STATE OF NEW JERSEY v. JESUS RODRIGUEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2928-05T42928-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

JESUS RODRIGUEZ,

Defendant-Appellant.

__________________________________

 

Submitted: October 24, 2007 - Decided:

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-05-1040.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gladys Moriarty, Special Assistant Deputy Public Defender, of counsel and on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Jesus Rodriguez was convicted of burglary, contrary to N.J.S.A. 2C:18-2 (Count One) and theft of property, contrary to N.J.S.A. 2C:20-3 (Count Two). Defendant was sentenced to an extended term of ten years imprisonment with five years parole ineligibility on Count One and a concurrent 180 days in the county jail on Count Two. The appropriate fines, assessments and penalties were also imposed. Due to repeated instances of vouching for the credibility of the State's primary witnesses and reference to evidence outside of the record designed to bolster the State's case, we reverse and remand for a new trial.

On April 7, 2005, Setara Pervin drove her husband's 2004 gray Nissan Altima to work. She parked the car on the street in front of the old city hall in Atlantic City, near the Hilton where she worked. When she returned to retrieve her car between 3:30 and 4:00 p.m., the car was gone. Thinking that her husband had taken the car while she was at work, she called him. He informed her that he had not taken the car and that she should call the police. Mrs. Pervin did so and learned that her car had been towed by the police.

On April 8, Sheikh Faroque, Setara Pervin's husband, inspected the car and found a broken small right rear window. The manufacturer-installed stereo/CD player was also missing. Neither Pervin nor Faroque gave defendant or anyone else permission to enter their car or to remove the stereo.

In the early afternoon of April 7, city maintenance workers Glenwood Kidd and Tarus Nattiel stopped their truck in front of the old city hall. The truck was next to Setara Pervin's car. Kidd and Nattiel looked in the car and saw a man in the backseat. Kidd remarked that the man was sweating profusely. Kidd and Nattiel saw the man reaching between the driver's seat and the front passenger seat trying to remove the car stereo. Kidd saw a screwdriver in his hand; Nattiel did not see a screwdriver, but thought the man had something in his hand. Kidd and Nattiel also observed that the right rear window "was busted out."

Kidd and Nattiel decided to perform their assigned work at the park but continued to observe the man in the car. When Kidd observed the man leave the car carrying a dark backpack and walk away from the car, he decided to follow him. Kidd kept about a half-block distance between himself and the man and followed him for about three and one-half blocks. Kidd never lost sight of the man. When Kidd saw two uniformed police officers, he advised them what he had seen and pointed out the man he had been following.

Daniel Rispoli, a twenty-four year veteran of the Atlantic City Police Department, was sitting in a marked police car speaking to another officer when Kidd approached him. Kidd pointed to the man he had been following and told Rispoli that the man had just removed something from a car. Rispoli moved his car, parked it and began to follow the man identified by Kidd. He called to the man to stop but the individual kept walking. Eventually, the man turned and looked at Rispoli, who identified himself as a police officer. The man turned, shed his backpack and ran out of Boston Court into a parking lot.

Rispoli followed the man. He chased him, losing sight of him only when the man made a right turn at Boston Avenue. Having been advised by the officers in another patrol car that they had not seen anyone running towards the intersection of Boston and Atlantic Avenues, Rispoli entered a vacant lot on Boston Avenue between two houses. There, he observed the silhouette of man leaning against a house with a 4' x 8' piece of plywood leaning against him. Rispoli removed the board and placed the man in custody. The man was wearing the same clothing, a brown or beige jacket and jeans, as the man identified by Kidd and whom Rispoli had chased into the vacant lot.

Once Rispoli had the man in custody, he asked Kidd to come to the area. Kidd identified the man in custody as the man he had observed in the car and had followed for several blocks. That man was later identified as defendant. At trial, Kidd was not able to identify defendant as the man he had followed and identified at the scene while the man was being placed under arrest. Rispoli, however, was able to identify defendant as the man he had chased and arrested on April 7.

In the city truck, Nattiel followed Kidd in pursuit of the man they observed in the gray Nissan. Nattiel admitted that he lost sight of the man. He also admitted that he did not get a good look at the man in the car. He thought the man might be Spanish, perhaps Haitian, and that the man had a very close hair cut.

As Rispoli chased defendant, Officer John Antorino retrieved the backpack shed by defendant. When he opened the bag, he found a car AM/FM stereo with CD player in the bag. Faroque identified the radio/CD player as the type taken from his car.

On appeal, defendant raises the following arguments:

POINT I

THE PROSECUTOR'S REMARKS MADE DURING SUMMATION WERE IMPROPER AND THEIR CUMULATIVE EFFECT WAS TO DENY THE DEFENDANT A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 10. (Not Raised Below).

POINT II

BY MOLDING THE JURY CHARGE TO THE STATE'S VERSION OF EVENTS, THE TRIAL COURT BECAME AN ADVOCATE FOR THE STATE AND DIRECTED THE VERDICT IN VIOLATION OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.) (Not Raised Below.)

POINT III

NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.

POINT IV

THE DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

POINT V

THE MATTER MUST BE REMANDED FOR RE-SENTENCING PURSUANT TO STATE V. MAURICE PIERCE.

At trial, the only issue was identification. Defense counsel closely questioned all of the State's witnesses about their opportunity to observe the features of the man who the State alleged broke into the Nissan and removed the car stereo. Defense counsel focused on the varying descriptions of the person followed by Kidd and Rispoli and eventually detained by Rispoli. Throughout his summation, the prosecutor sought to convince the jury that Kidd and the three police officers were credible witnesses. In doing so, he repeatedly stated that these witnesses were, in fact, credible witnesses.

The prosecutor referred to Kidd and Nattiel as "two unbiased, uninterested city workers." He told the jury that Kidd and Nattiel "were very fair" and "they didn't add or make up anything," and "they were fair and honest." The prosecutor explained to the jury that Kidd could not identify defendant at trial "because he's honest." He also told the jury that Kidd and Nattiel "didn't add or make up anything" because "they wouldn't do that. They are honest men." Finally, the prosecutor told the jury that Kidd "wasn't going to come up here and lie to you or give you some half-story. He was absolutely positive about the person that he saw." Defendant argues that these multiple attestations by the prosecutor to the honesty of Kidd and Nattiel warrants a new trial.

No objection was raised at trial regarding these statements. Therefore, we evaluate the asserted error in accordance with the plain error standard. R. 2:10-2. We must be satisfied that any error had the clear capacity to deprive defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 437-38 (2007); State v. Papasavvas, 163 N.J. 565, 625 (2000).

A prosecutor may fashion an argument based on the evidence why the jury should consider one or more witnesses to be credible. A prosecutor may not vouch for the credibility of a witness or suggest that the truthfulness of a witness has been verified in some manner. State v. Frisby, 174 N.J. 583, 593-94 (2002); State v. Sherzer, 301 N.J. Super. 363, 445 (App. Div.), certif. denied, 151 N.J. 466 (1997).

In Frisby, the Court condemned the admission of hearsay testimony that had the capacity to vouch for the credibility of one witness thereby bolstering the State's case. Frisby, supra, 174 N.J. at 593-94. The Court also held that the admission of this hearsay was plain error because the trial was "a pitched credibility battle" between the bolstered witness and the defendant. Id. at 596. We have also held that statements by the prosecutor in his opening statement and summation that vouched for the credibility of a co-defendant who had pled guilty and agreed to testify against a defendant were impermissible. State v. Walden, 370 N.J. Super. 549, 552, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004). See also State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993) (stating that a prosecutor may not express a personal belief or opinion regarding the truthfulness of his or her witness's testimony).

Here, the summation was replete with references to the credibility of Kidd and Nattiel. The prosecutor went well beyond fashioning an argument that the jury should consider the State's witnesses credible; he unequivocally informed the jury on many occasions that these witnesses were, in fact, credible. The prosecutor also suggested that the testimony of Kidd and Nattiel had been verified by him or others.

The issue, then, is whether the multiple instances of vouching for the credibility of Kidd and Nattiel is plain error. Identification was the only issue in this case. If the jury believed Kidd, defendant was never out of his sight. Officer Rispoli lost sight of defendant only for a few moments at the end of the chase. He found a man dressed identically to the man he had chased standing behind a piece of lumber in a vacant lot. Kidd identified defendant soon after his apprehension.

The evidence was strong that the man observed by Kidd and Nattiel removing the car stereo from the Nissan was the man apprehended by Rispoli. The error, however, was clear and occurred throughout the summation. Moreover, the multiple instances of vouching for the credibility of the main witnesses were not the only errors in the summation. At the beginning of the summation, the prosecutor explained to the jury why a DNA analysis had not been done of the backpack or the car stereo to link the items to defendant. Neither the State nor defendant submitted any evidence about DNA analysis of physical evidence at any point in this trial. At the end of the summation, the prosecutor discussed reasonable doubt and advised the jury

it just means that you have to be firmly convinced that he committed the offense. That's all. It's a little more than by a preponderance of the evidence. It's more than that, but it's not 90, it's not even 75 per cent certain. It's just that you're firmly convinced of his guilt, that's all. You can't quantify it.

Defendant objected at the end of the summation to the prosecutor's reference to DNA and his explanation why it had not been performed in this case. He also objected to the prosecutor's discussion of reasonable doubt. The trial judge sustained both objections and delivered an immediate curative instruction on reasonable doubt. Here, the curative instruction was appropriate, and we assume that the jury followed that instruction and the instruction on reasonable doubt in the complete charge that followed shortly thereafter. State v. Mays, 321 N.J. Super. 619, 630 (App. Div.) (citing State v. Burris, 145 N.J. 509, 531 (1996)), certif. denied, 162 N.J. 132 (1999). Nevertheless, manifestly erroneous statements permeated this summation. The prosecutor referred to information outside of the record. He vouched for the credibility of the State's primary witnesses repeatedly. He suggested that the observations of the State's primary witnesses had been verified by others who were not produced at trial. Finally, he launched into an erroneous discussion of reasonable doubt. Notwithstanding the strength of the State's evidence, this case still turned on the credibility of the State's witnesses. State v. Pillar, 359 N.J. Super. 249, 279 (App. Div.), certif. denied, 177 N.J. 572 (2003). Moreover, passing such error off as harmless ignores the manifest and pervasive nature of the error. We, therefore, hold that the cumulative error in the prosecutor's summation requires a new trial.

Due to this disposition, we need not discuss the other issues raised by defendant. We note, however, that we find no error in the charge. Read as a whole, the trial judge molded the charge to the evidence. He distinctly referred to defendant's counter-theories and defenses immediately after he referred to the State's theory and evidence. In short, the trial judge molded the charge to the facts and theories of the State and defendant as he may do when identification is an issue. State v. Robinson, 165 N.J. 32, 41 (2000) (citing State v. Green, 86 N.J. 281, 293 (1981)).

 
Reversed and remanded for a new trial.

We note that the trial judge was also concerned by the prosecutor's conduct. Although he believed an instruction would cure the erroneous reasonable doubt discussion, he acknowledged that the prosecutor had given an appellate tribunal "a copious record" for granting a new trial.

(continued)

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A-2928-05T4

December 12, 2007