STATE OF NEW JERSEY v. ANTHONY SNOWDEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0329-05T40329-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY SNOWDEN,

Defendant-Appellant.

__________________________________________________

 

Submitted March 28, 2007 - Decided April 17, 2007

Before Judges Parker and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 04-07-2546 and 03-09-3175.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

The jury heard testimony in this matter which revealed that, on May 9, 2004, Marcia Jarret was walking on Prospect Street in East Orange when the female driver of a motor vehicle, which had pulled up alongside, summoned her. Defendant was later identified by Jarret as the vehicle's male passenger.

When Jarret bent toward the driver's window, assuming the driver was seeking directions, defendant told her to turn over her jewelry and money. As Jarret started walking away, defendant said: "you think I'm playing with you?" And, when Jarret turned around, she saw that defendant was holding a gun; defendant then said, "come here or else I'll give you one." Defendant acceded to this demand and defendant took from Jarret three gold necklaces, a watch and a bracelet.

As the vehicle drove away, Jarret memorized the license plate numbers, and, as she continued walking toward Bloomfield, Jarret encountered a person from whom she borrowed a pen and paper to write down the license plate number. When she arrived at the Bloomfield Police Station, Jarret spoke about what had occurred. The Bloomfield police then drove her to the East Orange Police Station because the crime had occurred in East Orange.

Based upon the information Jarret provided, the police arrested defendant and a female. At a showup, Jarret identified defendant and Yolanda Buckhana as the individuals who robbed her. She also identified a vehicle as that which defendant and Buckhana were riding in when they stopped to rob her on Prospect Street. The police found in this vehicle a sawed off rifle and, among other things, six hollow point bullets, a twelve-inch pipe and a bayonet. Jewelry was also found in the vehicle.

Defendant and Buckhana were charged in an indictment with conspiracy to commit robbery (count one), N.J.S.A. 2C:5-2; robbery (count two), N.J.S.A. 2C:15-1; unlawful possession of a rifle (count three), N.J.S.A. 2C:39-5(c)(1); possession of a rifle for an unlawful purpose (count four), N.J.S.A. 2C:39-4(a); unlawful possession of a bayonet (count five), N.J.S.A. 2C:39-5(d), and possession of hollow point bullets (count six), N.J.S.A. 2C:39-3(f).

Following a trial, defendant was convicted on all charges. After merging counts one and two, the judge imposed a fifteen-year term of imprisonment with an 85% period of parole ineligibility. The judge also merged counts three and four and imposed a concurrent four-year term of imprisonment. Concurrent eighteen-month terms of imprisonment were imposed on counts five and six.

Defendant appealed, raising the following arguments for our consideration:

I. DEFENSE COUNSEL'S FAILURE TO REQUEST A WADE HEARING TO CHALLENGE THE IDENTIFICATION EVIDENCE DENIED DEFENDANT THE EFFECTIVE ASSISTANCE OF COUNSEL (Not Raised Below).

II. THE PROSECUTOR'S MISCONDUCT IN CROSS-EXAMINATION OF THE DEFENDANT AND IN HER SUMMATION DEPRIVED THE DEFENDANT OF A FAIR TRIAL (Partly Raised Below).

III. NO EVIDENCE SUPPORTED DEFENDANT'S CONVICTION AS TO COUNT FIVE (Not Raised Below).

In Point I, defendant argues that his trial attorney was ineffective in that he did not request a Wade hearing regarding Jarret's identification of him at a showup. We conclude that the merits of this argument should not now be considered but that, instead, the matter is better left for consideration on a post-conviction relief petition. See State v. Preciose, 129 N.J. 451, 460 (1992).

As for Point II, defendant argues that the prosecutor posed inappropriate questions during her cross-examination of defendant and made improper statements in her summation.

We agree that the prosecutor's cross-examination of defendant included some inappropriate questions. Although it is true that "a defendant who elects to testify . . . is subject to the same credibility attacks as any other witness," State v. Daniels, 182 N.J. 80, 97 (2004), a defendant nevertheless possesses fundamental rights essential to a fair trial, which limit the extent to which a prosecutor may assert that a defendant has tailored his or her testimony.

In Daniels, the Court held that such accusations of tailoring should be categorized as either "generic" or "specific." The Court defined "generic accusations" of tailoring as occurring "when the prosecutor, despite no specific evidentiary basis that defendant has tailored his testimony, nonetheless attacks the defendant's credibility by drawing the jury's attention to the defendant's presence during trial and his concomitant opportunity to tailor his testimony." Id. at 98. In this regard, the Court stated its agreement with and quoted from Justice Stevens' concurring opinion in Portuondo v. Agard, 529 U.S. 61, 76, 120 S. Ct. 1119, 1129, 146 L. Ed. 2d 47, 60 (2000), in holding that "generic accusations of tailoring debase the 'truth-seeking function of the adversary process,' violate the 'respect for the defendant's individual dignity,' and ignore 'the presumption of innocence that survives until a guilty verdict is returned.'" 182 N.J. at 98. The Daniels Court held that it "simply cannot conclude that generic accusations are a 'legitimate means to bring about a just conviction,'" ibid. (quoting State v. Smith, 167 N.J. 158, 177 (2001)), and concluded that they are prohibited.

The Court took a different approach with regard to specific accusations of tailoring:

If there is evidence of tailoring, beyond the fact that the defendant was simply present at the trial and heard the testimony of other witnesses, a prosecutor may comment, but in a limited fashion. The prosecutor's comments must be based on the evidence in the record and the reasonable inferences drawn therefrom. Moreover, the prosecutor may not refer explicitly to the fact that the defendant was in the courtroom or that he heard the testimony of other witnesses, and was thus able to tailor his testimony. In all such circumstances, we expect that prosecutors will act in good faith.

[State v. Daniels, supra, 182 N.J. at 98-99 (citation omitted).]

Much of the cross-examination in question consisted of specific accusations of tailoring. These questions were geared toward contesting defendant's contention that Detective Green took advantage of his inability to read, and included information in defendant's signed statement that he had not provided. In that context, the prosecutor asked defendant on a few occasions "why [defendant thought] Detective Green pulled" some fact "out of his hat," and "[h]ow did Detective Green know all these facts," and other similar questions. These questions were certainly argumentative and were not designed to elicit factual information from defendant. These questions sought only to denigrate the content of defendant's testimony and his credibility.

Defense counsel, however, did not object. In addition, as we have observed, these accusations of specific tailoring were designed to meet defendant's testimony on direct. Because these questions were limited in number, we conclude that their allowance did not constitute plain error and that these portions of the prosecutor's examination were not clearly capable of producing an unjust result. See R. 2:10-2; State v. Jordan, 147 N.J. 409-421 (1997).

The prosecutor also suggested defendant's tailoring of his testimony when she cross-examined defendant about Jarret's testimony:

Q. Let me ask you a question. You observed Miss Jarret's testimony, is that correct, and you heard Miss Jarret say that she will never forget the person who pointed a gun at her and took her property?

A. Right.

Q. If you didn't do it, why do you think she would come in here and say you did it, if she would never forget the face of the person who robbed her?

This examination also tends to fit the specific tailoring category, and, in our view, was not so egregious -- particularly in light of defense counsel's failure to object -- as to warrant a new trial.

We observe, however, that in one instance, the prosecutor made a generic accusation of tailoring during her cross-examination of defendant:

Q. . . . So Detective Green had all these reports when he did this statement?

A. He should have, because he said they turned all information to him.

Q. That's true. You've had the opportunity to listen to every witness testify. Isn't that correct?

A. Yes.

[Emphasis added.]

Although defense counsel once again did not object, the trial judge immediately called counsel to sidebar, at which the following discussion occurred:

THE COURT: The prosecutor just made a statement: You've had an opportunity to hear all the testimony at trial.

THE COURT: The Appellate Division came down with a case about a month ago. You really can't do that. It didn't go that far, but let's not go there.

[THE ASSISTANT PROSECUTOR]: I'm not touching it any more.

THE COURT: Don't touch it. Okay.

Considering that the trial judge immediately prevented any further inappropriate examination, and since the prosecutor did not again make a generic accusation of tailoring, we conclude that the prosecutor's brief comment about defendant having been present during Jarret's testimony was not capable of producing an unjust result.

We also agree that the prosecutor's summation contained improper comments. In this regard, the prosecutor attempted to rebut defendant's accusation that mistakes were made during the investigation of this crime by asserting in her summation that "[t]his is not CSI, this is the East Orange Police Department," and that East Orange is "[a]n urban neighborhood with a high volume of crime, low staff members, and low funding support." She argued that the East Orange police were "doing the best they can to solve these crimes in these communities as they happen one on top of the other." Other than the statement that the matter was investigated by the East Orange Police Department, nothing else contained in these quoted comments was supported by the evidence adduced at trial.

An attorney may not assert in a summation facts that are not in evidence. State v. Frost, 158 N.J. 76, 85 (1999); State v. Marks, 201 N.J. Super. 514, 534 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986). Although the prosecutor's argument that the East Orange Police Department is not "CSI" and that crimes occur in East Orange "one on top of the other," were improper since they were not supported by the evidence, again, we observe that defense counsel did not object. As a result, we are required to consider whether the judge's failure to intervene when the prosecutor made these statements constituted plain error. R. 2:10-2. Having reviewed these comments alone and in the context of the entire summation, we conclude that the prosecutor's misstatements were not so egregious or extensive as to warrant a new trial.

We find the other assertions contained in defendant's Point II to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We offer no view as to whether defense counsel's failure to object to the cross-examination and summation of the prosecutor -- as to those matters that we have discussed as well as those we have found to be of insufficient merit to warrant discussion -- deprived defendant of the ineffective assistance of counsel. Any such contentions may be raised by defendant in a post-conviction relief application.

And, lastly, after carefully reviewing the record, we find insufficient merit in Point III to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

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A-0329-05T4

April 17, 2007