STATE OF NEW JERSEY v. TERRANCE LAMONT TRAVERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6044-07T46044-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRANCE LAMONT TRAVERS,

Defendant-Appellant.

___________________________________

 

Argued April 14, 2010 - Decided

Before Judges Cuff, Miniman and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 05-05-0440 and 05-05-0513.

Alison Perrone, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Perrone, on the brief).

Brian Uzdavinis, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Mr. Uzdavinis, of counsel and on the brief).

PER CURIAM

Defendant Terrance Lamont Travers appeals convictions arising out of an indictment charging him with attempted murder, robbery, carjacking, and related weapons offenses. He also appeals the aggregate sentence of twenty-six years of incarceration, subject to an eighty-five percent parole ineligibility period, resulting from those convictions and his plea to one count of an unrelated indictment involving controlled dangerous substances.

Because we conclude that the prosecutor made improper arguments during summation with respect to the robbery, carjacking, and one of the weapons counts, we reverse those convictions. We affirm as to the lesser-included offense of aggravated assault and the remaining weapons charges. We remand for resentencing in light of our decision and, if the State so elects, retrial on the reversed counts.

I.

The following operative facts and procedural history are found in the record.

A.

On the evening of August 23, 2004, Officer Gairy Robinson of the Trenton Police Department was on "off-duty employment providing police security for the Trenton Housing Authority," along with Police Officers Cynthia Hargis, Marlon T. Parrott, and Bethesda Stokes. At approximately 11:00 p.m., the officers were investigating a disturbance near the Donnelly-Page housing projects in Trenton. While the other officers went into a courtyard to investigate, Robinson remained near their vehicle, which was parked on Martin Luther King Boulevard several feet away from Southard Street.

According to Robinson, a blue Chrysler Pacifica pulled up next to the vehicle, about three to four feet away from where he was standing. Robinson saw Taahira Silver jump out of the vehicle from the front passenger seat. He described her as "crouched down screaming[:] 'He's got a gun. He's going to shoot us. He's going to kill us.'" As Silver ran past Robinson, Travers exited the vehicle from the backseat on the passenger side of the car and started to walk away. Robinson told Travers to stop, but he continued to walk.

Robinson related that he attempted to restrain Travers, but that Travers began running away from him and crossed the street. As Robinson gave chase to Travers, he observed another man exit the vehicle from the rear seat on the driver's side and run past both of them. Robinson chased the two men as they headed down an alleyway next to a school. The second man jumped onto a parked car and over a fence, at which point Robinson lost sight of him.

Robinson testified that he continued his pursuit of Travers. After Travers made a left turn around the school and into an alley, he fell and Robinson began to catch up to him. As Robinson approached, Travers started to get up from the ground and began shooting at Robinson, who returned fire until Travers fell to the ground again.

Hargis testified that a crowd had gathered in the courtyard where the initial disturbance had taken place, but that the crowd had started dispersing when the officers arrived. Hargis and Parrott testified that, while they were investigating the disturbance, people started running toward them screaming: "He has a gun." Hargis and Parrott ran out of the courtyard and saw Robinson chasing a man down the alley. They proceeded to follow after Robinson.

According to the trial testimony, when Hargis and Parrott arrived at the scene of the shooting, Robinson directed Parrott to put out an alert for the second man. Robinson and Hargis then approached Travers and handcuffed him. Hargis testified that she saw a gun near Travers' hand and kicked it away. Parrott called for an ambulance, and Travers was taken to a hospital.

Stokes testified that she was following the other officers into the courtyard when she heard shots. At that point, she returned to the patrol car, where she observed Silver, who was visibly shaken, and the driver of the Pacifica, Robert LaGuerre, who was bleeding from the side of his head. LaGuerre testified that he subsequently left the scene because he wanted to lie down as the result of his injury.

Silver was taken to police headquarters. Later that night, she guided Trenton Police Sergeant Christopher Doyle to the location where she and LaGuerre had first seen Travers that evening. According to Doyle, he observed a vehicle with flat rear tires parked at the site. The vehicle was registered to Travers' mother.

Doyle and Silver returned to police headquarters, where Silver eventually gave Doyle a statement to the effect that she had been the victim of a carjacking. Although Silver knew Travers, she only knew his street name. After reviewing photographs provided by police, Silver identified Travers as one of the individuals who took part in the carjacking. She also identified LaGuerre as the other victim.

LaGuerre, whom Doyle had initially been unable to locate, came to Trenton police headquarters on August 25, 2004. According to Doyle, LaGuerre had injuries on his head, adjacent to his right ear. Doyle obtained a statement from LaGuerre, in which he identified Travers as one of the carjackers. He stated that Travers had held a gun to Silver's head, and that the other alleged carjacker, Ibriham Blackman, had hit him on the head with a gun.

B.

On May 6, 2005, Travers was indicted for first-degree attempted murder, contrary to N.J.S.A. 2C:11-3 and 2C:5-1 (count one); first-degree carjacking, contrary to N.J.S.A. 2C:15-2 (count two); two counts of first-degree robbery, contrary to N.J.S.A. 2C:15-1 and 2C:2-6 (counts three and four); two counts of second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (counts five and six); and third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b) (count seven).

On May 26, 2005, Travers was indicted on charges of third-degree possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10(a)(1) and 2C:2-6 (count two); third-degree possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(3) and 2C:2-6 (count 3); third-degree possession of a controlled dangerous substance with intent to distribute on or near school property, contrary to N.J.S.A. 2C:35-7, 2C:35-5(a)(1), 2C:35-5(b)(3) and 2C:2-6 (count four); and second-degree possession of a controlled dangerous substance with intent to distribute on or near a public facility, contrary to N.J.S.A. 2C:35-7.1, 2C:35-5(a)(1), 2C:35-5(b)(3) and 2C:2-6 (count five). The second indictment was not related to the first, and involved events alleged to have taken place on a different date.

Prior to trial on the first indictment, Silver and LaGuerre took the position that they had no recollection of the events of August 23 or their subsequent statements to the police. On November 27 and 28, 2007, the trial judge held a Rule 104 hearing to determine whether to admit Silver and LaGuerre's statements at trial. At the hearing, both Silver and LaGuerre testified that they could not recall the incident and that they did not recall giving statements to the police. Doyle testified that he witnessed both of them identify Travers and give their statements, which he personally typed.

Prosecutor's Detective Thomas Watters testified that, during a trial preparation session, he spoke with LaGuerre, who was incarcerated in Pennsylvania. Over a video conference hook-up, LaGuerre related essentially the same facts as were contained in his statement, which, according to Watters, LaGuerre did not then have in front of him. Watters also testified that LaGuerre expressed concerns about testifying because he had family members in Trenton and Travers had "people that are loyal to him and that Mr. Travers is a dangerous individual."

Watters testified that LaGuerre was less cooperative during a subsequent video conference, at which time he again expressed concerns about the safety of his family and himself. When Watters transported LaGuerre to Trenton for the trial, LaGuerre told Watters that he was still concerned about his and his family's safety, but that he would cooperate. He stated that he had not been threatened by "Travers or anybody else," but that "he believed someone had gotten to" Silver.

The judge determined that, assuming the witnesses took the same position at trial, relevant portions of their statements would be admissible as past recollection recorded pursuant to N.J.R.E. 803(c)(5). She directed that those portions of the statements be read to the jury, but that the statements themselves not be introduced into evidence because Travers objected.

The judge concluded that the statements were corroborated by physical evidence and observations made by the police officers. She also noted that defense counsel would have an opportunity to cross-examine both witnesses at the trial. Finally, relying on State v. Burns, 192 N.J. 312, 333 (2007) ("[o]nce a witness refuses to testify, the trial court should instruct the jury not to draw any inference against the defendant from that refusal"), the judge stated that the jury would be given an instruction not to draw any negative inferences from the witnesses' lack of recollection.

When defense counsel expressed concern that the State would suggest that Silver and LaGuerre were afraid of Travers, the judge specifically directed that, "unless there is an actual threat that a witness can testify to personally and not as a result of one person hearing a threat extended to another, then there shall be no reference by the State in argument or in form of a question [as to] any threats."

The prosecutor then suggested that he might have to "react" to the defense case and "offer alternative theories as to why things may be the way they are." The judge responded: "Beginning at ground zero here, no suggestion of threat absent testimony that one was actually received; and based on what I heard that doesn't appear to be the case."

The jury trial on the first indictment started on December 3, 2007. LaGuerre testified, as he did at the Rule 104 hearing, that he did not recall the incident that occurred on August 23, 2004, and that he did not recognize the statement that Doyle testified he had given to police. He also testified that he had no recollection of giving the police the information in the statement.

The trial judge permitted the State to read portions of LaGuerre's statement and then ask LaGuerre if he had made them. LaGuerre generally answered that he did not remember. Through that process, the following information was put before the jury:

"I drove up Brunswick Avenue and turned left onto Miller Street. Then I made another left onto Dexter Street. As I turned left onto [Dexter], I saw two guys standing on the sidewalk next to a green car. So I looked and I recognized one of the two guys was Terrance Travers. So I stopped and rolled the window down and said, 'what up, baby?' Terrance Travers said -- that was when my side back door opened up and the guy that had been standing with Terrance Travers on the sidewalk got in and sat behind me. I looked back at the guy and he pulled a gun out and put it to my head. So I turned back looking forward."

. . . .

. . . "Then, the guy that was sitting in back of me and had a gun to my head said, 'you know what it is. Give it up.' I looked back and saw that Terrance Travers was holding a gun to Taahira's head. Then Terrance Travers said, 'pull off, pull off,' and then the guy with the gun to my head said" . . . .

. . . .

"Finally, after a shouting match between Terrance Travers and the guy with the gun to my head, I put the car in gear and started driving. When I got to the stop sign, I didn't stop. I just was driving slow, and Terrance Travers told me to turn left, but it was too late for me to turn, so the guy with the gun to my head started hitting me with the gun on the right side of my head by my ear . . . . "

. . . .

. . . "Then the guy with the gun to my head started smacking me with the gun again in the same spot by my right ear. Then Terrance Travers kept telling me to turn. So when I got to where East Paul Avenue and the Boulevard meet, I turned left on the Boulevard and started driving towards Southard Street. Then Terrance Travers started pushing the gun up against the back of Taahira's head and the guy started smacking me with the gun again by my right ear."

. . . .

. . . "As I was driving down the Boulevard and getting hit, I kept taking my foot off the gas, so the car was driving real slow. And when we got to where Donnelly Homes is by Martin Luther King, Jr. School, I saw a white car double-parked by where the walk-through is."

. . . .

"As I got closer to the car, I recognized the car, and knew it was one that the police use to patrol the area of the Donnelly Homes."

. . . .

"So I stopped next to the white car and saw Officer Gairy standing by the car. When I saw Officer Gairy, me and Taahira started screaming, 'help, they're trying to rob us. They're trying to kill us. They got guns.'"

. . . .

"After I yelled that, [Travers] jumped out of Taahira's car, and then the guy that had the gun to my head got out of the car and then he started to run. Then Officer Gairy instantly reacted and yelled for them to stop, but they kept on running."

. . . .

"Then a short female officer ran towards us, and we told her that they were trying to kill us and that I think he left the gun in the back seat. The officer went and looked through the driver's side back door, and I was with her."

. . . .

. . . "I was holding my head and there was blood coming from [my] head. Then we were standing on the sidewalk near the walk-through by Donnelly Homes, and everybody was telling me to sit down, but I felt so drowsy, I didn't want to sit down. So I hung around for a couple minutes."

. . . .

"Then I walked through the walk-through holding my head, and I went to the store on Southard Street and waited for my friend to pick me up."

On cross-examination, LaGuerre testified that he had never been questioned by a Trenton police officer. When asked whether he knew why there was $8,400 cash in the Pacifica and why a Trenton Police K-9 dog "hit positive" for drugs in the vehicle, he responded "no" to both questions. He also specifically denied that Travers robbed or carjacked him on August 23, 2004.

Silver's trial testimony was also similar to her testimony at the hearing. She acknowledged that she recognized the statement as "the statement of [her]self" and that the signature on the statement "looks like it could be [hers]." However, she testified that she could not recall giving the statement, that she did not know what occurred on the evening of the incident, and that she did not recognize the answers within the statement.

As was done with LaGuerre, portions of her statement were read to her and she generally denied remembering the questions and answers. The following information was put before the jury:

"So then, so then Rob drove and made a left on Miller Street, then a left on Dexter Street. While Rob was driving on Dexter, I see, . . . Terrance, Standing next to a green car with tints talking with a guy in the car."

. . . .

. . . "So Rob stopped and Terrance Travers walked up to my car and said to him, and I said to him, 'what's up Terrance,' and then Terrance said, 'what's up, what's good.'"

. . . .

. . . "So then Terrance opened the back door and got into the truck and he sat behind me."

. . . .

. . . "Then he said 'What's good? What are you getting into tonight?' . . . So then the driver's side rear door opened up, so I turned around and looked back and I saw a dark skinned boy with either a red or burgundy shirt and glasses on get in and sit behind Rob."

. . . .

. . . "I got a quick glance of him, and I saw him pull a gun out and point it straight at Rob's head. And then Terrance put a gun to my head, and he was holding my left shoulder to the seat."

. . . .

"Then I noticed that we were on MLK Boulevard going to the direction of Southard Street. So then the boy behind Rob hit Rob in the head with a gun. So then Rob started swerving a little bit, and he stopped."

. . . .

. . . "Then I heard Rob say, 'Officer, they're trying to kill us.' When I heard Rob say that, I opened the door real fast and I started running. As I was running, I seen officers running past me."

. . . .

. . . "So then I went back to where the police car and my truck was, and I saw Rob's head bleeding, and asked him if he was all right, Rob said that he was all right. I was standing there looking all around."

On cross-examination, Silver acknowledged that she had actually known LaGuerre for a significantly longer time than the month-and-a-half mentioned in the statement. She acknowledged that she used drugs, and that she probably obtained drugs from LaGuerre, but she was not sure if she had done so at that time. She also stated that she did not know how the $8,400 got into the glove compartment, but remembered being asked about it.

During summation, the assistant prosecutor made the following argument to the jury:

Now, let's talk about the last thing, about the victims in this case. There are three. Two of them you heard about, you heard from [them] on this witness stand, and they told you, "I don't recall." And as you listen to my closing, I want you to think real hard about why they got on that stand and said I don't recall. They didn't get on that stand and say, no, it didn't happen. They didn't get on that stand and say, yeah, I remember being in Trenton back in August of 2004, but I can't remember this incident.

Let's set that aside because, I mean, really, talk about credibility issues. You are carjacked. You are robbed. A person holds a gun to your head. You run out of the car screaming. Everybody testified she was screaming, Taahira Silver. He's got a gun. He's trying to kill us. Then you spend 12 hours with the police, including driving to different locations in Trenton, giving a formal statement, signing not only the formal statement, but two photographs identifying the people involved in this case. You have no memory of it? Ladies and gentleman, I think you can, you can probably figure out what's going on here. This kind -- think about what happened to them. Think about the violence that happened in this case....

At that point, defense counsel objected, pointing out that the judge had given "a specific instruction that addresses that issue."

At side bar, the judge reminded the prosecutor that she had "instructed the jury, and [would] instruct them again, they can't draw any inference against this defendant from the claimed lack of recollection." The trial judge warned the assistant prosecutor that his comments ventured into "a little dangerous territory." The assistant prosecutor continued his summation on a different point.

Later in his summation, the assistant prosecutor made the following statements about Robinson's testimony:

Let's talk about Officer Gairy Robinson in this case. You have a slide up for you, but basically, this case comes down to a simple choice, a very stark choice, a black and white choice. And that choice is, do you believe Gairy Robinson. It really is that simple. Because if you believe Gairy Robinson, Terrance Travers is guilty of every charge in this case. And I'll tell you why in a moment.

. . . .

As I said to you, it's a simple choice in this case, very simple. . . . either you believe Gairy Robinson, and you convict this defendant, or you don't believe him. And there's no in between . . . in this case. As I said no, not guilty, yes, guilty. Ladies and gentleman, the evidence in this case corroborates Gairy Robinson.

. . . .

Now, basically, there's two versions of what happened on August 23, 2004. You have the defense version, which is the grand conspiracy to frame the defendant because Gairy Robinson shot him unarmed, in the back. Grand conspiracy. And so basically, it comes down to Gairy Robinson is lying. Cynthia Hargis is lying. Marlon Parrott is lying. Beth Stokes is lying. . . . Doyle is lying. Gerry Chrzanowski is lying. Trying to make sure I get them all.

It's not that he's mistaken, no. They're framing a guy. Not inattentive, no. They're framing a guy. There is no evidence in this case to support that. None. It's pure speculation.

Now, what's the version supported by the evidence? Well, it's what Gairy Robinson told you. It's the version with credible witnesses. You, when you saw those witnesses, now you'll judge the demeanor of the witnesses. That's part of what you have to do in making credibility determinations.

. . . .

The conspiracy. So what motive does Gairy Robinson have to lie? How many people are in on the conspiracy in this case? Was it two, Cynthia Hargis and Gairy Robinson? Well, that wouldn't be enough, right, because you need more than that. Is it four? Is it Bethesda Stokes and Marlon Parrott? No. Is it six? ... No, you need more people than that. Is it eight? ... Yeah, I don't know. Is it sixty-three? Sixty-three officers were out there who were involved in this case. That's what Detective Doyle told you. What do you think those officers were out there doing? Seems reasonable to me. They're looking for the guy in the burgundy shirt.

. . . .

I started off, ladies and gentlemen, this case presents to you a simple choice. Do you believe Gairy Robinson? And if you believe Gairy Robinson, there is only one verdict that can happen in this case, and that is guilty on all counts. Thank you very much.

Defense counsel did not object during that portion of the assistant prosecutor's summation.

The jury found Travers guilty of the lesser-included offense of aggravated assault, rather than attempted murder as charged in the first indictment. It also convicted him on all of the remaining counts of the first indictment. On December 18, 2007, Travers pled guilty to possession of a controlled dangerous substance with the intent to distribute on or near school property, which was charged in the fourth count of the second indictment.

On March 12, 2008, the trial judge sentenced Travers on the first indictment, merging count five into counts two and three, and count six into count one. The judge imposed a nine-year sentence on the first count, aggravated assault. She imposed concurrent seventeen and fifteen year terms on the carjacking and robbery offenses, respectively, counts two and three, to be served consecutive to the nine-year term on the first count. She imposed shorter, concurrent terms on the remaining offenses, as well as the drug offense to which Travers had pled guilty. The aggregate twenty-six year sentence is subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

This appeal followed.

II.

Travers raises the following arguments on appeal:

POINT ONE: THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONTATION BY IMPROPERLY ADMITTING THE VICTIMS' HEARSAY STATEMENTS TO THE POLICE.

A. The statements provided by Taahira Silver and Robert LaGuerre were not admissible under N.J.R.E. 803(a)(1).

B. Even if the Rules of Evidence permitted introduction of the statements, admission of the statements violates the confrontation clause.

POINT TWO: THE ASSISTANT PROSECUTOR'S INSINUATION IN SUMMATION THAT DEFENDANT HAD INTIMIDATED OR THREATENED THE STATE'S WITNESSES SO THAT THEY WOULD NOT TESTIFY AGAINST HIM AT TRIAL WAS SO PREJUDICIAL AS TO DENY DEFENDANT A FAIR TRIAL AND REQUIRE THE REVERSAL OF HIS CONVICTIONS.

POINT THREE: THE ASSISTANT PROSECUTOR EXCEEDED THE BOUNDS OF PROPRIETY WHEN HE VOUCHED FOR THE CREDIBILITY OF THE STATE'S WITNESS, INDICATED PERSONAL KNOWLEDGE OF THAT WITNESS' CREDIBILIITY AND PRESENTED THE CASE AS A MERE CREDIBILITY BATTLE BETWEEN THAT WITNESS AND THE DEFENDANT. (Not raised below).

POINT FOUR: DEFENDANT'S RIGHTS UNDER THE CONFRONTATION CLAUSE WERE VIOLATED BY THE ADMISSION OF A POLICE OFFICER'S HEARSAY TESTIMONY THAT A "BIG CROWD" TOLD HER THAT THE INDIVIDUAL SUBSEQUENTLY IDENTIFIED AS DEFENDANT HAD A GUN.

POINT FIVE: THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE v. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. 104[, 106 S. Ct. 1193, 89 L. Ed. 2d 308] (1986).

POINT SIX: DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE.

A.

We turn first to the issues raised with respect to the admission of evidence at the trial.

Our standard of review requires us to give "substantial deference to a trial [judge's] evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We review such decisions under "an abuse of discretion standard." Burns, supra, 192 N.J. at 332. "[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). The trial judge appropriately held a Rule 104 hearing, and her factual findings resulting from that hearing are also entitled to deference. State v. Robinson, 200 N.J. 1, 15 (2009). Our review of the judge's purely legal conclusions, however, is plenary. State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

i.

Travers challenges the introduction at trial of the substance of the statements given to the police by Silver and LaGuerre. He argues that they were not properly admitted because the statements were unreliable hearsay and that, in any event, their admission was improper under the Confrontation Clause of the United States Constitution and the New Jersey Constitution.

The governing rule of evidence, N.J.R.E. 803(c)(5), provides as follows:

RECORDED RECOLLECTION. A statement con- cerning a matter about which the witness is unable to testify fully and accurately because of insufficient present recollection if the statement is contained in a writing or other record which (A) was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness, and (B) was made by the witness or under the witness' direction or by some other person for the purpose of recording the statement at the time it was made, and (C) the statement concerns a matter of which the witness had knowledge when it was made, unless the circumstances indicate that the statement is not trustworthy; provided that when the witness does not remember part or all of the contents of a writing, the portion the witness does not remember may be read into evidence but shall not be introduced as an exhibit over objection.

To the extent the witnesses gave trial testimony that was inconsistent with their statements, the inconsistent portions of the statements would also be admissible as prior inconsistent statements under N.J.R.E. 803(a)(1), as the trial judge observed. See Burns, supra, 192 N.J. at 337.

Travers argues that, because the trial judge failed to enumerate and discuss the factors outlined in State v. Gross, 121 N.J. 1, 10 (1990), her decision at the Rule 104 hearing must be reversed. Those factors are:

(1) the declarant's connection to and interest in the matter reported in the out-of-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion of the summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducement or coercion for making the statement, (13) whether the anticipated use of the statement was apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement, and (15) the presence or absence of corroborating evidence.

Although the factors were not specifically mentioned at the hearing, most of the underlying factual information was developed through Doyle's testimony.

According to Doyle, Silver was never viewed as a suspect, nor was she in custody. Instead, she was viewed as the victim of criminal activity. Doyle described her as "shaken" and in a "state of disbelief." Although she had been up all night and into the morning, she declined the opportunity to go home and give her statement at a later time. Doyle saw no signs that she was under the influence of drugs or alcohol. The statement was taken by Doyle in an office at police headquarters. No recording devices were used for the statement. Instead, Doyle testified that he typed the questions and answers. LaGuerre was interviewed under similar circumstances a few days later. He came to police headquarters voluntarily. There was no evidence of coercion with respect to either of them.

There was corroboration of the statements given by LaGuerre and Silver, which were generally consistent with each other although not identical. Prior to giving her statement, Silver took Doyle to the scene of the alleged carjacking. While there, Doyle observed a vehicle that was registered to Travers' mother and had two flat tires. When he was interviewed, LaGuerre still had the marks of the injuries witnessed by Silver and some of the police officers at the scene. Robinson observed Travers emerging from the Pacifica, which had been rented by Silver, and driven by LaGuerre.

The theory of the defense was that Silver and LaGuerre were involved in drug dealing, and that they fabricated the story about Travers and the carjacking to divert suspicion from themselves. While the presence of a large amount of cash, LaGuerre's reputation as a drug dealer, a "hit" by a drug-sniffing K-9 dog, and the demand by Blackman that LaGuerre "give it up" lend credence to the theory that Silver and LaGuerre were engaged in illegal activity earlier that night, those facts are also consistent with Travers and Blackman having engaged in a carjacking or a robbery, or both. The object of the robbery could have been the $8,400 or the Pacifica, or both. The cash could have been the "it" sought by Blackman, who beat LaGuerre when he refused to "give it up."

Our review of the record leads us to conclude that the trial judge did not abuse her discretion in allowing the use of the statements after Silver and LaGuerre claimed that they did not remember the events of that evening or the statements themselves. Although Silver and LaGuerre may have had a motive to focus the attention of the police away from their conduct earlier that night, neither of them was in custody or being treated as a suspect when they gave their statements. There was sufficient corroboration of the statements to render them "reliable" for the purposes of Gross.

Travers also contends that, even if properly admitted under an exception to the hearsay rule, the use of the statements violated his rights under the Confrontation Clause because the witnesses were, in effect, unavailable for cross-examination due to their real or feigned inability to recall the events at issue. The United States Supreme Court has held, however, that "neither the Confrontation Clause nor Federal Rule of Evidence 802 is violated by admission of an identification statement of a witness who is unable, because of a memory loss, to testify concerning the basis for the identification." Owens v. United States, 484 U.S. 554, 564, 108 S. Ct. 838, 845, 98 L. Ed. 2d 951, 961 (1988).

In State v. Nyhammer, 197 N.J. 383, 412-13, cert. denied, ____ U.S. ____, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009), our Supreme Court observed:

"[T]he Confrontation Clause places no constraints at all on the use of [a witness's] prior testimonial statements," provided that "the [witness] appears for cross-examination at trial." [Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct. 1354, 1369 n.9, 158 L. Ed. 2d 177, 197 n.9 (2004)]. In other words, the "[Con-frontation] Clause does not bar admission of a statement so long as the [witness] is present at trial to defend or explain it." Ibid. However, "[t]estimonial statements of witnesses absent from trial [are] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197.

The Appellate Division held that [the witness]'s "complete inability" to detail at trial "any of the material facts" of the sexual abuse and her inability "to testify about her prior statements" meant that defendant had "no opportunity for an adequate and meaningful cross-examination at trial." [State v. Nyhammer, 396 N.J. Super. 72, 89-90 (2007)]. For that reason, and because defendant also had no prior opportunity to cross-examine [the witness], the Appellate Division concluded that the admission of the videotape statement violated the principles enunciated in Crawford. Id. at 90.

We now hold that the admission of [the witness]'s videotape statement did not violate either the federal or state Confrontation Clause. Although defendant had the opportunity to cross-examine [the witness] on the core allegations contained in that statement, he declined to do so at trial. However unresponsive [the witness] may have been on direct-examination, as contended by defendant, he had the opportunity to question her on the inculpatory statements and descriptions she gave in her taped interview. It is "irrelevant that the reliability of some out-of-court statements cannot be replicated, even if the [witness] testifies to the same matters in court." Crawford, supra, 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9, 158 L. Ed. 2d at 197 n.9 (citation and internal quotation marks omitted).

Travers argues that Owens and Nyhammer do not apply here because the witnesses' loss of memory was feigned and, in any event, so extensive as to render their presence for cross-examination meaningless. He points to the language in Nyhammer in which the Court noted that, "[h]ad counsel directly confronted [the witness] on her claims on cross-examination and had she remained completely silent or unresponsive, then we would have a record on which to decide whether her silence or unresponsiveness effectively denied defendant his constitutional right of confrontation." Id. at 414.

At trial, defense counsel had the opportunity to cross-examine both LaGuerre and Silver. When questioned directly about the events underlying the charges against Travers, LaGuerre denied that those events took place. Consequently, it cannot be said that LaGuerre was not subject to meaningful cross-examination.

Silver was never directly questioned about the carjacking during cross-examination, so we cannot ascertain whether she would have testified, as did LaGuerre, that there had been no crime committed or whether she would have responded that she did not recall. Nevertheless, our review of the record as a whole, in light of the applicable law, convinces us that Travers was not denied his constitutional right of confrontation with respect to Silver or LaGuerre.

Consequently, we find no error in the admission of those portions of the statements given by LaGuerre and Silver that were read to the jury during their testimony.

ii.

Travers also challenges the admission of Parrott and Hargis's testimony that members of the crowd shouted "he's got a gun." He alleges that this portion of their testimony was also inadmissible hearsay and that he was, again, denied his right of confrontation.

Our review of the record convinces us that the trial judge did not abuse her discretion in permitting the testimony. The facts adduced at trial support a determination that the statements attributed to members of the crowd were admissible as excited utterances. The applicable rule, N.J.R.E. 803(c)(2), excludes from the general bar of the hearsay rule, N.J.R.E. 802, a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." Each of the essential elements were satisfied in this case. See State v. Branch, 182 N.J. 338, 365 (2005) ("The essential elements of an excited utterance are (1) '[a] statement relating to a startling event or condition;' (2) 'made while the declarant was under the stress of excitement caused by the event or condition;' and (3) 'without opportunity to deliberate or fabricate.'").

Because the statement about the gun was "non-testimonial," the testimony was admissible under the Supreme Court's holding in State ex rel. J.A., 195 N.J. 324 (2008), that the Confrontation Clause does not bar "non-testimonial" hearsay at trial.

In Davis [v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)], the Supreme Court concluded that the statements made by the domestic violence victim to the [9-1-1] operator, identifying her husband as her assailant, were nontestimonial. Id. at 827-28, 126 S. Ct. at 2276-77, 165 L. Ed. 2d at 240-41. The Court stressed that the defendant was in the process of beating his wife, the declarant, while she spoke with the [9-1-1] operator. Ibid. Thus, the declarant-victim was "speaking about events as they were actually happening, rather than describ[ing] past events." Id. at 827, 126 S. Ct. at 2276, 165 L. Ed. 2d at 240 (quotation omitted) (alteration in original). Although the Court recognized that "one might call [9-1-1] to provide a narrative report of a crime absent any imminent danger," the woman in Davis was "plainly [calling] for help against a bona fide physical threat." Ibid. Viewed objectively, the "primary purpose" of the victim's statements was to resolve an ongoing emergency, not "to learn . . . what had happened in the past." Id. at 827-28, 126 S. Ct. at 2276-77, 165 L. Ed. 2d at 240.

Because the victim's [9-1-1] statements were not "testimony" in the Sixth Amendment sense--an account of a past event--but rather a cry for help "to enable police assistance to meet an ongoing emergency," id. at 828, 126 S. Ct. at 2277, 165 L. Ed. 2d at 240, the admission of those statements did not violate the Confrontation Clause. Id. at 828-29, 126 S. Ct. at 2277, 165 L. Ed. 2d at 240-41.

[Id. at 345-46 (footnote omitted).]

The testimony given by Parrot and Hargis was that the crowd was running away from the location at which Robinson was confronting Travers and seeking assistance from the police.

Consequently, we find no abuse of discretion in the admission of testimony about the crowds shouting that "he has a gun."

B.

We now turn to the issues raised by Travers with respect to the prosecutor's summation.

i.

Travers argues that the prosecutor in his summation improperly vouched for the truthfulness of the police witnesses and also improperly argued that the case came down to Robinson's credibility.

Because this specific issue of impropriety in the prosecutor's summation was not raised by defense counsel at trial, it is evaluated on appeal by the plain error standard. See R. 1:7-2 and R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336-37 (1971). "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). In addition, it is "fair to infer" from failure to object that "in the context of the trial the error was actually of no moment." State v. Ingram, 196 N.J. 23, 42 (2008) (quoting State v. Nelson, 173 N.J. 417, 471 (2002) (internal quotations omitted)).

We find no substance to Travers' assertion of prosecutorial misconduct with respect to this issue. Our review of that portion of the summation, taken in the context of the entire case and the defense summation, reveals no such impropriety. The prosecutor's arguments with respect to the credibility of the various witnesses, including the police officers, were fair comment and based upon facts in the record. See State v. Bradshaw, 392 N.J. Super. 425, 437 (App. Div. 2007), aff'd on other grounds, 195 N.J. 493 (2008). We discern no improper vouching for the credibility of the State's witnesses. It is quite apparent that the State's case with respect to the attempted murder and gun charges turned largely on Robinson's credibility, as the prosecutor argued.

ii.

We take a very different view of Travers' claim that the prosecutor improperly argued to the jury that Travers was responsible for the witnesses' lack of memory through intimidation. As Travers points out, that portion of the summation was patently in contravention of the trial judge's very specific direction at the time of the Rule 104 hearing. Without addressing the issue of the judge's specific prohibition of the prosecutor's argument, the State argues in its merits brief that the prosecutor was "entitled to comment on that evidence during summation" and that he needed to respond to Travers' closing argument, which suggested that the police were attempting to cover-up the shooting of an unarmed man. Those were essentially the arguments rejected by the trial judge following the Rule 104 hearing.

A prosecutor's overriding obligation is "not to obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). They act as representatives "not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935). "'It is as much his 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, supra, 295 U.S. at 88, 55 S. Ct. at 633, 79 L. Ed. at 1321).

There can be no doubt that the prosecutor intended to suggest to the jury that LaGuerre and Silver's recent lack of memory resulted from fear of Travers. After describing the events of the evening and the giving of the statements, the prosecutor continued:

You have no memory of it? Ladies and gentleman, I think you can, you can probably figure out what's going on here. This kind -- think about what happened to them. Think about the violence that happened in this case. . . .

There can also be no question that, in doing so, the prosecutor totally ignored the trial judge's very specific direction, given twice, that he make no such argument.

[U]nless there is an actual threat that a witness can testify to personally and not as a result of one person hearing a threat extended to another, then there shall be no reference by the State in argument or in form of a question [as to] any threats.

. . . .

Beginning at ground zero here, no suggestion of threat absent testimony that one was actually received; and based on what I heard that doesn't appear to be the case.

Because the prosecutor never offered evidence that a threat was "actually received" and never sought to persuade the judge to change her prior ruling, his argument was a blatant violation of the trial judge's specific direction to him and patently improper.

We must next determine whether the prosecutor's misconduct warrants a reversal.

[O]ur standard of review dictates that "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result. . . ." R. 2:10-2. The harmless error standard thus requires that there be "some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." State v. Bankston, 63 N.J. 263, 273 (1973) (citing State v. Macon, 57 N.J. 325, 335-36 (1971)).

[State v. R.B., 183 N.J. 308, 330 (2005).]

"[P]rosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999).

In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court must take into account the tenor of the trial and degree of responsiveness of both counsel and the court to improprieties when they occurred. Specifically, an appellate court must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.

[Ibid. (internal quotations and citations omitted).]

See also R.B. supra, 183 N.J. at 332-33 (quoting the Frost criteria).

In the case before us, defense counsel objected and pointed out to the trial judge that the prosecutor had violated her specific direction that he not make the argument at issue. The prosecutor never withdrew the argument and, in fact, had tried to continue his summation after the initial objection. When defense counsel renewed her objection, the trial judge called counsel to side bar. Although the judge sustained the objection at side bar, she did not immediately direct the jury to disregard the prosecutor's argument, nor did she instruct them at that time that they were not to draw any inferences against Travers based on the witnesses' failed memories.

Instead of taking immediate remedial action, the trial judge gave the following as part of her overall charge later in the day:

Now, I remind you that you may not draw any inference against the defendant based upon a witness's testimony claiming a lack of present recollection. You may only consider testimony, facts and exhibits which are in evidence.

Consequently, except for that language and similar language in the preliminary charge that no adverse inferences be drawn, both of which she had intended to give anyway, the judge did not take any direct corrective action with respect to the prosecutor's clearly inappropriate conduct.

The State argues that there is no reason to doubt that the jury followed the judge's instruction, citing Burns, supra, 192 N.J. at 335 ("One of the foundations of our jury system is that the jury is presumed to follow the trial court's instructions."). However, that argument ignores the fact that the instruction was not given specifically in response to the prosecutor's very pointed argument that the loss of memory was induced by the witnesses' fear of Travers, which the prosecutor, in turn, argued derived from the very conduct, the carjacking and robbery, that was at issue in the case.

The State's entire case as it related to the carjacking and robbery rested on the jury's acceptance of the truth of the statements given by LaGuerre and Silver. Despite the fact that the trial judge had twice put the intimidation argument out of bounds, the prosecutor was clearly attempting to bolster the credibility of their statements by arguing that the witnesses were so afraid of Travers that they were afraid to testify.

Had the trial judge given a prompt direction that the jury disregard the prosecutor's argument at the time, we would take a different view of the issue before us. The fact that the prosecutor's inappropriate argument was allowed to stand unchallenged by the judge leads us to conclude that the prosecutor's misconduct "raise[s] 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). See also R.B., supra, 183 N.J. at 330.

Consequently, we reverse Travers' convictions for robbery and carjacking, as well as his conviction under count five for possession of a weapon for an unlawful purpose involving Silver.

C.

Having carefully reviewed the record, we have determined that the prosecutor's misconduct with respect to the statements given by LaGuerre and Silver did not taint the jury's verdict as to the aggravated assault of Robinson (count one), possession of a weapon for an unlawful purpose involving Robinson (count six), and unlawful possession of a weapon (count seven).

Neither LaGuerre nor Silver provided evidence that Travers shot at Robinson. That evidence was provided primarily by Robinson and to a lesser extent by the other police officers. Travers' possession of the gun used in the shooting, although mentioned by LaGuerre and Silver, was primarily supported by the testimony of Robinson and the other police officers. We are satisfied that the jury's verdict on those counts is strongly supported by the record without reference to LaGuerre and Silver's statements and that reversal of those convictions would be unwarranted. As to those charges, we deem the prosecutor's misconduct to have been harmless error.

III.

In summary, we reverse Travers' conviction on count two, first-degree carjacking contrary to N.J.S.A. 2C:15-2, counts three and four, first-degree robbery contrary to N.J.S.A. 2C:15-1 and 2C:2-6, and count five, second-degree possession of a weapon for an unlawful purpose contrary to N.J.S.A. 2C:39-4(a). We affirm his convictions on the lesser-included offense of aggravated assault, N.J.S.A. 2C:12-1(b), in count one; second-degree possession of a weapon for an unlawful purpose as to Robinson, contrary to N.J.S.A. 2C:39-4(a), in count six; and third-degree unlawful possession of a handgun contrary to N.J.S.A. 2C:39-5(b), in count seven.

We do not reach the issues raised by Travers with respect to his sentence, given our reversal of the first-degree offenses. We remand the matter to the Law Division for resentencing consistent with our opinion and, if the State elects, retrial of the counts as to which we have reversed.

 
Reversed in part, affirmed in part, and remanded.

Although the notice of appeal includes the drug offense, Travers' merits brief contains no arguments addressed to that issue. Consequently, we deem it to have been abandoned.

The other man was eventually identified as Ibriham Blackman, and a warrant was issued for his arrest in connection with the alleged carjacking. He was never apprehended. According to the trial testimony, Blackman was murdered on September 14, 2007.

Travers was not charged on the first count of the second indictment.

We note that the judge did include those factors in her jury charge on the issue of the credibility of the content of the statements.

If there is a retrial, the trial judge can determine whether, under the circumstances then existing, the testimony should be excluded under N.J.R.E. 403.

(continued)

(continued)

39

A-6044-07T4

July 21, 2010