STATE OF NEW JERSEY v. ROBERT T. TODD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5314-03T45314-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT T. TODD,

Defendant-Appellant.

_________________________________________________________

 

Submitted November 9, 2005 - Decided

Before Judges Coburn, Collester and Lisa.

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, 98-09-1805.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Hegge & Confusione, designated

counsel; Michael Confusione, on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai,

Assistant Prosecutor, on the brief).

PER CURIAM

A jury found Robert T. Todd guilty on three counts of third degree burglary, N.J.S.A. 2C:18-2, and one count of theft, N.J.S.A. 2C:20-3(a). The judge denied Todd's new trial motion, granted the State's motion for an extended term, and sentenced Todd on the first burglary charge to imprisonment for eight years with parole ineligibility for three years. Defendant appeals, and we affirm his conviction but remand for re-sentencing. In that regard, we note that although the judge merged the last three offenses into the first, he imposed Violent Crimes Compensation Board and Safe Neighborhood Services Fund assessments on the merged charges. The State concedes that those charges must be deleted. Todd raises a number of other issues bearing on sentence, but since State v. Natale, 184 N.J. 458, 484-96 (2005), requires a new sentencing hearing, we will not comment on those issues. We will consider Todd's other arguments: (1) he was entitled to acquittal or a new trial; (2) his statements to the police should have been suppressed; (3) the out-of-court identification was unduly suggestive and prejudicial; (4) the prosecutor made unfair comments to the jury; (5) the judge erred in refusing to admit evidence of another burglary in the area; (6) the judge erred in refusing to allow Todd to amend his witness list; (7) the judge erred in charging that either party could have produced certain witnesses, thereby lowering the State's burden of proof; and (8) the prosecutor violated a prior order of this court by referring to suppressed items at trial.

On May 13, 1998, Helen Musella, a secretary in the Fairview Clerk's Office, lived alone in an apartment on the second floor at 420 Sheridan Place in Fairview. Although she used glasses for reading, she had no problem seeing distances without them. A window in her apartment looked out on Wendell Street, and directly across that street were two factories and a parking lot.

Musella was sleeping in her apartment with the windows open when she was awoken at 3:29 a.m. by the sound of breaking glass. She grabbed the portable phone on her night table and went to the window to check on her car parked on the street under her window. She saw a man behind the fence in the parking lot across the street. He placed something on the ground by the fence's locked gate and walked back into the parking lot.

As Musella called the police, she again heard glass breaking and saw the man return and place another item on the ground by the fence. Then he walked back into the parking lot for a third time. She saw flashing lights approaching but heard no sirens. She remained on the phone with the police, and, from her window, she saw a man running across the parking lot. She could not tell if he was holding anything in his hands. The man ran towards Hancock Place and made a right onto Bergen Boulevard. She was able to observe the man for two or three minutes from approximately twenty-five feet away. While on the phone with the police, she said that the man was wearing light-colored shirts and had a medium build.

In court, she described him as follows:

I saw a medium-height man, maybe about five-nine, around that, medium weight, and his hair looked like it was down to here. But the--he--the shirt, the light kind of hit like the top part of him, and it was a light, very white shirt here and another shirt on top, very light-colored, that was open. And that's what I remember.

She also stated that he was a white male but she could not see his face.

Patrolman Mattessich received the call and arrived at the parking lot on Wendell Place about a minute later, where he found Sergeant Herron already on the scene. Officer Brennan was also there assisting with the call. Herron stated that someone had broken into three commuter vans and told Mattessich "to go check the perimeter for an individual wearing a light-colored shirt."

Mattessich swept the perimeter. Finding no one, he turned back and ended up on Bergen Boulevard. Then he saw "an individual directly in front of 44 Bergen Boulevard, which is a block and a half from Wendall Place, wearing a light-colored shirt" and walking south on the east side of the street. In court, Mattessich identified the man he saw that night as Todd.

Because the man "fit the description there with the light-colored shirt," Mattessich pulled alongside Todd and got out of his car to talk to him. Todd was the only suspect Mattessich saw on the streets during his search.

Mattessich asked Todd where he was coming from and Todd responded that "he was coming from home in Ridgefield on Shaler Boulevard, which is the next town north of Fairview." Mattessich then asked where Todd was going and he responded "Romano's Bar," which was approximately 100 yards away. Mattessich commented that it was after 3:30 a.m. and bars closed at 3:00 a.m. Todd then said that he was going to meet someone in the parking lot of the bar.

Mattessich told Todd that a crime had occurred nearby and asked "if he would accompany me back to the scene because we had a witness standing by at the crime scene." Todd agreed. Todd had a black fanny bag hanging around his neck and Mattessich asked if the bag was his. Todd said "yes." Mattessich then took the bag and placed it in the front seat of his car. Todd was not under arrest at that time and Mattessich did not use handcuffs or any force. Todd did not have any burglary tool or broken glass on his person.

Approximately five minutes after Mattessich left the crime scene, the police told Musella that they "found someone." She was told to keep her lights off and look out of her window because "[t]hey were going to put him underneath a light and see if [she] could identify him."

Mattessich drove back to Wendell Place with Todd. Musella saw the police car return and watched Todd get out of the car. Herron and Brennan placed defendant under the streetlight directly across the street from Musella's window. Musella observed Todd for a minute or two but was told not to say anything.

Todd was then brought back to Mattessich's car and Herron told Mattessich to take him to headquarters for further questioning.

After Todd was taken away, the police asked Musella if she recognized him. She said that she "believed" it was the same man she saw earlier. At trial, she testified that "[h]e appeared to have the same height, the same weight, the same shirt, the open shirt, the light colors, the hair to here." She admitted that she did not make a positive identification of Todd and that she did not see him actually break into the vehicles.

Khader Jaouni owned a transportation company in 1998 called Tangline Express, which operated three commuter vans, or mini-buses, to take passengers between New Jersey and New York. Jaouni parked the three vans overnight in the parking lot at 16 Wendell Street, which was off Fairview Avenue. The parking lot was surrounded by a metal fence with a locking gate. Jaouni drove one of the vans, and his employees, Nelson Urgiles and Heimy Solas, drove the other two.

At around 3:30 a.m., on May 13, 1998, the police called Jaouni and told him that someone had broken into his vans. Jaouni went to the lot and saw that the driver's side windows were broken on two vans and the emergency exit window on the third opened. He testified that a radio cassette player valued at $350, a CB radio at $150, a VCR at $500, and two toolboxes at $135, were missing from the vans.

When Todd arrived at the police station, Sergeant Hone questioned him to obtain his "pedigree." When Hone asked Todd where he lived, Todd responded "North Bergen." At that time, Todd actually lived at 7306 Park Avenue in North Bergen. He was arrested later that day.

Jaouni identified the stolen items at the police station. Jaouni also recognized a black fanny bag as belonging to Urgiles, one of his drivers.

The police returned the items to Jaouni and Jaouni gave the black fanny bag to Urgiles, who recognized and kept the bag.

Detective Kruithof processed and fingerprinted the items that were secured by the Fairview police in connection with the burglary. He recovered only one usable print from the top of the CB radio, which did not match Todd's prints. However, Kruithof testified that finding no useable prints matching Todd did not mean that Todd never touched the CB or other items. Kruithof did not print the fanny bag because it is "almost impossible" to get prints off a leather object.

Todd argues that the trial judge erred in denying the motions for acquittal, for judgment notwithstanding the verdict and/or new trial because "the evidence presented by the State was insufficient to sustain defendant's burglary and theft by unlawful taking convictions or, alternatively, the verdict was against the weight of the evidence and a manifest denial of justice under the law and should be set aside." Specifically, Todd claims that the evidence was "largely circumstantial," because Musella did not positively identify him, no burglary tools or broken glass were found on him and there was nothing, other than "the generic, unidentified fanny pack," connecting him to the crime scene. The State argues that the motions were properly denied since they were untimely filed and the State presented sufficient evidence to support the verdicts.

"The standard for deciding a R. 3:18-2 motion for a judgment of acquittal notwithstanding a verdict is the same as that used to decide a R. 3:18-1 motion for acquittal made at the end of the State's case or at the end of the entire case." State v. Speth, 323 N.J. Super. 67, 81 (App. Div. 1999).

When evaluating motions to acquit based on insufficient evidence, courts must view the totality of evidence, be it direct or circumstantial, in a light most favorable to the State. More specifically, we must give the government in this setting, "the benefit of all its favorable testimony as well as of

the favorable inferences [that] reasonably could be drawn therefrom[.]"

[State v. Perez, 177 N.J. 540, 549 (2003) (quoting State v. Reyes, supra, 50 N.J. at 459).]

The standard is "whether such evidence would enable a reasonable jury to find that the accused is guilty beyond a reasonable doubt of the crimes charged." Ibid. However, "[p]roviding the State with all reasonable inferences does not . . . lessen 'the State's burden of establishing the essential elements of the offense [or offenses] charged beyond a reasonable doubt.'" Id. at 549-50 (quoting State v. Martinez, 97 N.J. 567, 572 (1984)). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004). An appellate court will apply the same standard as the trial court to decide if the trial judge should have granted the defendant an acquittal. State v. Palacio, 111 N.J. 543, 550 (1988); State v. Moffa, 42 N.J. 258, 263 (1964).

The standard governing a motion for a new trial on the ground that the jury verdict was against the weight of the evidence is set forth in R. 3:20-1. This rule provides that the trial judge shall not grant the motion unless, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." Ibid. The trial judge must "canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but rather, to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict." Dolson v. Anastasia, 55 N.J. 2, 6 (1969) (internal citations omitted).

Our review is not limited to a determination of whether the trial judge committed an abuse of discretion, but rather we must make our own determination as to whether or not there was a miscarriage of justice, deferring to the trial judge only with respect to those intangible aspects of the case "not transmitted by the written record"--such as witness credibility, demeanor and "feel of the case." Id. at 7; R. 2:10-1. "The evidence should be sifted to determine whether the jury could rationally have found beyond a reasonable doubt that the essential elements of the crimes were present." State v. Carter, 91 N.J. 86, 96 (1982).

In the first three counts, Todd was charged with burglary, a third degree crime, pursuant to N.J.S.A. 2C:18-2. "[A] person is guilty of burglary if the person enters a structure without permission and with the purpose to commit an offense therein." State v. Cuni, 303 N.J. Super. 584, 604 (App. Div. 1997), aff'd, 159 N.J. 584 (1999). "To secure a conviction for burglary, the State need not prove that the offense the intruder intended to commit actually took place." State v. Robinson, 289 N.J. Super. 447, 453 (App. Div. 1996).

In count four, Todd was charged with theft by unlawful taking or disposition of movable property in violation of N.J.S.A. 2C:20-3. "A person is guilty of theft if he unlawfully takes or exercises unlawful control over movable property of another with purpose to deprive him thereof." Ibid.

Although the evidence in this case is largely circumstantial, the record adequately supports the jury's verdict. Within minutes of Musella's phone call to police, Todd was spotted only a block and a half from the crime scene. Although Musella's identification was not positive, she did testify that Todd appeared to be the same man she saw in the parking lot and obviously both the judge and the jury found her to be credible. It is undisputed that Todd was wearing a white tee shirt underneath that night, as Musella described. Further, Mattessich testified that Todd was the only individual spotted in the area during his search.

In addition, Todd's initial statement to Mattessich that he had walked to Bergen Boulevard from his home in Ridgefield was contradicted by his later statement that he lived in North Bergen. Todd also stated that he was heading to a bar, then changed his story when Mattessich confronted him the fact that the bar was already closed.

Finally, Jaouni testified that the black fanny bag found around Todd's neck belonged to one of his drivers. Despite Todd's protestation that the State had not proved who owned the bag, the jury obviously believed Jaouni. It was reasonable for the jury to infer that Todd, who was found with a fanny bag taken from the commuter vans around his neck, was the same man Musella saw earlier.

In this case, the verdict is adequately supported by the record and cannot be considered a "miscarriage of justice" requiring reversal. R. 2:10-1. Accordingly, the trial judge's denial of defendant's motion for acquittal and/or a new trial was proper.

Todd argues that the trial judge erred in denying his motion to suppress the statements he made to Mattessich "because the State failed to show the statements were voluntarily given after a knowing, intelligent, and voluntary waiver of Miranda rights." Todd did not receive Miranda warnings until he was arrested at the police station. Todd claims that the court erred in finding that he was not "in custody" when he was questioned before his arrest, because Mattessich's conduct and the surrounding circumstances would reasonably have led Todd to believe that he was not free to leave.

The State counters that the "remarks were made in the course of on the scene questioning and were admissible." The judge ruled that Todd was not in custody when he was questioned on the street and at the police station; therefore Miranda was not applicable.

"We review the record on a motion to suppress to determine whether the findings are supported by credible evidence and the legal conclusions are valid." State v. Smith, 374 N.J. Super. 425, 430 (App. Div. 2005). We must give "deference to those findings 'influenced by the judge's opportunity to hear and see the witnesses and to have the "feel" of the case . . . . '" Ibid. (quoting State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990)).

Todd was represented by the public defender's office at the time of the motion. During argument, his attorney conceded that "it does not sound like my client was under arrest at the time these so-called statements were made. I would submit to the Court's discretion with regard to any further argument on it."

"Miranda warnings are a prerequisite to custodial interrogation, which is 'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'" State v. Pierson, 223 N.J. Super. 62, 66 (App. Div. 1988) (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707). Absent Miranda warnings, statements made by a defendant in custody, whether exculpatory or inculpatory, may not be used in the prosecutor's case-in-chief. State v. Hartley, 103 N.J. 252, 275 (1986).

"However, Miranda is not implicated when the detention and questioning is part of an investigatory procedure rather than a custodial interrogation or where the restriction on a defendant's reaction is not of such significance as to render him 'in custody.'" State v. Pierson, supra, 223 N.J. Super. at 66 (internal citations omitted). Further, the warnings are not required before general on-the-scene questioning as to facts surrounding a crime, unless the totality of the circumstances attending the questioning, viewed from the perspective of a reasonable person, impose a "restraint on freedom of movement of the degree associated with a formal arrest." Yarborough v. Alvarado, 541 U.S. 652, 663, 124 S. Ct. 2140, 2149, 158 L. Ed. 2d 938, 951 (2004).

The standard, "known as the 'objective reasonable man test' . . . holds that custody exists if the action of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably lead a detainee to believe he could not leave freely." State v. Coburn, 221 N.J. Super. 586, 596 (App. Div. 1987). However, "some restraint on freedom of action is involved in most on-the-scene questioning." State v. Smith, supra, 374 N.J. Super. at 436.

Courts look to the following circumstances and factors to determine if a detainee is in custody: "the time, place and duration of the detention; the physical surroundings; the nature and degree of the pressure applied to detain the individual; language used by the officer; and objective indications that the person questioned is a suspect." Id. at 431.

Because the circumstances were different for the statements made on the street and those at the police station, we will consider them separately.

There is no evidence that Mattessich approached Todd in a threatening manner or used any type of force or coercion. Todd responded to investigatory questions about where he was coming from, where he was heading and whether the fanny bag around his neck belonged to him. Mattessich advised Todd of the situation and asked for his cooperation. While Mattessich characterized Todd as nervous and sweaty, he also testified that Todd was polite and cooperative. Further, Todd was detained on the street for only a short period of time.

Therefore, in this context, there was sufficient credible evidence to support the judge's conclusion that, under the totality of the circumstances, Todd was not in custody during the pre-Miranda questioning on the street. See State v. McLaughlin, 310 N.J. Super. 242, 253 (App. Div. 1998) (holding that the defendant was not subjected to custodial interrogation, as supported by sufficient credible evidence).

When Hone was gathering Todd's pedigree at the police station, Todd stated that he lived in North Bergen, contrary to his earlier statement to Mattessich that he lived in Ridgefield. At the Miranda hearing, defense counsel conceded that to impeach with Todd's above statement is "an appropriate use of impeachment testimony". And the trial court found that the statement was a response to a "pedigree question" and, therefore, not subject to Miranda.

Indeed, "booking procedures and the routine questions associated therewith are ministerial in nature and beyond the right to remain silent." State v. Mallozzi, 246 N.J. Super. 509, 515 (App. Div. 1991). It is apparent that defendant was not able to leave freely and was, therefore, in custody during his detention at the police station. However, the one statement sought to be introduced is a response to a routine question about defendant's home address and is ministerial in nature. As such, the statement was properly admitted.

Next, Todd contends that trial court erred in ruling that the out-of-court identification made by Musella was not "impermissibly suggestive." He relies on the following facts: (1) Musella was told that the police had "found someone" and they were bringing the suspect back to the scene for her to view; and (2) she watched Todd get out of a police car. Further, Todd claims that the identification was "far from 'positive.'" The State responds that the trial court properly ruled that the "show up" was not impermissibly suggestive and the identification was reliable.

We are obliged to "give significant deference to the findings of a trial judge based on both the observations of the demeanor of the witnesses when testifying and the judge's 'feel' of a case which cannot be transmitted on a written record." State v. Ruffin, 371 N.J. Super. 371, 392 (App. Div. 2004). The "scope of review is limited to whether the findings made by the trial judge could reasonably be reached on substantial credible evidence present in the record." Ibid.

Under the two-prong test used to determine the admissibility of an eyewitness' identification, a trial judge must first decide whether the pretrial identification procedure was impermissibly suggestive and, if it was, the court must then decide "whether the objectionable procedure resulted in a 'very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 232 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)).

"So-called 'show up' or one-on-one identifications made within a reasonably short time at the scene of the crime are permissible under the Wade doctrine." State v. Wilson, supra, 362 N.J. Super. at 327. The Court has stated that

On or near-the-scene identifications have generally been supported on three grounds. They are likely to be accurate, taking place, as they do, before memory has faded. They facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent.

[State v. Wilkerson, 60 N.J. 452, 461 (1972).]

In State v. Wilson, supra, 362 N.J. Super. at 327, the Appellate Division upheld the trial court's finding that a show up identification of the defendant, who was seen handcuffed in the back of the police car, was not "unduly suggestive."

In this case, the evidence produced at the Wade hearing was substantially the same at that produced at trial. After the hearing, the judge found Musella, who was sixty-one at the time of the incident, "alert, responsive and candid." The judge distinguished this case from the typical Wade case because this involved a "show up" which is different from the normal type of examination of photographs or a lineup. The judge held that there had not been "a threshold showing of impermissible suggestiveness" and therefore the motion to suppress the identification testimony was denied.

Here, Todd was seen getting out of the back of a police car and being escorted by two officers to the streetlight for observation by the witness. Todd was not handcuffed and Musella had been told only that the police had "found someone" and that they were bringing the person so she could observe him.

Musella observed Todd for several minutes, under good lighting conditions, across a narrow street from her second floor apartment window. Musella indicated that he appeared to be the same man that she saw earlier based on his white t-shirt, open outer shirt, build and hair length. Although Musella had not seen the suspect's face and did not make a positive identification, her credibility and the sufficiency of the identification would be for the jury to determine. While it is undeniable that watching a person exiting the back of a police car and being escorted by two police officers is suggestive, we are satisfied that the judge correctly determined that the show up identification was not unduly suggestive.

Todd contends that the prosecutor made inappropriate remarks during opening and closing statements that "together denied defendant a fair trial." He argues that the remarks effectively lowered the reasonable doubt standard and that, despite his objection, the remarks were not withdrawn or stricken and that the jury was not instructed to disregard them. The State contends that Todd did not object to the specific remarks challenged on appeal and the remarks did not violate defendant's right to a fair trial.

In considering issues of prosecutorial misconduct, the reviewing court must first determine whether misconduct occurred. State v. Frost, 158 N.J. 76, 83 (1999). Where misconduct is identified, it does not constitute a ground for reversal "unless it was so egregious that it deprived the defendant of a fair trial." Ibid.

Whether a prosecutor's misconduct denied a defendant a fair trial requires consideration of both the "tenor of the trial and the responsiveness of counsel and the court to improprieties when they occurred." A reviewing court will consider: "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Ibid.

Todd did not object to the specific comments challenged on appeal. Therefore, review of the alleged error must be under the plain error standard. State v. Daniels, 182 N.J. 80, 95 (2004). "Under that standard, [the reviewing court shall] disregard an error unless it is 'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2).

Todd now objects to a portion of the following statement made by the prosecutor in his opening statement:

I will also utilize the machine behind us. It's called a "door machine," it's a TV accompanied by a magnifying lens. So I'm going to show you a map, so you can see for yourself the alleged flight of Mr. Todd, where he was stopped, where--the vantage point that Ms. Musella had in seeing him run the distance, and where he was stopped. And that, ladies and gentlemen, will be a very powerful circumstantial fact and proof that you can also base your decision on; not just the direct facts, but the circumstantial facts that the Judge has instructed you, and will instruct you again, will become very instrumental in your decision.

In making this statement, the prosecutor was informing the jury that it would hear testimony about, and see a map of, the parking lot where the vans were located and the surrounding streets. Since "[c]ircumstantial evidence may support a conviction," the prosecutor's comment that jurors could consider such evidence was not improper. State v. Travers, 70 N.J. Super. 32, 38 (App. Div. 1961).

Todd also objects to several statements in the prosecutor's closing argument. First, the prosecutor stated that:

There was no need to call other witnesses because it would be in the State's estimation, cumulative. It's just other stuff that is not going to help you with the facts of this case. But as the Judge mentioned to you all of the witnesses in this case are available to all the parties.

Todd argues that this remark lowered "the reasonable doubt standard." However, immediately before the statement, the prosecutor also stated that "it is of course the State's burden of proof to prove this case beyond a reasonable doubt."

We are obliged to "review the challenged portions of a prosecutor's summation in the context of the entire summation." State v. Vasquez, 374 N.J. Super. 252, 262 (App. Div. 2005).

Todd's argument is weakened because the remarks were made in response to defendant's summation, in which he claimed that reasonable doubt existed because the State failed to call the owner of the fanny bag as a witness. "Prosecutors are permitted to respond to arguments raised by defense counsel as long as they do not stray beyond the evidence." Id. at 260 (citations omitted). The prosecutor's statement did not allege that Todd had a burden to produce the witness, but only that all witnesses are available to all parties and that the State felt additional testimony would have been cumulative. The remarks were technically correct, in response to statements made by Todd in his summation, and preceded by a statement that the State had the burden of proof. In this context, the error, if any, was not "clearly capable of producing an unjust result." R. 2:10-2.

Next, when discussing Musella's testimony, the prosecutor stated:

Now I told you on my opening statement you are not going to hear a positive identification by Ms. Musella of the defendant. I told you that on [sic] the opening. This is not a so-called identification case. All right. But you can't reject the identifications that were made because they're very relevant in your consideration.

"It is well-established that prosecuting attorneys, within reasonable limitations, are afforded considerable leeway in making opening statements and summations." State v. Williams, 113 N.J. 393, 447 (1988). However, this wide latitude is not unfettered, but bound by parameters established by decisional law and ethical considerations. Ibid. A prosecutor is expected to confine his or her summation comments to the facts revealed during the trial and the reasonable inferences to be drawn from the evidence. State v. Harris, 156 N.J. 122, 194 (1998). "Although prosecutors may make vigorous and forceful closing arguments, their primary duty is not to convict but to see that justice is done." State v. Neal, 361 N.J. Super. 522, 535 (App. Div. 2003).

Here, the prosecutor appropriately conceded that Musella did not make a positive identification. By asserting that the identification was relevant, the prosecutor was simply making a vigorous and forceful argument.

Todd also objects to the prosecutor's next statement:

You have a witness who's being, I submit to you, honest. She's giving you as much as she can, but she can't give you the hundred percent certainty because as you would all expect some of us aren't a hundred percent certain, but she does give you what she can.

It is inappropriate for a prosecutor to "express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant." State v. Marshall, 123 N.J. 1, 154 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)). However, "[a] prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness' credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div. 2004), certif. denied, 182 N.J. 148 (2004).

The prosecutor's comment that Musella was being "honest" and was giving the jury "as much as she can," was likely a response to Todd's assertion that there was no positive identification. Simply arguing that the witness was credible, the prosecutor's statements were appropriate in the context of his summation.

Todd next contends that it was plain error for the trial court to prevent him from introducing evidence that another car near the crime scene had been burglarized on the same night and that Todd had not been charged with that crime because the police had not found any evidence implicating Todd. Todd argues that this ruling prevented him from presenting exculpatory evidence. The State counters that Todd "agreed not to elicit this testimony because the prosecutor made clear that the State would elicit damaging evidence in rebuttal" and that Todd did not object when the judge ruled that Todd would be limited in his questioning of Kruithof.

Because Todd consented to restrict his direct examination of Kruithof to the fingerprint analysis and did not object to the judge's limiting instruction, review of the alleged error must be "under the plain error standard of review." State v. Daniels, supra, 182 N.J. at 95.

Certainly, "[a] defendant is entitled to introduce evidence that another person committed the crime or crimes of which the defendant is charged." State v. Cook, 179 N.J. 533, 566 (2004). Where a defendant seeks to introduce such evidence,

[t]he standard for introducing defensive other-crimes evidence is lower than the standard imposed on the State when such evidence is used incriminatorily [because] when the defendant is offering that proof exculpatorily, prejudice to the defendant is no longer a factor, and simple relevance to guilt or innocence should suffice as the standard of admissibility.

[Ibid. (quoting State v. Garfole, 76 N.J. 445, 452-53 (1978).]

After determining whether the evidence is relevant, "a trial court must analyze the proffered defensive other-crimes evidence pursuant to N.J.R.E. 403." Id. at 566-67.

"[T]he admissibility of 'other crimes' evidence when offered by the defense requires a 'highly discretionary determination' by the trial judge regarding the probative strength of the evidence as opposed to the possible undue time and confusion which might result from its admission." State v. Williams, 214 N.J. Super. 12, 21 (App. Div. 1986). The Appellate Division accords "substantial deference to the trial court's 'highly discretionary determination.'" State v. Cook, supra, 179 N.J. at 568. In this case, however, the trial court did not actually rule on the admissibility of the other-crimes evidence even though the issue was discussed at both the pretrial hearing and the close of the State's case.

During a dispute about discovery, Todd said that he intended to use a police report as exculpatory evidence, which says his fingerprints were not on a 1995 Chevy Lumina that was burglarized the same night and in the same general area as the commuter vans. The State argued that it would object to the use of the evidence at trial. At that time, the judge determined only that the discovery motion was resolved because Todd received the police report and made no ruling on the admissibility of the evidence.

At the close of its case, the State asked Todd to make a proffer regarding the witnesses he intended to call. Todd indicated that the only witness he would be calling from his list was Kruithof, who would testify that the one fingerprint recovered from the crime scene did not match Todd. The prosecutor offered to stipulate that "fingerprints were taken and no prints that matched this defendant were obtained." The judge asked if Todd wanted to question Kruithof only with respect to the fingerprint and Todd said "Yes."

The prosecutor then asked the court to limit Todd to that line of questioning and to prohibit Todd from questioning Kruithof about the Chevy Lumina. The following exchange occurred:

MR. CALVIELLO [the prosecutor]: Now I'm going to ask that he not get into [the report on the Chevy] because it's irrelevant to whether or not he broke into these vans on this day. He should know that he can't mention Luminas, he can't mention other property. If he does, Judge, I'm free to get into the fact that it happened at the same time he was around there and that he could have been the suspect just as well and that's going to be very damaging to him.

That's 404(b) material, it's other bad acts that we will allege he did. He was close to the scene, around the same time committing the exact same crime. That will hurt him if he tries to get into that. So I think that we should keep this to the one print that came out in connection with property in this case and make sure that he does not travel down that road. And I've talked to Detective Kruithof about that, that he not get into other investigations that we were trying to tie to this defendant, but couldn't because there were no print.

THE COURT: Mr. Todd, do you understand?

THE DEFENDANT: Yes.

THE COURT: So you're going to be restricted to the area of fingerprints with respect to the vans.

THE DEFENDANT: Yes.

THE COURT: Understand?

THE DEFENDANT: Yes.

THE COURT: Do you have any objection to that procedure?

THE DEFENDANT: No.

We disagree with Todd's argument that the judge's analysis of the evidence under N.J.R.E. 404(b) was erroneous because, as is evident in the above colloquy, the judge did not analyze the evidence at all because Todd agreed to restrict his direct examination of the witness to the fingerprint analysis of the items recovered from the vans.

The State also argues that the evidence of the other crime was irrelevant. Under New Jersey law, "[a]ll relevant evidence is admissible at trial unless prohibited by a specific rule." State v. Koskovich, 168 N.J. 448, 480 (2001). Relevant evidence, as defined by N.J.R.E. 401, has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." The determination of whether evidence is relevant lies within the broad discretion of the trial judge. State v. Carter, supra, 91 N.J. at 106.

The record contains only brief references to Kruithof's report regarding the Chevy Lumina and the fact that Todd was a suspect but was not charged with that crime. As such, there are insufficient details about the incident to determine if the evidence was relevant and should have been allowed. However, because Todd consented not to pursue that line of questioning in the face of the prosecutor's expressed intention to reveal that defendant was a suspect in that crime, the error, if any, in restricting Todd's direct examination of Kruithof, was not "clearly capable of producing an unjust result." R. 2:10-2.

Todd also contends that the trial court erred in refusing to allow him to amend his witness list and call Solas, "one of the alleged bus driver victims of the burglary and an accuser whom defendant was entitled to confront at trial." The State responds that Todd had been advised numerous times about the perils of representing himself and about the finality of the witness list he presented prior to jury selection. Therefore, the State argues, there was no basis to allow him to amend his witness list at the "eleventh hour."

Prior to jury selection, the judge questioned the parties to make certain that the complete list of potential witnesses would be read to the jury pool. The judge directed Todd to prepare a list of the witnesses he might call. The following exchange between the judge and Todd then occurred:

THE COURT: Now let me explain something. Once I read these names--

THE DEFENDANT: Yes.

THE COURT: --if you start going through those pages, and you pull out another name--

THE DEFENDANT: No.

THE COURT: --I'm not going to be inclined--

THE DEFENDANT: No, Your Honor.

THE COURT: --to allow that person to be added to the list.

THE DEFENDANT: That's fair, Your Honor.

THE COURT: So I want you to understand.

THE DEFENDANT: That's fine. Thank you.

THE COURT: All right.

THE DEFENDANT: Thank you for your courtesy on that.

After the court ruled that Todd could represent himself, the judge again reminded him that the only witnesses Todd named were former Chief Ronald Ianuzzi, Chief John Pinzone, Detective Michael Kruithof, and Paul Fitzpatrick. Todd confirmed that list. Also pretrial, while discussing parameters for opening statements, the following discussion occurred:

THE COURT: So if that's what you intend to do, you--you should indicate to me now if you have a fact witness that is going to proffer some testimony regarding how you came into possession of this fanny pack. Will any of these fact witnesses testify to that fact?

THE DEFENDANT: On the date in question, no. But I can--I can call--

THE COURT: Oh, no. No. You gave me a witness list, and this is the witness list. That's why I asked for it; that's why I had to give this information to these prospective jurors. It's a requirement; and, just as I told you, you'll be held to the requirements. I told you yesterday that the only other witness that you might call--

THE DEFENDANT: Yes.

THE COURT: --might be a rebuttal witness.

THE DEFENDANT: Yes.

Later, just before the State rested, Todd asked if he could call Solas, the owner of the black fanny bag, as a witness since the State failed to do so. The judge refused.

R. 3:13-3 "imposes a continuing duty on the part of [the parties] to disclose the names and addresses of potential witnesses." State v. Stevens, 222 N.J. Super. 602, 620 (App. Div. 1988), aff'd, 115 N.J. 289 (1989). "[S]ubstantial discretion should be conferred upon the trial judge to determine the appropriate sanction and remedy when our discovery rules have been violated." State v. Burnett, 198 N.J. Super. 53, 60 (App. Div. 1984).

Here, the record supports the judge's decision to deny Todd's request to call an additional witness. As noted, the judge spent considerable time warning Todd of the pitfalls of proceeding pro se. Moreover, the judge allowed Todd the opportunity to create and expand the witness list before picking the jury and clearly warned him that no further additions would be permitted.

In light of the defendant's belated attempt to expand his witness list, "coupled with the normally wide discretion accorded to trial judges in such cases," and numerous warnings about the consequences for failing to identify all potential witnesses, we do not believe that the judge abused his discretion in denying Todd's request to call the additional witness. State v. Stevens, supra, 222 N.J. Super. at 620.

Todd also argues that the judge improperly lowered the State's burden of proof when the judge instructed the jury that "either party could have produced the testimony of one of the alleged victims of the burglary." The State counters that the court's instruction "was necessary to cure the prejudice to the State from Todd's unwarranted summation remarks."

In his closing argument, Todd argued that the State failed to present sufficient evidence about the ownership of the black fanny bag. He said that the State only had the owner of the vans testify that the bag belonged to one of his drivers and that the testimony was hearsay. Therefore, Todd asserted, reasonable doubt existed. The prosecutor immediately objected and requested that the judge give an instruction that witnesses can be called by either side and that no adverse inference can be drawn "for the nonappearance of that witness against the State."

Immediately after the sidebar, the judge gave the following instruction:

THE COURT: All right. I've indicated to you that from time to time either an attorney or in this case Mr. Todd may say something and those comments are not to be construed as evidence, but there was a statement made by Mr. Todd as to the appearance or nonappearance of a particular witness. You should understand that either side has the right to subpoena a witness and no adverse inference should be drawn against either side for not having that witness present.

Now as I understand--you know, Mr. Todd is making a presentation to you, I need to give you these instructions so that you can fairly access the evidence as the trier of fact. However, these comments need to be addressed from time to time. So the reference as to the State having the obligation to produce a particular witness needs to be corrected and you are instructed to disregard that statement.

Instead you will consider that either side has the right to call a particular witness, and if a witness is not here there should be no adverse inference drawn against either side. Do you understand? Let the record reflect that the jury is nodding in the affirmative.

Todd made no objection to this curative instruction. Therefore, review of the alleged error must be under the plain error standard. State v. Daniels, supra, 182 N.J. at 95.

The Court in State v. Clawans, supra, 38 N.J. 162, 171, held that "[f]or an inference to be drawn from the nonproduction of a witness it must appear that the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved." The inference would not be appropriate where, as the State argues here, the witness' testimony would be "cumulative, unimportant or inferior to what had been already utilized." Ibid. (internal citations omitted).

"Of equal importance in Clawans was the procedure to be followed in requesting a jury charge for adverse inference." State v. Irving, 114 N.J. 427, 442 (1989). The Court set the following procedure:

[I]f the trial court were requested to make such a charge, counsel should make that request out of the presence of the jury at the close of the adversary's case. The court could then be advised of and consider all the circumstances before deciding whether the request is proper. The same practice should be followed if comments are to be made in summation.

[State v. Carter, supra, 91 N.J. at 128 (internal citations omitted).]

The purpose of this procedure is to "provide the party accused of non-production an opportunity either to call the witness or explain his failure to do so." State v. Irving, supra, 114 N.J. at 442.

In this case, Todd did not follow the Clawans procedure and make the request outside of the presence of the jury. The State, therefore, did not have the opportunity to explain that the prosecutor had decided not to call that witness because the testimony was cumulative. Jaouni had already testified that the fanny bag belonged to his driver and that he had returned the bag to him. Moreover, there is no evidence in the record that the witness's testimony would even have been favorable to defendant since both Jaouni and Mattessich testified that the driver accepted the bag as his own.

Therefore, because Todd remarked about the State's failure to call a witness before the jury, the trial judge properly gave the curative instruction requested by the prosecutor. The curative instruction was neutral on its face and did not imply that Todd was required to produce any witnesses, nor did it effectively lower the State's burden of proof.

In his supplemental brief, Todd also alleges that his conviction should be reversed because the State "utilized and referred to items that had been suppressed" by the Appellate Division in State v. Todd, supra, 355 N.J. Super. 132, 136-37, 142-43 (App. Div. 2002). To support this argument, Todd merely lists several citations to the record and says that "[a]t retrial, the State reintroduced the testimony of Patrolman Mattessich referencing the suppressed items as well as exhibits noting them."

We reversed and remanded Todd's first conviction because the trial judge should have granted Todd's motion to suppress the contents of the black fanny bag. Id. at 143. Prior to re-trial, the judge ruled that the black fanny bag itself could be used as evidence in the second trial. Todd again appealed and we affirmed. Thus, the State was permitted to use as evidence the fanny bag, not its contents.

Todd's argument that the State improperly referenced the suppressed items is without merit. He does not specify what testimony violated the court's prior order, but the following addresses each of his citations to the record.

Todd first cites to Mattessich's direct testimony describing his first conversation with defendant on the street where he was spotted. Mattessich described Todd's appearance as follows:

When he turned around and he was facing me, I noticed around his neck he had a black fanny bag. I'd say it came about this high, about the chest size. It was completely black, and it appeared to be bulky. It was--you could see there was something to it. It wasn't--in other words, it wasn't a flat type of fanny bag that you--he had it around his neck and about this high.

Since the State was permitted to use the fanny bag itself as evidence, there was no error in having Mattessich describe its appearance.

Todd next references the testimony of Jaouni, the victim, as he described the damage to his commuter vans and the items missing from them. There was no mention of the fanny bag.

Todd also objects to the following exchange between the prosecutor and Jaouni.

Q [prosecutor] All right. And what else do you recognize in the photo?

A There's a fanny bag.

Q Say it again.

A Fanny bag.

Q All right. A fanny bag?

A Fanny bag, yeah. And--

Q And what color is the fanny bag?

A Black.

Q And you recognize that?

A Right.

Q What--what is that fanny bag?

A This is belong [sic] to driver Nelson.

Q Nelson?

A Right.

Q You sure about that?

A Yes.

Q That night, when you were looking at the fanny bag--

A Right.

Q --how did you know it belonged to Nelson?

A Because all the time, he carry this bag.

Again, because the State was permitted to use the bag as evidence, there was no error in asking Jaouni to identify the bag and how he recognized it.

Todd also refers to records concerning his cross-examination of Jaouni, and the prosecutor's re-direct examination of Jaouni about the conditions of the parking lot gate and vans, and about the other drivers who went to the police station with Jaouni. Among these, the only testimony that Todd can reasonably object to is the following:

Q [prosecutor] Did you take the fanny bag too?

A Yes.

Q And--and what did you do with it?

A I give it back to the driver.

Q Who?

A Nelson [Urgiles]

Q All right. And--and can you describe for us what happened when you gave it to Nelson?

A When I gave it to him, he--he counts his quarters, change he has.

Q Well let me ask you this.

THE DEFENDANT: Objection, Your Honor.

BY MR. CALVIELLO:

Q When you gave it to Nelson--

A Right. Yes.

THE COURT: I'm sorry?

MR. CALVIELLO: There was an objection, Judge. I didn't know if--

THE COURT: Yes. Let's go to sidebar.

(sidebar not recorded)

THE COURT: The last response of the witness regarding the coins will be stricken from the record, and the jury is instructed to disregard that statement, not to use it in your deliberations. Do you understand?

Let the record reflect that the jury is nodding in the affirmative.

BY MR. CALVIELLO:

Q Now, Mr. Jaouni, I want to ask you. When you took the property and you went to visit Nelson, did you give him the fanny bag?

A Yes.

Q All right. And did he recognize it when you gave it to him?

A Yes.

Q All right. Did he accept the bag and keep that bag?

A Yes.

By testifying that Urgiles counted his change, Jaouni improperly referred to the contents of the fanny bag. However, Todd immediately objected and the judge appropriately responded by striking the response from the record and instructing the jury to disregard it. In this context, the one fleeting remark by the witness was not "clearly capable of producing an unjust result." R. 2:10-2.

Todd's final reference to the record on this point merely says "State's exhibits." Without more information as to which exhibits he finds objectionable, it is impossible to analyze the issue.

Affirmed and remanded for resentencing.

 

Herron was a patrolman at the time of the incident.

Urgiles is referred to as Nelson throughout the trial.

(continued)

(continued)

40

A-5314-03T4

December 13, 2005