 N.J. Super. 1, 9 (2005) (quoting State v. Cook, 330 N.J. Super. 395, 417 (App. Div.), certif. denied, 165 N.J. 486 (2000)). "If after the evaluation of those factors the court is convinced that, notwithstanding the suggestive nature of the procedure, the witness's identification is reliable, then the identification may be admitted into evidence." Adams, supra, 194 N.J. at 204 (citing State v. Herrera, 187 N.J. 493, 503-04 (2006)).
We are bound to afford substantial deference to a trial court's factual findings. State v. Locurto, 157 N.J. 463, 474 (1999). "[T]he trial court's findings at the hearing on the admissibility of identification evidence are 'entitled to very considerable weight.'" Adams, supra, 194 N.J. at 203 (quoting Farrow, supra, 61 N.J. at 451). The court's review is restricted to whether the trial court's findings that the identification procedures were reliable is supported by sufficient credible evidence present in the record. Ibid. (citing Locurto, supra, 157 N.J. at 470-71).
Based on the governing principles at the time, we discern no legal basis to disturb the motion judge's rulings concerning the admissibility of the out-of-court identification. Defendant's remaining arguments are rendered moot.
V
Conclusion
Defendant's conviction is reversed and the matter is remanded for defendant to be tried in two separate trials. The counts in Bergen County Indictment No. 07-12-2110 relating to the charges arising from the May 17, 2007 incident in the City of Englewood must be tried separately from the counts related to the offenses arising from the June 20, 2007 incident in the City of Hackensack.
Reversed and remanded. 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