STATE OF NEW JERSEY v. RASHAWN MCCLINTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1321-05T41321-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASHAWN MCCLINTON,

Defendant-Appellant.

__________________________________________________________

 

Submitted October 24, 2006 - Decided November 6, 2006

Before Judges Coburn and Axelrad.

On appeal from the Superior Court of New Jersey,

Law Division, Mercer County, 05-01-0081-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael B. Jones, Assistant

Deputy Public Defender, of counsel and on the

brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor,

attorney for respondent (Dorothy Hersh, Assistant

Prosecutor, on the brief).

PER CURIAM

After a jury trial, a judgment of conviction was entered against defendant on four counts of first degree robbery, N.J.S.A. 2C:15-1; one count of possession of a sawed-off shotgun, N.J.S.A. 2C:39-3(b); and one count of certain persons not to have weapons, N.J.S.A. 2C:39-7(a). The aggregate sentence was imprisonment for fourteen years and nine months, with a NERA period of parole ineligibility applied to the fourteen years.

The only defense raised was that of misidentification, and on appeal, defendant's sole contention is that the introduction of hearsay testimony bearing on that issue violated his constitutional right to confront the witnesses against him.

The robbery took place around midnight, May 18, 2004, on Cavell Street in Trenton. The victims were Damar Stroman, Ronald Vinson, Brent Rivers, and Roy Gonzalez. They were approached by four black men, three wearing masks and one unmasked. The unmasked man, later identified as defendant Rashawn McClinton, pulled a sawed-off double-barrel shotgun from his waistband and pointed it at Stroman. The masked men pulled out handguns, and the unmasked man told the victims to get down, took Stroman's wallet out of his pocket, pulled off Stroman's jacket, and put his shotgun against Stroman's head. The masked men took property from the other victims.

Both Gonzalez and Vinson testified that they saw the unmasked man with the shotgun, but Gonzalez said he did not get a good look at him, and Vinson could only describe him at a "black man" who was "light brown." Stroman, on the other hand, said he saw the unmasked man's face clearly under the street light. He was unable to identify a photograph of defendant after reviewing about 1,000 photographs at the police station, but there was no evidence indicating that defendant's photograph was among the ones shown.

Later, after developing further evidence, the police showed Stroman a lineup consisting of eight photographs, and he was able to confidently select defendant's photograph, which he also identified at trial. That evidence was buttressed by his in-court identification of defendant himself. At trial, Stroman indicated that he was six feet and one inch tall, and he described the unmasked man as about "five-six, five-eight maybe, in between there, somewhere." Later, he conceded that when he stood in front of defendant at trial, he noticed that defendant was in fact "basically" six feet tall. He also testified that although defendant had a goatee at the time of trial, he had not noticed that feature at the time of the robbery.

Stroman identified a sawed-off shotgun shown to him in court as similar to the weapon used against him, and he identified his wallet as one of the items stolen from him by the unmasked man. The police testified that they found the shotgun at the Trenton residence of defendant's sister. She consented to the search, and the police found the shotgun secreted under the steps leading to her side door.

The police came into possession of Stroman's wallet on May 22, 2004, at the home of a woman, Valecia Ivery, who identified herself as defendant's wife. The issue on appeal concerns the testimony relating to this incident, which came from Police Officer Americo Rosena, II. He, and another officer, went to Ivery's house in response to a domestic violence call from Ivery. Ivery told him that defendant was her husband. Rosena testified that they both lived there. He said Ivery gave him a wallet with identification in it, and then the examination proceeded as follows:

Q. Now, based upon -- did you inquire, without telling me, did you inquire of Ms. Ivery what the wallet was and where it came from?

A. Yes, she stated --

THE COURT: Without telling us what she stated.

Q. Without stating what she said, did you learn where the wallet came from?

A. Yes.

Officer Rosena brought the wallet back to the police station and looked at the identification it contained, which revealed that it was Stroman's wallet. He then called the Trenton Police Department, and testified about that as follows:

Q. You indicated you contacted Trenton. Again, without describing your conversation with Ms. Ivery, why did you contact Trenton?

A. The information given to me.

Q. What did you believe the wallet may be the result of?

A. It was taken from someone on Fountain Avenue is what the information I was given.

The continued examination of this witness shows that defense counsel was trying to emphasize Ivery's reference to Fountain Avenue to create reasonable doubt.

Q. Sir, this wallet you received and the information received, was that -- it was from someone on -- taken from someone on Fountain Avenue?

[THE PROSECUTOR]: Objection, your Honor.

[DEFENSE COUNSEL]: That's what he said.

[THE PROSECUTOR]: She's now extrapolating on hearsay.

THE COURT: The witness testified that was what he learned. I will allow it limited to that.

[DEFENSE COUNSEL]: Thank you, Judge.

[THE PROSECUTOR]: Unfortunately, that is taken out of context, and without further explanation --

THE COURT: Nonetheless, it was said.

[THE PROSECUTOR]: It was said, your Honor, not at the request of the state.

THE COURT: I'm not here to argue with you. My ruling is that she may ask that question. If you want to clear it, you get your redirect. These are discretionary rulings.

Counsel.

[DEFENSE COUNSEL]: Thank you, Judge.

Q. Valecia Ivery was upset when you spoke with her?

A. Yes.

Q. She was angry?

A. Yes.

Q. And she had just or recently had a fight with her husband?

A. Yes.

Q. Thank you sir.

[DEFENSE COUNSEL]: No further questions.

THE COURT: Redirect.

REDIRECT EXAMINATION BY [THE PROSECUTOR]:

Q. Ms. Ivery had told you --

THE COURT: Don't answer the question until I hear the whole question.

Q. Ms. Ivery told you the wallet was taken by her husband, Rashawn McClinton, and he took it from a man on Fountain Avenue, in Trenton, New Jersey, possible robbery, and the wallet was placed in evidence; is that correct?

A. Yes.

THE COURT: Recross.

RECROSS EXAMINATION BY [DEFENSE COUNSEL]:

Q. Do you know where Fountain Avenue is, sir?

A. No I don't. I know it's in Trenton, I don't know exactly where.

Q. Have you ever been on Fountain Avenue?

A. I probably have. I've been in the area for 40 years.

Q. You don't know where Fountain Avenue is?

A. No ma'am.

Q. Did you ask any follow-up questions regarding this Fountain Avenue --

A. No, Ma'am.

Q. Thank you, sir.

During summation, the prosecutor, claiming he was reading from the record, indicated that Ivery said the wallet

was stolen by her husband, not found or located, as [defense counsel] would have you remember that quotation. That is the information that the officer put into his report, that the defendant told his wife he stole it.

Defense counsel objected, and the judge said that "[t]he only thing that was supposed to come out initially was on information received, that the officer obtained this wallet, and that he dealt with it . . . ." The judge sustained the objection. Defense counsel then asked for "a curative instruction to the jury to disregard that comment made by the state and that they are not to consider that statement in any way in their deliberations." After further colloquy, defense counsel said:

Judge, I would ask that you specifically tell the jury to disregard any comments the state made recently about communication received by the officer from Ms. Ivery that was not in evidence, well, it's not in evidence, and it was an improper comment made by the prosecutor and should not have any bearings on their deliberations. Their recollection of the testimony is what prevails. 4T94

Thereafter, the judge charged the jury as follows:

THE COURT: Please be seated. Members of the jury, what I said to you, what the attorneys say to you in their final summations is not evidence. However, I want you to be reminded and listen to what I have to say about this part of the case.

This case is to be decided by you based upon the evidence, and I told you that the evidence comes from the witnesses who testify under oath here before you subject to the questions that are put to them, and the evidence comes from whatever other documents, photographs, items that I admit into evidence that you'll have to look at and handle when you go to deliberate.

In this case, you know Officer Rosena from Ewing Township, during an investigation on an unrelated matter involving some domestic dispute obtained a wallet at the address that was reported, and on information that he received, he took that wallet and gave it to the Trenton Police Department and the things developed, as you heard, and the other testimony that you heard that you find to be believable.

Valecia Ivery, allegedly, the defendant's wife, did not testify before you. Therefore, what she may have said to that officer that is being reported here is hearsay, not admissible evidence, and therefore, must not be considered by you in your deliberations in any way. So therefore, you may not consider anything she may have said to Officer Rosena that may have been reported to you because it's not admissible evidence. It's hearsay.

Now, I ask this jury, can you follow this instruction?

THE JURY: Yes.

THE COURT: Is there anyone who feels they would have difficulty following it? It comes down to disregarding anything that's been reported that Valecia Ivery said where the wallet came from, what street and all that. She just didn't testify here. Can you all follow that?

THE JURY: Yes.

THE COURT: All right, let the record reflect that all of the jurors indicate that they can. I will accept that.

Officer Rosena's testimony that Ivery, who never testified, told him that defendant admitted to her that he had taken the wallet from a man on Fountain Avenue was unquestionably inadmissible hearsay. State v. Branch, 182 N.J. 338, 348-353 (2005); State v. Bangston, 63 N.J. 263, 271 (1973). Since there was no objection to Officer Rosena's testimony, we must determine whether what occurred here was plain error. State v. Branch, supra, 182 N.J. at 353. The question then is whether admission of the evidence was "clearly capable of producing an unjust result . . . ." R. 2:10-2. And in that regard we "must consider whether there is a reasonable doubt that the jury would have ruled other than as it did." State v. Branch, supra, 182 N.J. at 353 (quoting State v. Irving, 114 N.J. 427, 447 (1989)).

Unlike the situation in Branch, this was not a close case because the victim's wallet was found in the possession of defendant's wife; a shotgun similar to the one used in the robbery was found secreted at defendant's sister's house, and defendant was identified by one of the victims in a pre-trial photographic array and then again in person at trial. Although there was some discrepancy between the description of the height of the perpetrator that was initially given to the police and defendant's actual height, the discrepancy was only four or five inches. Although the witness did not notice a goatee on defendant at the time of the offense, there was no evidence that defendant had a goatee at that time, merely that he had one at the time of trial.

Moreover, when Officer Rosena testified on direct examination that he was told the wallet was taken from someone on Fountain Avenue, the balance of the testimony and cross, redirect, and recross examination on this subject resulted from defense counsel's tactical determination to use the reference to Fountain Avenue to cast doubt on the State's case, since the robbery had in fact occurred on Cavell Street. That, coupled with the judge's strong charge to the jury during the prosecutor's summation to disregard everything Ivery had said, which was given at defense counsel's request, and to which there was no objection, see State v. Winter, 96 N.J. 640, 645-649 (1984), leaves us satisfied that the erroneously admitted information did not have the capacity to cause an unjust result.

Affirmed.

 

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A-1321-05T4

November 6, 2006