STATE OF NEW JERSEY v. HERMAN JONES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2920-05T42920-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HERMAN JONES,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 15, 2006 - Decided December 14, 2006

Before Judges Lefelt and Parrillo.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 00-09-2575.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Alyssa Aiello,

Assistant Deputy Public Defender, of

counsel and on the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Sara A.

Friedman, Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

After we reversed defendant Herman Jones's first-degree armed robbery conviction, affirmed his weapon possession convictions, and remanded for a new trial on the robbery charge, an Essex County jury acquitted defendant of the first-degree offense but convicted him of the lesser included second-degree robbery of dry cleaner Willie Washington. Judge Vena resentenced defendant, and defendant appealed. On appeal, defendant argues that we must reverse his conviction again because (a) the prosecutor alerted the jury to defendant's prior robbery conviction despite a sanitizing order, (b) the court permitted the jury to compare defendant's alleged signatures on two documents without establishing that either signature was genuine, and (c) the court improperly limited his cross-examination of the robbery victim, Willie Washington. After considering these arguments in light of the record and pertinent law, we conclude that (b) and (c) lack sufficient merit to warrant discussion in this decision. R. 2:11-3(e)(2). Although we also reject defendant's argument (a), we add the following explanation.

The prosecutor breached the sanitization order previously entered by the court pursuant to State v. Brunson, 132 N.J. 377, 391 (1993). It happened in the following manner. Defendant had just completed his direct examination. At the very beginning of the prosecutor's cross-examination of defendant, the prosecutor brought out that the defendant had "11 prior felony convictions," and that on "November 5th 1980," defendant received a "7 year sentence." The prosecutor then continued in this fashion:

Q. Sir, is it also true that on March the 14th, 1984, you received a sentence on a third-degree offense? Is that true?

A. Yes.

Q. In which you got five years. [I]s that true, Sir?

A. Yes.

Q. I bring your attention to March 14th, 1984, the same date you also got an additional sentence of 12 years. is that correct, sir?

A. Yes.

Q. Four years parole ineligibility?

A. Yes.

Q. Sir, is it also true that on January the 4th, 1991, you got another 5-year State Prison term? Is that correct?

A. Yes.

Q. For two third-degree offenses and a fourth-degree offense?

A. Yes.

Q. And that stemmed from a robbery of May - I'm sorry - strike that.

MR. SININS: Objection. May I be heard at sidebar?

(Sidebar)

MR. SININS: Your Honor, it was crystal clear, he's experienced counsel, I move for a mistrial due to prosecutorial misconduct. That cannot be undone. This is a robbery case. He mentioned the word robbery as to the arrest. That's the end of the ballgame as far as I'm concerned.

MR. IMHOF: Judge, it was a slip. I ask for it to be stricken. I - arrest date - instruction, Judge, the Court wishes to do is fine. You can explain it was a - an arrest. I apologize to the Court, Judge. It was not intentional. It was not -

MR. SININS: I don't think that bell can be unrung. I move for a mistrial with prejudice.

THE COURT: Assuming I don't grant that application, what would you - what would you prefer that I do?

MR. SININS: I move for a mistrial.

THE COURT: I know, but - but what's your - assuming that's denied.

MR. SININS: I think - well, I don't think it would be effective, but I think a curative instruction would have to be given.

THE COURT: Immediately or later?

MR. SININS: I think both.

Our review of this examination leads us to conclude that the prosecutor's reference to "robbery" was completely inadvertent. Where such evidence "creeps in inadvertently," the court has at least two options. State v. Winter, 96 N.J. 640, 646-47 (1984). It can grant a mistrial or it can issue a curative instruction. Ibid.

The decision of whether the inadmissible evidence "is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of mistrial, is one that is peculiarly within the competence of the trial judge." Id. at 646-47. In this case, we cannot find that Judge Vena abused his discretion by deciding to issue a limiting instruction rather than to declare a mistrial.

Immediately after the prosecutor misspoke, he not only withdrew his statement but asked, before any objection was made, that it be stricken from the record. Defendant never answered the question. The trial court, immediately after sidebar, issued a strong curative instruction advising the jurors that they could consider defendant's prior convictions only for credibility purposes and that they were "not permitted to take into consideration the fact that the defendant committed a crime at some other time as a factor in considering whether or not [he] committed this crime. . . [and that] what [defendant has] in fact been convicted of in the past is totally and completely irrelevant." Moreover, the court reminded the jury of this instruction at the end of the trial. The record "lends no support to the suggestion that the jurors were unable to comply with the court's instruction." Id. at 649.

In addition, the State offered as evidence against defendant the testimony of Washington, the complaining witness, stating that defendant had robbed him; the statement made and signed by defendant himself; the testimony of a police officer verifying that defendant made and signed the statement; and physical evidence linking defendant to the scene. Under these circumstances, the jury finding defendant guilty of the lesser-included offense of second degree robbery and acquitting him of first-degree armed robbery is "consistent with a fastidious compliance with the trial court's order to disregard the improper remark." Id. at 650. Consequently, we reject defendant's argument that a mistrial was required and affirm his conviction.

 
Affirmed.

(continued)

(continued)

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A-2920-05T4

December 14, 2006