STATE OF NEW JERSEY v. JERRELL B. PALAMER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4888-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERRELL B. PALAMER, a/k/a

JERRELL B. PALMER,

Defendant-Appellant.

________________________________

November 15, 2010

 

Submitted: September 29, 2010 - Decided

 

Before Judges Fisher, Sapp-Peterson and Simonelli.

 

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No. 04-06-0567.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).

 

TheodoreJ. Romankow,Union County Prosecutor, attorney for respondent (Robert J. Cino, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Following a jury trial, defendant Jerrell Palamer was convicted of, among other things, the first-degree robbery, N.J.S.A. 2C:15-1, of a pizza delivery person. The judge imposed an aggregate fifteen-year term of imprisonment, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. We reverse and remand for a new trial because the trial judge erroneously instructed the jury that it could draw an adverse inference against defendant for his failure to call his brother to testify.

The following facts are derived from the evidence produced at trial.

Defendant lived at his mother's residence in Union at the time of the robbery that occurred in this case. He and his brother, Shmar, shared a bedroom located in the basement, which was divided into two separate areas by a curtain. Defendant and Shmar had their own beds and televisions. Defendant's mother, stepfather, and sister lived upstairs.

At 9:54 p.m. on March 17, 2004, as a light snow fell, someone placed an order with Papa John's Pizzeria in Maplewood and requested a pizza delivery to 104 Waldorf Place in Vauxhall; however, no one at that residence had ordered a pizza delivery.

The pizza was placed in a thermal delivery bag along with a second pizza that was to be delivered to another residence in Maplewood. Shortly after 10:00 p.m., Livien Moise, the pizza delivery person, arrived at 104 Waldorf Place to deliver the first pizza, parked his vehicle in the driveway, and walked to the front door carrying the thermal delivery bag, "2 liter Cokes" and a promotional basketball. Moise rang the doorbell and waited approximately fifteen seconds for a response. After receiving no response, he rang again and waited. When no one responded, he looked through a window and saw Velma Brown, the home's owner, shrug her shoulders.

Realizing that Brown had not ordered the pizza, Moise walked back to his vehicle. He was approached by an African-American male, approximately 6'4" tall, weighing approximately 260 to 270 lbs. and dressed in dark clothes and a ski mask, who pointed a shotgun in his face and demanded money. Moise dropped the delivery bag, basketball, and bottle and immediately emptied his pockets, which contained a total of $225. The assailant ordered Moise to "[r]un before you get shot."

Moise ran to his vehicle and drove toward Burkley Place. He looked into his rearview mirror and saw his assailant walk across the street to a parked car and place the shotgun, delivery bag, and basketball in the trunk.

Meanwhile, Brown telephoned her sister-in-law, who lived across the street from 104 Waldorf Place, and told her to look out of the window to see what was happening. The sister-in-law observed a man walk toward a parked car, place something in the trunk, and enter the vehicle's passenger side. The vehicle then drove in reverse and entered Tebe Place.

As Moise approached the end of Waldorf Place, at its intersection with Burkley Place, he saw his assailant's vehicle proceed to Tebe Place. Because of his familiarity with the neighborhood, Moise knew that Tebe Place is a one-way street and that the assailant's vehicle would wind up on Burkley Place, ahead of him. When that vehicle turned onto Burkley Place, Moise followed it, getting close enough to read the license plate. He called Papa John's and reported the robbery and the plate number

Police officers from the Union Township Police Department were dispatched to the scene of the crime, where they photographed boot prints in the snow leading to the driveway of 104 Waldorf Place. At approximately 11:25 p.m., Moise gave a statement to Detective Kevin Kalendek, which included the assailant's license plate number, which included the number 8. Because that plate number did not match any vehicle on record, as per police departmental procedure, the 8 was replaced with a B and produced a match to the plate of a silver 2002 Lexus registered to an individual living in Roselle Park.

Kalendek and several other police officers drove to the Roselle address and set up surveillance. At approximately 3:00 a.m. on March 18, 2004, co-defendant Vincent Price arrived driving the silver Lexus. The officers stopped the vehicle and told Price they were investigating a robbery from earlier that evening. Price told the officers he was at the home of his girlfriend, Priscilla Foster, having his hair braided and that no one had the used his car that night.

The police transported Moise to the Roselle address, where he identified the silver Lexus as the vehicle his assailant had entered after the robbery. Because Price refused to consent to a search of the vehicle, the police secured it, impounded it at police headquarters, and later searched it. The search of the trunk revealed a red bag containing a sawed-off shotgun, a pair of black Nike sneakers, a black jumpsuit, a black fatigue jacket, a black knapsack case, a Papa John's receipt dated March 17, 2004, with "104 Waldorf Place, Vauxhall, New Jersey" written on it.

The police then proceeded to Foster's home where, pursuant to a consent search, they found a torn Papa John's pizza box, a Papa John's promotional basketball, and a torn Papa John's advertisement.

On March 19, 2004, Kalendek searched defendant's bedroom.1 He found a pair of beige work boots, a pair of black Timberland boots, a black flight jacket, a black ski mask, a Papa John's pizza box, a Papa John's label with the address "104 Waldorf Place" written on it, and a pair of dark brown gloves, among other items.

Defendant claimed he was not involved in the robbery and was home at the time it occurred. He testified that at approximately 8:00 p.m. on March 17, 2004, his friends, Quentin Julien, Mike Banasiak, and Jessica Santosusso, came to his home, they all went to the basement to play video games, watch TV, and "just chill," and they remained there until approximately midnight. Shmar was also there, but he was on his side of the basement, laying down, possibly sleeping.

Defendant also testified that at approximately 10:45 p.m., he went upstairs and briefly spoke to Price, who was outside holding a Papa John's pizza box. Price asked defendant if he could come inside and "chill" but defendant said no. Defendant asked Price for a slice of pizza, whereupon Price gave him the pizza box. Defendant took the box down to the basement, where he remained with his friends until shortly after midnight.

Defendant further testified that the pairs of boots found in his bedroom belonged to Shmar and his cousin. He also testified that the ski mask was not his and asserted that his stepfather wore such ski masks while working outdoors. Contrary to the State's assertion, defendant never said the ski mask belonged to Shmar. Defendant also testified that he is 6'1" tall and weighs between 320 and 330 pounds, and Shmar is between 6'3" and 6'4" tall and weighs approximately 270 pounds.

Defendant's mother testified that defendant was home when she arrived there at approximately 6:30 p.m. on March 17, 2004. Defendant's friends arrived at approximately 8:00 p.m. or 9:00 p.m. and went to the basement. Sometime after 10:30 p.m., defendant came upstairs, went outside, spoke to someone, returned with a pizza box, and brought it downstairs.

Banasiak testified that he arrived at defendant's home at approximately 8:00 p.m. and stayed with defendant in the basement until midnight. Defendant went upstairs for a few minutes "to go to the bathroom or something" but never left the house while Banasiak was there.

Julien testified that he arrived at defendant's home at approximately 8:00 p.m., stayed with defendant in the basement until midnight, and Shmar was not in the room. Defendant went upstairs for about ten minutes at approximately 10:45 p.m. and came back downstairs with a Papa John's pizza. Defendant never left the house while Julien was there.

Defendant was convicted of first-degree robbery, second-degree possession of a weapon for an unlawful purpose, third-degree unlawful possession of a weapon, fourth-degree aggravated assault, and, and third-degree possession of a weapon. The trial judge imposed an aggregate On appeal, he raises the following contentions:

POINT I

THE TRIAL COURT ERRONEOUSLY GAVE A CLAWANS CHARGE CONCERNING DEFENDANT'S FAILURE TO ADDUCE THE TESTIMONY OF HIS BROTHER, SHMAR, THEREBY DEPRIVING DEFENDANT OF HIS RIGHT TO A PRESUMPTION OF INNOCENCE AND HIS RIGHT TO COMPEL THE STATE TO PROVE ITS CASE BEYOND A REASONABLE DOUBT

 

POINT II

 

INADMISSIBLE TESTIMONIAL HEARSAY WAS ADMITTED. U.S. CONST., AMEND. VI; N.J. CONST., ART. I, PAR. 10. (Partially raised below)

 

POINT III

 

THE STATE SOUGHT TO DRAW AN UNSUPPORTED INFERENCE THAT FOOTPRINTS FOUND LEADING TO THE DRIVEWAY WHERE THE ROBBERY OCCURRED WERE MADE BY BOOTS SEIZED FROM THE BASEMENT OF DEFENDANT'S HOUSE. (Not raised below)

 

POINT IV

 

PREJUDICIAL SUMMATION REMARKS BY CO-DEFENDANT'S COUNSEL SEVERELY PREJUDICED DEFENDANT AND DENIED DEFENDANT A FAIR TRIAL

POINT V

 

TESTIMONY WHICH IMPUTED A CRIMINAL DISPOSITION TO DEFENDANT WAS ADMITTED ERRONEOUSLY (Not Raised Below)

 

POINT VI

DEFENDANT WAS ENTITLED TO A JUDGMENT OF ACQUITTAL, AND HIS CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE

 

POINT VII

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE

 

As for Point I, the State requested a Clawans2 charge for defendant's failure to call Shmar as a witness,3 arguing that Shmar, who was present during the trial, was in defendant's control and had critical information about what happened that evening. Defense counsel objected, arguing that Shmar's testimony was cumulative. The judge granted the State's request, reasoning as follows:

[T]he Court finds that the defendant's brother, who is here, who has been here during the trial, except on the day that he would have been called to [testify], was . . . not called for whatever reason, and the Court finds that this witness does have a special relationship with his brother.

 

Also, it is suggested during the trial . . . that the defendant . . . was giving a description, quite frankly, of his brother as being the person who had committed the crime, and that the cross-examination of [co-defendant's attorney] was suggesting that the defendant would say anything to blame someone else for the crime. Therefore, he has important information, especially since he is the person who it is suggested through the defense in their cross-examination of other State's witnesses as being a person who was involved, and, therefore, his testimony would be important. In fact, the jury would probably like to have heard him and it would be relevant to critical issues.

 

The judge gave the jury the Clawans charge. We conclude this was prejudicial error requiring reversal of defendant's conviction.

Defendant was tried and convicted in 2005, before our Supreme Court decided State v. Hill, 199 N.J. 545 (2009). He filed his notice of appeal on May 29, 2009. The Court decided Hill on July 14, 2009, and did not apply it retroactively. However, on August 17, 2009, we granted defendant's motion to file the appeal as within time, and thus defendant's appeal was in the pipeline at the time the Court decided Hill. Accordingly, we review the Clawans issue under Hill.

Pursuant to Clawans, if a party fails to produce a material witness, the adversary may be entitled to a Clawans charge,4 informing the jury that it may draw an adverse inference that the missing witness's testimony would have been unfavorable to the party. Clawans, supra, 38 N.J. at 170. However, the Hill Court effectively ended the use of Clawans charges against criminal defendants, holding as follows:

Clawans charges generally should not issue against criminal defendants. The inclusion in a criminal trial of a Clawans charge from the court risks improperly assisting the State in its obligation to prove each and every element of a charged crime beyond a reasonable doubt. It is difficult to foresee a situation where a Clawans charge might play a proper role in a case against a criminal defendant. . . Although we will not engage in hypothetical discussions of possible situations in which a negative inference might be argued to arise, suffice it to say that it would be the rare case, if any, that would warrant a Clawans charge from the court.

 

[Hill, supra, 199 N.J. at 566-67 (emphasis added).]

 

The Court suggested that rare cases may include "when a defendant has voluntarily asserted some proof to create an affirmative defense," or when a defendant "asserts new facts about an alibi in defense[.]" Id. at 569.

The State argues it was entitled to a Clawans charge because defendant claimed Shmar owned the black boots found in his bedroom and should have called him to buttress this claim. However, this testimony did not relate to an assertion of proof to create an affirmative defense or an assertion of new facts about an alibi defense. Thus, a Clawans charge was improper.

Further, a Clawans charge would not have been proper even pre-Hill. Prior to Hill, "[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." Clawans, supra, 38 N.J. at 171. However, "the inference is not proper if the witness['s] . . . testimony would be cumulative, unimportant or inferior to what had been already utilized[,]" or where both parties having knowledge of an available witness's identity fail to call that witness. Ibid.

Because Shmar was present during the trial, he was not within defendant's sole power to produce but was available to the State by the subpoena power. Further, considering that defendant called three other alibi witnesses, Shmar's testimony would have been cumulative at best, and worthless at worst because he was not in defendant's bedroom and was purportedly asleep at the time in question.

Having reached this conclusion, we need not address defendant's contentions in Points III, IV, V, VI and VII.5 However, we address defendant's contention in Point II for guidance in the event of a re-trial.

In Point II, defendant contends that the trial judge improperly permitted prejudicial hearsay testimony. The first alleged error occurred when, on cross-examination, Kalendek was asked whether he believed there were one or two bedrooms in the basement of defendant's home. The officer responded:

I only saw one bed there. And upon entering the house we spoke to . . . [defendant's mother], and I asked specifically for [defendant's] bedroom, and she directed me downstairs.

 

Defendant argues that this statement constitutes inadmissible hearsay from his mother identifying the downstairs bedroom as his.

The second alleged error occurred when Detective Michael O'Brien, a fingerprint identification officer, testified that he had no personal knowledge that the area of the basement he searched was defendant's bedroom, but other officers and defendant's mother told him it was.

The State acknowledges that the judge improperly admitted these two hearsay statements. However, the State argues that this constituted harmless error. We disagree.

The above hearsay testimony was "clearly capable" of leading to an unjust result, State v. Macon, 57 N.J. 325, 337 (1971), and must not be repeated at the re-trial. Moise did not identify his assailant, and defendant's fingerprints were not found on any of the items seized from the Lexus. Thus, identifying the bedroom as defendant's was crucial, as that is where the police found evidence inculpating defendant in the robbery. Accordingly, identification of the bedroom as defendant's should not have been accomplished through inadmissible hearsay.

We find no merit in defendant's third claim of inadmissible hearsay. During Kalendek's direct examination, he was twice asked how defendant became a suspect. The trial judge sustained defense counsel's objection to the question, and thus, Kalendek did not answer. Defendant cites no authority requiring the judge to strike the questions from the record.

Reversed and remanded for a new trial.

1 Except for evidence that defendant and Price were friends, the record does not reveal how the police came to suspect that defendant was involved in the robbery.

2 State v. Clawans, 38 N.J. 162 (1962).

3 The State also requested a Clawans charge for defense's failure to call Santosusso, which request the trial judge denied.

4 See Model Jury Charge (Criminal), "Witness - Failure of Defendant to Produce" at n.2 (2010).

5 As to defendant's contention in Point III relating to the footprint evidence, the Court, in State v. Johnson, 120 N.J. 263, 294 (1990), held that expert testimony is not required for a comparison of the crime-scene footprint to the defendant's shoe.