STATE OF NEW JERSEY v. ANGEL QUINONES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2671-03T42671-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

ANGEL QUINONES,

Defendant-Appellant.

__________________________________

 

Submitted: October 17, 2005 - Decided:

Before Judges Cuff and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-10-3892.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Kenneth P. Ply, Special Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant was convicted of first degree robbery, contrary to N.J.S.A. 2C:15-1b; second degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1); fourth degree possession of a weapon under circumstances not manifestly appropriate for lawful use, contrary to N.J.S.A. 2C:39-5d; third degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d; and fourth degree resisting arrest, contrary to N.J.S.A. 2C:29-2a. Defendant was sentenced to a fifteen-year term of imprisonment with an 85% NERA parole ineligibility term for the robbery conviction. The aggravated assault conviction merged with the robbery conviction, and the fourth degree weapons conviction merged with the third degree weapons conviction, on which he was sentenced to a concurrent five-year prison term. A four-year concurrent prison term was imposed on the resisting arrest conviction.

At approximately 9 a.m. on September 10, 2002, Michael Drewniak was walking to work along Broad Street in Newark. He was employed as the public affairs officer for the United States Attorney's Office at 970 Broad Street. As he walked to his office, a man later identified as defendant approached Drewniak and asked for a quarter. When Drewniak refused, defendant became agitated, screamed obscenities at him, then pulled a screwdriver from his waistband and reiterated his demand for money.

When Drewniak refused again, defendant lunged at the victim's stomach. Drewniak jumped back and screamed for help. His cries drew the attention of Toni Carter, the parking lot attendant at the lot where Drewniak had just parked his car. Defendant made an attempt to strike Drewniak again; then defendant backed away and started to walk down Broad Street towards Lincoln Park.

Drewniak ran into the middle of Broad Street and flagged down a police car. Police approached defendant, but he ran. Approximately twenty to thirty minutes later, Drewniak left his office and returned to the parking lot. Defendant was seated in the back of a police cruiser. Drewniak identified defendant and the screwdriver used by defendant.

Defendant testified that he was at the scene, but denied seeing or robbing Drewniak. He stated that he attended a program session that morning but did not see Drewniak at any time. He also related that he found the screwdriver and kept it to use on odd jobs.

On appeal, defendant raises the following issues:

POINT I

THE INTRODUCTION OF EVIDENCE THAT A NON-TESTIFYING WITNESS HAD IMPLICATED DEFENDANT IN THE ROBBERY VIOLATED HIS RIGHT TO CONFRONT WITNESSES AND HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV, N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT II

DEFENDANT'S CONVICTION FOR ROBBERY MUST BE REVERSED BECAUSE INADEQUATE INSTRUCTIONS ON ROBBERY ON A THEORY OF ATTEMPTED THEFT DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (Not Raised Below).

POINT III

IMPROPER SUMMATION COMMENTS DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Raised in Part Below).

POINT IV

DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE.

POINT V

DEFENDANT'S WEAPONS CONVICTION SHOULD HAVE BEEN MERGED INTO THE ROBBERY CONVICTION AND HIS SENTENCE FOR RESISTING ARREST MUST BE REDUCED TO REFLECT THE FOURTH DEGREE CONVICTION.

Our review of the record demonstrates that defendant's arguments have merit. The prosecutor's comments in his opening statement and summation and questions posed to a witness about his conversation with the parking lot attendant allowed the introduction of inadmissible hearsay; the robbery charge, as it related to the element of theft, did not include a full and accurate instruction of attempt; and the prosecutor's summation contained improper elements. While none of these single errors require a reversal, the cumulative effect of these multiple errors dictates a reversal and remand for a new trial.

During his opening statement, the prosecutor advised the jury that the parking lot attendant told the responding police officers what had occurred and directed them to defendant who was visible at that time further down the street. During direct examination of Officer Domingues, the prosecutor posed questions and received responses that allowed the jury to learn that the parking lot attendant had witnessed the encounter between Drewniak and defendant and that the parking lot attendant identified defendant to the police. The parking lot attendant did not testify at trial. Defense counsel made timely and appropriate objections. In all but one instance, the objections were overruled; the prosecutor was cautioned once. On appeal, defendant urges that the references to the absent witness violated State v. Bankston, 63 N.J. 263, 271 (1973). We agree.

In his opening statement, the prosecutor told the jury that police "spoke to the parking lot attendant to find out what had happened because the victim . . . was not at the scene at that time, and the parking lot attendant, in the course of telling the cops what happened --" At this point, defense counsel objected. He noted that the prosecutor had advised him that the attendant would not appear at trial. Therefore, defense counsel sought to avoid any recitation of what the attendant told the police. The trial judge commented that the police could testify that they received information and acted based on the information received.

The prosecutor resumed his opening statement. He stated:

Now the cops showed up, and they have a conversation with the attendant at the parking lot. And during the course of that conversation they receive information that calls their attention to the defendant who's down the street. . . .

This statement allowed the jury to learn that the parking lot attendant identified defendant.

The prosecutor's first witness was Officer Domingues. In the course of the direct examination the following exchange occurred:

Q. [ASSISTANT PROSECUTOR]: And during the course of that conversation did you ever -- did you receive information as to the whereabouts of the person who had allegedly committed this offense?

[DEFENSE COUNSEL]: Objection, your Honor.

THE COURT: Same basis? Hearsay?

[DEFENSE COUNSEL]: Yes, your Honor.

THE COURT: Overruled.

THE WITNESS [OFFICER DOMINGUES]: Yes.

Q. And based on that information, what, if anything, did you do?

A. We -- what did we do after?

Q. After you received this information that led you to identify who you alleged had --

THE COURT: Sustained. You are testifying, and that was not said.

Q. After you received information --

THE COURT: What, if anything, did you do?

[ASSISTANT PROSECUTOR]: I'm sorry, Judge.

THE WITNESS: After we received information, we proceeded northbound on Broad Street where suspect was walking, and we apprehended him.

Q. Was your looking at, or going toward that particular individual, the basis of information that you had received?

A. Yes.

At this point, defense counsel objected and the trial judge informed the prosecutor that he did not believe that the prosecutor had transgressed the Bankston rule but that he was "getting very close to crossing the line."

Finally, during his summation, the prosecutor stated that the defendant's apprehension was not a mistake. He continued stating,

[the police] received information, and while they're receiving the information, apparently from [the parking lot attendant] and from Mr. Drewniak, while that information is being received, the cops see him walking down the street, and based on that information they grab him.

Following the summation, the trial judge advised the jury that it was not to speculate why the parking lot attendant did not appear at trial and not to speculate what she might have said at trial.

In State v. Bankston, the Court held that the hearsay rule is not violated when a police officer testifies that he was led to a certain location or acted in a certain way "upon information received." 63 N.J. 263, 268 (1973). He cannot, however, be any more specific because such testimony amounts to a recital of the words of an out-of-court informant; thus, it is hearsay. Ibid. The police officer's testimony must be narrowly tailored to explain the officer's presence or actions without divulging that the defendant was the target of a criminal investigation, because the creation of the inference that an informant had implicated the defendant in a crime, not the specificity of the statements, is the critical factor in determining whether the hearsay rule is violated. State v. Irving, 114 N.J. 427, 447 (1989).

Identification of defendant was the central issue in the case. Defendant admitted he was in the vicinity of the attempted robbery but denied that he was the person who confronted the victim. The opening statement, the summation, and the questions posed to the officer unmistakably conveyed to the jury that the parking lot attendant witnessed the encounter and identified defendant. Therefore, the State was able to convey to the jury that two people identified defendant as the person who confronted Drewniak and attempted to rob him but only one person was subject to cross-examination. This is precisely what the Bankston rule seeks to avoid.

Defendant also argues that the charge on robbery was flawed. Defendant correctly notes that he did not obtain any money; therefore, the robbery charge was predicated on an attempted theft. He contends that the jury was not adequately informed that the offense of attempted theft requires a purposeful mental state, and the jury was not adequately instructed on attempt as related to the element of theft.

No objection was lodged to the charge at trial. Therefore, we evaluate this asserted error in accordance with the plain error rule. R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971). In other words, any error must have been clearly capable of producing an unjust result. Ibid.

Defendant concedes that the trial judge informed the jury about the need for a purposeful mental state when it considered attempt. He emphasizes, however, that this discussion was in the context of the charge on the element of attempted infliction of serious bodily injury. The State responds that the trial judge fully informed the jury of all of the elements of theft.

In State v. Gonzalez, 318 N.J. Super. 527 (App. Div.), certif. denied, 161 N.J. 148 (1999), we addressed a charge of first degree robbery in which the trial judge did not fully and adequately explain the standard of culpability for attempt. In fact, the jury was not charged on the inchoate crime of attempt at all. Id. at 534. The defendant had been convicted of felony murder and first degree robbery; the robbery charge was founded on an attempt to rob the victim. Id. at 532-33. In this context, we held that the omission was plain error because robbery was the predicate offense of the felony murder charge; therefore, the failure to charge the concept of attempt in the predicate offense of robbery provided inadequate guidance to the jury. Id. at 536.

Here, the jury was informed that one of the elements of robbery is theft, that theft includes an attempt to commit a theft, and that the person committing the theft must act with purpose. The judge also defined "purposely." In the course of his instruction on first degree robbery, the judge discussed attempt in the context of the infliction of or the attempt to inflict serious bodily harm. This portion of the instruction included a discussion of the purposeful mental state required for attempt. Therefore, this instruction does not suffer from the deficiency noted in Gonzalez of a complete absence of an instruction on attempt. We have held that the inclusion of a full and accurate instruction on attempt, albeit relating to another offense, does not constitute plain error. State v. Smith, 322 N.J. Super. 385, 400 (App. Div.), certif. denied, 162 N.J. 489 (1999). Unlike this case, however, in Smith "the defendant testified that he helped plan the robbery and assisted in carrying it out." Ibid. We also described the evidence of the defendant's guilt as overwhelming. Ibid.

Here, the circumstances of the offense involved two instances of attempt: an attempted theft and attempted infliction of serious bodily injury. Both are integral elements of first degree robbery. Yet, the jury received a full instruction on attempt and the requisite mental element only for the attempted infliction of bodily injury. This omission raises considerable concern about the adequacy of the charge. Defendant also urges that the prosecutor's summation deprived him of a fair trial. Defendant contends that the prosecutor argued that defendant accused the State's witnesses of lying when they had no motive to lie, suggested that the defense had a burden to produce evidence, and urged that the jurors' oaths required them to find defendant guilty as charged. We agree that all but the last contention have merit.

The prosecutor commenced his summation with the following statement: "so it appears what it comes down to is who's lying, who's telling the truth, who was correct, and who was mistaken." This truth-versus-lie theme permeated the summation. In addition, he constructed an intelligent versus stupid dichotomy. He continually emphasized that the victim was an official in the United States Attorney's Office and was an intelligent person; whereas, defendant was attempting to characterize the victim as stupid. The prosecutor continually emphasized that the officer and the victim, both of whom were associated with law enforcement agencies, had no motive to lie. Then, near the close of the summation, during a discussion of the screwdriver, the prosecutor asked the jury if they remembered anything in defendant's opening statement about using the screwdriver for odd jobs. He stated:

And, as a matter of fact, you know, something is curious. You know, when we give our openings we're supposed to give an outline of what we expect the evidence to be. I don't know. . . . Do you remember anything in his opening about the screwdriver helping someone with a car and a hubcap? Do you remember that?

Defense counsel immediately objected that defendant had no burden to produce any evidence, and the judge delivered an immediate curative instruction.

Here, the prosecutor's remarks about the lack of a motive to lie did not include any reference to the prohibited suggestion that the officer would face disciplinary charges. See State v. Goode, 278 N.J. Super. 85, 90-91 (App. Div. 1994); State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993). On the other hand, his remarks had the clear capacity to imply that the testimony of Officer Domingues, and particularly the testimony of the victim, deserved acceptance not because of its inherent credibility but because it was being uttered by a police officer and an officer of the United States Attorney's Office. Staples, supra, 263 N.J. Super. at 606; State v. Jones, 104 N.J. Super. 57, 65 (App. Div. 1968), certif. denied, 53 N.J. 354 (1969). The exaltation of the police officer's and victim's intelligence and credibility simply because one was a police offer and the other was the public affairs officer in the United States Attorney's Office was improper.

The prosecutor also transgressed the basic rule that the burden of proof remains with the State at all times and that defendant is not required to present any evidence. State v. Black, ___ N.J. Super. ___, ___ (App. Div. 2005) (slip op. at 17); State v. Jones, 364 N.J. Super. 376, 382 (App. Div. 2003). The timely curative instruction was required and entirely proper.

Finally, the truth versus lie dichotomy came perilously close to the prohibited area. Recently in State v. Bunch, 180 N.J. 534, 549 (2004), the Court reminded trial attorneys that they should not ask a defendant to assess the credibility of another witness. A prosecutor is required to construct a summation that offers a jury reasons to accept the credibility of its witnesses and to reject or question the credibility of defense witnesses. When, however, the prosecutor argues that defendant has lied and that defendant has implicitly accused other witnesses of lying, the prosecutor is approaching the tactic condemned in Bunch.

Any one of the errors identified in this opinion standing alone would not require a reversal. Although errors in jury instructions, particularly errors that concern the elements of the offense, are not usually considered harmless, State v. Harmon, 104 N.J. 189, 213 (1986), we are unlikely to have found the error in the charge to be plain error, if this was the only error in the case. It was not. As noted, the prosecutor's opening statement, direct examination of Officer Domingues, and his summation contained comments or questions that elicited responses or questions that referred to or contained inadmissible hearsay and violated the Bankston rule. The charge did not fully and accurately inform the jury of the elements of attempted theft, and the summation improperly exalted the credibility of the State's witnesses due to their positions in law enforcement and implied that defendant had an obligation to present evidence. These errors, in combination, lead to the conclusion that defendant was denied the fair trial that was due. State v. Orecchio, 16 N.J. 125, 129 (1954). Therefore, the conviction is reversed and the matter is remanded for a new trial.

 
Reversed and remanded for a new trial.

No Early Release Act, N.J.S.A. 2C:43-7.2.

Due to our disposition, we need not address the sentence imposed on defendant. We note, however, that the four-year term for resisting arrest, a fourth degree offense, is illegal. N.J.S.A. 2C:43-6a(4). The third degree weapons conviction should also have merged with the robbery conviction. State v. Diaz, 144 N.J. 628, 634-40 (1996).

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A-2671-03T4

November 2, 2005