STATE OF NEW JERSEY v. CHRIS JONES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1088-04T41088-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRIS JONES,

Defendant-Appellant.

_____________________________

 

Submitted October 3, 2005 - Decided

Before Judges Lefelt and Seltzer.

On appeal from a Judgment of Conviction

in the Superior Court of New Jersey,

Law Division, Criminal Part, Middlesex

County, 03-05-0661.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Richard Sparaco,

Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County

Prosecutor, attorney for respondent

(Simon Louis Rosenbach, Assistant

Prosecutor, of counsel; Eric Snyder,

Legal Assistant, on the brief).

PER CURIAM

Defendant was indicted in Middlesex County, Indictment No. 03-05-00661, charged with one count of burglary (a crime of the third degree), in violation of N.J.S.A. 2C:18-2, and 13 counts of fraudulent use of a credit card (each a crime of the third degree), in violation of N.J.S.A. 2C:21-6(h). After a jury returned a verdict of "Guilty" on all Counts, defendant was sentenced to fourteen concurrent five year custodial sentences, each with a two and one-half year parole ineligibility. He was also required to make restitution in the amount of $3,260.78 and to pay the appropriate monetary assessments and penalties. Defendant appeals both his conviction and sentence.

The State proceeded on the theory that, on February 10, 2004, defendant and Frank DeMarc, Jr. took a travel satchel containing various credit cards from the car of Ruth Ritzema. Ms. Ritzema was on her way to Newark Airport to catch a flight to Tampa, Florida for a business trip and had made a stop at the Mail Boxes Etc. store on Rte. 18 in East Brunswick to drop off a package. She parked and entered the store, leaving a travel satchel with her Palm Pilot, travel documents and credit cards on the front seat of her car. Ritzema's travel satchel was then taken from her car and used to make sixteen successful, but unauthorized, purchases totaling $4,234.08.

Although the trial proceedings spanned four days, the testimony was given, in its entirety, on April 13, 2004. The State produced three witnesses and the defense produced no testimony. The victim testified to the loss of the travel satchel and contents and the subsequent unauthorized charges. The State then produced Frank DeMarc, Jr. who had entered a plea and agreed to testify on behalf of the State. It became apparent, almost from the beginning of his testimony, that he was unwilling to implicate defendant. After admitting that he, DeMarc, had used the stolen cards to make purchases, the testimony proceeded as follows:

Q Who took that credit card out of that car?

A I did.

...

Q And who was with you when you made those purchases?

A I was with [defendant] Chris [Jones], but I told him, I told him anything he got he has to pay me back. And he said when he gets his tax return he will.

Q Did you recall ... [that] ... you allowed him to make purchases on that credit card?

A No. I think one, one purchase.

Q And where was that purchase?

A I don't recall either. It was all happening a year ago, that is what I'm saying. But I told him anything that he got he has to pay me back and then he agreed to that. And, you know, the main thing was I needed a ride. I didn't want him to know it was stolen so I needed a ride to the store. If I told him it was stolen, he wouldn't have taken me.

Q And so you are indicating now that you never told him that the cards were stolen?

A And I said that in the past and they didn't believe me, they sat there and harped on me, we know he was involved. I said, no, he wasn't. Tell me this or tell me this or I am going to charge you with everything. And they did not believe me just like you when I came and I seen you, you wouldn't believe that he had nothing to do with it. I tried telling you that ten times and you says I am going to take your plea away. I am going to take you to trial. It is just real bogus, we shouldn't even be here.

(emphasis added.)

DeMarc also explained that, although Jones signed for some of the items, he did so without knowledge of what DeMarc was doing:

Q and, in fact, Mr. Jones actually signed that credit card at Kohl's?

A "Well, I had to run out the store. I ran out the store to make a phone call. I told him to just sign for it. If they give you any crap, just call me and they didn't."

Given this testimony, the prosecutor asked for permission to treat DeMarc as a hostile witness. With that latitude, the prosecutor got DeMarc to admit that on various occasions he had spoken with the investigating officer and implicated defendant. He also admitted that when he entered a plea of guilty, he had given a factual statement implicating defendant. The transcript of that statement, however, was not introduced. DeMarc also explained that his comments during the factual basis relating to defendant were coerced:

THE COURT: You made what we call a factual basis, a statement. In other words, you told me what you did that makes you guilty. Listen to the question.

THE WITNESS: Okay.

THE COURT: What did you tell me back then?

THE WITNESS: What did I tell them?

THE COURT: Yeah.

THE WITNESS: That I took a credit card out of a car. That I used the credit card without her permission. That I signed for it.

Q Did you indicate anybody was with you?

A Did I indicate?

Q Did you tell us? Did you tell the Court?

MR. TOTO: Objection, Judge, it is still leading?

THE COURT: I am going to permit the question. It is not that leading that will interfere with --

A Oh, yeah, I know what you are talking about. They said to me, they asked me if Chris Jones was with me. And if you play the tape back, I stopped, I looked at my lawyer, I said, I do not want to implicate him in anyway. He goes, if you don't answer the question, they're going to take back your plea, give you more time. So I said, yes, because I was scared. And if you hear the plea, if you bring that tape in, you'll hear all of that. Because I told them, right, and I told the prosecutor too. It wasn't you, it was a different prosecutor. Then I said, I don't want to implicate him in any way. There is no reason why he should be getting in trouble for this, too. I said it was me and nobody wants to believe that just because he was with me, you know. It's just a waste of time. It really is.

Similarly, he testified that although he had implicated defendant when he spoke with the investigating officer, his statements were false:

Q And during the course of the investigation of the use of the credit card you had several occasions to speak with a detective from East Brunswick, isn't that correct?

A Not several but, yes.

Q More than one, correct?

A Yes.

Q And do you recall the name of that detective?

A No.

Q The name Csizmar?

A Yes.

Q -- is that the detective you spoke to?

A Yes.

Q And did you make statements to Detective Csizmar about your involvement and Mr. Jones' involvement?

A Yeah, but the statement I made is not true.

Q Listen to my question first?

A They did not believe a word I said.

THE COURT: Hold on. Listen to the question.

A I'm listening.

THE COURT: Believe me, you will be given ample time to explain everything you want to explain. Just listen to the question.

THE WITNESS: Sorry.

Q Did you speak to the detective about the taking of the credit card and the use of that credit card?

A Yes. I tried saying someone else did it.

...

Q And at that time you told him what happened, is that correct?

A At that time I told him what he wanted to hear because he said that I would get off on it. And then after I turned myself in and everything I realized that is not going to happen. I just should tell the truth, but you guys don't want to believe the truth so we're here.

Faced with DeMarc's testimony that defendant was not involved in the criminal activity alleged in the Indictment, the State sought to produce evidence of the prior inconsistent statements to which DeMarc had already admitted. They did so by calling the investigating detective, Mark Csizmar. Defendant's appeal focuses on Detective Csizmar's recitation of the prior statements and the judge's instructions with respect to the use that might be made of them.

Over defendant's objections, Detective Csizmar testified that he interviewed Mr. DeMarc on two occasions. The first conversation took place on March 13, 2003, at which time, Csizmar testified, DeMarc

... stated he was at his apartment on Main Street in East Brunswick and he was in the company of Brad Colnick and that is when I learned Mr. Colnick's last name. Mr. DeMarc stated that Christopher Jones came to the apartment with a credit card that Christopher Jones said was stolen. Christopher Jones told Frank DeMarc and Brad Colnick that they were going to go out shopping with the stolen credit card. They went in Mr. Jones' car which Frank described as a white four-door car.

The second conversation took place on March 19, 2003. Detective Csizmar testified that DeMarc had called, asking to speak to Csizmar because he, DeMarc, wanted

to add and change a few of the things he had told me earlier.

Q And what things did he indicate to you?

A He wanted to tell me that when they went to the Blockbuster store there was a car in the parking lot next to theirs. Present with Mr. DeMarc was Christopher Jones and Brad Colnick. There was a discussion between Mr. DeMarc and Mr. Jones about going in the car and getting, he didn't describe it as a pocketbook, he kind of described it as, Mr. DeMarc described it as a small case, and it was on the front seat of the car next to theirs.

Q And what else did he indicate?

A Mr. DeMarc stated that Christopher Jones said you go get it. An then Mr. DeMarc told me he said, no, Mr. Jones you go get it. And Mr. DeMarc stated that Mr. Jones got the, what he described as a small case.

Q And what did he indicate to you after that?

A Inside the cases where they found Ms. Ritzema's credit card and they proceeded to Brunswick Square Mall first to the J. C. Pennys store . . . .

When the judge charged the jury, he explained the use to which those statements might be put:

In this case there was a witness Mr. Frank DeMarc and the evidence in this case shows there was a statement made prior to trial that is something inconsistent with what he testified to during the trial. You may consider those prior statements in judging the witness' credibility. It may also be considered by you as substantive evidence. That is, as proof of the truth of what was stated in the prior contradictory statement.

Evidence has been presented showing that at a prior time a witness may have said something or has failed to say something which is inconsistent with the witness testimony at trial. This evidence may be considered as you as substantive evidence or proof of the truth of the prior statement or of an omitted statement. However, before deciding whether the prior inconsistent or omitted statement reflects the truth in all fairness you will want to consider all the circumstances under which the statement or failure to disclose was made.

(emphasis added).

Although that charge tracks the Model Jury Charge (approved May 23, 1994), it is not applicable, as the footnote to the charge indicates, to the use of prior inconsistent statements introduced by the party calling the witness.

Prior inconsistent statements of a witness are hearsay statements admissible by virtue of the exception contained in N.J.R.E. 603(a)(1). That exception provides

The following statements are not excluded by the hearsay rule:
 
(a) PRIOR STATEMENTS OF WITNESSES. A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement:
 
(1) is inconsistent with the witness' testimony at the trial or hearing and is offered in compliance with Rule 613. However, when the statement is offered by the party calling the witness, it is admissible only if, in addition to the foregoing requirements, it (A) is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability or (B) was given under oath subject to the penalty of perjury at a trial or other judicial, quasi-judicial, legislative, administrative or grand jury proceeding, or in a deposition ...

(emphasis added).

Evidence admissible under this Rule may be used as substantive evidence. State v. Mancine, 124 N.J. 232, 247 (1991); Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 803(a)(1)(2005). However, the Rule specifically provides that, if the evidence is offered, as it was here, by the party calling the witness, the prior statements must be sworn or recorded. Neither of DeMarc's statements, recounted by Detective Csizmar, met that requirement. Accordingly, they were not admissible pursuant to N.J.R.E. 803(a)(1), let alone admissible as substantive evidence of the truth of those prior statements. The testimony of Detective Csizmar in this regard was not authorized and its admission was error.

For the sake of completeness, we note that the party calling a witness may produce evidence of prior inconsistent statements even if those statements are neither recorded nor sworn. See N.J.R.E. 607. However, the use of the statements is limited to neutralization of the in-court testimony. Moreover, the party calling the witness may not attempt to neutralize in-court testimony with a prior inconsistent statement unless the in-court testimony comes as a surprise.

Neutralization removes the neutralized testimony from the case, as if the witness had never given the neutralized testimony. State v. Caccavale, 58 N.J. Super. 560, 571-72 (App. Div. 1959). It is not used for any purpose other than to eradicate the witness' trial testimony. State v. Benthall, 182 N.J. 373, 379 (2005). Indeed, because the testimony is not offered for the truth of the information it contains, it is not hearsay that requires an exception to N.J.R.E. 803. State v. Johnson, 216 N.J. Super. 588, 609 (App. Div. 1987).

To claim surprise, the State was required to demonstrate that it "had no prior indication that the witness would contradict the prior statements . . . ." Ibid. The State cannot make that claim here. In its opening statement, the prosecutor advised the jury that DeMarc would be called to testify but warned that his testimony should be taken "with a grain of salt" and to "... compare ... [his trial testimony] ... to the other statements he made to Detective Mark Csizmar ...." In addition, the State conceded to the trial judge that DeMarc had, "... indicated that sometime[s] he is cooperative, sometimes he indicated he wasn't going to be cooperative ...." We conclude, therefore, that DeMarc's statements to Detective Csizmar were not admissible to neutralize DeMarc's trial testimony.

The error in admitting the testimony was compounded by the instructions that allowed the jury to utilize Csizmar's recitations of DeMarc's prior statements as substantive evidence. That instruction was clearly erroneous. "Erroneous instructions on matters or issues material to the jurors' deliberations are presumed to be reversible error ...."

State v. Grunow, 102 N.J. 133, 148 (1986).

We recognize that

[n]ot any possibility of an unjust result will cause reversal of a conviction. The possibility of an unjust result 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. Melvin, 65 N.J. 1, 18-19 (1974) .... If it is sufficiently clear that another trial conducted without committing a particular error would lead to the same result, using judicial resources to conduct the retrial is obviously inefficient.
 
[State v. Johnson, supra, 216 N.J. Super., at 607-608.]

Here, however, DeMarc's statements to Csizmar and the ensuing instructions had the clear capacity to produce a result other than the one that might be reached if the statements were not introduced. The statements recounted by Csizmar were much more detailed than the passing admission by DeMarc that he, DeMarc, had implicated defendant in prior statements. Moreover, absent the testimony from Csizmar that we have quoted, the State would have been able to produce only evidence of defendant's statements to Csizmar and a video tape of defendant signing for a purchase with Ritzema's card. The latter was explained by DeMarc adversely to the State and the former were not acknowledged by defendant or memorialized by him. The evidence properly adduced on the State's case was not so overwhelming that we may safely conclude the errors we have described did not taint the result.

 
Reversed and remanded for a new trial.

(continued)

(continued)

14

A-1088-04T4

November 10, 2005