STATE OF NEW JERSEY v. SAMUEL MANGUEL, JR

NOT FOR PUBLICATION WITHOUT THE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.

SAMUEL MANGUEL, JR.,

Defendant-Appellant.

____________________________________________

February 12, 2014

Submitted November 6, 2013 Decided

Before Judges Messano and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-10-2094.

Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Caitlin J. Sidley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried jointly with his co-defendant Nathan Osborn, defendant Samuel Manguel was convicted of the single count contained in the indictment, second-degree robbery, N.J.S.A.2C:15-1. Osborn was acquitted. The judge sentenced defendant to a five-year term of imprisonment subject to the No Early Release Act (NERA), N.J.S.A.2C:43-7.2.

Defendant raises the following points on appeal:

POINT I

EXTREMELY PREJUDICIAL COMMENTARY IN CO-COUNSEL'S CLOSING ARGUMENT CREATED THE INESCAPABLE INFERENCE THAT MANGUEL NEVER "TOLD HIS STORY" TO POLICE AFTER HIS ARREST, OR "OFFERED HIMSELF AS A WITNESS" AT TRIAL, "SUBJECTED HIMSELF TO CROSS-EXAMINATION," OR "TESTIFIED" FOR THE JURY'S "BENEFIT," AND THUS FAILED TO DO "EVERYTHING THAT AN INNOCENT PERSON WOULD DO," DIRECTLY INFERRED HIS GUILT, IMPROPERLY COMMENTED ON HIS POST-ARREST SILENCE, VIOLATED HIS STATE AND FEDERAL RIGHT TO REMAIN SILENT, IMPROPERLY SHIFTED THE BURD[E]N OF PRO[O]F ONTO HIM TO ESTABLISH HIS INNOCENCE, AND RESULTED IN OVERWHELMING PREJUDICE THAT THE COURT'S INSTRUCTION FAILED TO CURE, NECESSITATING REVERSAL[.] U.S. CONST., AMENDS. V, XIV; N.J. CONST.. . ., ART. 1, 10

POINT II

THE STATE'S FAILURE TO DISCLOSE MATERIAL INFORMATION CONCERNING THE VICTIM[']S EYESIGHT VIOLATED DUE PROCESS, THE STATE S DISCOVERY OBLIGATION, AND PREVENTED DEFENDANT FROM PRESENTING A COMPLETE DEFENSE NECESSITATING REVERSAL. U.S. CONST.AMEND. VI, XIV; N.J. CONST.ART. I, PARS. 1, 9, 10

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

We briefly set forth some of the procedural history and testimony at trial to place defendant's arguments in context.

At defendant's request, the judge held a Wade1hearing several months before trial began. The alleged victim of the robbery, Kenneth Artis, testified at the hearing along with a number of police officers. At the time, Artis was eighty-two years old, ambulated with a walker and wore eyeglasses.2 He described how three individuals robbed him as he returned home from a nearby deli after collecting his lottery winnings. Artis also testified to the out-of-court photographic identification he made of his assailants, including defendant and Osborn, as well as his opportunity to view a video recording made from cameras outside the deli.

When Osborn's counsel asked if Artis could make an in-court identification of the robbers, the judge sustained the prosecutor's objection on the grounds of relevancy. However, both defense counsel were permitted to cross-examine Artis extensively about his ability to observe his assailants before and during the robbery. At the conclusion of the hearing, the judge denied defendants' motion to suppress the out-of-court identifications.

Artis testified again at trial.3 On direct examination, the prosecutor asked Artis, who was wearing glasses, if he wore them on the night of the robbery. He responded in the affirmative and told the prosecutor his eyesight now was very poor. Defendant's counsel objected, and the judge summoned all counsel to the sidebar. The prosecutor explained that Artis's eyesight "ha[d] become very poor[,]" and it was "important for the jury to know that because" he may not be able to "identify the defendants in court . . . ."

Both defense counsel claimed to be surprised by this information, and defendant's counsel recalled that Artis was not "allowed to identify [defendants] at the Wadehearing . . . ." The judge decided to conduct a N.J.R.E.104 hearing outside the presence of the jury.

Artis described generally how his vision had deteriorated since the robbery because of various ailments, and stated that he recently had undergone cataract surgery. Counsel for defendant acknowledged that Artis wore glasses at the time of the Wadehearing.4 Both defense attorneys argued that information regarding Artis's eyesight should have been supplied during the Wadehearing, and that the prosecutor was obligated to disclose whether Artis was able to make an in-court identification or not. The prosecutor advised the judge that she had "no idea if . . . Artis [was] going to be able to pick [defendants] out or not." Both defense counsel moved for a mistrial.

The judge denied the request. She reasoned that whether Artis could make an in-court identification at the Wadehearing was irrelevant to the purpose of the hearing, i.e., "whether . . . there was impermissible suggestiveness at the time of the photo lineup . . . ." She noted that everyone knew Artis wore eyeglasses at the time of the robbery, but that, based upon his testimony, Artis's vision worsened during the past year. The judge concluded that the State was not under any "obligation to provide information to defendants regarding the medical status or other information that may come into its possession regarding a proposed witness."5

The judge also determined that defendants suffered no prejudice by finding out for the first time during trial that Artis's vision had deteriorated. She observed that "counsel are free to cross-examine [Artis] with respect to his sight, his visual acuity."

Counsel for Osborn then asked for a proffer as to whether Artis was going to make an in-court identification. The prosecutor told the judge that she intended to ask Artis to identify his assailants when testimony resumed, but she did not know the answer. The judge denied the request for any further proffer.

Artis resumed testimony before the jury. When asked by the prosecutor if he saw any of the people who robbed him in the courtroom, Artis responded, "I don t want to say because I don't want to make any mistakes. I'm not sure." He was cross-examined extensively by Osborn's attorney about his vision problems.

The man who worked the cash register at the deli identified the three males shown on the video recording standing outside the store as defendant, Osborn and James Delgado, all of whom he knew from the store. Defendant did not testify at trial, but Osborn did.

Osborn admitted he appeared on the video recording, but he claimed that he was waiting for a friend. Osborn said that Delgado asked if he wanted to rob Artis of his lottery winnings, but Osborn declined. Osborn did not know what happened thereafter because he left the area. The prosecutor cross-examined Osborn using a statement he gave to police, attempting to point out alleged inconsistencies between that statement and his trial testimony.

During summation, counsel for Osborn stated:

[Osborn] testified, ladies and gentleman. He offered himself as a witness for your benefit. He subjected himself to cross-examination. He did everything that an innocent person would do being charged with a crime like this. Everything, went to the police, told his story, testified for you.

Defendant's counsel immediately objected and moved for a mistrial. The judge excused the jury, and after considering the arguments of counsel, denied the motion for a mistrial. She issued a curative instruction, stating:

Members of the jury, as you well know, at the end of the case I'm going to charge you on the law that you need to apply in reaching a verdict in this case.

In light of the comment that was made by [Osborn's counsel], I want to remind you again, and I know I mentioned this before, that every defendant in a criminal trial is presumed innocent whether or not he chooses to testify. It is the Constitutional right of a defendant not to testify at a trial. You're not to consider for any purpose or in any manner in arriving at your verdict the fact that a defendant chose not to testify. That fact should not enter into your deliberations or discussions in any manner at any time.

There was no further objection by defendant.

As already noted, following its deliberations, the jury acquitted Osborn and found defendant guilty of robbery. This appeal ensued.

II.

In Point I, defendant argues that the comments made by his co-defendant's counsel were so prejudicial that a mistrial should have been granted, and the court's curative instruction was inadequate to cure the prejudice. We disagree.

"Whether testimony or a comment by counsel is prejudicial and whether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters 'peculiarly within the competence of the trial judge.'" State v. Yough, 208 N.J.385, 397 (2011) (quoting State v. Winter, 96 N.J.640, 646-47 (1984)). "The grant of a mistrial is an extraordinary remedy to be exercised only when necessary 'to prevent an obvious failure of justice.'" Ibid.(quoting State v. Harvey, 151 N.J.117, 205 (1997)). "For that reason, an appellate court should not reverse a trial court's denial of a mistrial motion absent a 'clear showing' that 'the defendant suffered actual harm' or that the court otherwise 'abused its discretion.'" Ibid. (quoting State v. LaBrutto, 114 N.J.187, 207 (1989)).

We agree with defendant, as does the State, that the comments of Osborn's counsel were improper. However, "[e]ven a direct comment [made by the prosecutor] on a defendant's failure to testify may be cured by a judge's timely and effective action." State v. Scherzer, 301 N.J. Super.363, 441 (App. Div.) (citing State v. McLaughlin, 93 N.J. Super.435, 439-40 (App. Div. 1967)), certif. denied, 151 N.J.466 (1997). Unlike the cases cited by defendant, the comments in this case were made by co-defendant's counsel, not the prosecutor.

That was precisely the situation faced in McLaughlin, supra, 93 N.J. Super.at 437-38, where McLaughlin's co-defendant, McNair, testified and McLaughlin did not. In summation, McNair's lawyer urged the jury to conclude his client truthfully testified that McLaughlin perpetrated the robbery without McNair's knowledge, and asked, "why didn't McLaughlin get up and deny that?" Id.at 438. The judge immediately issued a curative instruction, similar to the one given in this case. Ibid. We held that the "effect of the comment was sufficiently neutralized by the trial judge's immediate and effective action." Id.at 439.

Here, the judge took immediate action and issued a firm and thorough curative instruction to the jury. "We presume that the jury followed the instruction accurately." State v. Winder, 200 N.J.231, 256 (2009) (citation omitted). As a result, we find no basis to reverse defendant's conviction because of the comment made by counsel for his co-defendant.

Defendant further contends in Point II that the State withheld exculpatory information regarding Artis's deteriorating eyesight, and the failure to disclose that information resulted in such prejudice that a new trial is warranted. We again must disagree.

It is axiomatic that the State is required to disclose exculpatory information that is material to the guilt of the accused. Brady v. Maryland, 373 U.S. 83, 87; 83 S. Ct. 1194, 1196; 10 L. Ed. 2d 215, 218 (1963). "To establish a Bradyviolation, a defendant must prove that (1) the prosecutor failed to disclose the evidence, (2) the evidence was of a favorable character to the defendant, and (3) the evidence was material." State v. Carrero, 428 N.J. Super.495, 516 (App. Div. 2012) (citing State v. Mustaro, 411 N.J. Super.91, 101 (App. Div. 2009); State v. Parsons, 341 N.J. Super.448, 454-55 (App. Div. 2001)). "Evidence is 'material' only if there is a 'reasonable probability' that the disclosure of the evidence would have changed the result of the proceeding." Ibid.(quoting Mustaro, supra, 411 N.J. Super.at 101). "A 'reasonable probability' is one sufficient to undermine confidence in the outcome." Ibid.(quoting Mustaro, supra, 411 N.J. Super.at 101).

In this case, defendant was aware from the video recording that Artis wore eyeglasses on the day of the robbery. Artis was again wearing glasses when he testified during the Wadehearing. The judge refused to permit questions regarding Artis's ability to make an in-court identification at that time, but defendant was fully able to cross-examine Artis about his ability to make observations at the time of the robbery. While we do not necessarily agree with the judge's decision to limit the questioning at the Wadehearing, or the reasoning she expressed at the time, the inescapable conclusion is that defendant suffered no prejudice.

That is so because of the unique procedural circumstances that followed. Far from suppressing exculpatory evidence, it was the prosecutor herself who broached the subject of Artis's deteriorating eyesight during trial. She candidly admitted being unsure whether Artis would be able to identify either defendant in front of the jury. The judge exercised an abundance of caution and held another hearing outside the jury's presence, permitting extensive examination by all counsel regarding Artis's deteriorating health.

Before the jury, Artis was unable to identify either defendant or Osborn when asked by the prosecutor. Defendant was fully able to question Artis before the jury about his inability to make a then-current in-court identification. Whether his eyesight had deteriorated since making the out-of-court identifications, and to what extent, was therefore immaterial because Artis was unable to identify either defendant in court.

Moreover, counsel was able to cross-examine Artis about his inability to make any observations at the time of the robbery. Thus, the credibility of Artis' only identification of defendant -- the out-of-court photo identification -- was fully explored before the jury.

The judge declined giving an instruction regarding Artis's medical and surgical history after the robbery, specifically that he had undergone cataract surgery. However, she provided the jury with extensive instructions regarding the out-of-court identifications, reminded the jury of defendant's specific challenge to the State's proof regarding identification and told the jury that the State was required to prove identification beyond a reasonable doubt. In short, we find no error that requires reversal.

Affirmed.

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

2 Artis was eighty-one years old at the time of the robbery.

3 By this time, Artis had celebrated another birthday and was eighty-three years of age.

4 Osborn s counsel at trial was not the same attorney who represented him at the Wade hearing.

5 We do not necessarily agree with the judge's statement regarding the lack of any obligation on the part of the State to disclose "other information that may come into its possession regarding a proposed witness." As we note infra, the State is required to disclose such evidence if it is potentially exculpatory.