STATE OF NEW JERSEY v. MICHAEL TUCKER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4772-03T44772-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL TUCKER,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 2, 2005 - Decided

Before Judges Conley and Weissbard.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, 91-02-0231.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael Jan, Designated Counsel,

of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Simon Louis Rosenbach,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Whether "silence is golden" is not nearly as clear as the proverb suggests, and determination of when a defendant's silence is indeed "golden," or when it is incriminating, has bedeviled state and federal courts. Our courts have resolved some issues in that morass, but not all. The present appeal requires that we address the use of pre-arrest silence against a defendant who does not testify at trial, an issue left partially unresolved by State v. Muhammad, 182 N.J. 551 (2005). We also deal with the more settled question of the use of post-arrest silence. Because of errors in the admission of defendant's silence, as well as another significant evidentiary error, we reverse and remand for a new trial.

Defendant Michael Tucker appeals from his conviction of felony murder, N.J.S.A. 2C:11-3(a)(3), armed robbery, N.J.S.A. 2C:15-1, and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(c). The jury was unable to agree on the charge of murder, N.J.S.A. 2C:11-3(a)(1), the sole remaining count in the indictment. After merging the armed robbery and weapon possession into the felony murder, the judge sentenced defendant to life imprisonment with thirty-years parole ineligibility. After sentencing, the State's motion to dismiss the murder charge was granted.

On appeal defendant raises the following issues:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT II

DEFENDANT WAS DEPRIVED OF A FAIR TRIAL AS A RESULT OF THE STATE'S IMPROPER REFERENCE TO DEFENDANT'S EMPLOYMENT STATUS.

POINT III

DEFENDANT WAS DENIED A FAIR TRIAL AS THE RESULT OF THE STATE'S IMPROPER REFERENCE TO DEFENDANT'S PRE-ARREST SILENCE. (Not Raised Below)

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED DEFENDANT OF A FAIR TRIAL BY FAILING TO INVESTIGATE POTENTIAL JUROR MISCONDUCT. (Not Raised Below)

POINT V

DEFENDANT WAS DENIED A FAIR TRIAL AS THE RESULT OF PROSECUTORIAL MISCONDUCT DURING THE STATE'S SUMMATION. (Not Raised Below)

POINT VI

THE CUMULATIVE EFFECT OF ALL THE ABOVE ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT VII

THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE.

POINT VIII

THE FINDING OF AGGRAVATING FACTORS BY THE COURT, WHICH ARE NOT SUPPORTED BY THE JURY'S VERDICT, VIOLATES APPRENDI, AND RENDERS THE SENTENCE IMPOSED ILLEGAL.

We find merit in Point III and in part of Point II, requiring a new trial.

I

The victim of the crimes was defendant's mother. On Sunday, June 11, 2000, the Piscataway Police Department received a 911 call from defendant. The call, which came from defendant's residence, reported that he had just found his mother, Mary Tucker, dead.

Patrolmen James Richards and David Piro arrived at the scene first, shortly after 2:00 p.m. They entered the residence through the front door and discovered the victim slumped over in a chair in the TV room with dried blood on her dress and an obvious wound to the upper left side of her chest. Finding defendant and his girlfriend, Tracey Stepney, present, the officers separated the two and took them outside.

Richards proceeded to inspect the rest of the house but found no sign of forced entry and no sign that a struggle had occurred. When questioned by Richards at the scene, defendant stated that he had last seen his mother on Friday, June 9, 2000 when he drove her to a Pathmark supermarket and then dropped her off at home before going to his girlfriend's in Plainfield for the weekend. Defendant stated that he had gone into New York City on Saturday and had lunch with Tracey on Sunday before returning to his mother's house with Tracey and finding the victim's body. Defendant said that they entered the house through the back door, which was unlocked. Tracey gave a similar account of the weekend, including finding the door unlocked upon arrival. Their account of the weekend was corroborated by Howard Phearse, a friend who lived in the same rooming house as Tracey. Phearse testified at trial that on the afternoon of June 9, defendant came to Tracey's room at about 3:30 p.m. Phearse noticed that defendant's shirt was torn. Defendant explained that he had been chased by a dog and had ripped the shirt jumping over a fence. Later that evening, Tracey invited Phearse and his girlfriend, Tolejala Harden, to a party where they drank beer and smoked crack cocaine. Defendant gave Harden a $100 bill to buy crack and took Phearse to a local bar and bought him beer.

On Saturday, Tracey invited Phearse and Harden to go to New York City with her and defendant, but Phearse declined the invitation because he did not have any money. Tracey responded by telling Phearse that defendant would pay for everything. Indeed, defendant did pay for their transportation to and from New York, as well as pizza and beer while in the City.

Detective Mostowski and Prosecutor's Investigator O'Brien arrived shortly after the two patrolmen. Their inspection of the house showed that the windows and doors were secured, and that there were no signs of forced entry. They found a very small blood stain on the windowsill behind the victim, which O'Brien believed was consistent with blood splatter. The fact that the remaining bloodstains were all located in the victim's immediate vicinity led O'Brien to opine that the victim had never gotten out of the chair.

Further investigation of the house revealed that the victim's purse was in her bedroom closet, and it contained her personal items, several pieces of jewelry, her checkbook and a total of $747. The last entry in the checkbook was made out to "Cash" for $3000. A tape edit of victim's telephone number showed that on June 9, 2000, at 11:00 a.m., Alliance Billing Service, or ABS Billing, called the residence and left a message for defendant, concerning an outstanding debt to Muhlenburg Regional Medical Center (MRMC) of $1594 from March 22, 2000. The tape edit also indicated that the last call the victim received came at 5:00 p.m. on the day she was murdered.

Defendant was transported to police headquarters where he gave a taped statement to Mostowski and Prosecutor's Investigator Janowiak. Defendant was given his Miranda warnings before his statement was taken. Defendant again told the police that he last saw his mother on Friday when he took her to the supermarket and dropped her off back at the house. After learning from other investigators that defendant had also taken his mother to the bank that morning, the police decided to re-interview him.

In that second interview, defendant admitted that he had taken his mother to the United National Bank in Plainfield, where he had waited outside in the car while she went in to complete a transaction. When Janowiak asked defendant if he had any money on him, defendant produced $520 from his pocket, in the form of five $100 bills and one $20 bill. Defendant explained that he had earned the money working on cars, and that he had converted the earnings to $100 bills at a bank, but he could not recall what bank he used for the transaction.

At some point on June 11, defendant was arrested on outstanding warrants. The record does not reveal whether he was arrested before he was taken to police headquarters or while at headquarters. He apparently remained in custody on those other charges for some time and was then released.

The State's continuing investigation revealed that the victim had cashed a check for $3000 on June 9, 2000, and received thirty $100 bills which she intended to use to purchase a new car. The bank's surveillance cameras showed that the victim entered United National Bank at approximately 9:25 a.m., and shortly thereafter defendant entered the bank and stood behind his mother. The tape revealed that defendant was wearing a button-down shirt and cut-off denim shorts. The shorts defendant was wearing were recovered from Tracey's apartment on June 12, 2000. There was an elongated stain on the rear of the shorts that appeared to have been a liquid that had been wiped off. The stain on the shorts tested positive for the same blood-type as the victim. After receiving the test results, the police arrested defendant and charged him with the above crimes on November 29, 2000.

II

Defendant first argues that the trial judge erred in denying his motion for a new trial on the ground that the verdict was against the weight of the evidence. We disagree.

Such a motion is only to be granted if "having given due regard to the opportunity of the jury to pass upon the credibility of witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. The same standard also governs our review of a trial court's decision on a new trial motion. Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969). We give considerable deference to the trial court's views, since that court is better suited to evaluate the credibility of witnesses and their demeanor, providing it with a unique "feel of the case." Id. at 7; State v. Sims, 65 N.J. 359, 373 (1974). On appellate review, "the evidence should be sifted to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91 N.J. 86, 96 (1982). We may not overturn a conviction simply because the evidence might potentially, or even probably, support a different conclusion. State v. Smith, 262 N.J. Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993) (quoting State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.), certif. denied, 102 N.J. 312 (1985)).

Defendant claims that there are three reasons why the proffered evidence does not support a guilty verdict. First, the State's expert's testimony as to the time of the murder placed the victim's death at between 5:00 p.m. and midnight, on Friday, June 9, 2000. Defendant relies on Phearse's testimony for the proposition that he could not have been at his mother's residence during those hours, and Mostowski's testimony generally supplementing this assertion by verifying defendant's whereabouts during the day in question. Thus, defendant claims that he can account for his whereabouts at all times between 3:30 p.m. on June 9, 2000 and the time he discovered the victim on June 11, 2000.

The State counters by pointing out that Phearse's testimony was shaky at best and that it really only placed defendant at Tracey's at 3:30 p.m. when he entered, and then again at around 7:00 p.m. when Phearse came down to party with defendant. Even though the facts might strongly support the opposite conclusion, the jury was free to believe the State's version over defendant's.

Defendant also asserts that the lack of physical evidence, particularly the fact that the State never produced a murder weapon, and the lack of blood on defendant's shirt, further prove that there was insufficient evidence to convict him. Here, the State relied on the expert testimony of Dr. Natarajan, in which she stated that it was possible that the attacker might have avoided getting blood on his clothing due to the victim's obesity, the lack of a struggle and the fact that there was little blood splatter at the scene. Here again, the jury was at liberty to believe the evidence it found more persuasive. It is not our role to reverse the conviction because we might have come to a different conclusion based on the same record. Smith, supra, 262 N.J. Super. at 512.

Defendant also argues that the State's failure to link any of the five $100 bills in his possession to the victim's transaction at the bank is dispositive of his innocence. Here, again, the State proffered only circumstantial evidence of defendant's guilt, but the jury was free to convict on direct or circumstantial evidence. See State v. Josephs, 174 N.J. 44, 137 (2002) (stating that even in capital cases, circumstantial evidence is sufficient to sustain a criminal conviction).

Although defendant's arguments are not without some force, the jury was not required to accept them, and we cannot say that the jury's conclusion of guilt reflected a manifest denial of justice. As we will see, however, these same arguments do bear on whether certain evidentiary errors were harmful.

III

Defendant argues that the State's presentation of evidence regarding his lack of consistent employment was improper because it suggested that his employment status was a motive for the robbery. We agree, in part.

When the question of whether a defendant has a regular source of income is a collateral issue, introduction of such evidence is inadmissible in any form. State v. Terrell, 359 N.J. Super. 241, 247 (App. Div.), certif. denied, 177 N.J. 577 (2003). While there is no doubt that "a lack of money is logically connected with a crime involving financial gain," there is a troubling possibility that it might "prove too much against too many." State v. Mathis, 47 N.J. 455, 471 (1966). The Mathis Court quoted Wigmore, Evidence, (3d ed. 1940), 392, for the proposition that:

The lack of money by A might be relevant enough to show the probability of A's desiring to commit a crime in order to obtain money. But the practical result of such a doctrine would be to put a poor person under so much unfair suspicion and at such a relative disadvantage that for reasons of fairness this argument has seldom been countenanced as evidence of the graver crimes, particularly of violence.

[Id. at 472.]

Thus, the defendants in both Mathis and Terrell received new trials because the evidence of impecuniosity permitted the jury to infer, inappropriately, that the respective defendant's unemployment made it likely that he would commit a crime for dollar gain. Ibid.; Terrell, supra, 359 N.J. Super. at 247.

In Terrell, the defendant was arrested with relatively large quantities of heroin and cocaine on his person, all separated into small packages, and $965 cash. Terrell, supra, 359 N.J. Super. at 244. The judge allowed the prosecutor to cross-examine a witness regarding defendant's lack of employment, solely for the purpose of establishing that he had "an intent to distribute . . . the drugs." Id. at 245. The prosecutor then took this testimony and used it in her summation multiple times in an attempt to persuade the jury to infer from the defendant's unemployment that the money in question came from selling the drugs. Ibid. In Mathis, supra, 47 N.J. at 469, the State cross-examined the defendant as to how much money he had and when he was last employed, to which he responded that he periodically worked at his father's house repairing cars. At this juncture, the trial court warned the State that it could not use this testimony to imply that defendant was one who was "critically in need of funds." Id. at 470. While claiming at trial that it was attempting to show that defendant was at his father's home enough to have known the victim, the State called two rebuttal witnesses and used their testimony to show that defendant was not at his father's house doing work. Ibid. This meant that the State was showing that defendant had lied when he said he worked for his father, "and hence he did not earn money that way, and being otherwise essentially unemployed, he must have been destitute and therefore he likely would rob." Id. at 471. The State thus effectively made the very point that the trial judge had proscribed it from making. Ibid.

Here, the State's opening referred to defendant's debt as a motive for committing the crime. To support this theory, the State established that defendant had an outstanding debt of $1594 owed to MRMC. The State proceeded to elicit testimony that defendant was basically unemployed, and earned $20 to $30 by sporadically working on cars in his mother's driveway. Defendant's sister testified that she never knew defendant to have $100 bills and that it was highly unlikely that he would ever have five $100 bills.

In summation, the State referred to defendant's debt as motive, as well as the testimony regarding the minimal work he did as it related to his never possessing $100 bills. However, the two issues were carefully kept entirely separate. This separation was such that connecting the two pieces of evidence to make the prohibited inference is significantly removed from what happened in Mathis.

The fact that defendant's past and present employment precluded him from possessing five $100 bills by itself does not go to motive. Rather, it draws a correlation between the thirty $100 bills that the victim withdrew from the bank while defendant was looking over her shoulder and the five $100 bills defendant still had on him after June 11, 2000. Thus, it was relevant because it tended to prove that defendant did not normally possess the amount of money he had, especially in the form it was in, and that he had knowledge that the victim had a large amount of cash in bills of that exact denomination. By itself, that evidence was admissible and did not violate the Mathis/Terrell strictures. The problem arises when such evidence is viewed in conjunction with the fact that defendant was substantially in debt to MRMC.

The State submitted, in both its opening and summation, that the defendant's motive might be to pay off this debt. By contending that paying the debt was defendant's motive, the State implied that he did not have enough money to relieve the debt. Of course, there was no direct evidence of that motive, and even the bare fact of the debt provided a skimpy basis for any inference of motive. Thus, there was no evidence that the MRMC debt was so burdensome to defendant that he would kill his mother to be rid of it. However, the unemployment testimony naturally buttressed the debt testimony in such a way that the jury could easily draw the impermissible inference that defendant's lack of money and lack of employment led him to commit the crime in question. This is precisely the type of assumption that the above cases seek to avert.

For these reasons, we conclude that the evidence concerning the hospital debt should not have been admitted. While its relevance was minimal, its potential for prejudice was high. N.J.R.E. 403. On the other hand, proof of defendant's unemployment and his lack of access to $100 bills was highly probative and admissible. Because of our conclusion that other errors, to be discussed hereafter, necessitate a new trial, we need not address the question of whether the improper admission of the debt testimony by itself would require a new trial.

IV

Concerning defendant's failure to tell the police about his visit to the bank with his mother, we first address his post-arrest silence. As noted earlier, defendant was in fact arrested, albeit on unrelated charges, at or about the time he was questioned at headquarters, where he was provided with Miranda warnings and informed that the officers were investigating his mother's death. Defendant gave the police an initial statement in which he did not mention that he had accompanied his mother to the bank on June 9, 2000 when she withdrew $3000 in cash. Rather, defendant told the police that he had last seen his mother after taking her to the supermarket and then dropping her off at the house on June 9.

The use against defendant of his failure to mention the bank visit constituted a prohibited use of his silence. "If a defendant remains silent after being arrested and given Miranda warnings, both state and federal law prohibit a prosecutor from using that silence against him." Muhammad, supra, 182 N.J. at 568 (citing Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245, 49 L. Ed. 2d 91, 98 (1976)). The Miranda warnings embody "affirmative assurances," Fletcher v. Weir, 455 U.S. 603, 607, 102 S. Ct. 1309, 1312, 71 L. Ed. 2d 490, 494 (1982), that would be seriously undermined if something the defendant said or did not say were used against him. State v. Pillar, 359 N.J. Super. 249, 278-79 (App. Div.), certif. denied, 177 N.J. 572 (2003). Here, the State used his omission of the bank visit on his first interview against defendant, contrasted with his re-interview, after the officers learned that defendant had in fact accompanied his mother to the bank, in which he admitted going to the bank. We do not consider it significant that defendant was not under arrest for the crime about which he was being questioned. Mathis v. United States, 391 U.S. 1, 4-5, 88 S. Ct. 1503, 1505, 20 L. Ed. 2d 381, 385 (1968). Indeed, the Miranda warnings were administered here because defendant was being interrogated about the homicide, not about the unrelated matters which resulted in his contemporaneous arrest on outstanding warrants.

We turn next to defendant's failure to mention the bank visit when questioned by Richards when he responded to defendant's 911 call. In that interview, defendant similarly related that he had last seen his mother on June 9 when he dropped her off after shopping at the supermarket, just as he later told Janowiak and Mostowski at headquarters.

In Muhammad, the Court reiterated that our state-law privilege against self-incrimination "does not allow a prosecutor to use at trial a defendant's silence when that silence arises 'at or near' the time of arrest, during official interrogation, or while in police custody." Id. at 569 (citing State v. Deatore, 70 N.J. 100, 108-09 (1976) and State v. Brown, 118 N.J. 595, 610 (1990)). As the Court noted, our state-law privilege "offers broader protection than its federal counterpart under the Fifth Amendment." Muhammad, supra, 182 N.J. at 568. In Muhammad, the defense version of defendant's sexual encounter with the alleged rape victim was impugned by reference to his failure to mention that his encounter with the victim was consensual or that she was a prostitute, when he and the victim appeared at police headquarters together. Initially, the two spoke to a desk sergeant and subsequently defendant was questioned alone by another officer. The Court held that defendant "was not obliged to give the police the exculpatory story his attorney presented at trial, and the State was not permitted to use his silence against him." Id. at 573. In Muhammad, as in the present case, however, defendant's initial interview was not in a custodial setting. In Muhammad, the Court noted that it had:

yet to hold whether there are any circumstances in which a non-testifying defendant's failure to give a pre-arrest account to police may be used as substantive evidence of his guilt at trial. Because we resolve this case on the narrow ground that the silence referenced was in a custodial setting, 'at or near' the time of arrest, we need not address that question.

[Id. at 574 n.8.]

Here, too, we have no need to address the issue thus left unresolved by Muhammad. Compare State v. Marshall, 260 N.J. Super. 591 (App. Div. 1992) (pre-arrest silence not admissible) with State v. Dreher, 302 N.J. Super. 408 (App. Div.) (pre-arrest silence admissible), certif. denied, 152 N.J. 10 (1997).

In the present case, defendant's silence, in the form of his omission of the bank visit from his statement, took place at the scene of the homicide and "at or near the time of [his] arrest." The detectives arrived at defendant's residence shortly after Richards and took defendant to police headquarters. While the questioning by Richards was not, as far as we can tell, in a "custodial setting," we do not understand Muhammad to require that the silence be both in a custodial setting and "at or near" the time of arrest. One or the other is sufficient. Id. at 569. ("Barring the use of silence 'at or near' the time of arrest avoids the often murky inquiry into pinpointing the precise moment a suspect is placed in custody or under arrest.") Indeed, Muhammad's initial statement to the desk sergeant occurred when he voluntarily presented himself at Paterson Police Headquarters. He was not in custody at that time. Muhammad, supra, 182 N.J. at 560. Yet, his failure to mention certain facts in that initial statement was used against him at trial, a use which the Court found to constitute error. Id. at 572-73. So too here.

In any event, even if defendant's statement to Richards, including his failure to mention the bank visit, was admissible, we conclude that the error in admitting his later failure to mention that fact to the detectives at headquarters was by itself harmful error. It is one thing to omit a fact, i.e., remain silent, when questioned at the scene of his mother's violent death, but quite another to fail to mention that same fact in the more removed setting of a formal questioning at headquarters. While it could be argued that the first omission was the product of forgetfulness, the same could not as credibly be said concerning the second.

Given defendant's arguments, outlined earlier, with respect to the gaps in the State's case, we cannot say that the evidence of defendant's silence, particularly when coupled with the improper use of the debt testimony, was harmless error. State v. Macon, 57 N.J. 325, 340-41 (1971); Pillar, supra, 359 N.J. Super. at 279.

V

As a result of our disposition, we have no need to address defendant's Point IV alleging possible juror misconduct since it is unlikely to arise again, nor his sentencing arguments in Points VII and VIII. We reject as without merit defendant's argument of prosecutorial misconduct in summation.

 
Reversed and remanded for a new trial.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

In assessing defendant's weight of the evidence argument, we have not considered his pre-and post-arrest silence nor the evidence of his alleged motive, both of which we discuss hereafter.

In fact, defendant did go to the supermarket with his mother on June 9. The record is not clear as to whether he did so before or after going to the bank.

Federal law generally permits the use of pre-arrest silence to impeach a defendant. Ibid. (citing Jenkins v. Anderson, 447 U.S. 231, 238-39, 100 S. Ct. 2124, 2129, 65 L. Ed. 2d 86, 94-95 (1980)).

(continued)

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A-4772-03T4

December 29, 2005