STATE OF NEW JERSEY v. GEORGE RUIZ

NOT FOR PUBLICATION WITHOUT THE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.

GEORGE RUIZ, a/k/a GEORGE

LUIS RUIZ,

Defendant-Appellant.

_________________________________

February 18, 2016

Argued January 26, 2016 Decided

Before Judges Reisner, Hoffman and Whipple.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-12-02149.

Daniel S. Rockoff, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Rockoff, of counsel and on the brief).

LeeAnn Cunningham, Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Sara A. Friedman, Special Deputy AttorneyGeneral/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant George Ruiz appeals from his conviction for third-degree official misconduct, N.J.S.A. 2C:30-2, and the disorderly persons offense of theft by unlawful taking, N.J.S.A. 2C:20-3, for which he received an aggregate sentence of three years in prison with two years of parole ineligibility. Defendant does not appeal from the sentence.

Defendant, an Essex County sheriff's detective assigned to the K-9 Unit, was convicted of stealing seventy dollars in cash during the investigation of a crime scene. On this appeal, he raises the following issues

I. AFTER THE STATE LOST THE $70 TAKEN FROM RUIZ BY OFFICERS FROM THE ESSEX COUNTY PROSECUTOR'S INTERNAL AFFAIRS DIVISION, THE COURT ERRED BY REFUSING TO EXPLAIN TO JURORS THAT THEY COULD REASONABLY CHOOSE TO DRAW AN INFERENCE AGAINST THE STATE ABOUT WHAT THE LOST EVIDENCE WOULD HAVE SHOWN

II. THE COURT ERRED BY REFUSING TO ADMIT FOR THE JURY'S CONSIDERATION THE OUT-OF-COURT STATEMENT OF AN UNAVAILABLE WITNESS WHO UNDERMINED THE STATE'S ENTIRE CASE, EVEN THOUGH HER STATEMENT SHOULD HAVE BEEN ADMISSIBLE BECAUSE IT WAS AGAINST HER PECUNIARY INTEREST (PARTIALLY RAISED BELOW)

III. THE PROSECUTOR, ALONG WITH NUMEROUS HIGH RANKING WITNESSES FROM HIS OFFICE, DEPRIVED RUIZ OF A FAIR TRIAL BY IMPROPERLY (1) OPINING FROM THE STAND THAT HE WAS GUILTY; (2) STRESSING THAT THE REPUTATIONS OF ALL LAW ENFORCEMENT OFFICERS WERE AT STAKE; (3) DARKLY HINTING WITHOUT ANY PROOF THAT RUIZ WAS IMPLICATED IN OTHER THEFTS; (4) ACCUSING RUIZ OF LYING AND TAILORING HIS TESTIMONY; AND (5) SHIFTING THE BURDEN OF PROOF TO THE DEFENSE (NOT RAISED BELOW)

1. LIEUTENANT FRANCIS, A HIGH-RANKING OFFICIAL IN THE PROSECUTOR'S OFFICE, TOLD THE JURY THAT RUIZ WAS GUILTY

2. THE PROSECUTOR IMPROPERLY STRESSED THAT A GUILTY VERDICT WOULD PROTECT THE REPUTATIONS OF OTHER LAW ENFORCEMENT OFFICERS

3. THE PROSECUTOR DARKLY HINTED WITHOUT ANY PROOF THAT RUIZ WAS IMPLICATED IN OTHER THEFTS AND HAD A HABIT OF STEALING

4. THE PROSECUTOR IMPROPERLY ARGUED THAT RUIZ LIED AND TAILORED HIS TESTIMONY TO THE STATE'S WITNESSES

5. THE PROSECUTOR IMPROPERLY SHIFTED THE STATE'S BURDEN TO RUIZ

IV. THE COURT IMPROPERLY PUSHED A HOLDOUT JUROR TOWARD A GUILTY VERDICT ON OFFICIAL MISCONDUCT AFTER THE JURY SENT THE JUDGE A NOTE EXPLAINING THAT THEY WERE HUNG 11-1 (NOT RAISED BELOW)

Having reviewed the record in light of the applicable legal standards, we find no merit in any of those arguments and we affirm.

I

This was the most pertinent trial evidence. On March 3, 2011, a task force comprised of several law enforcement agencies including the Essex County Prosecutor's Office and federal narcotics agents (collectively, the officers) executed a search warrant as part of a major drug investigation. When the officers entered the apartment which was the target of the warrant, a woman occupant later identified as Ms. Gonzalez-Interiano, turned over a package of drugs that had recently arrived in the mail. Her husband also revealed to the officers a large cache of cocaine hidden in the kitchen. Following the established protocol of the Essex County Prosecutor's Office, Lieutenant Francis called for K-9 officers to bring drug sniffing dogs to the scene in case more drugs were hidden on the premises, and he arranged for a member of the Professional Standards Bureau (PSB) to come to the apartment to observe the search.1

Francis testified that while waiting for the K-9 and other officers to arrive, he conducted a cursory search through the apartment to determine if any other suspects were present and whether any contraband might be in plain view. During this walk-through, Francis looked into a bedroom closet and noticed some folded currency tucked into a clear plastic shoe tree hanging on the back of the closet door.2 Following protocol, Francis left the money in place. However, when Lieutenant Roberts of the PSB arrived at the apartment a few minutes later, Francis told him about the money and the cocaine that had been found. According to both Francis and Roberts, at this point, Francis took the money out of the shoe tree in Roberts's presence and counted it. Both of them testified that the money consisted of two twenty dollar bills and three ten dollar bills, folded twice, that is, folded in half and then folded a second time.

Francis and Roberts both testified that, consistent with standard practice, the money was then returned to the shoe tree, pending a complete search of the apartment. Also following standard protocol, Roberts reported to his superior, Captain Spruill, that cash had been found in the apartment as well as drugs. Shortly thereafter, defendant arrived with his search dog, and Francis directed defendant to begin his search in the bedroom. Francis testified that between the time that he and Roberts left the bedroom and defendant entered, no one else was in the room. Francis estimated that defendant and his K-9 were alone in the bedroom with the door closed for around fifteen to twenty seconds. Officer Holloway then joined defendant in the bedroom and the two were alone with the dog with the door closed for about three to five minutes. According to Francis, Holloway then left the room, and defendant was again alone in the bedroom.

According to Holloway, he entered the bedroom to observe the search, and watched for a few minutes while the dog searched the area near a crib and a bed. After a few minutes, defendant asked Holloway to step outside, telling him that the dog seemed to be losing interest in the search and he thought it might be best if he and the dog finished the search with no one else present. Holloway testified that at that point defendant was standing near the closet, but he and the dog had not yet searched the closet. Holloway recalled that the closet door was slightly ajar.

According to witnesses, defendant and the dog were alone in the room for anywhere between a few seconds and a minute. After defendant and the dog left the room, Francis asked if they had found anything. When Holloway responded that nothing was found, Francis stated that he had found something and walked into the bedroom. Holloway followed him. Francis opened the closet and saw that the money was gone. Holloway confirmed that after opening the closet, Francis became "stone-faced" and said that money was missing.

Francis came out of the bedroom, called Spruill to report the missing money, and directed all of the officers on the scene, including defendant, to stop the search and stay where they were until Spruill arrived on the scene. Francis testified that at this point, defendant asked if he could take his dog out to his car, and Francis told him he could not because all of the officers needed to stay in the apartment. Defendant made this request a second time, and Francis allowed him to hand off the dog to another K-9 officer who was waiting outside the apartment door.

According to Francis, Roberts, and Holloway, they observed defendant sweating profusely. Francis and Roberts testified that defendant kept walking around the apartment instead of staying in the living room as Francis directed. Francis and Roberts also testified that they observed defendant removing his wallet from his right back pocket and attempting to take some cash from his left front pocket and move it into his wallet. They both testified that Francis directed defendant to put the money back in his pocket and not to "commingle" his money.

When Spruill arrived, she conducted consent searches of each of the officers present at the scene, beginning with defendant. During that search, which Roberts witnessed, seventy dollars was found in defendant's front pocket, in addition to a large amount of cash that was found in the wallet located in his back pocket. The seventy dollars was in denominations of two twenties and three tens, and according to Spruill and Roberts the money was "folded in fours." Defendant told Spruill that the money in his wallet was from cashing his paycheck, and that the seventy dollars was change from a purchase of lottery tickets that he made before he cashed the paycheck. Spruill searched all of the other officers, and none of them had seventy dollars in the same denominations that Francis and Roberts saw in the closet.

According to Spruill, after the search of the officers was complete, the Crime Scene unit arrived to take photographs of the cash and the shoe tree.3 In particular, the seventy dollars that was confiscated from defendant was "retained for Crime Scene to photograph." Officer Muller, of the Crime Scene unit, testified that when she entered the bedroom she found the seventy dollars lying on a dresser. At that point it was folded in half. She opened the bills flat, photographed the front and back sides, and put the bills in a clear plastic bag to be transported from the scene. Muller noted that "[she] counted it. [Her] colleague counted it. And then [they] both signed off, took the money and [she] put it inside of an evidence locker back at the Crime Scene Unit." She testified that after depositing the money into the locker, "[her] responsibilities end there." She testified that typically, money seized in a drug raid would be deposited in a forfeiture fund, but she was not responsible for making the deposit. There was no dispute that the seventy dollars was deposited in the forfeiture fund, rather than being retained as evidence.

Defendant's version of events was similar to Holloway's version. He testified that he and Holloway entered the bedroom and that Holloway was present for most of the search. At one point, before reaching the closet, the K-9 seemed to show an "alert" at a bedside night table. Holloway searched the table and found nothing. At that point, defendant thought the dog was "bored" or losing interest in the search and he asked Holloway to leave the room. Defendant testified that he then completed the search. However, he denied searching the closet or even opening it. He explained that he did not open the closet because when they arrived at the closet, "[the K-9] showed no interest whatsoever." Defendant denied taking anything from the closet.

Defendant testified that after he left the bedroom, he searched the rest of the apartment including the kitchen, and the dog did not alert in any room. However, he was unable to explain why, if he searched the kitchen, the dog did not alert on the hidden compartment that had recently held a large quantity of cocaine.

Defendant testified that he had money from cashing his paycheck, as well as money given to him as change from purchasing lottery tickets earlier that day. He explained that he had about $150 before he purchased the lottery tickets, but he had given some of that money to his wife before purchasing the lottery tickets, and the seventy dollars was what remained after sharing with his wife and making the purchase. Defendant did not explain why he did not put the seventy dollars in his wallet. He testified that after he was searched, Spruill returned the money from his wallet, but confiscated the seventy dollars. Defendant denied that the seventy dollars had been folded twice; he testified that it was folded in half.

II

A.

Defendant first contends that the trial judge erred in refusing to give the jury an adverse inference charge concerning the seventy dollars, which the State failed to retain as evidence. We review the judge's decision for abuse of discretion and we find none. State v. Dabas, 215 N.J. 114, 132 (2013). We agree with the trial judge's analysis of this issue as set forth in his written opinion. We add only these comments.

The State has an obligation to retain and turn over to the defense "material exculpatory evidence." State v. Mustaro, 411 N.J. Super. 91, 102 (App. Div. 2009); see Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963). If the evidence is only potentially exculpatory, the defendant may establish a due process violation, and a right to a remedy, by establishing that the evidence was destroyed in bad faith. Mustaro, supra, 411 N.J. Super. at 103. "An adverse-inference charge is one permissible remedy for a discovery violation[.]" Dabas, supra, 215 N.J. at 140. In Dabas, for example, the Court indicated that an adverse inference charge could be an appropriate remedy where the police destroy "interrogation notes that should have been turned over to the defense." Ibid.; see also State v. W.B., 205 N.J. 588, 608-09 (2011).

In this case, two police witnesses testified that seventy dollars in twice-folded bills were taken from defendant's pocket when he was searched. The crime scene unit photographed the bills at the scene. The bills were then sent to headquarters, where they were deposited into the State's forfeiture fund. Defendant raised an issue at the trial as to whether this was consistent with the policies of the Prosecutor's Office or whether the bills themselves should have been retained as evidence. There was testimony that money seized during drug raids was generally required to be deposited into the forfeiture fund, although the Prosecutor's standard operating procedures (SOP) also stated: "Identifiable currency such as . . . currency to be tested for fingerprints, bodily fluids, etc. or any other currency having unique evidential value may be maintained as Evidence." (Emphasis added). There was no dispute that the seventy dollars was deposited into the fund; a deposit slip was introduced in evidence. However, there was no evidence that the failure to retain the bills was the result of bad faith, as opposed to bureaucratic error.

In his brief, as he did before the jury, defense counsel speculates that if the State had retained the bills perhaps they could have been fingerprinted. Although the prosecutor's SOP noted that bills might be retained for fingerprinting, the State's fingerprint witness testified that she had tried on fifteen occasions to recover fingerprints from pieces of paper and was never able to do so, and she had never been asked to fingerprint paper money.

Defendant also argues that the bills had exculpatory value because they were not creased, thus suggesting that they had not been double-folded the way the bills in the closet were. Two of the State's witnesses testified that when defendant took the seventy dollars in bills out of his pocket during Captain Spruill's search, the bills were folded twice. The bills were then spread flat on a dresser and photographed. The photographs of the bills were available at trial and were introduced in evidence. The State's brief concedes that the photographs of the bills "failed to clearly display visible creases." Defense counsel was thus able to argue to the jury that the bills, as photographed, were not the same bills that were found in the closet. In response, the prosecutor argued that the bills could still have been double-folded even if they were not creased. Both sides could have made the same arguments if the original bills had been retained.

Although the charge was not given, defense counsel also argued at length to the jury that the State's failure to retain the evidence demonstrated both the ineptitude of its investigation and the likelihood that the bills seized from defendant were not the ones Francis saw in the closet. We agree with the trial judge that the State's failure to retain the bills did not violate defendant's due process rights, and the trial judge did not err in declining to give an adverse inference charge. See State v. Hollander, 201 N.J. Super. 453, 478-79 (App. Div.), certif. denied, 101 N.J. 335 (1985).

B.

Next, defendant argues that the judge should have allowed the defense to introduce in evidence an out-of-court statement that a witness made to the police during their investigation. We review the judge's ruling for abuse of discretion. See State v. Nantambu, 221 N.J. 390, 402 (2015). In the trial court, defendant contended that the statement was admissible as testimony in a prior proceeding under N.J.R.E. 804(b)(1); a business record or a public record under N.J.R.E. 803(c)(8); or a present sense impression, N.J.R.E. 803 (c)(1). In a written opinion dated March 5, 2013, the trial judge correctly concluded that none of those exceptions were applicable.4

For the first time on appeal, defendant now contends that the statement was admissible under N.J.R.E. 803(c)(25), because it was against the witness's pecuniary interest. Defendant did not present that argument in the trial court, thereby denying the trial court the opportunity to consider and rule on the issue. We ordinarily will not address such an issue raised for the first time on appeal. See State v. Robinson, 200 N.J. 1, 20-22 (2009). If we review the claim, we apply the plain error rule. R. 2:10-2. In this case, even if we consider the argument, it is without merit and we find no error, plain or otherwise.

N.J.R.E. 803(c)(25) applies to "[a] statement which was at the time of its making so far contrary to the declarant's pecuniary, proprietary, or social interest . . . that a reasonable person in declarant's position would not have made the statement unless the person believed it to be true." This exception to the hearsay rule "is based on the theory that, by human nature, individuals will neither assert, concede, nor admit to facts that would affect them unfavorably. Consequently, statements that so disserve the declarant are deemed inherently trustworthy and reliable." State v. Williams, 169 N.J. 349, 358-59 (2001) (quoting State v. White, 158 N.J. 230, 238 (1999)).

The police interviewed Ms. Gonzalez-Interiano, one of the two occupants of the apartment where the money was found. According to the police report, when asked if she had hidden any money in her bedroom closet, she told the investigators that she had hidden fifty dollars in a white boot in that closet. She stated that she may have hidden some other money in another shoe somewhere but she did not remember. The witness also told the police that her husband "possibly had one hundred dollars in the house but she was not sure where he had it."

Defendant argues that the statement was against her pecuniary interest because the police had seized the seventy dollars, and if the witness did not claim it, the police might be able to keep it. The short answer is that the statement was not clearly against the witness's pecuniary interest because she left at least two avenues by which she or her husband could claim the money (maybe she left it in another shoe or maybe it was part of her husband's one hundred dollars).5 Additionally, the witness and her husband were suspected of selling drugs. It was therefore in her interest to minimize the amount of cash she would admit to having in the apartment, because having large amounts of cash might be considered evidence of illegal activity. We find no plain error and no abuse of the trial court's discretion in excluding this evidence.

C.

For the first time on appeal, defendant now claims in his Point III that the State committed a series of improprieties during the trial. We review those claims for plain error, and we find none. R. 2:10-2. Except as addressed here, the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

During the cross-examination of Lieutenant Francis, there were a series of heated exchanges between the witness and defense counsel. As a result, the judge admonished Francis to calm down, and told defense counsel to stop shouting at the witness. During the questioning, defense counsel asked Francis a series of improper questions, including, "Were you lying then or are you lying now?" The prosecutor objected but the witness interjected, "I'm not lying at all, sir." Defense counsel responded, "[o]kay," after which Francis spontaneously stated, "It's your client who stole the money." Rather than objecting, defense counsel responded, "I see." Francis repeated, "Yes. It is your client who stole the money." Again, instead of objecting or asking that either statement be stricken, defense counsel responded "Terrific. Let's just talk about who - - you're the one that's on there now. You're not charged with anything. Right?"

Defendant now argues for the first time that Francis improperly offered his opinion as to defendant's guilt, in violation of the principles set forth in State v. McLean, 205 N.J. 438, 460-61 (2011). We agree that the testimony was improper, but on this record we find no plain error in the judge's failure to sua sponte strike Francis's two spontaneous statements. It is clear to us that defense counsel was trying to portray Francis as a dishonest witness who may have taken the money himself. In that context, Francis's spontaneous exclamations could have furthered the defense strategy, and we infer that defendant's attorney intentionally refrained from making an objection. In any event, on this record we are not persuaded that the statements had a clear capacity to produce an unjust result. R. 2:10-2.

The remaining sub-points allege that there were improprieties in the prosecutor's summation, although defense counsel raised no objection to any of those remarks. Having reviewed the summation, we find no support for defendant's contentions, which are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

D.

Finally, defendant argues for the first time on appeal that the judge improperly charged the jury after they reported that they were "Hung 11-1 on count three." This was the context. Prior to deliberations, the court dismissed count one. The jury was sent to deliberate mid-morning on March 12, 2013, after being charged on counts two (obstruction of justice) and three (official misconduct). The judge told the jurors that if they did not reach a verdict that day, they would be released for the day at 4:00 p.m. Throughout the rest of the day, the jury asked for extensive readbacks and spent very little time actually deliberating. At 3:55 p.m., the jury sent out a note stating, "No agreement on Count 3 for today." Accordingly, the judge sent them home.

The next morning the jury immediately asked for some additional readbacks of testimony, which were not completed until the afternoon. They were sent to resume deliberations at 2:01 p.m. At 2:36 p.m., the jury sent out a note that they were "Hung, 11 to 1." In a conference with counsel, the judge stated that because the jury had been deliberating for a very short time, he did not intend to "give them an Allen6 charge now," but intended instead to just instruct them to continue deliberating. Both attorneys agreed.

Accordingly, the judge reminded the jurors that they had been deliberating for "a rather short period of time," told them that "everybody here plays a role," and briefly reviewed the role of the attorneys and the judge. He then told the jury that "Your obligation . . . your sole obligation, is to decide this case. Please retire and continue your deliberations." There was no objection.

He sent the jury back to continue deliberating at 2:43 p.m., and released them for the day at 3:55 p.m. The next day, the jury asked for a re-instruction on reasonable doubt, which was given, and then asked for a readback of additional testimony, which was completed at 11:31 a.m. The jury returned to its deliberations without further instruction and returned a verdict at 11:57 a.m. They acquitted defendant of obstruction and convicted him of official misconduct.

We find no error in the judge sending the jury back to continue deliberations without giving them the Czachor charge that would be appropriate for a deadlocked jury. See Czachor, supra, 82 N.J. at 407. The jury had been deliberating for a very short period of time, and it was reasonable to conclude that there was not a genuine impasse. Further, the jury did not immediately return a verdict after receiving the instruction but continued its consideration of the evidence that day and the next day, requesting an instruction on reasonable doubt and more readbacks. The jury did not again report a deadlock. Unlike State v. Figueroa, 190 N.J. 219, 240-43 (2007), on which defendant relies, we cannot find that the charge in this case was coercive, and we find no plain error. R. 1:7-2; R. 2:10-2.

Affirmed.

1 The warrant was of a type that would only become effective when and if the occupants of the apartment accepted and opened a package that was delivered to them by an undercover agent. Once the package was accepted, and a device inside the package was triggered indicating that it had been opened, the officers were permitted to execute the warrant. Normally, PSB officers (also known as "internal affairs" officers) would have accompanied the search team, but in this case they were called to the scene later because it was not immediately known if the warrant was going to be executed.

2 Francis described the shoe tree as having several rows of clear plastic pockets holding boots and shoes. The currency he saw was tucked between the toe of a black boot and the front of the pocket, so that it was clearly visible.

3 A search of the shoe tree revealed an additional fifty dollars, folded and hidden in the toe of a white boot. That money was also photographed. It was deposited in the forfeiture fund at the same time that the seventy dollars was deposited.

4 We do not adopt the judge's reasoning that the statement was inadmissible as testimonial hearsay under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We note that the Sixth Amendment protects the defendant's confrontation rights, and in this case defendant was the proponent of the testimony. But we need not address the issue further in light of our conclusion that no hearsay exception applied to make this evidence admissible.

5 The seventy dollars was found inside the plastic shoe tree pocket, wedged between a boot and the plastic of the pocket. That would be consistent with the witness's statement that she might have left some other money in another shoe somewhere.

6 Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896); see State v. Czachor, 82 N.J. 392, 406-07 (1980).