STATE OF NEW JERSEY v. AMIDOU KABRE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4393-07T44393-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMIDOU KABRE,

Defendant-Appellant.

________________________________________________________________

 

Submitted December 7, 2009 - Decided

Before Judges Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-02-0450.

Merovitz, Cedar and Gruber, LLC, attorneys for appellant (Donald F. Browne, Jr., on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Teresa M. Garvey, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Amidou Kabre appeals from his April 4, 2008 conviction on a charge of third-degree theft by receiving a stolen automobile, N.J.S.A. 2C:20-7, for which the judge imposed a four-year term of imprisonment. We reject defendant's claim that trial judge erred by denying defendant's motions for acquittal at the conclusion of the State's case and at the time of sentencing. We do, however, accept defendant's contention that the judge's denial of his in limine motion allowed unfairly prejudicial evidence to come before the jury. We reverse defendant's conviction and remand for a new trial.

I.

In the early morning hours of August 25, 2006, Cherry Hill Police Officer Thomas McClintock was notified by a dispatcher that the Delaware River Port Authority (DRPA) police had broadcast a report that a Mercedes stolen two hours earlier in a carjacking incident in Philadelphia was headed east over the Ben Franklin Bridge into New Jersey. Because the vehicle in question was equipped with a global positioning system, DRPA police were able to provide a fairly precise description of the vehicle's path. Anticipating its route of travel, McClintock headed slightly north, and began to observe oncoming traffic. Almost immediately, McClintock and Officer Robert Kempf observed a silver Mercedes that matched the description of the vehicle that had been recently carjacked in Philadelphia.

After effectuating a motor vehicle stop, they directed the driver, defendant, to exit the vehicle. McClintock described defendant as "extremely, extremely nervous[,] . . . shaking, he was sweating." According to McClintock, defendant "appeared overly nervous for the situation." McClintock asked defendant if he owned the vehicle, to which defendant responded in the negative, explaining that "a friend from Michigan gave him the car." When McClintock asked defendant "where exactly his friend gave him this car," defendant responded "Philadelphia." McClintock pursued that answer by inquiring how a friend from Michigan could give him the car in Philadelphia; defendant had no answer. McClintock described defendant as "still nervous" and "defensive" while answering the questions McClintock posed.

While McClintock was examining the New York identification card defendant produced in response to McClintock's request for a driver's license, Kempf told McClintock that he had found a Pennsylvania license plate wrapped in a nearly-transparent plastic bag on the floor of the vehicle adjacent to the front passenger's seat. The license plate "was wet and dirty." The dispatcher confirmed that the license plate Kempf found was the same plate that had been affixed to the Mercedes at the time of the carjacking.

In the course of a search for additional identification, Kempf opened a black bag on the front passenger seat, which defendant said was his. Inside the bag, Kempf found a stack of approximately fifty business cards wrapped in a rubber band, the majority of which were for salvage yards, insurance companies and locksmiths. Inside the bag Kempf also found several titles to motor vehicles and some salvage titles, one of which had been issued in Massachusetts for a 2002 Volkswagen Jetta. Kempf also found a dock receipt with a vehicle identification number (VIN) matching the Jetta, along with dock receipts for three other vehicles that had been shipped from New York City to a country in Africa by Unique World Limited Shippers. The dock receipts for all three vehicles shared the same VIN as the Jetta. Kempf added that the Jetta had been purchased by defendant for $975. Last, Kempf testified that inside the black bag he also found another license plate, two license plate screws and handwritten notes describing other vehicles, salvage dealers and insurance companies.

At trial, defendant testified about the bundle of business cards for salvage yards and locksmiths that was found in his black bag. He maintained that he had innocently accumulated a number of business cards since coming to the United States. He had no explanation for the unusual nature of the cards, and stated that the dock receipt relating to the Jetta belonged to an acquaintance, whose name he could not recall. He also explained that on the evening of his arrest, he had originally planned to take the bus home to New York, but that a friend of his named Miguel had offered him a ride. Defendant did not know Miguel's last name or what Miguel did for a living, even though he claimed that Miguel was a customer who had been in defendant's jewelry store in Philadelphia almost every weekend for six months. Defendant explained that he waited for Miguel until it was too late to catch the bus. When Miguel finally arrived, Miguel explained he had decided not to drive to New York, but instead to stay overnight in Philadelphia. He offered to lend defendant his Mercedes. Defendant agreed, explaining that he had planned to return the car to Miguel the next day. Defendant testified he never saw Miguel again after Miguel lent him the car on the night in question.

Before the parties gave their opening statements, defendant moved in limine for an order barring the State from introducing evidence of the contents of defendant's black bag, namely the dock receipts, the bundle of fifty business cards for salvage yards, locksmiths and insurance companies, and a license plate for another vehicle. In addition to arguing that "everything that he had in his possession was legitimate" because he owned the Jetta and had merely shipped it to his brother in Africa, defendant also argued that such evidence would be unfairly prejudicial. He asserted:

If the State is able to bring that in . . . that would be highly prejudicial against [defendant] because the jury is liable to insinuate [sic] . . . from these documents, which are completely legitimate, that [defendant] was doing an illegitimate or--or had some illegitimate plans for the vehicle which he was in, when the documents themselves, prima facie don't speak to that at all.

[I]t's not like [defendant] had some fake or false documents. These were real documents. I think that the jury may then insinuate [sic] that [defendant] had . . . [an] intention to ship this [Mercedes] to Africa.

In response to that argument, the State asserted that the documents in defendant's black bag established defendant's knowledge that the Mercedes was probably stolen and that the documents "show that he knew the car was stolen based on his plans for it which is established by those documents." Defendant responded that the admission of such evidence "creates a really bad circumstantial situation where [jurors] are gonna [sic] say, automatically, . . . he is involved in this. And he's not being charged with some kind of scheme such as that. He's just being charged with receiving stolen property." (emphasis added).

The judge denied defendant's motion in limine, reasoning that because the State was required to prove defendant's "mens rea with regard to the car being stolen, what the plans were" the State was entitled to introduce evidence of the contents of defendant's black bag because such evidence was relevant to defendant's further intentions regarding the disposition of the Mercedes. The judge proceeded to assure defense counsel that the defense would have "an opportunity to explain the bundle of body shop cards, the license plates and title [because] [t]hat's part of this case."

During the judge's charge to the jury, he read a stipulation to the jury in which he explained that defendant "has not been criminally charged in the carjacking of the Mercedes in Philadelphia. That's not what this case is about."

On appeal, defendant raises the following claims:

I. THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT EITHER KNEW THE AUTOMOBILE WAS STOLEN, OR BELIEVED IT HAD PROBABLY BEEN STOLEN, AT THE TIME DEFENDANT RECEIVED THE AUTOMOBILE AND BROUGHT IT INTO THE STATE

II. THE TESTIMONY OF THE ARRESTING OFFICERS, SUGGESTING TO THE JURY DEFENDANT WAS PART OF A CONSPIRACY TO ILLEGALLY EXPORT STOLEN AUTOMOBILES, SHOULD HAVE BEEN EXCLUDED SINCE ITS PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY THE RISK OF UNDUE PREJUDICE

II.

In Point I, defendant maintains that the trial court should have granted his motion for acquittal either at the close of the State's case or when he renewed that motion at the time of sentencing. He contends that the evidence presented at trial was insufficient for the jury to find, beyond a reasonable doubt, that he is guilty of receiving stolen property. Specifically, he argues that there was insufficient evidence presented to prove that he had knowledge that the car was stolen. He focuses on the fact that no physical evidence was presented, such as a damaged door lock or ignition. He also argues that testimony concerning the items found in the car--the license tags and the documents in his black bag--provided insufficient evidence of knowledge.

After the State has rested, the judge is obliged to grant a defendant's motion for acquittal "if the evidence is insufficient to warrant a conviction." R. 3:18-1. Further, Rule 3:18-2 authorizes a defendant to file the same motion within ten days after the discharge of the jury. When a motion is made under either Rule,

the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 458-59 (1967).]

When presented with a defendant's motion for acquittal, "the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only its existence, viewed most favorably to the State." State v. Muniz, 150 N.J. Super. 436, 440 (App. Div. 1977), certif. denied, 77 N.J. 473 (1978).

Application of the Reyes standard to the State's proofs demonstrates that the judge's rejection of defendant's motion for acquittal was correct. Pursuant to N.J.S.A. 2C:20-7, a defendant is guilty of theft if he "knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen." Here, there was no dispute that the Mercedes was stolen. Thus, to prove defendant guilty, the State was principally required to prove that defendant knew the car had been stolen or believed that it probably had been. The State's evidence on that subject was ample.

Defendant was found in possession of the stolen Mercedes less than two hours after it had been taken in the Philadelphia carjacking. When questioned by police about his possession of the vehicle, defendant became nervous, started trembling and began to sweat profusely. Not only did defendant's demeanor suggest a consciousness of guilt, but his explanation of how he had come to be in possession of the car could only have added to the jury's conclusion that he lied to police to conceal his knowledge that he was indeed driving a stolen car. In particular, although defendant told police he borrowed the car from a friend who was from Michigan, whom defendant claimed to have known for six months and whom he claimed to have seen every weekend, he was unable to provide the friend's last name. Moreover, although defendant testified that "Miguel" had lent him this expensive car so defendant could drive home to New York, defendant claimed that Miguel never asked defendant to return the car. And, if this was not enough to persuade the jury that defendant knew the car was stolen, the jury was presented with inescapable proof that defendant knew the car was stolen because, on the floor next to him, in a semi-transparent plastic bag, was the license plate belonging to the Mercedes. The license plate was wet, and the State produced testimony that at the time the vehicle was stolen in Philadelphia during the carjacking, it was raining outside, thus explaining why the license plate was wet.

As Reyes makes clear, the State is entitled to the benefit of all favorable inferences that a reasonable jury could draw from the State's proofs. Supra, 50 N.J. at 458-59. Giving the State the benefit of those favorable inferences, the testimony the State presented demonstrated that defendant was extremely nervous when confronted by police, gave police an explanation of his possession of the vehicle that no reasonable person would believe, and was seated in the vehicle next to the license plate matching the car in question. The removal of the license plate provides compelling evidence of a stolen vehicle. The State was entitled to the benefit of the inference that defendant knew the license plate was on the floor next to him and that he knew the license plate matched the stolen Mercedes. That evidence, together with defendant's extremely nervous demeanor and the implausible story he told police, when taken together, was clearly sufficient for the jury to find beyond a reasonable doubt that defendant was knowingly in possession of the stolen motor vehicle. We thus reject the claim defendant advances in Point I.

Notably, we have reached this conclusion without considering the evidence of the contents of the black bag defendant said belonged to him, which included another license tag, license tag screws, and a bundle of business cards for salvage companies, insurance companies and locksmiths, as well as paperwork showing that defendant had shipped a Jetta and other vehicles to Africa. We have deliberately excluded all of that evidence from our consideration of Point I because, in Point II, defendant challenges the jury's consideration of that evidence. For that reason, we have not considered it during our evaluation of the sufficiency of the State's proofs in relation to defendant's motion for acquittal. We now turn to defendant's Point II.

III.

Defendant asserts in Point II that the testimony presented by Officer Kempf, in which the officer described the contents of defendant's black bag and suggested to the jury that defendant was part of conspiracy to illegally export stolen vehicles, should have been excluded as unduly prejudicial. In particular, defendant maintains that the judge should not have permitted Kempf to testify about the business cards for salvage dealers, insurance companies and locksmiths. Defendant also contends that the judge should not have permitted Kempf to opine that these documents "showed a clear trail," and that "if somebody gets a salvaged vehicle, switch[es] the VIN plate with a stolen vehicle, puts that vehicle on a ship and sends [it] overseas, it shows a greater conspiracy."

Defendant argues that such testimony constituted evidence of prior bad acts that was admitted without any of the procedural safeguards required by State v. Cofield, 127 N.J. 328, 337-38 (1992). He maintains that this evidence was prejudicial because it created an inference that he was in the business of stealing cars and shipping them overseas. Under those circumstances, he contends he was entitled to a hearing outside the presence of the jury to determine whether the four-prong test for admissibility of prior bad act evidence under N.J.R.E. 404(b) was satisfied.

For its part, the State maintains that the evidence in question was relevant to defendant's knowledge that the Mercedes was a stolen vehicle, but the State does not squarely address the question of whether such evidence constituted prior bad act evidence that required both a Cofield analysis and a limiting instruction. Instead, the State confines its argument to a claim that the "paperwork in the car was crucial evidence to prove defendant's knowledge that the car had been stolen; hence, it was properly admitted under the four-prong Cofield test. N.J.R.E. 404(b) excludes evidence of prior bad acts when offered to prove predisposition to commit a crime; however, evidence of prior bad acts is admissible for other purposes such as proof of motive, opportunity, intent, plan, knowledge, identity, or absence of mistake or accident. N.J.R.E. 404(b). To determine whether N.J.R.E. 404(b) evidence is admissible, the State must establish in a hearing held outside the presence of the jury that: the evidence of the other crime is relevant to a material issue; such evidence is similar in kind and reasonably close in time to the offense charged; the evidence of the other crime is clear and convincing; and the probative value of the proffered evidence is not outweighed by its apparent prejudice. Cofield, supra, 127 N.J. at 338 (quoting Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b), And 609(a), 38 Emory L.J. 135, 160 (1989) (footnote omitted)).

Whenever prior bad act evidence is admitted, the court must provide the jury with an instruction explaining the limited purpose for which such evidence may be considered. State v. Vallejo, 198 N.J. 122, 134-36 (2009). Here, no hearing was held outside the presence of the jury to consider whether Kempf's testimony about the items found in defendant's black bag satisfied the Cofield standard; thus, the judge made no findings on whether the Cofield test was satisfied. Moreover, the judge never provided the jury with a limiting instruction on its use of the damaging prior bad acts evidence.

We begin our analysis by addressing the threshold question of whether the evidence in question was relevant at all, because, if not relevant, then such evidence would not be admissible. State v. Gookins, 263 N.J. Super. 58, 63 (App. Div. 1993) (holding that relevancy is "the hallmark of admissibility"), rev'd on other grounds, 135 N.J. 42 (1994). Evidence is deemed relevant when it "ha[s] a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Evidence is relevant even when it only "obliquely" supports the existence of a fact in issue. Verdicchio v. Ricca, 179 N.J. 1, 34 (2004). As the Court observed in Verdicchio, "the notion of relevance has to do with whether the evidence proffered renders the desired inference more probable than it would be without the evidence." Id. at 33 (internal quotations and citations omitted). Thus, evidence is deemed irrelevant only if it "'does not justify any reasonable inference as to the fact in question.'" Id. at 34 (quoting State v. Allison, 208 N.J. Super. 9, 17 (App. Div. 1985)). Thus, the relevance test is satisfied, and the proffered evidence may be admitted, even if it does not by itself support or prove the material fact, so long as there is a logical connection between the proffered evidence and the fact at issue. Allison, supra, 208 N.J. Super. at 17.

For example, the "logical connection" test was applied in State v. Koskovich, 168 N.J. 448, 480-82 (2001), where the Court held that various items found in the bedroom of a murder suspect, including gun magazines, violent song lyrics, and a list of prices for crime-related items such as false identification, were relevant to the suspect's motive and intent. The Court reasoned that the violent lyrics were relevant to the motive alleged by the State, namely that the defendant shot his victims to experience the "thrill" of killing. Id. at 481. Similarly, the Court observed that the trial judge properly admitted the price list for the crime-related items because such a list was relevant to show "defendant's familiarity with certain crimes and to demonstrate his overall criminal motive and intent." Id. at 482. Thus, even though the items in question did not directly establish that the defendant was the person who shot the victim, the items were nonetheless admissible because the disputed evidence possessed a "logical connection" to a fact in issue and made it more likely that such fact was true. Id. at 480.

Applying the "logical connection" test that was utilized in Allison, Verdicchio and Koskovich, we are satisfied that the documents found in defendant's black bag satisfy that test. In a trial where the jury was required to decide whether the defendant knew the vehicle was stolen, and where the vehicle had none of the signs typically associated with a stolen vehicle such as a damaged door lock or ignition, the evidence in question would assist the jury in evaluating the truth of defendant's claim that the car had been lent to him by his friend Miguel. If, as the State contended, defendant was a person involved in the sale and transportation of stolen vehicles, it was more likely that defendant would have known that the Mercedes had been stolen. While certainly such inference is not a direct inference, and was instead oblique, it is relevant nonetheless. Koskovich, supra, 168 N.J. at 480-82; Verdicchio, supra, 179 N.J. at 34.

Our determination that the evidence in question was relevant is not, of course, the end of the inquiry. Even relevant evidence "may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice[] [or] confusion of issues." N.J.R.E. 403. Moreover, as we have already discussed, some forms of relevant evidence are subjected to an even more rigorous analysis. In particular, evidence of a defendant's prior bad acts is not admissible to prove the disposition of the defendant to act "in conformity therewith," but may be admitted for "other purposes," such as to prove motive or intent when such matters are relevant to a material issue in dispute. N.J.R.E. 404(b).

In deciding whether evidence of a defendant's prior bad acts is admissible for one of the limited purposes specified in N.J.R.E. 404(b), the trial judge must apply the four-prong Cofield test we have already described. We need not tarry long in discussing whether the dock receipts and other documents found in defendant's black bag were evidence of "bad acts" or instead evidence of a legitimate automobile export business, because the State's witnesses characterized such evidence in the former vein, not the latter. On direct, Kempf testified that the "paperwork" involving the Jetta convinced him "there was a trail here, a history of it being purchased, and being shipped and VIN plates matching up all the way across the board." Kempf explained that he sought to "document" all of this because "in [his] experience, . . . stolen vehicles get VIN plates shipped and they get shipped out of the country." (emphasis added). Thus, the State's evidence on direct examination clearly labeled the documents in defendant's black bag as evidence of criminal conduct involving the export of stolen vehicles. Under those circumstances, such evidence should have been subjected to an N.J.R.E. 404(b) and Cofield analysis. Although both parties refer to Cofield in their briefs, neither side has applied its four-prong test. We do so now. The first three Cofield prongs were satisfied because the evidence in question is relevant to a material issue in dispute; it is similar in kind and reasonably close in time because defendant possessed the documents at the same time he possessed the Mercedes; and the evidence of the prior bad act is clear and convincing. This brings us to the fourth prong of Cofield, namely whether the "probative value of the evidence [is] outweighed by its apparent prejudice." Cofield, supra, 127 N.J. at 338.

In our view, the evidence of the fifty business cards for salvage companies, locksmiths and insurance companies, as well as the salvage titles for a number of other vehicles, were enormously prejudicial. No reasonable juror hearing such evidence could come to any conclusion other than that defendant was involved in the business of exporting stolen vehicles out of the country. While a juror may not himself or herself have drawn such an inference merely from a listing of the items found in defendant's black bag, any doubt that a juror may have had about whether defendant was involved in criminal activity was laid to rest by Kempf's comment that there was "a trail here," because such documents are used when "stolen vehicles get VIN plates . . . and get shipped out of the country."

The use of the term "stolen" unmistakably labeled defendant as a person involved in a criminal enterprise. Unlike in Koskovich, where the N.J.R.E. 404(b) evidence was not directly criminal in nature, involving as it did only song lyrics and price lists, here the N.J.R.E. 404(b) evidence constituted direct and unmistakable evidence that defendant is a criminal involved in a criminal enterprise wholly separate and apart from the crime charged in the indictment. Under those circumstances, where the prior bad act evidence is enormously prejudicial, the judge should not have permitted the State to present it unless its probative value outweighed its apparent prejudice. Ibid.

In making that determination, we recognize that the balancing test required by Cofield's fourth prong is a close call here because the probative value of the prior bad act evidence was fairly strong. The prior bad act evidence had a great capacity to negate defendant's claim that his possession of the Mercedes was innocent. Thus, its probative value was high. We conclude, however, that even though the probative value of the evidence was strong, its prejudice was even greater. Nothing could be more damaging than evidence that defendant is a criminal involved in a wide-ranging scheme to prey upon innocent victims, steal their property, and ship it out of the country for profit. We thus conclude that the prior bad acts evidence in question should not have been admitted because its probative value was exceeded by its prejudice.

The effect of that error was exacerbated by the absence of a limiting instruction. Even when evidence is properly admitted under N.J.R.E. 404(b), an effective and forceful limiting instruction is required. Vallejo, supra, 198 N.J. at 134 (holding that for a limiting instruction "to pass muster . . . it must be firm, clear and accomplished without delay"). Here, no instruction was issued by the trial judge directing the jury to consider the other crimes evidence for only a limited purpose. When no limiting instruction is given, "we have no alternative but to assume that the jurors took into account all of what transpired at trial, and we can have no confidence that defendant's conviction[] . . . [was] based only upon admissible evidence." Id. at 137.

As in Vallejo, "[t]his was a short trial, less than two full days from opening arguments to verdict." Ibid. Only five witnesses testified for the State. Of the five, three were on and off the stand very quickly: the owner and the occupant of the Mercedes who testified that it was stolen from them, and a DRPA police officer, whose testimony covers three transcript pages describing his notification to the Cherry Hill police that the Mercedes was heading in their direction. Each of the two remaining witnesses, McClintock and Kempf, made defendant out to be a criminal involved in a wide-ranging scheme involving the export of stolen vehicles.

The prosecutor harped on that theme in her closing when she argued to the jurors that they should use their "common sense" when discussing during deliberation "his possession of those documents." She also argued that "the defendant's personal bag on the passenger's seat . . . is chock full of items that show you exactly what he claimed [sic] to do with the car." (emphasis added). The prosecutor's closing unmistakably exhorted the jury to find defendant guilty of receiving stolen property because he planned to take the Mercedes and use it as part of his stolen car export enterprise.

Thus, when the unduly prejudicial nature of Kempf's and McClintock's testimony is considered, especially in conjunction with the absence of any limiting instruction and the prejudicial remarks contained in the prosecutor's closing, we can have no confidence that defendant received a fair trial.

Reversed and remanded for a new trial.

The State did not discuss or analyze any of the four prongs of the Cofield test. See Cofield, supra, 127 N.J. at 338.

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A-4393-07T4

December 22, 2009