STATE OF NEW JERSEY v. REGINALD LIMEHOUSE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

REGINALD LIMEHOUSE,

Defendant-Appellant.

__________________________________

November 24, 2014

Submitted November 18, 2014 Decided

Before Judges Yannotti, Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 11-05-0494.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from his convictions for six counts of third-degree uttering counterfeit currency, N.J.S.A. 2C:21-1a(3); and third-degree theft by deception, N.J.S.A. 2C:20-4a. We affirm.

Before this case was tried in Morris County, defendant had pled guilty to a separate charge of uttering counterfeit currency in Union County. Defendant moved to dismiss the indictment in the present case, arguing that the Morris County charges should have been joined with the charges in Union County. The judge denied defendant's motion to dismiss.

The assistant prosecutor then moved to admit defendant's Union County guilty plea as evidence of defendant's opportunity, knowledge, intent, and absence of mistake. The judge conducted an N.J.R.E. 404(b) hearing, rendered a written opinion, and granted the State's motion.

At trial, a cashier from Target testified that a customer purchased merchandise totaling $577.74 and paid for the items using six $100 bills. She noticed that the cash "didn't feel like real bills." After the transaction was complete, the cashier showed the bills to her supervisor, who confirmed that the bills appeared to be counterfeit.

An asset protection specialist for Target testified that she viewed a security surveillance video the next day. Using that video, she obtained images of the customer. She then alerted the police and provided a patrolman with the counterfeit bills and a copy of the video. The patrolman testified that some of the bills had identical serial numbers.

The assistant prosecutor used the N.J.R.E. 404(b) evidence by reading into the record defendant's sworn statement that he used counterfeit bills at a Walmart store in Union County. The officer who arrested defendant at the Walmart store testified that defendant had used six $100 bills, four of the bills shared the same serial numbers and the other two bills shared another serial number.

A United States Secret Service Agent (the "SSA"), testified for the State as a United States currency expert. He opined that the bills used at the Target and Walmart stores were counterfeit currency because of the identical serial numbers and other markings inconsistent with genuine $100 bills. During cross-examination, defense counsel attempted to elicit testimony from the SSA that defendant had told the SSA that defendant had won the money from gambling and did not know the bills were fake. The judge sustained the assistant prosecutor's objection indicating that defendant's alleged statement was hearsay.

During his summation, the assistant prosecutor stated

[W]hen you were sworn as jurors you took an oath, and you took an oath to listen to the law, apply the law as the [j]udge tells you, to listen to the evidence, and apply the law to that, and return a verdict based solely on that evidence, not based upon anything else.

[The assistant prosecutor played approximately four and one-half minutes of the Target security video and then briefly reviewed the evidence.]

Ladies and gentlemen, I think based upon the evidence that we've just discussed you will be able to come back with a verdict of guilty in this case. I am confident that after you go back in that jury room and do what you have sworn that you will do, you will be able to return that verdict.

Defense counsel objected at sidebar, arguing that the assistant prosecutor told the jury that they had a duty to find defendant guilty. The judge offered to add language to the instructions about the function of the jury so that it would read as follows

You do not have a duty to find . . . the defendant guilty. You also do not have a duty to find defendant not guilty. Instead, it is your sworn duty to arrive at a just conclusion after considering all the evidence which was presented during the course of the trial.

Defense counsel asked that the jury be instructed only that there is no duty to find defendant guilty. The judge denied this request and gave defense counsel the choice of modifying the instruction as suggested or leaving it as is. Defense counsel stated that she wanted a separate charge and opted not to modify the instructions. The instructions read to the jury included the unmodified statement that "[i]t is your sworn duty to arrive at a just conclusion after considering all the evidence which was presented during the course of the trial."

The jury found defendant guilty of the offenses. Defendant moved for a judgment of acquittal notwithstanding the verdict or for a new trial. The judge denied the motion and sentenced defendant to three years of probation, with 364 days in jail.

On appeal, defendant argues the following points

POINT I

THE MOTION COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT BECAUSE OF THE MANDATORY JOINDER RULE.

POINT II

THE TRIAL COURT MISAPPLIED ITS DISCRETION IN PERMITTING THE STATE TO ADMIT EVIDENCE OF DEFENDANT'S GUILTY PLEA "SWORN STATEMENT" IN THE UNION COUNTY CASE, AND EVIDENCE OF THE COUNTERFEIT BILLS DEFENDANT USED IN THE UNION COUNTY CASE, AS OTHER BAD ACTS EVIDENCE PURSUANT TO N.J.R.E. 404(B) BECAUSE THE PROBATIVE VALUE OF THE EVIDENCE WAS OUTWEIGHED BY ITS PREJUDICE.

POINT III

THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION BY PRECLUDING TRIAL COUNSEL FROM ELICITING AN EXCULPATORY STATEMENT MADE BY DEFENDANT TO [THE SSA].

POINT IV

DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL "OVERZEALOUSNESS" IN SUMMATION.

POINT V

THE CUMULATIVE EFFECT OF THE PREJUDICE ARISING FROM THE ERRORS THAT OCCURRED DURING DEFENDANT'S TRIAL WARRANT REVERSAL OF HIS CONVICTION (NOT RAISED BELOW).

We reject defendant's argument that the judge misapplied the mandatory joinder rule and therefore erred by denying his motion to dismiss the indictment. We review de novo the judge's ruling denying the motion. See State v. Williams, 172 N.J. 361, 368-72 (2002).

Defendant's contention that the Morris and Union County offenses should have been joined together involves consideration of a statute and court rule. Both N.J.S.A. 2C:1-8b and Rule 3:15-1(b) provide in pertinent part that,

a defendant shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court.

Accordingly, the application of N.J.S.A. 2C:1-8b and Rule 3:15-1(b) is the same. State v. Catanoso, 269 N.J. Super. 246, 272 (App. Div.), certif. denied, 134 N.J. 563 (1993).

In State v. Yoskowitz, 116 N.J. 679, 701 (1989), the Court set forth the following criteria that a defendant must satisfy to invoke the mandatory joinder rule

(1) the multiple offenses are criminal;

(2) the offenses are based on the same conduct or arose from the same episode;

(3) the appropriate prosecuting officer knew of the offenses at the time the first trial commenced; and

(4) the offenses were within the jurisdiction and venue of a single court.

Here, the State does not dispute that defendant satisfied prongs one and three of this analysis. Under prong one, defendant was clearly charged with crimes and, under prong three, the prosecuting officer knew of the offenses because defendant was served with the Morris County complaint while he was in the Union County jail.

Courts apply a "flexible" approach when determining whether a defendant has satisfied the second prong of the mandatory joinder analysis. Williams, supra, 172 N.J. at 371. Relevant factors include

the nature of the offenses, the time and place of each offense, whether the evidence supporting one charge is necessary and/or sufficient to sustain a conviction under another charge, whether one offense is an integral part of the larger scheme, the intent of the accused, and the consequences of the criminal standards transgressed.

[Ibid.]

Courts give "heightened significance" to the "time and place of the offense[s], and whether one offense is part of a larger scheme." Ibid. Where the time, place, and victim are factually distinct, having the same modus operandi for separate crimes does not necessarily make the offenses part of a larger scheme. State v. Pillot, 115 N.J. 558, 567 (1989).

Here, the offenses were clearly not based on the same conduct and did not arise from the same episode. Although defendant had a similar modus opperandi to obtain merchandise using counterfeit currency with some bills having the same serial numbers the offenses occurred on different days in different locations, and there were different victims.

Regarding prong four, Rule 3:14-1(a) provides

An offense shall be prosecuted in the county in which it was committed, except that . . . [i]f it is uncertain in which one of [two] or more counties the offense has been committed or if an offense is committed in several counties prosecution may be had in any of such counties.

Here, defendant's offenses took place in Union and Morris Counties, respectively, and each offense was only committed in one county. Therefore, the offenses were not within the jurisdiction and venue of a single court. We conclude that the mandatory joinder rule did not require one trial.

The judge did not abuse his discretion by admitting evidence of defendant's guilty plea pursuant to N.J.R.E. 404(b).

N.J.R.E. 404(b) provides, in pertinent part, that

evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

The abuse-of-discretion standard applies to a judge's ruling on the admissibility of evidence. State v. Rose, 206 N.J. 141, 157 (2011). "Trial court decisions concerning the admission of other-crimes evidence should be afforded 'great deference,' and will be reversed only in light of a 'clear error of judgment.'" State v. Gillispie, 208 N.J. 59, 84 (2011) (quoting State v. Barden, 195 N.J. 375, 390-91 (2008)).

Our Supreme Court set forth the following criteria for admitting other-crimes evidence under N.J.R.E. 404(b)

(1) The evidence of the other crime must be admissible as relevant to a material issue;

(2) It must be similar in kind and reasonably close in time to the offense charged;

(3) The evidence of the other crime must be clear and convincing; and

(4) The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Cofield, 127 N.J. 328, 338 (1992) (citation omitted).]

Under the first prong, evidence is relevant when it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Here, the evidence that defendant pled guilty to uttering counterfeit currency in Union County is relevant. He admitted that he used counterfeit bills at the Walmart store, which tends to prove that defendant knew that the bills he used at the Target store were counterfeit.

Prong two is only required when the facts of the case involve similar circumstances to those in Cofield, where the evidence of a drug-related offense was relevant to prove constructive possession. Barden, supra, 195 N.J. at 389. It is not required where the other-crimes evidence is "relevant only to the defendant's state of mind." Ibid. Here, prong two is not required because the other-crimes evidence was only relevant to defendant's state of mind.

As to prong three, the evidence of the other crime is clear and convincing because there is a sworn statement by defendant admitting to committing the offense in Union County.

Under prong four, evidence should only be excluded when "'its probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues in the case.'" Gillispie, supra, 208 N.J. at 90 (alteration in original) (quoting State v. Koskovich, 168 N.J. 448, 486 (2001)). Here, the evidence is highly probative of whether defendant knew that the currency he used in Morris County was counterfeit. Other-crimes evidence is "inherently prejudicial," Gillispie, supra, 208 N.J. at 89-90, but the probative value in this case is not outweighed by the apparent prejudicial effect.

Defendant argues that the judge erred by preventing him from eliciting his own statement to the SSA. We review evidentiary rulings of the trial court for abuse of discretion. State v. Marrero, 148 N.J. 469, 483-84 (1997). Unless there has been "a clear error of judgment," we will not upset those rulings. State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). Against this standard, we conclude the trial judge properly exercised his discretionary authority and his analysis did not amount to "a clear error of judgment." Ibid.

Defendant's self-serving statement is hearsay and does not fall under any recognized hearsay exception. Defendant's statement is not an admission under N.J.R.E. 803(b)(1) because it is not "[a] statement offered against a party which is . . . the party's own statement . . . ." Defense counsel attempted to elicit defendant's statement from the State's witness to exculpate defendant. Defense counsel offered a statement from defendant, a party proponent, rather than a party opponent. Therefore, the judge did not abuse his discretion by refusing to admit defendant's self-serving statement.

IV.

Defendant argues that the prosecutor made improper remarks during summation and deprived defendant of a fair trial. We disagree.

"[W]hile a prosecutor's summation is not without bounds, [s]o long as he [or she] stays within the evidence and the legitimate inferences therefrom the [p]rosecutor is entitled to wide latitude in [the] summation." State v. Wakefield, 190 N.J. 397, 457 (2007) (second alteration in original) (citation and internal quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Our Supreme Court has held that it is improper for a prosecutor to suggest that jurors have a duty to convict. State v. Pennington, 119 N.J. 547, 576 (1990). It is not improper, however, for a prosecutor to remind jurors of their oaths and "urge[] the jurors to have the courage to render a verdict in accordance with the evidence, however the verdict turned out." Wakefield, supra, 190 N.J. at 460 (quoting State v. DiFrisco, 137 N.J. 434, 476 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)).

Here, the assistant prosecutor did not tell the jurors that their oath required them to convict defendant. Instead, he reminded them that they had taken an oath to "return a verdict based solely on [the] evidence" and then argued that if they do what they were sworn to do, they would "be able to" find defendant guilty. Therefore, this statement did not constitute prosecutorial misconduct.

After carefully considering the record and the briefs, we conclude that defendant's remaining argument, that cumulative errors warrant a reversal, is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

Affirmed.