Opinion
DOCKET NO. A-2127-10T2
10-29-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KELVIN WILLIAMS, Defendant-Appellant.
Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief). Jason Magid, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Mr. Magid, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Maven, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-05-01804. Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief). Jason Magid, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Mr. Magid, of counsel and on the brief). PER CURIAM
Defendant Kelvin Williams was convicted of first-degree robbery, N.J.S.A. 2C:15-1, following a 2010 jury trial at which the State presented evidence that he entered a bank, told a teller he possessed a bomb, and demanded money. On March 12, 2010, defendant was sentenced to a fourteen-year prison term subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant appealed, and in an unpublished decision the panel reversed his conviction, finding insufficient evidence that the bank teller had "a reasonable belief that defendant was armed with a bomb during the commission of the robbery." State v. Williams, No. A-2127-10 (App. Div. July 11, 2012) (slip op. at 17). Consequently, the panel saw no need to address an evidentiary issue raised by defendant on appeal, namely, the admission into evidence of bright orange pants that bore the initials of the Camden County Correctional Facility (CCCF). Ibid.
Our Supreme Court granted the State's petition for certification, State v. Williams, 212 N.J. 199 (2012). The Court subsequently reversed the panel's judgment of acquittal, finding that defendant's words, conduct, and clothing provided sufficient evidence for a reasonable jury to convict him of first-degree robbery. State v. Williams, 218 N.J. 576 (2014). The Court reinstated defendant's conviction, id. at 596, and remanded for our consideration defendant's remaining evidentiary issue:
THE JUDGE ERRED IN ADMITTING THE BRIGHT ORANGE PANTS WORN BY THE ROBBER BECAUSE THE PANTS BORE THE INITIALS OF THE CAMDEN COUNTY CORRECTIONAL FACILITY (CCCF) AND SO IMPLICATED PRIOR CRIMINALITY ON THE PART OF DEFENDANT. DESPITE HIS CAUTIONARY CHARGE, THE POTENTIAL FOR PREJUDICE VASTLY OUTWEIGHED ANY PROBATIVE VALUE IN ADMITTING THE PANTS
We summarize the facts most pertinent to the issue presented on remand. On October 8, 2008, at approximately 10:42 a.m., an individual, later identified as defendant, entered the Sun National Bank in the Borough of Somerdale in Camden County. He approached head bank teller Cheryl Duncan, told her he had a bomb, and demanded money. Duncan described the robber as a black male, approximately six-feet tall, with facial hair and wearing a camouflage hooded sweatshirt. Although the man had the sweatshirt pulled over his head, Duncan testified that she was able to get a good look at his face. Another bank employee, Aline Keshishian, witnessed the robbery and observed that the perpetrator wore a camouflage hooded sweatshirt, bright orange pants, and had a white "hospital type bracelet on his wrist."
After the individual took the money, he departed the bank in a taxi cab. The police responded, and broadcast a description of the robber, his clothes, and the getaway vehicle. The taxi driver was located, and corroborated the descriptions of defendant as a black male wearing orange pants and a hooded sweatshirt. The taxi driver told the police that defendant hired him to drive to the bank and, after briefly stopping there, defendant asked to be dropped off at the Echelon Mall.
The police then responded to the shopping mall, where Investigator April Herrington of the Voorhees Township Police Department soon observed an individual matching defendant's description. However, he was then wearing jeans, a striped collared shirt and a baseball hat, and was carrying a camouflage hooded sweatshirt. Herrington took hold of defendant's left arm while a back-up officer took hold of his right arm, causing defendant to drop the hooded sweatshirt. When the sweatshirt fell it revealed a plastic bag containing $481 in cash that had been concealed inside.
When arrested, defendant was wearing a white hospital bracelet on his right wrist that bore his name. On his person the police found a receipt indicating that he had purchased for $60.98 in cash jeans and a striped shirt from the mall's Pay Half store, and $481 in various denominations. The aggregate of the Pay Half purchase and the cash found on defendant closely matched the amount stolen from the bank. The police also recovered bright orange pants and a white t-shirt from a trash can inside the Pay Half store.
The police transported defendant to the bank where Duncan positively identified him as the robber, although she noted he was wearing different clothes. Duncan also identified defendant at trial, stating she had "no doubt" as to his identity.
At trial defendant's primary defense was identity. Defense counsel stated in his opening:
But, ladies and gentlemen, Kelvin Williams is not guilty. He did not do this. They got the wrong guy. Mr. Williams had the misfortune of being a thirty-year old or approximately thirty-year old African American man with a beard at the Echelon Mall at the time an individual fitting that description had robbed the Sun National Bank.Defense counsel also told the jury:
Now, the prosecutor laid out some of the evidence that he intends to produce and I can tell you now you are going to see a significant amount of evidence. You will see video evidence, you will see photographs, you will see the clothing he spoke of, and you are going to hear witness testimony.
[Emphasis added.]
During trial, however, defendant objected to the State's introduction of the orange pants which bore the initials CCCF, which, he posited, symbolized the Camden County Correctional Facility. Citing N.J.R.E. 403, defendant argued that the probative value of the pants was outweighed by the potential for prejudice should the jury equate them with defendant's prior criminal involvement. Defendant was "willing to stipulate to the existence of the orange pants and to the fact that the officers located the orange pants." The State opposed the defense request, noting that the only issue in the case was that of identity. The prosecutor argued:
It's clear that the witnesses and victims in this case identified a pair of orange pants. I anticipate the next witness will also identify those orange pants and the fact that those orange pants were disposed of and in what manner they were disposed of.
The State did not put the emblems on those pants. Those pants are highly relevant, they go directly to identity. I don't believe the State should be hamstrung in any way to present that evidence to the jury. The jury is entitled to see that evidence as it was recovered and in the state it was recovered in.
With respect to a limiting instruction, if counsel would request a limiting instruction, subject to the State's review, I think we can probably find a common ground.
The trial judge engaged in a "[Rule] 403 [b]alancing [t]est" and concluded that the prejudicial effect of the pants did not substantially outweigh their probative value. The court opted instead to give the jury a limiting instruction in the form prepared by defense counsel, as follows:
With regard to the evidence that has been presented to you, on the pair of orange pants there are a series of letters on one leg and there is an image on one of the T-shirts.In his summation, defense counsel repeated the theme expressed in his opening statement. Counsel argued, "The Sun National Bank was robbed on October 8, 2008. But, it wasn't robbed by Mr. Kelvin Williams." Counsel told the jury:
These materials are being given to you in evidence. The letters and the image bear no significance to the facts in this case and you are to reach no conclusions or inferences, either positive or negative, concerning the presence of those letters or that image.
Before when I talked to you about a limiting instruction, this is an example of a limiting instruction. So, they have no meaning. They are not relevant to this case. Don't in any way consider either the image or the letters as related to this case.
But, we've looked at the circumstances of the initial identification, now let's look at the circumstances of his arrest.
Mr. Williams was arrested in the . . . Echelon Mall wearing clothing that in no way matched the clothing described by Ms. Duncan. In fact, the only similarity between Mr. Williams and the suspect as described by that witness was that he was a black male with some sort of facial hair and
that he was carrying a camouflaged hooded sweatshirt or camouflaged sweatshirt of some sort.
Now recognizing, of course, the discrepancy between the identification of the suspect and the man who was actually arrested and accused of being the suspect, the State is going to ask you to believe that Mr. Williams was the man who went into a store, a Pay Half Store, in the mall and changed his clothes and purchased some new clothes.
And presumably going to ask you to think about why one might do that. To avoid detection. Does it make sense? Well, does it? Ask yourselves would a man who had the presence of mind or the idea to go into the mall to change his clothes because he was trying to avoid detection, would he then take those clothes with him?
And not only that, would he carry that article of clothing in his hand for all the world to see if he didn't want to get caught? Does that make sense to you? Ask yourselves.
The jury deliberated approximately one and one-half hours before finding defendant guilty of first-degree robbery. Defendant immediately moved for a judgment of acquittal notwithstanding the jury's verdict. The trial judge denied the motion, explaining:
The Court finds that the evidence was rather overwhelming. The videotape of the robbery . . . displayed an individual who was wearing a hospital band and a watch. That hospital band and watch were worn by
the same individual that was apprehended in the Spencer's Store.
Even by the most rigorous standard of proof, there is no question in the Court's mind that the jury made an appropriate and proper decision and for that reason your application for a verdict notwithstanding the jury's verdict is denied.
As noted, the sole issue remaining for our determination is whether the trial court's decision to admit the orange pants in evidence and allow the jury the opportunity to view the initials on them constitutes reversible error. We conclude that it does not, and affirm defendant's conviction.
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. Marrero, 148 N.J. 469, 484 (1997). See also Verdicchio v. Ricca, 179 N.J. 1, 34 (2004) (Admissibility of evidence falls within the broad discretion of the trial judge.). On appellate review, a trial court's evidentiary ruling must be upheld "unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
Whether evidence should be excluded under N.J.R.E. 403 because its prejudicial effect substantially outweighs its probative value is an issue remitted to the discretion of the trial court. State v. Wilson, 135 N.J. 4, 20 (1994). N.J.R.E. 403 provides:
Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.The burden is on the party urging exclusion of evidence to convince the court that the N.J.R.E. 403 considerations should control. Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001). The moving party must demonstrate not only that the contested evidence is prejudicial, but that the factors favoring exclusion "substantially" outweigh its probative value. Ibid.; State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Evidence claimed to be unduly prejudicial may be excluded only where its probative value "is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence." State v. Thompson, 59 N.J. 396, 421 (1971).
In urging us to reverse his conviction, defendant renews his objection to the admission of the bright orange pants, which bore the initials CCCF. Defendant argues that in admitting the pants, the jurors thereby had the "opportunity to see the initials and perhaps recognize [that] they stood for" the Camden County Correctional Facility. This potentially prejudiced defendant because it "raised at least the specter" that he had engaged in prior criminal activity.
We acknowledge the potential prejudice to defendant in admitting the orange pants, thus allowing the jury to observe the lettering on them. We would also be naïve to think it implausible that at least one of the jurors would not recognize the initials as being indicative of the county's correctional facility. Nonetheless, we are not persuaded that such potential prejudice substantially outweighs the clothing's high probative value under the circumstances presented. N.J.R.E. 403. Rather, the fact that the robber wore distinctive clothing, especially the camouflage sweatshirt and bright orange pants, coupled with the hospital bracelet, played a key role in identifying him as the individual who robbed the bank and appeared on the bank surveillance tape played to the jury. Likewise, this distinctive garb was critical in tracking defendant's movements from the bank via taxi to the mall, where bright orange pants were found discarded in a store where he had just purchased the jeans he was wearing when apprehended.
At oral argument, defendant contended that some other alternative could have been explored, such as admitting a photograph of the pants, or obscuring or cutting out the initials. The defendant did not posit such alternatives at trial. Moreover, as the State noted, such alternatives may have caused the jury to question why the pants were not admitted, or why they were being treated differently than the other physical evidence, to the State's resulting prejudice.
In the end, the trial judge engaged in the proper balancing test under N.J.R.E. 403 and admitted the pants in evidence, coupled with an instruction cautioning the jurors not to consider the letters on the pants or to draw any conclusions or inferences from them. The court's instruction was adequate to dispel any reasonable claim of prejudice. Jurors are presumed to have followed a court's instructions. See Verdicchio, supra, 179 N.J. at 36; see also Williams v. James, 113 N.J. 619, 632 (1989) (recognizing that juries are "capable of following a curative instruction to ignore prejudicial matter").
Finally, we conclude that admission of the pants, if error, was harmless. R. 2:10-2. "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." Ibid. There must be "a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits." State v. Macon, 57 N.J. 325, 338 (1971). "The harmless error standard 'requires that there be some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached.'" State v. Lazo, 209 N.J. 9, 26 (2012) (internal quotation marks omitted).
Here, we agree with the trial court's assessment that the evidence of defendant's guilt was "overwhelming." The bank employees provided a detailed description of the robber, including the camouflage sweatshirt, orange pants, and white hospital bracelet he was wearing, which the jurors were then able to observe on the bank surveillance video. Duncan got a "good look" at defendant, and unequivocally identified him shortly after the robbery and again at trial. The taxi driver corroborated the bank employees' descriptions of the suspect's garb, and directed the police to the mall where defendant was located. When apprehended, defendant was carrying a camouflage sweatshirt, and wearing a white hospital bracelet with his name on it. He also had cash closely matching the amount stolen from the bank, and a receipt for jeans he was wearing that he had just purchased from a store where orange pants were found discarded. In view of the substantial other evidence against defendant, we therefore deem any error in admitting the pants to be harmless.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION