STATE OF NEW JERSEY v. JUDE PHILLIPS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1307-05T11307-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUDE PHILLIPS,

Defendant-Appellant.

_______________________________

 

Argued May 30, 2007 - Decided August 23, 2007

Before Judges Kestin, Graves and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Ind. No. 03-09-03003.

Alan Dexter Bowman argued the cause for appellant.

Kenneth P. Ply, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Mr. Ply, of counsel and on the brief).

PER CURIAM

Defendant Jude Phillips was charged with murder, N.J.S.A. 2C:11-3a(1) (count one); second-degree aggravated arson, N.J.S.A. 2C:17-1a (count two); fourth-degree unlawful possession of a weapon (scissors), N.J.S.A. 2C:39-5d (count three); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count four). The first trial resulted in a hung jury. Upon retrial, defendant was convicted of the lesser included offense under count one of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and on counts two and four. The court dismissed count four during sentencing. Defendant was sentenced on the remaining convictions to consecutive sentences resulting in an aggregate term of thirty-four years imprisonment, with a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, eighty-five percent period of parole ineligibility. Applicable penalties and assessments were also imposed.

Defendant raises the following arguments for our consideration on appeal:

POINT I

THE PROSECUTOR'S STATEMENTS IN ITS OPENING AND SUMMATION DENIED DEFENDANT A FAIR TRIAL.

POINT II

THE STATE'S IMPROPER CROSS-EXAMINATION OF APPELLANT'S ALIBI WITNESSES AND INADEQUATE JURY INSTRUCTIONS RENDERED THE TRIAL UNFAIR (Partially Raised Below).

POINT III

THE TRIAL COURT ERRED IN LIMITING CROSS-EXAMINATION OF ZAKHARIA CONCERNING POTENTIAL BIAS.

POINT IV

THE TRIAL COURT ERRED IN CONTINUALLY PERMITTING EXPERTS TO TESTIFY TO MATTERS OUTSIDE THE REPORT PROVIDED TO THE DEFENSE IN DISCOVERY.

We affirm.

I.

Evidence at trial discloses that Joan Joaquin was found murdered by multiple stab wounds in her Verona, New Jersey apartment on November 22, 2002. Joaquin's apartment was set on fire after she was stabbed. Defendant was employed as a computer repairman for 180 Connect Cable Contracting Company, a subcontractor for Comcast Cable. Defendant had been assigned a work order to provide "computer installation internet service" at Joaquin's apartment on November 20, 2002. Due to a complication defendant encountered, he requested that the work be rescheduled for November 22, 2002, to be completed by a specialist. On November 22, 2002, defendant declined assignments from his supervisor, stating he was going to "finish a prior job" that had to do with "a computer problem." Defendant, apparently, returned to Joaquin's apartment on the morning of the murder.

Marcia Zakharia also was in Joaquin's apartment on November 22, 2002. Joaquin interviewed Zakharia for a housekeeping position between 10:15 a.m. and 10:55 a.m. Zakharia testified that in the course of the interview, "a somewhat chubby black male" worked in the closet area of the living room. She further described him with braids in his hair and wearing a black jacket. She did not state that the man was wearing a uniform. Joaquin told Zakharia the man in the living room was there to work on the cable. When Zakharia left Joaquin's apartment at 10:55 a.m., the computer repairman was still in the apartment.

At 11:45 a.m., firefighters were called to the scene where they found Joaquin's dead body in the hallway between the living room, bedroom, and kitchen. An autopsy revealed that Joaquin suffered thirty stab injuries in the head, neck, back, and torso; the murder weapon was a pair of scissors. Other trial testimony revealed that: (1) the apartment's telephone lines had been cut and the smoke detector had been disabled "to delay discovery of the fire"; (2) the fire had two points of origin, the bedroom and rolled-up paper towels ignited in a closet near the computer work-station; (3) the defendant's work boot tested positive for blood, however, no DNA evidence was recovered; and (4) any other available DNA evidence was degraded by the intensity of the fire. There was no physical evidence linking defendant to the crime.

Defendant was verbally advised of his Miranda rights when interviewed by the police, at which time he explained he had been invited by Joaquin to her apartment on November 22, 2002. Thereafter, a state police investigator was contacted to continue defendant's questioning. Defendant was again orally administered his Miranda warnings, and he waived his rights. After several hours, defendant explained that while in Joaquin's apartment, they argued, she attacked him, and "he struck back and he killed her." Defendant then handwrote a confession. Thereafter, the police typed a list of answers defendant gave to the questions posed by the police, which he then read and signed. Prior to agreeing to answer these questions, Miranda warnings were again read and defendant waived his Miranda rights.

At trial, defendant presented alibi testimony through three witnesses, who resided in his apartment building. Khalila Williams observed defendant returning to his residence "around 11:10 a.m." on the day of Joaquin's murder. Christine Carter testified defendant had slept in her apartment and left for work, dressed in his uniform and work boots on November 22, 2002, at 7 a.m. or 7:30 a.m. She recalled seeing defendant return from work at 10:30 a.m. Carter's sister, Debra Layne, was expected at 11 a.m. that morning and Carter recalled defendant was in the shower when her sister came to the door. Layne explained she left work at 11 a.m. to pick-up her sister. When she arrived, defendant answered the door and explained Carter was in the shower.

II.

Defendant first challenges remarks made by the prosecutor during opening and summation, suggesting reversal is warranted. Defendant argues the remarks were designed to "induce the jury to disregard its duty to draw no inference from [defendant's] decision not to testify," and included an inappropriate "call to arms," appealing to the jurors' emotions and sympathy. For instance, at the beginning of her opening, the prosecutor stated:

If this were a robbery or [if] this were a rape then I could have the victim walk in.

. . . .

Defendant's objection was overruled, and the State's opening continued with the following:

If I had the victim, that victim would walk in and put his or her hand on the Bible and swear . . . to tell you the truth about what happened on November 22, 2002. What the defendant did to him, [or] to her. But, in a murder case, we don't have that evidence for you. We can't have that evidence for you. The defendant has removed that evidence from us. . . .

. . . .

[Y]ou will not deprive the [S]tate of an opportunity to . . . present the evidence which will prove to you beyond a reasonable doubt defendant's guilt and you will not deprive [the victim]'s family of an opportunity to have her voice heard.

Defendant additionally objects to comments made in the closing statement, repeating the prior theme that only two people know what happened that day, defendant and the victim, and the victim "had been silenced."

Specific references delineated by defendant as wrongfully commenting on defendant's decision not to testify, include:

"Where in this trial from that witness stand did anyone[] tell you that the defendant was treated any way but like everybody else who was investigated in this case[?]"

"[Two] people . . . know exactly what [happened]. One of them had her throat slit and she can't tell you[.]"

"[I] [d]on't have to prove to you why [defendant] decided to stay in that room and answer those questions . . . . And he told the truth."

"But no one came here and put their hand on the Bible or affirmed to tell you the truth and told you that it happened. No one."

"The defendant believes he silenced []Joaquin. That he forever kept her from telling you what happened that day."

Defendant's objection, made at the conclusion of the State's summation, was overruled. The trial judge gave a strong curative instruction, after the objection, emphasizing that "defendant has no duty or obligation to testify."

Following summations, the trial court properly instructed the jury that "[a]s jurors[,] it's your duty to weigh the evidence calmly and without passion, prejudice or sympathy[,]" and he reminded the jury that "[y]ou and you alone are the sole and exclusive judges of the evidence, of the credibility or the believability of the witnesses, and the weight to be attached to the testimony of each witness." The trial judge further stated:

Arguments, statements, remarks, openings, and summations of the attorneys are not evidence and must not be treated by you as evidence.

Although the attorneys may point out what they think is important in this case, you must rely solely upon your understanding and recollection of the evidence that was admitted during the trial.

. . . .

Any comments by counsel are not controlling.

Reversible error is error that "clearly [is] capable of producing an unjust result." R. 2:10-2. A trial error will be found "harmless" unless there is a reasonable doubt that the error contributed to the verdict, even if the error is of constitutional dimension. State v. Macon, 57 N.J. 325, 338 (1971).

We recognize the considerable leeway afforded to prosecutors in the presentation of opening statements and summations, State v. Frost, 158 N.J. 76, 82 (1999); State v. DiFrisco, 137 N.J. 434, 474 (1994), and the expectation that their presentation will be both vigorous and forceful. Frost, supra, 158 N.J. at 82. When reviewing allegations of prosecutorial misconduct, reversal is warranted when the conduct constitutes a clear infraction and "must substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).

We disagree with the contention that the assistant prosecutor's statements constituted commented on defendant's silence, in violation of his rights. See State v. Zola, 112 N.J. 384, 427 (1988); State v. Lanzo, 44 N.J. 560, 563 (1965); State v. Black, 380 N.J. Super. 581, 593-94 (App. Div. 2005). After our full review of the record, we conclude the assistant prosecutor's comments in her closing argument are best understood, not as a comment on defendant's right to remain silent, but as a counter to the defense strategy, on cross-examination and in summation, to question the credibility and motive of the State's witnesses, and to advance the defense theory that defendant's custodial statement was concocted or coerced by physical force and emotional strain. The prosecutor's remarks stress that no evidence of coercion or abuse was presented.

Taken in context, the challenged comments do not rise to the level of demonizing defendant or being so inflammatory as to be a "call to arms." The prosecutor's reference in Black, supra, 380 N.J. Super. at 592, to the extraction of the decedent-infant's organs, was seen to have elicited a strong negative emotional response. Although the tactics used here were questionable, they are not of the same quality and do not mandate a reversal.

As to the opening comment referencing defendant's motivation for the robbery, it too was inappropriate and better left unsaid; nevertheless, as no objection was made, we find it does not rise to the level of plain error. R. 2:10-2. The comment was isolated, was not repeated, and did not deny defendant a fair trial. See State v. Jang, 359 N.J. Super. 85, 97 (App. Div.), certif. denied, 177 N.J. 492 (2003).

Defendant additionally cites as erroneous the trial judge's evidential ruling on a defense objection. After a comment by the State in summation, defendant objected, resulting in the trial court ruling that: "Testimony, phrases, words and phrases put in questions are not evidence. . . . The answer is evidence. The question is never evidence." Defendant maintains that this ruling negated the benefits of cross-examination and denied defendant a fair trial because his defense was based on cross-examination and alibi. Defendant's objection takes the court's remarks out of context. From the judge's comments in the side-bar colloquy, we take his point to have been that commentary inserted into a question is not evidential. The instruction was directed at the attempt to place facts within the questions posed. One example of this occurred when defense counsel made the following inquiry of detective Pukenas: "Now, for the [six-]hour period preceding your arrival, . . . you don't have any personal knowledge with respect to whether or not, for example, [defendant] was physically abused; do you?" Such a question is not evidence that defendant was physically abused while in custody. The trial court's instruction meant nothing more, and adequately conveyed the essential thought to the jury.

II.

Defendant next asserts that the prosecution's cross-examination of his three alibi witnesses, along with the related jury instruction, was unfair, thereby rendering the trial unjust. Defendant lived in the same house with the three witnesses, whom he regarded as his "family." From the day of his arrest, November 26, 2002, the three knew defendant was charged with the murder. In March, 2005, the State was notified that the three women would be defendant's alibi witnesses and, following that, in April 2005, the women first spoke to law enforcement.

It is well-settled, under State v. Silva, 131 N.J. 438, 447-48 (1993), that the prosecution may cross-examine defendant's alibi witnesses as to why they delayed contacting authorities to provide potentially exculpatory information. The prosecution may call into question the witnesses' credibility by showing that "an alibi witness's silence by failing to communicate with authorities can be considered an inconsistent statement." Id. at 447. However, such questions may be made subject to a series of foundational questions such as, whether the witness was aware of the charges brought against defendant, had reason to know she had exculpatory information, had a reasonable motive to act to exonerate the defendant, and was familiar with the means to bring the alibi information to law enforcement authorities. Id. at 447-48.

We disagree with defendant's contention that the prosecution failed to ask the foundational questions required by Silva. Our review of the record reveals that the State established that all three women knew about the arrest by the day after it happened and, thereafter, the "whole family" met to discuss the situation and to visit defendant in jail. The motive to provide exculpatory information based upon the witnesses' relationship with defendant was presented. The prosecution concedes that the women's knowledge of how to report the exculpatory information was never specifically established. Nonetheless, it is reasonable to assume that these adults were capable of determining how to bring that information to the attention of the proper authorities. See State v. Holden, 364 N.J. Super. 504, 513 (App. Div. 2003) (stating that seventeen year old "would probably know how to report police misconduct").

A second challenge made with respect to the State's cross-examination of the alibi witnesses regards an alleged improper reference to the one month time-period from March 2005, when the notice of alibi was filed, to April 2005, when the prosecutor's office interviewed the women. Both in her questioning and her closing, the assistant prosecutor broadly suggested the witnesses remained silent for two-and-one-half years, starting from the date of defendant's arrest in November 2002, to the time the women related their knowledge of exculpatory information when questioned by the prosecutor's office.

As a matter of law, the witnesses' period of "silence" ends upon notice that they will serve as alibi witnesses. Silva, supra, 131 N.J. at 450. While it is accurate that the assistant prosecutor asked the witnesses why no one spoke to law enforcement prior to the statements given on April 25, 2005, the inquiry, however, emphasized that the witnesses had not gone to law enforcement as soon as they knew defendant had been charged. It was not a commentary on the specific amount of time that passed.

The trial court should have made clear to the jury that the one month period from the date of the notice to the statement given in the investigation was distinct from the rest of the two-year and four-month period of the witnesses' silence. The court did advise the jury that there is no duty to communicate with authorities, id. at 451, and the evidence can be used only for the limited purpose of deciding whether the period of silence affects the witness's credibility. Given the minor impact of this error, as well as the considerable amount of additional evidence submitted by the prosecution, we conclude that the error was not clearly capable of producing an unjust result. R. 2:10-2.

III.

We find defendant's argument that he was prejudiced by limitations placed on the cross-examination of Zakharia's illegal alien status, lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The record makes clear that the State had no prior knowledge of Zakharia's

immigration status and nothing suggested that her pending status made her subject to government pressures. Defendant's inquiry in this area was not barred; it was merely limited. We find no misapplication of discretion by the trial judge.

IV.

Defendant's final argument maintains that the trial judge erred in permitting plaintiff's experts to testify outside the scope of their expert reports, in violation of Rule 3:13-3(c)(9). Four instances are cited to support this position: (1) Christopher Cosgrove, an investigator with the Criminal Investigation Unit of the Essex County Prosecutor's Office, when describing Joaquin's apartment after the fire was extinguished, was permitted to testify "as a fingerprint expert" without any report or notice; (2) Dr. David Kircher, who is a fire reconstruction expert, was permitted to provide opinion, which was "outside the scope of his report," that "without a doubt, the battery [was] removed from the smoke detector to delay discovery of the fire"; and (3) Dr. Zhongxhue Hua, of the Regional Medical Examiner's Office "was permitted to testify as an expert on knives, without reference in any report"; and (4) Christine Brinkos of the New Jersey State Police DNA Laboratory, provided expert testimony, after examination of the blood found defendant's work boots, that the DNA degraded due to the excessive heat of the fire.

The standard of review on appeal for a trial judge's discovery rulings is abuse of discretion. State v. Toro, 229 N.J. Super. 215, 223 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989). It is undisputed that the State provided defendant with proper notice of the identification and expert reports of the three experts, Mr. Kircher, Dr. Hua, and Ms. Brinkos, as required by Rule 3:13-3(c)(9). Investigator Cosgrove was a fact witness, and we disagree he was converted to an expert. Rule 3:13-3(c)(9) is, therefore, inapplicable to his testimony. After a through review of the record, including a specific review of the cited comments made in the context of the experts' entire direct, cross-examination, redirect, and recross-examination testimony, we find no misapplication of the trial judge's broad discretion in determining the scope of expert testimony.

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

(continued)

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A-1307-05T1

August 23, 2007