STATE OF NEW JERSEY v. LOUIS MORALES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4466-03T44466-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LOUIS MORALES,

Defendant-Appellant.

_________________________________

 

Submitted September 21, 2005 - Decided

Before Judges Wecker, Fuentes and Graves.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, 02-03-3391-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael C. Wroblewski, Designated

Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for

respondent (Adrienne B. Reim, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Defendant appeals his conviction of second-degree conspiracy to commit robbery, first-degree robbery, and second-degree aggravated assault, all arising out of an attack on his former landlord, Louis Gonzalez, and the theft of $400 from Gonzalez. Defendant argues that he was deprived of a fair trial because of prosecutorial misconduct, specifically, the prosecutor's attempt to elicit testimony from the arresting officer with respect to defendant's response or lack of response at the time of his arrest, improper questioning of defendant's alibi witnesses, and improper comments in summation. We conclude that prosecutorial misconduct deprived defendant of a fair trial, and we therefore reverse.

On September 16, 2002, defendant was indicted on five counts: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five).

On February 24, 2003 defendant filed a notice of intent to rely on an alibi defense. The witness list attached to his notice included the names, addresses, social security numbers, and birth dates of Ariellas Valencio, defendant's girlfriend, and Evita Velez, defendant's sister.

Defendant was tried on June 3, 4, 5, and 9, 2003. The jury found defendant guilty on counts one, two, and three, and not guilty on counts four and five. The judge sentenced defendant on count one second-degree conspiracy to commit robbery to seven years, and on count two first-degree robbery to the then applicable presumptive term of fifteen years, with an eighty-five percent parole ineligibility term pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). Count three was merged with count two, and the sentences were to run concurrently.

I

These are the facts adduced from evidence at trial. Defendant and Valencio had lived for four or five months in an apartment in East Orange owned by Gonzalez. They were evicted for non-payment of rent in October 2001. Defendant and Valencio had known each other for five years and had a child together.

Gonzalez testified with the aid of a Spanish interpreter. When he answered some questions in English, the judge instructed him to speak in Spanish. He testified that at about 1:00 p.m. on June 27, 2002, he was watering plants inside his house, when two men entered the house stating, "this is a hold-up, son-of-a-bitch." Gonzalez testified that an unidentified black man punched him several times and took $400 from his pocket, while defendant held a gun to his head and hit him with the gun. Gonzalez also testified that the two men threatened to kill him if he went to the police. Gonzalez identified defendant as one of his attackers.

After learning that Gonzalez knew defendant and knew where he lived, Detective Pitts asked Gonzalez to show him defendant's residence, so that he could get a search warrant. When they arrived, Gonzalez identified defendant, one of two Hispanic males standing in front of the building, as the perpetrator. When it looked like defendant and the other male were going to walk away, Detective Pitts initially detained both men. Defendant was immediately taken into custody, but the second man fled on foot. Detective Pitts stated that there was no need to detain the man who fled, and he did not include a description of the man in his report. Defendant was advised that he was being charged with the robbery of Gonzalez on the previous day. When defendant was taken into custody, he had no gun and no large sum of money on him. After defendant's arrest, Gonzalez returned to the police station to give a second statement.

Officer Cox testified that on the day of the attack on Gonzalez, he took a report from Gonzalez at the hospital, in English, and without the use of an interpreter. Gonzalez spoke broken English, but his daughter assisted with the conversation. According to the officer, at the hospital Gonzalez said he was threatened by only one suspect, a tenant or previous tenant, and he named defendant and described him. Gonzalez told Cox that defendant knew he always carried a large amount of money in his pockets because sometimes Gonzalez gave defendant money for the purpose of "helping him a little." Defendant once told Gonzalez not to take money out in front of him because "that's a temptation."

Officer Cox testified that his report states that Gonzalez told him that defendant brandished a handgun, struck Gonzalez in the mouth twice with it, and said, "I'm going to blow off your head[.] [G]ive me your damn money." Gonzalez reached into his own pocket and gave $400 in cash to the person with the gun. Officer Cox also testified that Gonzalez had trouble speaking to him in the hospital because of his injuries, and the interview lasted only about five minutes because Gonzalez needed to be treated.

Gonzalez and his daughter went to the police station the next day, June 28, so that he could give a sworn statement to Detective Pitts. Contrary to the statement purportedly given to Officer Cox at the hospital the day before, Gonzalez reported in English that it was defendant and a second man who attacked him. Also, contrary to his first statement, Gonzalez told Detective Pitts that the unidentified black man had punched him, reached into his pockets, and took the money from him.

Gonzalez testified at trial that he described the unidentified man to the police as five feet and six or seven inches tall, a light-skinned black man with a "juvenile face." Gonzalez stated that he had never seen that man before and had not seen him since the attack, but he testified that he could identify him if he ever saw him again. Gonzalez could not identify the second man from photos shown to him by police. Neither his signed statement nor Detective Pitt's report included a description of the second man or the make or model of the gun allegedly used.

Valencio testified as an alibi witness for defendant. She was present when defendant was arrested on June 28 in front of their house. Valencio saw Officer Pitts with a gun in defendant's face. She saw Gonzalez jump out of the police car down the street and accuse defendant of the attack. Valencio recalled the events of June 27, because her daughter and defendant's daughter had just been promoted to the second grade, and she had been hosting a slumber party for them and their friends that day. The slumber party began on Wednesday, June 26 and lasted until Friday, June 28.

Valencio testified that defendant was at the party on June 27 with other family members and friends. He left her house at 1:15 p.m. to pay a PSE&G bill for his mother; he returned twenty minutes later and sat down to play with his daughter. Valencio recalled the exact time because she remembered saying to defendant before he left, "it's 1:10, it shouldn't take you that long to go pay the bill, come right back because [your daughter] drives me crazy, so I told him to come right back to take care of her." Valencio verified the receipt for the bill and testified that the check-cashing place where defendant went to pay the bill was less than a ten-minute walk from their house.

Velez, defendant's sister, also testified as an alibi witness for defendant. She lived in the same house with defendant, Valencio, and defendant's mother. Velez also testified that they were having a slumber party for the girls on June 27 to celebrate their passing into second grade. Velez recalled that defendant left shortly after 1:00 p.m. to pay a bill for his mother, and that he returned about twenty or twenty-five minutes later.

II

Defendant alleges several instances of prosecutorial misconduct, citing the assistant prosecutor's direct and cross-examination of witnesses as well as her closing argument.

In considering issues of prosecutorial misconduct, a reviewing court first must determine whether any misconduct occurred. See State v. Frost, 158 N.J. 76, 83 (1999); State v. Ramseur, 106 N.J. 123, 322 (1987). Even if misconduct is found, it does not constitute grounds for reversal unless it "'was so egregious that it deprived [the] defendant of a fair trial.'" State v. DiFrisco, 137 N.J. 434, 474 (1994) (quoting State v. Pennington, 119 N.J. 547, 565 (1990)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); see also Ramseur, supra, 106 N.J. at 322. To warrant reversal, a prosecutor's misconduct must constitute a clear infraction and "'substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense.'" State v. Roach, 146 N.J. 208, 219 (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).

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." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). A reviewing court should 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." Frost, supra, 158 N.J. at 83; see also Timmendequas, supra, 161 N.J. at 575-76.

A. Direct Examination of Officer Pitts

Defendant first contends that the prosecutor violated his Fifth Amendment and common law rights to remain silent when she questioned Officer Pitts about defendant's response to the charges; defendant contends that the improper question deprived him of a fair trial. The State maintains that even if the question was improper, there was no violation of the right to a fair trial, because the court intervened immediately to stop the witness from responding, and later issued a curative instruction to the jury as well as a general instruction regarding defendant's right to remain silent.

The initial question to Officer Pitts by the assistant prosecutor was as follows:

Q And did you inform the defendant what he was being charged with?

A Yes.

Q And did you inform him that he was being charged with the robbery of Mr. Gonzalez that occurred on June 27, 2002, the previous day?

A Yes.

Q And did he have any reaction to that?

THE COURT: Stop.

DEFENSE COUNSEL: Objection, Your Honor.

THE COURT: Don't answer that question. Next question. Come here please. (Sidebar)

THE COURT:

ASSISTANT PROSECUTOR: Okay. I can ask him what, if anything,

THE COURT: No, you can't.

ASSISTANT PROSECUTOR: he said.

THE COURT:

ASSISTANT PROSECUTOR: Not even if I ask him

THE COURT: No.

ASSISTANT PROSECUTOR: I can't

THE COURT:

ASSISTANT PROSECUTOR: say did he say anything to you? No?

THE COURT: No.

ASSISTANT PROSECUTOR: No. Okay. Thanks, Judge. All right. So

THE COURT: Just ask the next question.

ASSISTANT PROSECUTOR: Okay. (Sidebar concluded)

At the start of the afternoon session, the court received a question from the jury about the earlier exchange and the following occurred:

THE COURT: the jury asked [about] the question posed by the prosecutor when she questioned the police officer as to what defendant's response was to the charges when he was apprised this is what I'm going to say to them. I'm going to say the [C]onstitution of the United States guarantees everyone's individual liberties, and it's the constitutional right of the defendant to remain silent.

I charge you not to consider any for any purpose or any manner in arriving at your verdict any inference of what the defendant may or may not have said in response to the officer advising him of what his the charges were and that no inference or any fact at all about his response or lack of response should enter into your deliberations or discussions in any manner at any time.

Basically it's the half the boilerplate [sic] defendant's motion to amend my charge which is normally read. Any problem with that anyone?

ASSISTANT PROSECUTOR: No, Judge.

THE COURT: Okay. Bring the jury out. (Off the record. Back on the record)

(Jury present in court)

THE COURT: Earlier this morning I sustained an objection by defense as to a question asked by the prosecutor. Normally, I don't explain why I sustain or overrule objections to the jury, but in this case I'm going to do it.

The prosecutor asked a question of the East Orange Officer Pitts who testified. She specifically asked him what Mr. Gonzalez's [sic] response was once the officer advised him of the charges . . . against him. Okay. Now all everyone in this country [sic] individual rights are guaranteed by the [C]onstitution, and it's the constitutional right of a defendant to remain silent. Okay.

So I charge you you are not to consider for any manner or any purpose whatsoever any inference that may have been taken from that question or lack of response to that question. Okay. That inference or any idea you have about that question should not enter whatsoever in any deliberations or discussions in any manner at any time. Okay. That's why the objection was sustained. You shouldn't eve[n] discuss it or make any inference whatsoever from that question. Okay. Thank you very much.

"A suspect has a right to remain silent while in police custody or under official interrogation, in accordance with his [or her] state law privilege against self-incrimination." State v. Muhammad, 182 N.J. 551, 558 (2005). Moreover, this silence "cannot be used against him in a criminal trial." Ibid.; see also State v. Deatore, 70 N.J. 100, 115 (1976).

Because the court interrupted the prosecutor's question before the witness could answer, it is not clear whether she anticipated testimony regarding defendant's silence at the time of arrest, his failure to provide exculpatory evidence at the time of his arrest, or otherwise. However, "[m]aking reference at trial to what a defendant did not say to the police is commenting on his silence." Muhammad, supra, 182 N.J. at 565.

Of course, "[i]mproper comments are frequently made in trials." State v. McLaughlin, 93 N.J. Super. 435, 440 (App. Div. 1967). "Consequently, it has been held that even when the prosecutor made the comment, prompt and effective action by the judge cured the error." Ibid. "Even a direct comment on a defendant's failure to testify may be cured by a judge's timely and effective action." State v. Scherzer, 301 N.J. Super. 363, 441 (App. Div.), certif. denied, 151 N.J. 466 (1997). Here, the judge immediately barred the question before the witness could answer.

But defendant contends that in light of the question the judge received from the jury directly after the lunch break, the jury must have discussed the unanswered question and speculated about what the officer would have answered. Defendant argues that merely barring the question and stopping the witness from answering did not cure the prejudice, and that he was prejudiced by the trial judge's failure to instruct the jury immediately with respect to his right to remain silent.

While the question to Officer Pitts clearly was improper, we do not find it sufficiently prejudicial to warrant a new trial.

B. Cross-examination of Alibi Witnesses

Defendant next contends that the prosecutor's questions of defendant's two alibi witnesses were improper because she did not lay a proper foundation for using earlier silence as a prior inconsistent statement under N.J.R.E. 803(a)(1) to impeach them. The State argues there was foundation to scrutinize "their pre-alibi-notice silence as probative of a fabricated alibi," in that each admitted knowing the charge against defendant within days of his arrest. The State also argues that the cross-examination was an appropriate attempt to impeach the witnesses on the basis of bias, due to their close relationships with defendant.

1. Valencio

During cross-examination, Valencio testified that she witnessed defendant's arrest on June 28, 2002. Valencio then stated that she called the police to find out why defendant was arrested and spoke to a lieutenant or an officer named "McCuster." She testified that she told McCuster where defendant was at the time Gonzalez was robbed. McCuster told her "that's something that I would have to, you know, bring up in court, that he can't do nothing about that." Defense counsel made no objection during this exchange.

Next came the following exchange between the prosecutor and Valencio to which defendant did not object at trial:

Q. Okay. And you've come to court with him before, right, for hearings in this case?

A. From the beginning, yes.

Q. Did you ever tell me, the prosecutor, where he was?

A. I never spoke to you until yesterday.

Q. Right. And did you ever tell anybody about where he was

A. Yes, [defense counsel].

Q. Did you tell the judge when you came to court before?

A. I've never had a chance to speak to the judge. I spoke to her and that's who I told.

Q. Did you ever ask to speak with the judge before?

A. I didn't know I could.

Q. Did you ever tell what about the media, the newspaper, anybody, about this exonerating evidence that

A. As a matter of fact, I was going to call Help Me Howard.

DEFENSE COUNSEL: Objection, Your Honor. It's been asked and answered

THE COURT: Hang on, hang on.

DEFENSE COUNSEL: and she simply never had an opportunity to do that. No one was going to listen to her.

THE COURT: Let her say that, okay?

[Emphasis added].

The prosecutor continued to cross-examine Valencio:

A. [Valencio] I was going to call Help Me Howard.

Q. But did you?

A. No, I didn't. I was trying to get

Q. Thank you.

A. find a way to find his number. And it's not that's not a number that's listed.

Q. There's no question. I'm sorry. There's no question. Did you come forward and volunteer to testify at the grand jury hearing this week?

A. Yes, I did.

Q. You did?

A. That's the only way that

Q. Who did you speak to?

A. Defense counsel.

Q. You spoke to the defense counsel about volunteering to testify at the grand jury hearing?

A. Yeah.

Q. When was that?

A. When I first went to her office.

Q. When was that?

A. I don't recall the exact date.

Q. What month?

A. I don't know.

Q. What year?

A. This year, 2003

Q. This year in 2003. Are you aware that the grand jury hearing was held on September 16th of 2002?

A. I'm not in the grand jury so how would I know that?

Q. But you volunteered to testify at the grand jury hearing in 2003. That's your testimony, right?

A. Okay, yeah.

Q. After it occurred, after he was already indicted.

A. No, no, no, before he got indicted. As soon as he came into the public defender's office, I don't know the exact month, I know I came in with him and I talked to her.

Q. Thank you. I don't have a question right now. Actually, you had you just told the jury the first time I met you was yesterday, right?

A. That we spoke was yesterday. I never spoke to you before.

Q. Right. The first time I met you was yesterday.

A. No, that we spoke.

Q. That we spoke.

A. Yeah. It was yesterday. I seen you through the whole you know, every time I come to court I see you. But I never spoke to you before until yesterday.

Q. And that was only because I requested to speak with you. Isn't that true?

A. Well, I left my address and you never got in contact with me, so I had to get in contact [b]y coming in to see you here.

Q. Well, isn't it really true that you left an address and

A. 758 West Jersey Avenue.

Q. my investigator attempted to call you, didn't he?

A. No.

Q. Isn't it true that the address you gave and the phone number that you gave was 973-848-9652?

A. No.

Q. That's not the phone number you gave?

A. Well, that's not my mother's phone number. That's his house phone number.

Q. So that's not the the sign

A. That's not the number to

Q. That's not that's not what Louie Morales presented on your behalf

DEFENSE COUNSEL: Objection, Your Honor.

Q. that that was your correct phone number.

DEFENSE COUNSEL: Objection, Your Honor.

THE COURT: Overruled. Overruled. Answer the question.

Valencio testified that she had no phone of her own, but that she was living with defendant at the time and that was his number. She continued to deny that the prosecutor's office contacted her or left a message on the answering machine, prior to trial. On redirect, Valencio testified that she wanted to write to the judge but did not think that she was allowed to do that. Defense counsel had told her that she would not be able to testify before the grand jury, and that her opportunity to be heard would be at trial.

2. Cross-Examination of Velez

During her cross-examination, Velez testified that she was also present at the house on the day defendant was arrested, but she did not learn the reason for the arrest until several days later. The following exchange between the prosecutor and Velez to which defendant objects on appeal occurred next:

Q. So did you tell the police that he was home with you at the time of the incident when you found out?

A. I didn't I didn't talk to no police.

Q. So you didn't call them at that time, right?

A. No. When he had when they had that day when they on Friday

Q. That's I mean, you don't have to answer any more.

A. Okay.

Q. I'm just wondering did you tell anyone in the prosecutor's office where he was at the time of the arrest? You didn't tell anyone from my office, right?

A. I didn't talk to nobody but you yesterday.

Q. All right. Did you have you been to court with him at all?

A. No, this is my first time.

Q. So you haven't come to court and tried to tell the judge what happened, right, before today?

A. No.

Q. So today is the first time you're telling where he was?

A. Yes.

Q. Did you volunteer to testify at the

grand jury or any other type of hearing about where he was at that time?

A. If I volunteered saying that I would testify?

Q. Right.

A. Yeah. When all this when he had spoke to me I had I said I know where you was at, so if anything if you need me, I'm just here to speak the truth for him.

Velez also denied that the prosecutor's office contacted her or left a message on her answering machine. On redirect, Velez testified that she did not believe that she was allowed to testify before that day in court. She continued to deny being contacted by the prosecutor's office. Both Valencio and Velez testified that they had told defense counsel what they knew early on.

Defense counsel did not object to the lack of foundation for the cross-examination. We therefore review any alleged error as plain error. Under that standard, the reviewing court is to "disregard an error unless it is 'clearly capable of producing an unjust result.'" State v. Daniels, 182 N.J. 80, 95 (2004) (quoting R. 2:10-2).

"Our Supreme Court, in the context of an alibi witness, has recognized 'situations . . . where the natural response of a person in possession of exculpatory information would be to come forward in order to avoid a mistaken prosecution of a relative or a friend.'" State v. Holden, 364 N.J. Super. 504, 510 (App. Div. 2003) (quoting State v. Silva, 131 N.J. 438, 446 (1993)). The rationale for allowing cross-examination of a witness who fails to come forward "'when it would have been natural to do so'" is that it casts doubt on the veracity of the witness. Silva, supra, 131 N.J. at 446 (quoting Commonwealth v. Brown, 416 N.E.2d 218, 224 (Mass. App. Ct. 1981)). In such a case, early "'silence may reasonably be viewed as inconsistent with'" the trial testimony of the alibi witness. Silva, supra, 131 N.J. at 447 (quoting State v. Marshall, 260 N.J. Super. 591, 598 (App. Div. 1992)).

Because such cross-examination would be appropriate in some circumstances, but not others, a proper foundation must first be "laid by asking whether the witness was aware of the nature of the charges pending against the defendant, had reason to know he had exculpatory information, had a reasonable motive to act to exonerate the defendant, [and] was familiar with the means to make the information available to law enforcement authorities."

[Holden, supra, 364 N.J. Super. at 511 (quoting Silva, supra, 131 N.J. 438) (emphasis added)].

The record reflects certain elements of the foundation required as a prerequisite for cross-examining an alibi witness about the failure to come forward sooner. Both alibi witnesses claimed to have been at the scene when Gonzalez identified defendant and when defendant was arrested. That much information was already before the jury when cross-examination began. Each witness soon learned about the crime defendant was alleged to have committed. Without that knowledge, it would be unfair to imply that the witness naturally would have come forward with defendant's whereabouts on the afternoon of June 27. Valencio also testified that she went with defendant to the public defender's office before he was indicted, and that she came to court with defendant each time.

But the prosecutor failed to lay a foundation to establish that Velez knew how or to whom to make her information available, and the only evidence as to Valencio's knowledge is that she attempted to report what she knew to police. It was unfair and improper for the prosecutor to ask each witness if she ever attempted to speak with the prosecutor herself, or with the judge, about defendant's whereabouts, and it was an outright misrepresentation to suggest that either witness should have appeared before the grand jury. The prosecutor's suggestion that the witnesses should have "volunteered" to testify before the grand jury conveyed knowingly inaccurate information to the jury.

Thus, in the course of questioning these two witnesses, the prosecutor did not conduct herself properly. She continued to question Valencio about her "failure to come forward," even after Valencio testified that she advised the police through McCuster, but he told her to bring it up at trial. As the Supreme Court has noted, "[W]hen a witness attempts to speak to the authorities and the effort is rebuffed, it might not be natural for the witness to try to speak to the authorities again, and the subsequent silence would not be an inconsistent statement." Silva, supra, 131 N.J. at 448.

The prosecutor's repeated questions regarding the alibi witnesses' failure to tell police, the judge, or the prosecutor's office clearly implied their continued silence, ignoring the fact that one of the witnesses testified that she had come forward and had been rebuffed. The prosecutor also failed to distinguish between the witnesses' silence before defendant's notice of alibi was filed and their silence thereafter. The prosecutor's question about each witness's failure to come forward before the trial was plainly inaccurate as to the period after defendant provided his notice of alibi, approximately four months before trial. See Silva, supra, 131 N.J. at 450.

[O]nce a notice of alibi has been furnished by defendant's attorney, thereby making the witness available to questioning by prosecution investigators, there is, from the date of notice of alibi to trial, no longer an inconsistency from which to infer fabrication unless the witness refuses to discuss the matter with the prosecution after the notice of alibi.

[Silva, supra, 131 N.J. at 442.]

We recognize, however, that many months had passed before defendant served his notice of alibi.

Another problem with the cross-examinations is that by asking an alibi witness whether "today is the first time you're telling where he was" and "did you ever tell me, the prosecutor, where he was," the prosecutor implied a legal duty on the part of the witness to have come forward. It is fair to challenge an alibi witness's credibility by arguing that if she knew what the defendant was charged with, and honestly knew that defendant could not have committed that crime because he was someplace else at the time, she would have volunteered that information to the authorities immediately. But it is a very different thing to attempt to impeach the witness's credibility by suggesting that the witness herself was violating a legal obligation of her own by not coming forward sooner.

In cross-examination, the prosecutor implied that these witnesses had not cooperated with the prosecutor's investigators by not returning phone calls; however, the prosecutor herself presented no evidence to contradict each witness's claim that she never received any such call or message and was never contacted by the State. The prosecutor called no rebuttal witness to refute the witnesses' denials or to produce evidence of attempts to contact either witness. Thus, the prosecutor appears to have cross-examined without a good faith basis for the facts her questions assumed. "The foundational principle is that a prosecutor must have 'reasonable grounds for posing questions during cross-examination that impugn a witness's credibility." State v. Daniels, 182 N.J. 80, 99 (2004) (quoting State v. Rose, 112 N.J. 454, 504 (1988)).

While the prosecutor clearly exceeded the bounds of proper cross-examination of alibi witnesses, defense counsel made no objection to these questions. If the failure to object suggests "that counsel 'did not in the atmosphere of the trial think [the examination] out of bounds,'" Holden, supra, 364 N.J. Super. at 512 (quoting State v. Johnson, 31 N.J. 489, 511 (1960)), we take a different view. The trial judge charged the jury as to the alibi witnesses as follows:

I instruct you that they had no obligation to provide an account at any time and there may be reasons for them not doing so.

You may consider the evidence concerning when they came forward and why they did so at that time only for the limited purpose of deciding whether it affects the credibility of their account. You may not use the evidence to conclude that Ariellas Valencio or Evita Velez might have some obligation to come forward because they had no duty to speak on this subject with anyone.

That charge did not cure the harm.

We need not determine whether the cross-examination of the alibi witnesses on their pretrial silence, without more, would require a new trial. See State v. Perez, 304 N.J. Super. 609, 612-13 (App. Div. 1997) (prosecutor's reference to defendant's alibi witness's pretrial silence was not inappropriate when coupled with the jury instruction that silence was only relevant insofar as it reflected on the witness' credibility). Here, the prosecutor's errors were exacerbated by her comments in summation, when she mischaracterized the law as well as the witnesses' testimony.

C. The Prosecutor's Summation

Defendant argues that the prosecutor made numerous inappropriate comments and statements during her summation, some with objection by defense counsel and some without, and that together her arguments deprived him of a fair trial. The State contends, however, that the comments were a reasonable interpretation of the record, and the inferences for which the prosecutor argued were a fair response to defendant's attack on the victim's credibility.

Defendant also cites, as misconduct, the prosecutor's injection of her personal view of the witnesses' credibility into the case:

ASSISTANT PROSECUTOR: Why aren't they credible? They have a close relationship with the defendant. Why is that important? Because it shows bias, it shows interest and it shows motive to deceive you. What else? Why else aren't they credible? They failed to notify authorities.

Ladies and gentlemen, I submit to you it's one thing for a stranger to not come forward when somebody is innocent. But it is something completely different when a family member does it. Now, today, the last day of trial, that's the day they're coming forward.

DEFENSE COUNSEL: Objection, Your Honor.

THE COURT: Noted for the record. Continue.

ASSISTANT PROSECUTOR: His girlfriend was in and out of this courtroom, never approached me, never approached the judge, didn't come forward to testify at grand jury. My job is to seek justice. I'm not adversarial. My job is to see that justice is done. If somebody didn't do it, if he didn't do it, I'm not going to prosecute him. I want to know about it. I want to find out. But they wait until the last day of trial when I don't have an opportunity to find out. How am I supposed to seek justice if I don't know what's going on? I submit to you, ladies and gentlemen, they didn't say anything because they didn't have anything to say.

And in that same vein they refuse to comply with law enforcement.

DEFENSE COUNSEL: Objection, Your Honor.

THE COURT: Noted for the record. Their recollection the jury recollection will control.

ASSISTANT PROSECUTOR: They only got messages from the defense counsel. They didn't get messages from the State's from the State's investigator. Same number, same address, defense counsel goes there and they're home, State goes there and they're not home.[]

[Emphasis added].

The prosecutor's misconduct was even more egregious when she stated that her "job is to see that justice is done," and she would not prosecute defendant if "he didn't do it." The obvious import of that comment, which the jury could hardly ignore, was that the prosecutor knew more than they heard; that she had access to information outside the record, information that convinced her of defendant's guilt; and that if the jury knew what she knew, it would certainly convict defendant. This comment by the prosecutor implicitly shifted the burden to defendant to prove his innocence, because it implied that prosecutors only bring guilty defendants to trial.

"The primary duty of a prosecutor is not to obtain convictions, but to see that justice is done." Ramseur, supra, 106 N.J. at 320. "It is as much [her] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." State v. Farrell, 61 N.J. 99, 105 (1972) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 2d 1314, 1321 (1935)).

"It is well-established that prosecuting attorneys, within reasonable limitations, are afforded considerable leeway in making opening statements and summations. This wide latitude is not unfettered, however; it is subject to parameters established by decisional law and by ethical considerations." State v. Williams, 113 N.J. 393, 447 (1988). It is also "well-settled that whether objected to or not, prosecutorial misconduct constitutes grounds for reversal of a conviction only if so egregious as to have deprived the defendant of a fair trial." State v. Marinez, 370 N.J. Super. 49, 55 (App. Div.), certif. denied, 182 N.J. 142 (2004); see also Frost, supra, 158 N.J. at 83. "If no objection is made, the remarks usually will not be deemed prejudicial." Ramseur, supra, 106 N.J. at 323.

A prosecutor is expected to confine his or her closing argument to the evidence presented during the trial and the "reasonable inferences to be drawn from that evidence." State v. Acker, 265 N.J. Super. 351, 357 (App. Div.), certif. denied, 134 N.J. 485 (1993); see also State v. Harris, 156 N.J. 122, 194 (1998), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001). "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).

It is of course a "legitimate subject of prosecutorial summation" to suggest that the alibi witnesses "lied or were not credible." Neal, supra, 361 N.J. Super. at 536. Therefore, the prosecutor's first statements about the witnesses' potential bias and motive to deceive were fair comment and unobjectionable. When, however, the prosecutor went on to argue that the witnesses were not credible because they "failed to notify authorities," she misrepresented the record. Valencio testified that she notified a Lieutenant or Officer McCuster immediately after defendant's arrest and was rebuffed by him. The State failed to call Officer McCuster in rebuttal, thereby permitting (although not requiring) an inference that he would not dispute Valencio's testimony about her call, if he testified. See State v. Clawans, 38 N.J. 162, 170-71 (1962) (permitting an argument that the jury may draw); see also State v. Segars, 172 N.J. 481, 496-98 (2000). Although defense counsel neither objected at the time, nor asked for a Clawans instruction, "prosecutors are not permitted to make inaccurate legal or factual assertions during summation." State v. Mahoney, 376 N.J. Super. 63, 84 (App. Div. 2005).

The prosecutor misstated the record again when she twice commented that the witnesses came forward on "the last day of trial" and that they "refused to comply with law enforcement." These comments blatantly ignored the notice of alibi that was filed almost four months before trial, identifying these witnesses, as well as Valencio's testimony that she did come forward much earlier. Defense counsel objected twice, but the judge merely noted the objections, and on the second objection stated only that the jury's "recollection will control." That was not enough. By failing to sustain the objection, and failing to promptly issue a curative instruction, the judge allowed the prosecutor's unfairly prejudicial remarks to remain "unchecked" and "missed the opportunity to mitigate the harm by issuing a properly tailored instruction directing the jury to disregard the prosecutor's statements." Mahoney, supra, 376 N.J. Super. at 85.

The prosecutor also misstated the record when she commented on each alibi witness's testimony that she did not get any messages from the State's investigators. The prosecutor never introduced any evidence to refute the witnesses' claims that they did not receive any such messages; their testimony that the State's investigators never contacted them is unrefuted. Once again, the State would have been expected to call its investigator to testify to attempts that were refused. Under the circumstances, it was improper for the prosecutor to argue that the witnesses were lying about not having been contacted, or that they refused to cooperate with the State. These assertions are not supported by the record. The Supreme Court has "not hesitated to reverse convictions where [it has] found that the prosecutor in his [or her] summation overstepped the bounds of propriety and created a real danger of prejudice to the accused." State v. Johnson, supra, 31 N.J. at 511.

Having determined that the prosecutor committed numerous errors in her summation, we must determine whether those errors were harmless. R. 2:10-2. The test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached. State v. Bankston, 63 N.J. 263, 273 (1973); accord State v. Bakka, 176 N.J. 533, 547-48 (2003).

This case turned entirely on the victim's identification of defendant, his prior tenant, as his attacker. While stronger than a stranger's identification, it is hardly foolproof. Whether or not each of the offending comments by the prosecutor on its own was "clearly capable of producing an unjust result," the combination and cumulative effect of those comments, the most egregious of which was her assertion that "if he didn't do it, I'm not going to prosecute him," clearly had the capacity to affect the jury's verdict.

III

In light of our decision that defendant must be granted a new trial, his arguments respecting his sentence are moot. We comment briefly, nonetheless, for completeness and to assist the court, defendant, and the State on remand.

Defendant argues that the fifteen-year sentence imposed was unduly excessive because the court failed to properly consider mitigating factors other than the hardship to defendant's family. The State contends that the sentence properly adheres to the sentencing guidelines and is "well deserved given the totality of the circumstances." The judge found the aggravating and mitigating factors in equipoise and sentenced defendant to the then-applicable fifteen-year presumptive term for first-degree robbery. Defendant's sentence on each count, and the imposition of concurrent terms, would be unobjectionable had defendant been fairly convicted.

 
Reversed and remanded for a new trial.

The conspiracy count should have been merged with the robbery, but the error is moot in light of our determination that defendant must have a new trial.

Dr. Simon, an internist in the emergency room, testified that Gonzalez suffered a "bad head trauma." Dr. Simon indicated that Gonzalez was able to give his medical history despite the fact that it is normal for someone who had passed out to be "somewhat confused and disoriented" and to experience temporary memory loss. Dr. Simon's notes described Gonzalez as "awake, alert and oriented to person, place and time" in the emergency room.

The transcript at one point in the interpreted testimony of Gonzalez indicates his "son" rather than his "daughter." We attribute that error to the similarity in the sound of the Spanish words "hijo" and "hija," and not to any factual inconsistency or dispute.

It is not clear from the record when Valencio claims she spoke to McCuster. The jury heard no other evidence with respect to Valencio's claimed conversation with McCuster.

The witnesses would not have been permitted in the grand jury room except if called by the prosecutor as a witness. Cf. In re Grand Jury Appearance Request by Loigman, 183 N.J. 133, 149 (2005) ("[A] private person does not have the right to present an allegation of evidence of a crime to a grand jury.").

Prior to jury selection, the prosecutor asked the court to bar defendant's alibi witnesses because of defendant's failure to give a written proffer as to their testimony. However, it is not disputed that the notice was provided in February, almost four months prior to trial. Rule 3:12-2 requires a defendant to furnish a signed alibi statement within ten days after receiving a written demand from the prosecutor. The record does not reveal any such written demand here. There is a notation that the prosecutor advised defense counsel two weeks before trial that she would be contacting the witnesses, but there also is no evidence of any such attempts.

The prosecutor nonetheless argued, in her summation, that the witnesses failed to cooperate.

The State offered no evidence that any representative of the State went to either witness's home.

The trial judge did, however, give an appropriate charge that "[a]rguments, statements, remarks, openings and summations of counsel are not evidence" and "the burden of proving the defendant's presence beyond a reasonable doubt is upon the State." In context, it was not enough to cure the harm.

At the time of the attacks it had been approximately eight months since Gonzales had moved out.

Defendant also argues that because the jury found him not guilty on the weapons charge, the trial court erred in denying his motions for acquittal notwithstanding the verdict or for a new trial based on an allegedly inconsistent verdict. These arguments are obviously moot.

(continued)

(continued)

36

A-4466-03T4

February 6, 2006