STATE OF NEW JERSEY v. ANTOINE F. WALKERAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
STATE OF NEW JERSEY,
ANTOINE F. WALKER, a/k/a
July 21, 2015
Argued January 14, 2015 Decided
Before Judges Waugh, Maven, and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-09-0978.
Michele E. Friedman, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Friedman, of counsel and on the brief).
Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Lyndsay V. Ruotolo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Defendant Antoine F. Walker appeals his conviction for unlawful possession of a handgun and resisting arrest by flight, as well as the resulting aggregate sentence of incarceration for eight years, with a thirty-six-month period of parole ineligibility, pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). We affirm.
We discern the following facts and procedural history from the record on appeal.
In 2009, Arabia Green and Walker had been dating for several years and had a three-year-old child together. On August 15, Green called the Union Township (Township) police, who recorded the call. In the first few seconds of the call, Green, who was sobbing, said: "My baby father pulled a gun out on me." She also told the dispatcher that Walker was "gonna try to run 'cause I told him I called the cops" and that her "child's father pulled a gun out on [her], and he left because [she] told him [she] was calling the cops."
Green identified Walker as her child's father, and described him as a black male with dreads wearing a white shirt with tan pants. She described the gun as a black handgun. When asked whether she was all right, Green responded: "Yeah, he just pulled it out on me." In response to several questions about when the event had taken place, Green confirmed that it had "just" happened.1
As a result of Green's call, three Township police officers were dispatched to arrest Walker.2 Officer Walter Stinner was familiar with Walker and knew the places where he might be found. The three officers drove an unmarked police vehicle to Harding Avenue and Bergen Street in Newark, arriving at approximately 1:00 p.m.
When the officers arrived, Bergen Street was blocked off for a street fair. As they drove up to the barrier, they saw Walker standing on the sidewalk about fifty feet away, talking on his cell phone. Walker made eye contact with Stinner. Because Walker looked like he was going to run away, Stinner shouted: "Antoine, don't run!" Walker turned and ran away in the opposite direction.
While Stinner and another officer pursued Walker on foot, the third officer followed in the vehicle. As Stinner was chasing Walker, he identified himself as a police officer and yelled for him to stop.
Walker continued to run and scaled a six-foot-high fence. As he fell to the ground on the other side, the back of his shirt came up and Stinner saw a black, Glock handgun tucked in his waistband. Stinner was directly on the other side of the fence and close to Walker when he observed the weapon. Stinner and the other officer decided not to scale the fence because it was in disrepair and there was a steep drop on the other side. They set up a perimeter, but could not locate Walker.
On December 18, Green met with a detective from the Union County Prosecutor's Office to review the statements she had previously given the police, including verifying her statement on August 15 that Walker had pointed a gun at her during the earlier incident.
On January 28, 2010, Walker was indicted and charged with fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) or (b) (count four); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count five).
Walker returned to New Jersey from Georgia sometime in February or March. He and Green continued their relationship and had another child together. They were living together at the time of trial.
Green met with members of the Union County Prosecutor's Office on March 1, and recanted her earlier statements. She told them that she had made up the details of the incident on August 15, because she was young and upset that Walker had walked out on her during the argument, and she wanted to hurt him by getting him locked up.
Walker was tried before a jury over four days in September 2012. Prior to opening statements, the State moved for the admission of the recording of Green's two calls to the Township police during an earlier incident, which took place on May 16, 2009. The prosecutor argued that the calls were admissible under N.J.R.E. 404(b) and State v. Cofield, 127 N.J. 328 (1992). Defense counsel opposed the application. The trial judge determined that there was insufficient evidence at that time to allow the State to mention the calls in its opening statement, and deferred decision on their admissibility. The State presented the evidence outlined above, including the recording of the August 15 exchange between Green and the police dispatcher.
Green was called by the State and testified that her statements to police on August 15, and to the detective on December 17, were untrue. Both she and Walker testified that Walker slept at Green's residence on the night of August 14. Walker woke up before Green on August 15, and started looking through her cell phone. He saw that Green had sent a text message to another man, advising him that he left his cell phone charger at her home. Walker confronted Green, who admitted that another man was at her home. The two then started arguing.
Both Green and Walker testified that Walker left Green's home during their argument. Green dialed Walker's cell phone number several times, but he did not answer. When she finally got through to him, they started arguing again. Walker told Green that he had also been cheating on her. She became upset, started crying, and told him that she was going to get him locked up. Green told him that she had called the police and reported that he pulled a gun on her.
After Green testified that she had fabricated the allegation about the events of August 15, the prosecutor renewed his request that he be permitted to play the two recordings from May 2009. The judge held a hearing outside the presence of the jury, during which Green testified that she did not remember ever telling the police that Walker assaulted her and that she and Walker had never gotten into a fight. After being confronted with the tapes outside of the jury's presence, Green continued to downplay the extent of physical abuse in her relationship with Walker.
Following the testimony, the prosecutor argued that the calls were admissible under N.J.R.E. 404(b) to show motive in terms of Walker having a tendency to fly into a jealous rage after reviewing the contents of Green's phone and to impeach Green's credibility. Defense counsel argued that the evidence should not be introduced to show a propensity to jealousy, was not relevant, and was highly prejudicial. The judge allowed use of the recordings solely for the purpose of impeaching Green's credibility, but excluded any argument that it demonstrated a propensity to become jealous.3
After the ruling, the prosecutor resumed his examination of Green, who continued to maintain both that she was not afraid of Walker and that he had never hit her. The prosecutor then proceeded to play the two May 16 calls. Before the jury heard the calls, the judge issued the following limiting instruction
You are being allowed to hear this as it may affect Ms. Green's credibility, her believability. It cannot be used for any other purposes and after it is played and there's a few more questions, I may have further limitations for you in telling you how to use this evidence.
In the first call, which lasts approximately one and one-half minutes, Green and Walker can be heard arguing. Throughout the call, Green alternates and repeats the following phrases: "Get off of me"; "you hurt me"; and "give me my phone." Walker is heard in the background, but his comments are indiscernible.
In the second call, which is approximately the same length, Green told the dispatcher: "I've just been assaulted." She continued that Walker had just "attacked" her, "punched" her, and "pulled [her] hair off," adding that "[her] hair is like crazy-glued to [her] head."
After the examination concerning the May calls, the judge gave a second limiting instruction, as follows
[J]ust before we proceed, the audio recording that was just played for you, which the witness has now identified as having occurred in May, specifically May 16, 2009, you cannot use that to decide if Mr. Walker committed some offense on that day that he was more likely to have committed the offense charged in the indictment. It's not being offered for that purpose.
And I know it sounds very circular. It's being offered only to affect Ms. Green's credibility, her believability when she says no, what I said to the police on August 15, 2009 was not the truth, he never pointed a gun at me. It only goes to her credibility.
You cannot use that recording from May 16, 2009 to believe that just because he committed some offense on that day that he committed the offense charged in the indictment.
In his testimony, Walker denied being chased by the police officers in Newark on August 15. He maintained that he went home after the argument with Green, stayed there for a few days, and then left for Georgia. Green testified that Walker went to live with his brother in Georgia because he knew the police were looking for him. He stayed there until February or March 2010, during which time he remained in contact with Green by telephone.
In cross-examining Walker, the prosecutor questioned him about Green's May 16 calls to police
Q. Did you rip her hair off?
A. I didn't rip it off, I pulled her wig.
Q. Did you touch her in a way that caused her hair to come off?
Q. So that's accurate?
Q. Now in that [May 16] incident[,] you were going through her phone, right?
Q. Turning your attention to August 15, 2009, you were again going through her phone?
Q. And again you saw something in her phone that got you upset, right?
Q. Now it's your testimony that her hair came off in May and her phone got destroyed[,] and in August you didn't do anything, you just walked away?
In response to an objection from defense counsel, the judge reminded the prosecutor at sidebar that he had admitted the tapes for the limited purpose of impeaching Green's credibility.
Walker's uncle testified that Walker was living with him in August 2009, and that Walker was with him on the night of August 14 and all day on August 15. He testified that he heard Walker when he was talking to Green on the telephone on the morning of August 15. Walker's uncle also told the jury that he remembered the day vividly because he and Walker had a landscaping job that day.
Prior to trial on August 23, 2012, Walker's uncle had signed a statement relating that Walker had lost a shoe on August 15 while running from the police and jumping a fence in Newark. At trial, however, he testified that Walker told him that he had lost his shoe approximately a year after August 15. The uncle explained that he had not read the statement prior to signing it because he did not have his glasses. The prosecutor's cross-examination also established that the uncle had three criminal convictions resulting from guilty pleas. The uncle denied his guilt as to each.
During the jury charge, the judge repeated the limiting instructions regarding the May 16 telephone calls. He specifically reiterated that the calls were only to be considered for the "narrow purpose" of evaluating Green's credibility, not "to decide that [Walker] has a tendency to commit crimes or that he is a bad person."
The jury found Walker guilty of count three, unlawful possession of a handgun, and count five, resisting arrest by flight. He was acquitted on the other offenses, which were the ones based on his alleged interactions with Green on August 15.
On January 4, 2013, the judge denied Walker's motion for a new trial. The judge then sentenced Walker to an eight-year term of imprisonment on count three, with thirty-six months of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), and a fifteen-month term on count five. The two sentences were to run concurrently.
In imposing the sentences, the judge found aggravating factors three (the risk of recidivism) and nine (the need for deterrence), and no mitigating factors. The judge explained that Walker could have received consecutive sentences for the two crimes for which he was convicted. He could also have received up to a ten-year sentence on count three. The judge noted that Walker's criminal history included numerous interactions with the criminal justice system, including one prior indictable conviction, one disorderly conviction, and three municipal ordinance convictions. Defense counsel conceded Walker's criminal history, adding that the underlying conviction was not "an aberration." The judge nevertheless sentenced Walker to concurrent, rather than consecutive sentences, and two years less than the maximum sentence on count three. This appeal followed.
Walker makes the following arguments on appeal
POINT I: THE PROSECUTION'S INTRODUCTION AND EXTENSIVE USE OF PRIOR BAD ACT EVIDENCE VIOLATED STATE V. COFIELD. (Raised Below, In Part)
a. The Trial Court Erred in Permitting the State to Introduce Green's May 16, 2009 [9-1-1] Call.
b. The State Impermissibly Introduced Walker's Prior Arrests for Narcotics Offenses.
c. The Introduction of Evidence that Walker Purportedly Pointed a Gun at Green on Prior Occasions and Absence of an N.J.R.E. 404(b) Limiting Instruction Regarding this Evidence Requires Reversal.
i. Evidence that Walker Allegedly Pointed a Gun at Green on Prior Occasions Was Admitted in Violation of N.J.R.E. 404(b).
ii. Even if Prior Instances in Which Walker Purportedly Pointed a Gun at Green Were Admissible Under Cofield, the Trial Court Erred in Failing to Provide the Jury with an N.J.R.E. 404(b) Limiting Instruction.
POINT II: THE PERVASIVE PROSECUTORIAL MISCONDUCT IN THIS CASE DEPRIVED WALKER OF HIS FUNDAMENTAL RIGHT TO A FAIR TRIAL. (Not Raised Below)
a. The State Improperly Bolstered Detective Stinner's Credibility Based Upon His Role as a Law Enforcement Officer.
b. The Assistant Prosecutor Impermissibly Expressed His Personal Opinion that Green was Suffering from Battered Woman's Syndrome, Thereby Appealing to the Jury's Emotions.
c. The State Engaged in Prosecutorial Misconduct When Casting a Baseless Aspersion that Green Previously Stabbed Walker.
d. The Cumulative Effect of the Prosecutorial Misconduct Constitutes Plain Error Warranting Reversal.
POINT III: THE OMISSION OF AN IN-COURT IDENTIFICATION INSTRUCTION WARRANTS REVERSAL OF WALKER'S CONVICTIONS. (Not Raised Below)
POINT IV: THE INTRODUCTION OF THE DISPATCHER'S STATEMENTS IN THE AUGUST 15, 2009 [9-1-1] CALL VIOLATED WALKER'S CONSTITUTIONAL RIGHT TO CONFRONT INDIVIDUALS BEARING WITNESS AGAINST HIM. (Raised Below, In Part)
POINT V: THE TRIAL COURT ERRED IN FAILING TO SEVER THE CHARGE FOR RESISTING ARREST FROM THE REMAINDER OF THE CHARGED OFFENSES. (Raised Below, In Part)
POINT VI: IN THE ALTERNATIVE, THE MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE LOWER COURT ASCRIBED UNDUE WEIGHT TO AGGRAVATING FACTORS THREE AND NINE AND FAILED TO CONSIDER MITIGATING FACTOR ELEVEN.
In his pro se supplemental brief, Walker argues the following points
POINT I: THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO CHARGE THE JURY AS TO CONTINUING POSSESSION OF A WEAPON. PRODUCED AN UNJUST RESULT. (Not Raised Below)
POINT II: THE LOWER COURT ERRED DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL N.O.V. AS TO COUNTS INDIVIDUAL OF INDICTMENT AND MOTION FOR A NEW TRIAL. (Raised Below)
a. THE VERDICT OF GUILTY AS TO THE COUNT OF RESISTING ARREST WAS AGAINST THE WEIGHT OF THE EVIDENCE.
b. THE VERDICT OF GUILTY AS TO UNLAWFUL POSSESSION OF A WEAPON WAS AGAINST THE WEIGHT OF THE EVIDENCE.
We begin our discussion with the issues related to the admission of evidence.
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; State v. Wilson, 135 N.J. 4, 13 (1994). This test is broad and favors admissibility. See State v. Deatore, 70 N.J. 100, 116 (1976). In determining whether evidence is relevant, the inquiry focuses on "the logical connection between the proffered evidence and a fact in issue," State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990), or, stated differently, "whether the proffer 'renders the desired inference more probable than it would be without the evidence.'" State v. Davis, 96 N.J. 611, 619 (1984) (quoting Deatore, supra, 70 N.J. at 116). The evidence need not be conclusive in itself, but need only, when taken together with other evidence, make the existence of the fact sought to be proven more probable. Except as otherwise provided by the Rules of Evidence or other law, "all relevant evidence is admissible." N.J.R.E. 402.
As a general matter, substantial deference is given 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). With respect to appellate review of a judge's decision to admit evidence of other crimes, the Supreme Court has expressed a similar view
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. The admissibility of such evidence is left to the sound discretion of the trial court, as that court is in the best position to conduct the balancing required under Cofielddue to its intimate knowledge of the case. Therefore, a trial court's decision concerning the admission of other-crimes evidence will not be disturbed absent a finding of abuse of discretion.
[State v. Gillispie, 208 N.J.59, 84 (2011) (citations and internal quotation marks omitted).]
Our review of related legal issues is plenary. State v. Handy, 206 N.J. 39, 45 (2011). Further, where evidence is admitted under N.J.R.E. 404(b) for one purpose and not another, appellate courts will presume that juries follow limiting instructions given by the trial judge. See State v. Winder, 200 N.J. 231, 256 (2009).
If the appellant does not object to the admission of evidence, the reviewing court will review for plain error. The Supreme Court recently described the parameters of plain error as follows
Plain error is error that "is 'clearly capable of producing an unjust result.'" State v. Singleton, 211 N.J. 157, 182-83 (2012) (quoting R. 2:10-2); State v. Reeds, 197 N.J. 280, 298 (2009). "The error must have been of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached." Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 2:10-2 (citations omitted); see also [Winder, supra, 200 N.J. [at 252-53] (considering substance of trial court's voir dire and finding no plain error). As the Court has held, "to rerun a trial when the error could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal." State v. Macon, 57 N.J. 325, 333 (1971). It is defendant's burden to demonstrate that the trial courts' procedures constituted plain error. See State v. Morton, 155 N.J. 383, 421 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); State v. Chew, 150 N.J. 30, 82 (1997) (citing United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508, 520 (1993)), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999); State v. Tierney, 356 N.J. Super. 468, 477 (App. Div.) (citations omitted), certif. denied, 176 N.J. 72 (2003).
In determining whether defendant has demonstrated that the errors here had "'a clear capacity to bring about an unjust result,'" we assess "'the overall strength of the State's case.'" State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Chapland, 187 N.J. 275, 288-89 (2006)); see also State v. Sowell, 213 N.J. 89, 107-08 (2013) (affirming conviction given strength of evidence against defendant despite admission of improper expert testimony). . .
[State v. Weston, ___ N.J. ___, ___ (2015) slip op. at 25-26.]
Even if there was an objection, we need reverse only if the error is "clearly capable of producing an unjust result." R. 2:10-2. "[T]he possibility of injustice [must be] 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
Walker argues that reversal is warranted because the trial judge erroneously admitted the following evidence of "other crimes, wrongs, or acts": (1) Green's May 16, 2009 telephone calls to the police; (2) Walker's prior arrests for narcotics offenses; and (3) Green's statement to police that Walker had pointed a gun at her on prior occasions. We will examine each claim separately.
With respect to Green's May 16 calls to the police, Walker argues that the prosecutor improperly offered the evidence to demonstrate his propensity to react violently when jealous and that the judge's Cofield analysis was flawed because, although the judge allowed the evidence for impeachment purposes only, the evidence still served the State's primary, but improper, purpose.
The judge carefully considered the substance of the Cofield factors with full knowledge that the telephone calls referred to "other crimes, wrongs, or acts" that could demonstrate a propensity to jealousy and violence. He appropriately determined that they were not admissible for that purpose, but were admissible for impeachment purposes. Use of such evidence is one of the purposes permitted by N.J.R.E. 404(b). See State v. Lykes, 192 N.J. 519, 534-37 (2007).
The judge found that the first Cofieldprong was satisfied because the recordings related to the material issue of Green's credibility. Walker's argument that the calls do not undermine Green's testimony is unconvincing. Green had testified that she was not afraid of Walker and that she fabricated her statements about the August 15 incident. During the Rule 104 hearing, she testified that she did not remember ever telling the police that Walker assaulted her, maintaining that she and Green never got into a fight. The May 16 calls, in which Green and Walker can be heard arguing in the first call and Green tells the dispatcher that Walker assaulted her in the second, clearly undermine the credibility of Green's claim that she was never afraid of Walker and that she lied about the August 15 events. The judge did not abuse his discretion in finding that the call satisfied the first prong of Cofield.
With respect to the second prong, Walker argues that the May and August incidents were not similar in kind because Green did not mention a weapon during the May calls and the allegations concerning the August incident were more serious. The judge's determination that they were sufficiently close in time and similar in kind was well supported in the record and not an abuse of discretion. The May 16 calls occurred less than three months before the August 15 call, and both involve Green contacting the police to seek help because of Walker's threats and actions.
Walker does not challenge the judge's findings with respect to the third Cofield prong, which requires proof by clear and convincing evidence. We are satisfied that the proofs met that standard. As to the fourth prong, the judge's characterization of the May calls as highly probative with respect to Green's credibility is clearly supported by the record.
Because the judge determined that the May calls were not admissible as evidence of propensity, he appropriately issued limiting instructions both before and after the prosecutor's examination of Green concerning the calls. A similar instruction was included in the jury charge at the end of the trial. Such instructions are sufficient to minimize possible prejudice. Lykes, supra, 192 N.J. at 536-37.
We reject Walker's argument that the calls were too prejudicial to be admitted, considering what he characterizes as their minimal probative value. In fact, they were essential to the State's case because they severely undercut the credibility of Green's testimony recanting her prior statements about the events of August 15 and the nature of Walker's actions that day.
Although we agree with Walker's assertion that the prosecutor attempted to misuse the evidence during his questioning of Green and Walker, we are satisfied that the judge's limiting instructions before and after Green's testimony and during the final charge, sufficiently counteracted any impropriety. We note that defense counsel did not object to the playing of the May calls during Walker's cross-examination, as a consequence of which the judge did not repeat the limiting instruction at that time. However, as noted, the judge did repeat the limiting instruction in the final charge.
Finally, we observe that, even if the judge erred in admitting the May calls, the fact is that Walker was not convicted of the charges concerning which the disputed evidence was relevant. He was only found guilty of unlawful possession of a handgun and resisting arrest, both of which criminal acts occurred while he was being pursued by the police later on August 15.
Walker next argues that the judge erred by allowing the prosecutor to cross-examine him about prior drug arrests. It is well-settled that eliciting testimony about a witness's arrest record to impeach his or her credibility is impermissible. See State v. Medina, 254 N.J. Super. 668, 678-81 (App. Div. 1992); State v. Hutchins, 241 N.J. Super. 353, 359-60 (App. Div. 1990). However, the testimony at issue here must be viewed in context.
In his direct examination of Green, in an apparent attempt to undermine Stinner's credibility and demonstrate his alleged animus toward Walker, defense counsel sought to show that Walker was being targeted and harassed by Stinner.
Q. Has Detective Stinner ever harassed you?
Q. How many times?
A. A couple. A few.
Q. And when you say harassed, what do you mean? . . .
A. Like I -- it's been probably a couple of times[.] [L]ike we, like me and a couple of my friends, we haven't even been doing nothing and they'll just jump out of their cars, come searching us, warrant checking, all type of stuff, saying that we weren't allowed, like telling us that we'll be on private property or whatever, all types of stuff like --
Q. Do they arrest you? Do they arrest you on these incidents?
Q. Has Detective Stinner ever found a gun on you?
Q. Has Detective Stinner ever found drugs on you?
Q. Has Detective Stinner ever arrested you that you can remember?
A. Not personally, like him by himself[.] I don't think so. No, never.
On direct examination, defense counsel questioned Walker about his prior conviction for receiving stolen property. On cross-examination, the prosecutor began questioning Walker about his prior interactions with Stinner. In what may have been an attempt to clarify Walker's statement that "they" never arrested him when they "jump[ed] out of their cars," searched and warrant checked, the prosecutor asked Walker whether he had ever been stopped and found to be in the possession of narcotics. Defense counsel immediately objected.
The judge, who did not have the benefit of the trial transcript, overruled the objection, explaining that defense counsel had opened the door to the questioning on direct examination. The prosecutor then elicited testimony from Walker that he had been arrested on two separate occasions for narcotics offenses.
However, the judge revisited the issue during his final jury charge.
Now there was also some questioning when the defendant was on the witness stand regarding previous arrests of the defendant. Ordinarily such evidence is not admissible for any purposes in any manner.
In this case the defendant made certain statements in his direct case regarding his lack of involvement with the law. I permitted some examination on this issue solely on the basis of his credibility. Then he acknowledged on cross-examination that there was such involvement.
I am now striking any testimony regarding his prior arrests for anything at -- other than the conviction he admitted to, and that's only admissible for his credibility. You may not consider that testimony regarding his prior arrest for any offense for any reason whatsoever in this matter. It is stricken from the -- from your consideration.
Even with the benefit of the transcript, it is not clear that the testimony at issue should have been precluded as Walker's testimony implied that he was being harassed by law enforcement, but never arrested. In any event, the judge revisited the issue the following day during his jury charge, struck what he found to be inappropriate testimony, and issued a clear instruction that the jury must disregard it. The erroneous admission of prior arrests is not automatically reversible error. See State v. Peetros, 45 N.J. 540, 546-48 (1965). In addition, a clear instruction is to be presumed effective. Winder, supra, 200 N.J. at 256. We conclude that there was no error capable of causing the jury to reach an unjust result.
Finally, Walker argues that, during Green's direct examination, the prosecutor elicited inappropriate testimony from Green that Walker had pointed a gun at her on prior occasions.
During his direct examination, the prosecutor questioned Green about a statement she made at the police station on August 15. The following exchange took place
Q. Okay. And at some point you were at the police station, right?
A. After that, yeah.
Q. Okay. And before you left the police station you gave a short statement. Do you remember that?
Q. Do you remember what that statement consisted of?
A. I said that he pulled a gun out on me and he said that he was going to kill me.
Q. Okay. Do you remember if you said anything else in that statement?
A. In detail, no.
Q. Okay. If I showed you a copy of that statement, do you think that would help refresh your memory if you said anything else?
Q. Okay. I'm going to show you what's been marked S-4 for identification. I want you to take a look at this. Just -- just read it over, tell me if you recognize what it is.
A. Okay. Yes, exactly what I told you. That's what it says.
Q. Okay. Just if you could read further down, there's another part.
A. I don't remember saying that but --
Q. Okay. What --
A. -- but at the time I was in an angry blank so I might have.
Q. So what -- what don't you remember saying?
A. That he pulled a gun out on me before on plenty of occasions.
Q. And that -- that -- okay. Do you remember -- do you remember signing this statement?
A. I had to sign it if it was a statement.
Q. Okay. And that's your signature at the bottom?
Defense counsel did not object to the testimony. Had there been an objection, the testimony at issue would have been excludable under N.J.R.E. 404(b) and Cofield, as evidence of prior bad acts. In addition, the judge would have been able to deliver an appropriate curative instruction.
The testimony was delivered in the context of Green's general disavowal of all of her accusations against Walker. Indeed, when asked about the statement, she told the prosecutor that she did not remember saying it, stating that "at the time [she] was in an angry blank so [she] might have." Green testified later, during cross-examination by defense counsel, that Walker never pointed a gun at her and that she had never seen Walker with a gun. Consequently, the jury heard several clear statements from Green that Walker never pointed a gun at her and that she had never seen him with one.
As noted previously, the jury acquitted Walker of the charges related to his encounter with Green on August 15, so the testimony cannot have prejudiced Walker with respect to those charges. The jury was apparently unwilling to find Walker guilty of offenses that required them to credit Green's testimony beyond a reasonable doubt. Stinner's testimony that he saw Walker with a gun in his waistband during the chase provided sufficient evidence for his conviction on the unlawful possession count. We conclude that the testimony was not capable of causing the jury to reach an unjust result and consequently find no basis for a reversal.
We turn next to Walker's arguments with respect to prosecutorial misconduct. He contends that there were three instances of impropriety that, singly or taken together, warrant reversal.
Prosecutors have a duty to refrain from employing "'improper methods calculated to produce a wrongful conviction.'" State v. Wakefield, 190 N.J. 397, 436 (2007) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). They must "'refrain from any conduct lacking in the essentials of fair play, and where  conduct has crossed the line and resulted in foul play, the reversal of the judgment below will be ordered.'" Id. at 437 (quoting State v. Siciliano, 21 N.J. 249, 262 (1956)). "'[T]o justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" Id. at 438 (internal quotation marks omitted) (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)).
In reviewing potentially improper comments, courts should 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.'" State v. Daniels, 182 N.J. 80, 96-97 (2004) (quoting State v. Smith, 167 N.J. 158, 182 (2001)). Moreover, where defense counsel fails to timely object to improper comments, they will not be considered prejudicial, as such a failure signals that defense counsel did not think the comments were prejudicial. State v. Echols, 199 N.J. 344, 360 (2009).
The prosecutor started to question Green concerning her knowledge of "Battered Woman Syndrome."
Q. You came in once and spoke to Detective D'Avella, right?
Q. Okay. And then you didn't come in until March, 2010 to change your statement. Is that correct?
A. To change from the original, yes.
Q. Okay. And understand that's five weeks after Mr. -- Mr. Walker was indicted?
Q. And that's about the same time he came back from Georgia. Is that correct?
A. I don't even know if he was even up here from Georgia. Yeah, I'm not sure. I don't -- I don't remember [the] date of when he came back, I just know he was down there for a month or two or whatever. So[,] you asking me about dates of when, it's a blur to me.
Q. Ms. Green, do you know what [B]attered [W]oman [S]yndrome is?
The trial judge immediately called for a sidebar and informed the prosecutor that he could not continue that line of questioning.
During his re-cross, the prosecutor also asked Green whether she had ever stabbed Walker.
Q. One last question. Ms. Green, isn't it true that you stabbed Mr. Walker?
A. That's not true. That's false.
Q. No further questions.
There was no objection to the question.
Finally, during his closing argument, the prosecutor argued to the jury that Stinner should be believed because he would face serious consequences if he lied on the witness stand. He argued: "If you believe for one moment that Detective Stinner came in here and lied to your faces, then acquit this man, acquit him, because if he did that[,] he subjected himself to official misconduct, perjury, and obstruction of justice." The judge immediately interjected: "Ladies and Gentlemen of the [j]ury, you are to disregard the prosecutor's last comments. They are inappropriate with respect to any potential outcome regarding Officer Stinner's not testifying truthfully. You have to determine that, whether or not."
While we agree that the prosecutor's conduct was improper in each instance, we find nothing warranting reversal in any of his actions, individually or collectively. There was no objection with respect to the question to Green concerning whether she ever stabbed Walker, and we have already noted that the jury did not base any convictions on Green's testimony. In the first and last case, the judge immediately intervened and stopped the prosecutor from going further. He gave an appropriate corrective instruction with respect to the improper argument made during summation.
Before turning to the issue of the sentence, we briefly address Walker's remaining arguments with respect to his conviction. They are that the judge should have: (1) given an identification charge; (2) edited the tape of the August 15 telephone call to omit the statements made by the dispatcher; (3) severed the resisting arrest charge from the other counts and tried it separately; (4) charged the jury on continuing possession of a weapon; and (5) granted his motion for a judgment of acquittal.
Having reviewed those arguments in light of the applicable law and the record before us, we find them to be without merit and not warranting extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
With respect to the identification charge, we note that "clear and correct jury instructions are essential for a fair trial." State v. Brown, 138 N.J. 481, 522 (1994). The charge was not requested, and identification was not really an issue during the trial. Defense counsel's failure to request the identification charge denied the judge the opportunity to hear argument on the issue, and also suggests that defense counsel did not perceive any prejudice to its absence. State v. Mays, 321 N.J. Super. 619, 630 (App. Div.), certif. denied, 162 N.J. 132 (1999).
The issue at trial was whether Stinner saw Walker with a gun on August 15, and not whether the person he saw with the gun was Walker or someone else. Both Stinner and Walker testified that they were familiar with each other. Even if the charge would have been appropriate, reversal is unwarranted because any prejudice to Walker did not "create a real possibility that the jury arrived at a result it otherwise might not have reached," State v. Marrero, 148 N.J. 469, 492-93 (1997).
The dispatcher's statements during the August 15 telephone calls were mostly questions and were clearly not testimonial in nature. We find no confrontation clause issue. See Davis v. Washington, 547 U.S. 813, 822 (2006); Crawford v. Washington, 541 U.S. 36, 46 (2004); State v. Cabbell, 207 N.J. 311, 329 (2009). And, as previously noted, Walker was not convicted of any offense related to his interactions with Green on August 15, so there could have been no prejudice in any event.
Walker argues that count five, which charged flight, should have been severed because the arrest warrant that served as a basis for the resisting arrest charge was issued for a crime other than the incident on August 15, so that it was a vehicle to introduce bad-act evidence.4 In fact, the basis of the arrest warrant was not disclosed until defense counsel attempted to create the impression that the police did not have a warrant for Walker's arrest. The judge then permitted the prosecutor to clarify that there was a warrant for Walker's arrest at the time, which was unrelated to the August 15, incident. He did not permit the prosecutor to elicit the nature of the offense underlying the warrant. We see no abuse of his discretion, and there was, in any event, no prejudice to Walker's right to a fair trial. State v. Manney, 26 N.J. 362, 366 (1958).
Walker contends that the judge should have charged the jury differently on the weapons offenses, arguing that there was an inconsistent verdict. We disagree. The fact that the jury acquitted Walker of possession of a weapon for an unlawful purpose is not inconsistent with his conviction for unlawful possession of a weapon. They are different offenses, and have different elements.
We also find no merit in the argument that the judge should have entered a judgment of acquittal. Our review of the record satisfies us that there was ample evidence to support the jury's verdict of guilty on counts three and five beyond a reasonable doubt.
We now turn to the issues raised with respect to the sentence.
"[Our] review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (alterations in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363-65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364-65.
"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296-97 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)). Nevertheless, a trial judge need not "explicitly reject each and every mitigating factor argued by a defendant." State v. Bieniek, 200 N.J. 601, 609 (2010). However, "where mitigating factors are amply based in the record before the sentencing judge, they must be found." Dalziel, supra, 182 N.J. at 504. Only when credible record evidence suggests the existence of an aggravating or mitigating factor must the trial court consider it. Id. at 50405.
Walker argues that the sentence was excessive because the judge placed undue weight on aggravating factors three (the risk of recidivism), and nine (the need for deterrence), and failed to consider mitigating factor eleven (excessive hardship on the defendant or his dependents). N.J.S.A. 2C:44-1(a)(3), (9), -1(b)(11). Concerning the undue weight on the aggravating factors, Walker contends that his criminal record was not sufficient support for factor nine.
Walker cites State v. Gardner, 113 N.J. 510, 520 (1989), for the proposition that general deterrence unrelated to specific deterrence has relatively insignificant penal value. Gardner's facts bear little, if any, relation to this case. Walker has an extensive criminal history, as defense counsel conceded during sentencing. State v. Martelli, 201 N.J. Super. 378, 385-86 (App. Div. 1985), also cited by Walker, does not provide a basis for resentencing. Indeed, in Martelli, we noted that in imposing a sentence, a judge can consider "aggravating factors that differentiate . . . this offender from others." Id. at 386. This is precisely what the judge did here. He concluded that Walker's extensive criminal record presented a strong risk of re-offense, underscoring the need to deter him from further criminal activity. Walker's criminal history could support aggravating factors three and nine. See State v. Ross, 335 N.J. Super. 536, 542-43 (App. Div. 2000), certif. denied, 167 N.J. 637 (2001); State v. Radziwil, 235 N.J. Super. 557, 557-76 (App. Div. 1989), aff'd o.b., 121 N.J. 527 (1990).
Walker next argues that the judge should have taken mitigating factor eleven into account, referencing the information in the presentence report that he has two young children. Although Walker does have two young children, there is no evidence in the record that suggests that he supports them. Indeed, the presentence report states that Walker had been unemployed since 2007, and that the children were in their mother's custody. As a result, that mitigating factor was inapplicable. See Dalziel, supra, 182 N.J. at 505 (finding that where defendant did not support his fianc e and child his imprisonment "could not constitute an excessive hardship on them").
We find nothing in the record to suggest that the sentence was excessive or that the trial judge abused his discretion. The judge did not sentence at the top of the range and imposed concurrent rather than consecutive sentences. Because we find no trial error warranting reversal and no abuse of discretion in sentence, we affirm both the conviction and the sentence.
1 This was not the first time Green had called the police concerning problems with Walker, as will be described below.
2 The police had an active arrest warrant based on a prior incident.
3 In reaching this decision, the judge did not perform an explicit analysis of the four Cofield factors, but he clearly considered them. He found that the recordings were relevant on the issue of Green's credibility; that the incident was close in time and related to the same issue as the offense charged; that the evidence that another crime had taken place was clear and convincing; and that the recordings had high probative value.
4 Walker failed to file a timely motion for severance, which must ordinarily be made at the time of arraignment or status conference. R. 3:15-2(b); R. 3:10-2. The trial judge considered the issue sua sponte, and determined that severance was not required.