Opinion
DOCKET NO. A-0949-11T4
10-01-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EZEKIEL D. SNYDER, a/k/a BAM BAM ZEEK, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief). Richard T. Burke, Warren County Prosecutor, attorney for respondent (Mr. Burke, and Dit Mosco, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall, Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 09-03-00083. Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief). Richard T. Burke, Warren County Prosecutor, attorney for respondent (Mr. Burke, and Dit Mosco, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by GRALL, P.J.A.D.
This appeal and another decided today, No. A-822-11, concern the trial of two codefendants, Taquan K. Range and Ezekiel Snyder. Range and Snyder were charged in a single indictment with crimes committed during a nighttime invasion of an apartment in Warren County on January 29, 2008. The residents — a mother and her three-year old and seven-month old sons — were home when these codefendants and a third man, who was identified as their unknown conspirator in the indictment, entered the apartment. Although Snyder and Range were tried together, the jury reached a verdict on the charges against Range at a time when they were unable to agree on the charges against Snyder. Following an instruction from the court directing continued deliberations and a subsequent three-day court recess, the jury returned its verdict against Snyder.
The grand jurors initially charged Snyder in a juvenile complaint, but on September 15, 2008, a judge entered an order directing that Snyder be treated as an adult.
This opinion addresses Snyder's appeal. He seeks reversal of his convictions on several grounds, including a claim of error in the instruction on continued deliberations. We reverse his convictions because of that error and address his other claims in the interest of judicial economy.
The jury found both codefendants guilty as charged in a superseding indictment, which was issued as a consequence of a successful motion to dismiss the initial indictment. Specifically, the jury found both codefendants guilty of second- degree conspiracy, N.J.S.A. 2C:5-2, to commit burglary, N.J.S.A. 2C:18-2, and robbery, N.J.S.A. 2C:15-1; second-degree burglary while armed, N.J.S.A. 2C:18-2; and first-degree robbery while armed, N.J.S.A. 2C:15-1a(1).
In addition, the jury found Range guilty of the crimes with which he, but not Snyder, was charged: third-degree terroristic threats, N.J.S.A. 2C:12-3b; two counts of first-degree aggravated sexual assault while armed with and threatening use of a weapon — one by digital penetration and one by fellatio, N.J.S.A. 2C:14-2a(4); third-degree aggravated criminal sexual contact while armed with and threatening use of a weapon, N.J.S.A. 2C:14-3a; second-degree possession of a firearm with an unlawful purpose, N.J.S.A. 2C:39-4a; second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4).
For reasons stated in an amended written opinion dated March 29, 2011, the judge denied defendants' motions for judgment of acquittal and a new trial. Snyder did not seek a new trial based on the court's instruction directing the jury to continue its deliberations.
On August 11, 2011, the judge sentenced Snyder to an aggregate fifteen-year term of imprisonment subject to periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge did not merge any of Snyder's convictions. He imposed concurrent terms of imprisonment on each conviction as follows: first-degree robbery while armed, fifteen years subject to NERA; second-degree conspiracy to commit burglary and robbery, seven years subject to NERA; and second-degree burglary, seven years subject to NERA. In addition, the judge imposed the following financial obligations: restitution, one-half of $3840; a VCCB assessment of $150 pursuant to N.J.S.A. 2C:43-3.1, $50 per conviction; a $225 SNSF assessment pursuant to N.J.S.A. 2C:43-3.2, $75 per conviction; and a $30 LEOTEF penalty pursuant to N.J.S.A. 2C:43-3.3.
Snyder's judgment of conviction misstates the basis for the first-degree robbery charge in two sections of the form: "Original Charges" and "Final Charges."
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The evidence presented at trial can be summarized as follows. On the night of January 28, 2009, C.S., the girlfriend of Snyder's friend, drove Snyder, Range and a third man whom she did not know, to the neighborhood of the apartment they invaded. C.S. had known Snyder, to her "Bam Bam," for about a week, and she had met Range through Snyder. Snyder had asked C.S. to give them a ride to get "smoke." On the way, C.S. learned that they intended to get marijuana from "Sammy" by "beat[ing] him for it," by which C.S. meant taking it.
Earlier that day C.S. had taken Snyder and three different men, one the brother of her boyfriend, to the same area. C.S. thought the men were going to visit her boyfriend's sister, who lived there. On that trip, she parked near the apartment later invaded, which was across the street from Sammy's house. C.S. waited in the car. On the second trip, C.S. parked where Snyder directed her to park, which was around the corner from Sammy's and the apartment invaded. Again, C.S. waited in the car and did not see where the men went.
The woman whose apartment was invaded was dressed for bed and waiting for her three-year old to fall asleep when she heard pounding on the front door of her two story apartment. Her seven-month old was already asleep upstairs. Unable to see through the door's peephole, she opened the door.
The man at the door had the "fuzz"-trimmed hood of his coat pulled up and around his face. He asked for Sammy. Although the woman told him there was no one named Sammy there, he persisted. When she tried to close the door, he blocked her effort, pushed it open and entered.
Two other men, each wearing a black ski mask, followed him in. Their masks had no openings other than eye slits, a triangle in the area of the nose and a slit at the mouth. The third man to enter, the second of the two masked men, was carrying a gun. The woman was never able to identify any of the intruders.
During her testimony at trial, the woman described the action of the three men inside her home, referring to them as the man without the mask who entered first, the masked man without the gun and the masked man with the gun. In short, she recounted the events from the time the men entered until they left and she fled with her children to call for help.
Upon entering, the masked man with the gun took her cell phone. Using the gun to threaten her and striking her with it when she tried to look at his eyes, he repeatedly asked about Sammy. While that was going on, her three-year old came downstairs and was taken to another room by the unmasked man. The masked man with the gun then took her upstairs, gun to her back. The other masked man followed.
In her bedroom, the masked men dumped out the contents of her purse and took a twenty dollar bill, the only money she had. They also took a necklace and a ring with her children's birthstones.
Threatening to harm the woman or her children if she did not cooperate, the masked man with the gun directed her to take off her pajamas and both masked men squeezed her breasts. The unmasked man had been with her son. Although her testimony is not clear on the point, she indicated that her three-year old came into the room and said he needed his mother. One of the men, who had the gun at that point, held the gun to or pointed it at the child's head before the child was moved back to his room.
Thereafter, the masked man with the gun regained possession. Holding the gun to the woman's vagina, he threatened to shoot. Then, he digitally penetrated the woman, put on a condom and forced her mouth onto his penis. Until she did what he wanted, the masked man with the gun struck the woman with it several times and held it to her neck. Although the others urged him to stop wasting time and leave, he persisted.
When that assault ended, the men bound the unclothed woman using a charger wire and left her sitting on her bedroom floor. They then went downstairs. The woman listened to them moving around for a time and after she heard the door close and the quiet that followed, her three-year old came to her and helped her get untied.
Once free, the woman dressed, went downstairs to make sure it was safe and retrieved her children. She had to leave to call for help because the cell phone taken was the only phone she had.
Subsequently, the police interviewed and photographed the woman's injuries and arranged for forensic examination by a Sexual Assault Nurse Examiner for the Sexual Assault Response Team. The nurse found red marks on the woman's neck, wrists and the top of her head, and the photographs depicted an area of slight swelling and discoloration on her forehead. Samples of the woman's hair were also taken.
The State's theory of the case was that Range was the masked man with the gun. With respect to Snyder, the State submitted that he could have been either the second masked man or the unmasked man.
The State's case against Range was based on physical evidence combined with the testimony of C.S. and the woman who was his victim. According to C.S., when Range and the others returned to her car after being gone for about fifteen minutes, Range, using coarser language, announced that a woman had performed fellatio on him. That declaration was supported by a used condom holding Range's DNA and a hair that matched the hair taken from the woman, which the police found near the spot where Snyder told C.S. to park that night.
There was other physical evidence. During the victim's testimony she listed things taken from her home — along with her cell phone, the $20 bill and her jewelry, she mentioned DVDs and snacks for the children that she kept in the drawer of a hutch. The snacks included individually packaged oatmeal cookies, and near the spot where C.S. parked, the police found an individually packaged oatmeal cookie. C.S. recalled the men having cookies like that when they returned to the car because she ate one. In addition, during a subsequent search of Range's duffle bag, the police found a ski mask that matched the victim's description of the masks worn by two of the intruders. That mask held a hair that matched a sample taken from Range. The gun was never recovered.
The State's case against Range was dependent on the testimony of C.S. As previously noted, she testified about driving Snyder to the street where the invaded apartment is located earlier the same day. And she testified that when Snyder, Range and the other man returned to her car, they were laughing about a little boy who cried because he was scared for his mother. She also testified that Snyder remarked that the men might have gone to the "wrong" house.
The State presented some evidence tending to support an inference that Snyder, Range and their companion intended to go to Sammy's house to take marijuana as C.S. claimed. "Sammy's" mother testified for the State and said that three young men had come to her on January 29, 2008, and asked for her son Sammy. By her account, Sammy went outside to speak with them, but she did not know and could not identify any of the young men. Sammy was deceased at the time of trial.
The State was permitted to introduce a photograph of the victim's children taken before the incident. In addition, the victim testified that while she was held in her bedroom she heard her baby crying and her older son telling his brother that everything would be okay.
On redirect, the prosecutor asked the victim how she "dealt with what happened on January 29, 2008, [before she] went to the grand jury[] with [her] son Ethan?" She responded, "Counseling." There was no objection to that question or to the prosecutor's follow-up:
Q. And how was, how were you able, or how did you handle dealing with it during that timeframe?
A. Family. I stayed with family a lot. My kids.
Q. Did you give much thought about the details of what happened on January 29th during that timeframe?
A. I was trying not to.
Q. How about the second time you testified in front of the Warren County Grand Jury on March 1, 2009. Did anybody show you any documents about what you had said before?
A. No.
Q. Did you ever read any of the, either grand jury transcripts?
A. No.
Q. When you testified?
A. No.
Q. Did you read them before today?
A. No.
Q. Or yesterday?
A. No.
To address any question in the jurors' mind about the multiple grand jury proceedings, the judge gave this instruction: "The original indictment against the defendants was superseded by a new indictment. The fact that a superseding indictment was obtained should not influence you in determining the credibility of [the victim], okay. That had nothing to do with her."
Neither defendant presented any evidence or witnesses.
On the State's motion, defendants were prohibited from bringing out any information identifying the misdemeanors to which C.S. pled guilty — possession of crack cocaine and corrupting a minor. Defendants' respective attorneys were, however, permitted to elicit C.S.'s admission to being convicted of two charges in Pennsylvania on September 11, 2007, for which she was sentenced to a term of probation that did not end until March 11, 2009. Defense counsel were also permitted to question C.S. about her compliance with the conditions of her release on probation and, in that context, elicited an admission that C.S. smoked marijuana, which was a violation. C.S. said her probation officer knew about her violation. She admitted that when she spoke to the police in New Jersey about this case, she did not know what action her probation officer would take to address her probation violation.
In addition to the foregoing impeachment of C.S., defense counsel questioned her about numerous inconsistencies between the out-of-court statements she made and her trial testimony. She repeatedly admitted to lying prior to trial.
I
Snyder raises these issues on appeal:
I. THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR SEPARATE TRIALS SUBSTANTIALLY PREJUDICED HIM AND DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, [¶¶] 1, 9 AND 10).
II. THE TRIAL COURT'S RULING TO "SANITIZE" THE PRIOR CONVICTIONS OF [C.S.], A KEY PROSECUTION WITNESS, DEPRIVED DEFENDANT OF EFFECTIVE CROSS-EXAMINATION IN VIOLATION OF HIS RIGHT TO CONFRONT WITNESSES AGAINST HIM AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED
STATES CONSTITUTION AND ART. I, PARA. TEN OF THE NEW JERSEY CONSTITUTION.
III. THE ENTRANCE INTO EVIDENCE OF A PHOTOGRAPH OF B.T.'S CHILDREN, THE REPEATED REFERENCE TO THE CHILDREN AS VICTIMS, AND TESTIMONY DESIGNED TO SHOW VICTIM IMPACT, DEPRIVED DEFENDANT OF A FAIR TRIAL.
IV. THE TRIAL COURT'S INSTRUCTIONS TO THE JURY FOLLOWING ITS ANNOUNCEMENT THAT IT WAS DEADLOCKED WERE ERRONEOUS AND COERCIVE AND REQUIRE A REMAND FOR A NEW TRIAL.
V. BECAUSE THE NATURE OF THE OFFENSE IS THE SINGLE MOST IMPORTANT FACTOR IN SENTENCING, AND BECAUSE THE TRIAL COURT OVERLOOKED THAT DEFENDANT DID NOT CAUSE OR CONTEMPLATE HARMING THE VICTIM, AND BECAUSE THE COURT REFUSED TO HEAR FROM MR. SNYDER'S MOTHER WHO WAS CAPABLE OF ADDRESSING OTHER MITIGATING FACTORS THAT THE COURT WAS REQUIRED TO WEIGH, THE MATTER MUST BE REMANDED FOR RE-SENTENCING.
II
As previously noted, we are reversing Snyder's conviction and remanding for a new trial because of error in the jury instruction on continued deliberations raised in Point IV of Snyder's brief. Accordingly, we address that issue first.
The jury commenced deliberations on the morning of February 9, 2011, and on February 10 submitted a note reporting that it had a verdict on Range but was "deadlocked" on Snyder. After taking the verdict on Range, the judge gave the jurors an instruction for continued deliberations and had them continue deliberating for an additional forty minutes before recalling them to the courtroom and discharging them for the three-day weekend, to return on Monday, February 14, 2011. On February 14, the jury returned its verdict on the charges against Snyder
We have previously summarized the law governing instructions on continued deliberations following a jury's announcement of a deadlock as follows:
"[T]he right to a free and untrammeled verdict . . . is the core of the right to trial by jury." State v. Figueroa, 190 N.J. 219, 233 (2007) (internal quotations omitted); State v. Czachor, 82 N.J. 392, 400 (1980). A legitimate verdict must "'rest upon the convinced understanding of the individual jurors.'" Czachor, supra, 82 N.J. at 400 (quoting Stern, supra, 11 N.J. at 588-89). "Critical to achieving such an impartial verdict is the independent and honest judgment of each juror that the State has proved defendant's guilt beyond a reasonable doubt." Id. at 409.
The "honest judgment" contemplated is one based upon the evidence and the law, not extraneous considerations such as the efficiency and expense of jury trials. Id. at 398. The "independent judgment" that is critical is the judgment of twelve deliberating jurors each free from external pressure to conform his or her judgment with that of his peers to reach a verdict. Id. at 409; see State v. Jenkins, 182 N.J. 112, 133 (2004) (discussing the importance of each juror's participation in deliberations and open-minded dialogue); State v. Corsaro, 107 N.J. 339, 350-51 (1987) (discussing
juror independence, collectivity and mutuality).
Nearly thirty years ago, our Supreme Court prohibited the use of jury instructions that convey pressure to return a verdict because such pressure is "inconsistent with jury freedom and responsibility" and "does not permit jurors to deliberate objectively, freely, and with an untrammeled mind." Czachor, supra, 82 N.J. at 402. In Czachor, the Court held that "the interest in avoiding the expense of mistrial is outweighed by the substantial risk that the right to a fair trial at the hands of an impartial jury [will be] jeopardized" if the jury is given an instruction the "thrust" of which is to "undo a jury deadlock." Id. at 398. The Court approved an instruction for use in appropriate cases. Id. at 406-07.
[State v. Adim, 410 N.J. Super. 410, 422-23 (App. Div. 2009) (citations omitted).]
In this case, an instruction was appropriate and the trial judge delivered the approved instruction. It is worth noting that the Supreme Court has recently reaffirmed its endorsement of that instruction. State v. Ross, 218 N.J. 130, 144-45 (2014).
The difficulty is that, in this case, the trial court supplemented the approved instruction. The court introduced the approved charge as follows:
All right. Now what I don't want you to do when you followed my instructions you told me you were deadlocked. I didn't want you to tell me the number. You remembered that, you followed those instructions. NowApparently receiving no reaction, the court read the substantial equivalent of the approved charge.
what I want to know is this, is there anything I could give you, if you need a further instruction, or a read back, or anything that you would think would help you get over the deadlock situation?
It is your duty as jurors to consult with each other and to deliberate with a view to achieving or reaching an agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors.The trial court, however, did not end the instruction there. The court concluded with an original passage supplementing the approved charge:
In the course of your deliberations do not hesitate to reexamine your own views and change your opinion if convinced it's erroneous, but do not surrender your honest conviction as to the weight or the affect [sic] of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. Again you're not partisans, you are judges, judges of the facts.
What I would ask you to do is this, I'm going to ask you to go back and I'm going to ask you to spend another half hour or so, okay, and see if you can reach a verdict. Or again, is there something I can help you with? Is there testimony read back, or is there part of the charge, or is there something that I can help you [with]? Don't be afraid to go back and go around and talk because after this, I'm going to ask you
when you're discharged to go take a look at "Twelve Angry Men." There's a movie and it shows how people talk in the jury room. So don't be afraid to talk. Don't be afraid to discuss. Don't be afraid to change your mind if you think it's erroneous, okay. So I'm going to ask you to go back and spend about another half hour then I'll have you back. In the meantime if there is something I can do, please let me know and I'll do it, okay.
After receiving that instruction, the jurors returned to the jury room. But they did not complete their deliberations by the hour the court was required to discharge them that night. As previously noted, it was closing time on a Thursday evening before a three-day weekend. When the court discharged the jury, it cautioned them not to discuss the case outside the jury room, read any article about it, do any research or go on the Internet. It did not direct them to avoid watching the recommended film that "shows how people talk in the jury room."
When all of the jurors returned on Monday morning, they presumably went directly to the jury room to recommence deliberations, just as the court had directed them before releasing them on Thursday night. The first thing the transcript of the Monday proceedings reflects is that the jurors sent a note announcing that they had reached a verdict. The transcript does not state the time of delivery.
The evidence implicating Snyder, viewed in the light most favorable to the State, was adequate to support his convictions as an accomplice of Range in the crimes for which the jury convicted Snyder. State v. Reyes, 50 N.J. 454, 458-59 (1967). With respect to Snyder, the State's evidence cannot be characterized as overwhelming. Without the testimony of C.S., there was nothing linking Snyder with the crimes. Indeed, as previously noted, the State's position by the time of summations was that Snyder could have been either the masked man without the gun or the unmasked man.
We by no means suggest, or intend to suggest, that the trial court intended to coerce unanimity where none existed or intended to place unreasonable pressure on the dissenters in the minority. Nevertheless, the deviations from the approved charge could have had that effect. The court's offer of assistance to "help [the jury] get over the deadlock situation" conveys its interest in avoiding a "deadlock situation." Moreover, the court's recommending a classic film — one some of the jurors may well have seen in the past or, on the court's recommendation, after they were released on Thursday evening for the three-day weekend — leaves us uncertain about whether Snyder's convictions are the product of deliberation on the evidence or their interpretations of a dramatic portrayal "show[ing] how people talk in the jury room."
The fact that the film ends with an acquittal is beside the point. The court said, "I'm going to ask you when you're discharged to go take a look at 'Twelve Angry Men.'" While the court may have intended for the jurors to watch the film after the court accepted a verdict and discharged them in that technical sense of the word, not for them to watch that movie over the three-day weekend, that was far from clear. Importantly, the court did not give the jury an instruction to refrain from watching the film until deliberations were over and the court had accepted their verdict. Thus, with the instruction given, the court effectively invited the jurors to rely, not only on the court's direction about continued deliberations, but on guidance the jurors might draw from the dramatic portrayal of jurors talking to one another in the recommended movie. Consequently, we cannot conclude that the jurors did not take that approach.
Collectively, the court's supplements to the approved instruction leave us with a reasonable doubt about the post-deadlock deliberations that led to this verdict. See State v. Castagna, 187 N.J. 293, 312 (2006); see also Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967). As the Supreme Court has noted, Czachor imposes "strictures against charges which do not 'permit jurors to deliberate objectively, freely, and with an untrammeled mind.'" State v. Ramseur, 106 N.J. 123, 306 (1987) (quoting Czachor, supra, 82 N.J. at 402)).
III
Because we are reversing Snyder's convictions, his objections to his sentence are moot.
IV
Although it is not necessary to our decision and the question of severance cannot arise on remand because Range has been tried and convicted, we have considered Snyder's claim of error in the denial of his motion for a separate trial in light of the record. It has insufficient merit to warrant discussion beyond the brief comments that follow. R. 2:11-3(e)(2).
A trial court's determination of a severance motion is reviewed for abuse of discretion. State v. Sanchez, 143 N.J. 273, 283 (1996); State v. Brown, 118 N.J. 595, 603 (1990). Where, as here, "[t]wo or more defendants . . . 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," a joint trial of codefendants is appropriate. R. 3:7-7 Indeed, a joint trial is preferable where "much of the same evidence is needed to prosecute each defendant." Sanchez, supra, 143 N.J. at 281 (quoting Brown, supra, 118 N.J. at 605).
It is true that the jury heard testimony about the sexual conduct with which only Range was charged as well as some brief testimony from the victim about one of the other two men fondling her breasts. Snyder contends that he was prejudiced by that testimony, because the jury would not have heard it if he had been tried alone. But in State v. Mayberry, 52 N.J. 413, 421 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969), the Court concluded that severance was not warranted where the only basis for the severance motion was that some evidence would be admissible only as to one codefendant. Given the brevity and vagueness of the victim's testimony about two men fondling her, we cannot conclude that the court abused its discretion or that Snyder was prejudiced.
V
The evidentiary rulings Snyder challenges in Points II and III of his brief may arise again on remand. For that reason, we address them.
A
Range and Snyder claim several errors in the trial court's evidentiary rulings. All of them involve the trial court's application of N.J.R.E. 403, which permits exclusion of relevant evidence when "its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues or misleading the jury . . . ."
"[A] trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997) and applying that standard in a case involving application of N.J.R.E. 404(b)); accord State v. Feaster, 156 N.J. 1, 82 (1998) (applying the standard in a case involving N.J.R.E. 403). That deference is withheld if the trial court has misapplied the law to the evidence in question, in which case an appellate court reviews the question of admissibility anew. See State v. Rose, 206 N.J. 141, 158 (2011) (so noting in a case involving the applicability of N.J.R.E. 404(b)). If error is found and an objection was raised at the time, then reversal is warranted if the error leaves the reviewing court with uncertainty about whether the error contributed to the defendant's conviction. State v. Sanchez, 129 N.J. 261, 278 (1992).
We turn to apply those principles in reviewing the objections raised on this appeal.
B
The defendants both claim error in the court's limitation of their cross-examination of C.S. about the crimes underlying her prior convictions — possessing crack cocaine and corrupting a minor in Pennsylvania. As the trial court made clear in its written decision addressing defendants' motion for a new trial, the determination to "sanitize" C.S.'s convictions over defendants' objections — that is, to eliminate reference to the crimes underlying C.S.'s prior convictions, State v. Brunson, 132 N.J. 377, 387-93 (1993) — was based on N.J.R.E. 403. The trial court recognized that Brunson did not require sanitization because its rule applies only where the witness to be impeached is the defendant in a criminal case and one or more of the defendant's prior convictions is for a crime similar to one for which the defendant is being tried. Ibid.
The difficulty is that the trial court did not identify the basis for precluding cross-examination of C.S. about the crimes underlying her prior convictions. For that reason, we cannot defer to the determination. The rationale for sanitization of information about a testifying-defendant's similar prior convictions is obvious — the inherent risk of the jury returning a guilty verdict based on its determination that the defendant has a propensity to commit crimes of the sort for which the defendant is on trial. State v. Hamilton, 193 N.J. 255, 265-66 (2008).
Quite obviously, there is no such risk where the prior convictions are those of a witness who is not a defendant in the case. Nevertheless, the Court has recognized that there may be valid reasons for sanitizing prior convictions of a testifying-defendant that are not similar to the crime at issue through an application of N.J.R.E. 403. Id. at 268-69. And we see no basis for limiting the general applicability of N.J.R.E. 403 to bar sanitization of the prior conviction of a State's witness in a criminal trial where a proper showing of prejudice is made.
In this case, however, we are unable to discern a basis for sanitization pursuant to N.J.R.E. 403. Although the State does not concede that there was no valid reason, it does not offer a justification under N.J.R.E. 403.
For the foregoing reasons, we assume, without deciding, that the "sanitization" was error. Despite that assumption of error, the error was harmless, in that it leaves no reason for uncertainty about whether the verdict would have been the same if defense counsel had been permitted to introduce a judgment reflecting, or question C.S. about, the crimes underlying her recent convictions. The cross-examination on C.S.'s prior convictions was vigorous, to say the least, and it effectively demonstrated C.S.'s lack of concern about compliance with the law, including the conditions governing her release on probation.
Moreover, defense counsel managed to elicit an admission from C.S. tending to show her motive for cooperating with law enforcement — her knowledge that her probation officer was aware of her violation and had not yet decided what action would be taken to address it.
Defendants have presented no argument on what could have been accomplished, but was not accomplished, if information about the crimes underlying C.S.'s convictions had been admitted. Accordingly, we cannot conclude that their right to cross-examination was impermissibly limited in an unreasonable manner that raises a doubt, let alone reasonable doubt, about the conviction. State v. Castagna, 187 N.J. 293, 312-13 (2006); see also Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967).
C
We agree with defendants that the pictures of the children who were present during the invasion had little tendency in reason to prove or disprove a fact of consequence, and therefore the pictures have limited probative value. N.J.R.E. 401, 402, 403. There was no dispute that the victim had children who were home during the events. Even if one of those facts were in dispute, the studio-style photograph of the boys would not have any tendency to prove either.
As defendants argue, the photograph of the smiling little boy and his baby brother had some capacity to evoke an emotional reaction prejudicial to defendants. Nevertheless, we are confident that the same emotions would be evoked by the admissible and highly relevant testimony the mother gave about a man holding a gun to her three-year old son's head and coercing her to cooperate by threatening to harm her children. Her admissible testimony about how she managed to untie herself with the little boy's help had the same capacity. In short, the admissible evidence of the children's presence and the use the men made of them was inherently disturbing in a way that that could not be appreciably enhanced by seeing a photograph depicting the children. Beyond any doubt, the error was harmless.
Reversed and remanded for further proceedings. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION