STATE OF NEW JERSEY v. QUINTIN COHEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5009-05T15009-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

QUINTIN COHEN,

Defendant-Appellant.

 
 

Argued March 8, 2007 - Decided April 3, 2007

Before Judges Lefelt, Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 2005-5-1236.

Sebastian M. Bio argued the cause for appellant (Bio and Laracca, attorneys; Mr. Bio, on the brief).

Lucille M. Rosano, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Ms. Rosano, of counsel and on the brief).

PER CURIAM

Following a trial by jury, defendant Quintin Cohen was convicted of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:15-2 (Count I); first-degree carjacking, N.J.S.A. 2C:15-2 (Count II); first- degree robbery, N.J.S.A. 2C:15-1 (Count III); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (Count IV); third- degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count V); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count VI). At sentencing, the court merged Count I with Count II, and Count VI with Counts II and III, imposing on those counts a ten-year term with an 85% parole ineligibility period and five years of parole supervision upon release. On Counts IV and V, defendant was sentenced to a three-year term, with the sentences to run concurrently. Defendant appeals, and for the reasons that follow, we reverse.

Cassandra Carey, a Newark resident, was the victim of a carjacking and robbery at gunpoint on February 25, 2005. At about 10:00 p.m. that evening, as she was arriving home in her 2001 Ford Windstar, Carey noticed three men walking up the street in her direction. She left her car and went on her porch to unlock her house door, at which point she was approached by one of the men she later identified as defendant. The other two remained standing near Carey's vehicle and she was unable to see them. The man on the porch pointed a gun at Carey and said, "Hey, ma, give me those keys". He also demanded money, but Carey told him that she did not have any because she had just been to the laundromat. The man took the keys out of Carey's hand, and threw them to the two men, one of whom got into the driver's seat and the other into the passenger seat, while the man on the porch ran to the car and got into the sliding door on the passenger side.

Once they drove away, Carey called the police. Upon arrival, they took her to the station where she gave a statement. Carey, who is 5'3" tall, described her assailant as between 5'10" and 5'11", weighing about 160 pounds, with no facial hair or scars, and wearing a red wave cap, green fatigue coat, blue jeans, and tan construction boots. In actuality, defendant is 5'4" tall and weighs 135 pounds, although he does own a green fatigue army jacket.

About a week later, on March 3, 2005, Officer Paul Williams was patrolling on South Orange Avenue in Newark when he saw a 2001 Ford Windstar double parked. He approached the vehicle and saw defendant at the wheel, with two female passengers. Defendant could not provide the paperwork for the vehicle and he told Williams that he did not know the vehicle's owner. He also did not have a driver's license, so Williams issued him a ticket for that offense. When Williams learned that the car had been stolen, he placed defendant under arrest for receiving stolen property.

After defendant was given his Miranda warnings at headquarters, he gave a statement explaining that earlier that day, March 3, 2005, he had attended an Orange High School basketball game, where he saw an old friend, Marcus Williams. Defendant left with Williams and his two female friends, and the group went to the White Castle on Central Avenue. Williams said he had to go to his girlfriend's house, and he asked defendant to take the two women to Plainfield, which is how defendant came into possession of Carey's vehicle. When asked by police whether he was aware that the vehicle had been stolen, defendant stated that he was because Williams told him so.

On March 6, 2005, three days after defendant's arrest and more than a week after the carjacking, the police asked Carey to come to the station to look at a photo array. Of the eighteen photos she reviewed, Carey identified defendant as the man who had threatened her with a gun, and while she was certain of this, she was unable to identify the two other men who had been with him. As a result, defendant was rearrested and charged with robbery, possession of a handgun, and carjacking.

On July 12, 2005, defendant gave notice of his alibi defense. At that time, he advised the State that he had been at his home on the night of February 25, 2005. At trial, defendant denied involvement in the carjacking and testified consistently with his notice of alibi. According to defendant, on the evening of February 24, the night before the crime, he attended a party until approximately 2:00 or 3:00 a.m., at which time he went to Fairleigh Dickinson University with his friend Curtis Graithwaite. They stayed in a friend's dorm room and left the next day, February 25, at approximately 5:30 p.m. They then traveled to Jersey City University, where Graithwaite was a student, arriving at approximately 6:30 p.m., and remained there for a few hours until Graithwaite took defendant home. Defendant arrived home at about 10:30 p.m., and he remained at home for the rest of the evening, caring for his baby. Graithwaite and defendant's mother confirmed defendant's version of events.

On appeal, defendant raises the following issues for our consideration:

I. DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

II. IT WAS ERROR FOR THE PROSECUTOR TO CALL ATTENTION TO DEFENDANT'S ALLEGED SILENCE OR DELAY IN REVEALING HIS ALIBI.

III. DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONT A WITNESS WAS DENIED.

IV. THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

We are satisfied that the claim of counsel's ineffectiveness, raised in Point I, is dependent on matters outside the trial record and, as such, is not cognizable on this appeal. See State v. Preciose, 129 N.J. 451, 459-60 (1992); R. 3:22-1. We are equally satisfied that the issues raised in Points III and IV are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, the issue presented in Point II concerning State commentary on defendant's silence, although raised for the first time on appeal, is of constitutional dimension and because it is clearly capable of producing an unjust result, warrants reversal of the defendant's judgment of conviction.

By way of background, during the prosecution's cross-examination of defendant about the statement he gave to police on March 3, 2005, the night he was arrested for receiving stolen property, the following transpired:

Q: And you told the truth on that night?

A: Yes.

Q: You told the complete truth?

A: Yes.

Q: In fact, the statement is three pages, correct?

 
A: Yes.

Q: You signed each page?

A: Yes.

Q: You read each page?

A: Yes.

Q: Where on that statement does it say you're babysitting your son, Elijah.

A: Nowhere.

Q: You want to take a look?

A: Sure. It doesn't say.

Q: Doesn't say it, right?

A: No.

Q: It doesn't say it there, correct?

A: Correct.

Q: It doesn't say it on the statement that you and your attorney prepared to give to me, correct?

 
A. No.

Q: But you're asking us to believe it now, correct?

A: Yes.

[(emphasis supplied).]

The prosecutor also questioned defendant about the second statement he gave, on July 12, 2005, several months after his two arrests in March 2004, when he was aware that he had been charged with carjacking:

Q: And you signed that statement because it's the truth?

A: Yes.

Q: It's the whole truth?

A: Yes.

Q: It's the complete truth?

A: Yes.

Q: Tell me where it says you were babysitting your son, Elijah?

. . . .

Q: It doesn't say it, does it.

A: No.

Q: And that statement was . . . prepared when?

A: July 12.

Q: That's some four months ago. Is that correct?

A: Yes.

Q: Five months ago, now?

A: Yes.

[(emphasis supplied).]

Once again, referring to defendant's statement on March 3, 2005, the prosecutor repeated his earlier inquiry:

Q. And you were asked how did you get the car?

A. Yes.

Q. Nowhere in there did you say I didn't carjack this car, did you?

A. No.

Q. Nowhere in there did you say I was home, did you?

A. No.

Q. Nowhere in there did you say I was home babysitting my son, did you?

A. No.

[(emphasis supplied).]

To further emphasize the point, the prosecutor in summation commented thus:

Defendant having no obligation to do so presented a case. That case was a general denial of guilt. Wasn't me, I wasn't there. I submit to you that this is just a theory, and that's what you should consider it to be. It's just another theory to try to attack the victim and attack her identification.

I say this to you, the State says this to you as we learn today and as we heard again during the closing, the defendant didn't assert this when he spoke to Detective Maldonado, didn't assert it, didn't say it, and he was asked how did you get this car. He didn't assert it in his statement to the prosecutor's office, and . . . he signed it. It was his defense. He submitted it to his attorney. No one forced him to do it, no one threatened him to do it. He didn't assert it, ladies and gentlemen, because I submit to you it's not true. It is not true.

This defense was asserted to us before us in this courtroom after this witnesses [sic] had a chance to talk to each other. . . . What did they do? They got their stories straight. They got their theory.

[(emphasis supplied).]

We view the challenged references in light of our well-settled state-law privilege against self-incrimination, which affords broader protection than its federal counterpart under the Fifth Amendment. See State v. Strong, 110 N.J. 583, 595 (1988); State v. Deatore, 70 N.J. 100, 112-14 (1976). If a defendant remains silent after being arrested and given Miranda warnings, both state and federal law prohibit a prosecutor from using that silence against him. Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245, 49 L. Ed. 2d 91, 98 (1976); N.J.S.A. 2A:84A-19. When in custody, a suspect is privileged to say nothing at all to the police and is under no duty to give a statement. State v. Ripa, 45 N.J. 199, 204 (1965). Equally clear, a suspect who initially responds to police questioning may later exercise his right to remain silent without fear that his silence will be used to incriminate him at trial. State v. Muhammad, 182 N.J. 551, 567-68 (2005). A suspect who begins to speak to the police while in custody and during interrogation "does not waive his right against self-incrimination when he falls silent; the words he could have spoken cannot be used against him." Id. at 568. See, e.g., State v. Lyle, 73 N.J. 403, 405-06 (1977) (holding that defendant who remains silent after giving account of crime to police may not be impeached at trial with that silence); Ripa, supra, 45 N.J. at 204 (holding that no negative inference could be drawn against defendant based on his exercise of right to remain silent after providing information to police). Simply put, "by speaking with the police, a suspect does not waive his right to invoke the privilege and remain silent at some later point." Muhammad, supra, 182 N.J. at 568. Thus, "[m]aking reference to what a defendant did not say to the police is commenting on his silence." Id. at 565; see also Lyle, supra, 73 N.J. at 406 n.1, 407 n.2, 408 n.5, 410; Deatore, supra, 70 N.J. at 107, 115-16.

It is by now clear that a defendant is not obliged to give to the police the exculpatory story his attorney presents at trial, and the State is not permitted to use his silence to convict him. Muhammad, supra, 182 N.J. at 573; Deatore, supra, 70 N.J. at 114; Ripa, supra, 45 N.J. at 204. In State v. Pierce, 330 N.J. Super. 479 (App. Div. 2000), we held that the prosecutor impermissibly commented on the defendant's post-arrest silence. Id. at 490. The defendant had been served with a complaint related to a homicide on February 20, 1997, at which point he invoked his right to silence. Ibid. Eighteen days later, however, on March 10, 1997, he called the Vineland Police Department and advised them that on the night of the homicide he had been at his sister's home. Ibid. At trial, on cross-examination of the defendant, the prosecutor elicited testimony that the defendant had not advised the police department of his alibi defense until March 10. Id. at 491. The prosecutor also called a detective as a rebuttal witness to reinforce that fact. Ibid. Moreover, in summation, the prosecutor again brought up the fact that the defendant did not advise the police that he was at his sister's until March 10. Ibid. We held that the prosecutor had erred, warranting reversal of the defendant's conviction:

No inculpatory inference may be permissibly drawn from a defendant's decision to remain silent following his arrest. [Citations omitted.] We stated in State v. Hyde, 292 N.J. Super. 159, 160, 678 A.2d 717 (App. Div. 1996), that "silence will carry no penalty," and our Supreme Court held over two decades ago that:

a defendant is under no obligation to volunteer to the authorities at the first opportunity the exculpatory story he later tells at his trial and cannot be penalized directly or indirectly if he does not. [Citation omitted.]

[Id. at 492.]

Thus, "a prosecutor may not comment as to defendant's post-arrest silence to impeach his exculpatory story at trial." Ibid. In Muhammad, the Court held that the defendant's provision of only a partial account to the police at or near the time of his arrest did not open the door to prosecutorial questioning about what the defendant did not tell the police. 182 N.J. at 572-73. There, in a prosecution for sexual assault, the prosecutor questioned the defendant and made jury arguments about statements that the defendant, a former police officer, did not make after he brought the victim into the police station where she accused him of rape after he complained she had been harassing his family. Id. at 572. The Court found that the State used defendant's silence to impugn his consent defense and therefore violated his right, under state law, against self-incrimination. Id. at 573-74.

To be sure, once a defendant testifies about statements he made to police at or near the time of arrest, "the State must be permitted to cross-examine him regarding whether or not these alleged statements were actually made." State v. Elkwisni, 384 N.J. Super. 351, 370 (App. Div.), certif. denied, 187 N.J. 492 (2006). However:

Cross-examination of the defendant [ ] must be carefully circumscribed. The prosecutor may not wander into areas not covered by a defendant's direct testimony to suggest, even implicitly, that a defendant had an affirmative duty to come forward with exculpatory evidence. The State is not permitted to use omitted details or other indicia of the right to remain silent, to shift the burden of proof to the defendant.

[Id. (emphasis added).]

Here, the prosecutor repeatedly commented on defendant's post-arrest silence by calling into question the length of time it took him to come forward with the details of his alibi. In questioning defendant, the prosecutor pointedly elicited testimony, on more than one occasion, that defendant failed to volunteer his alibi for the night of February 25, 2005 in his previous statements to the police. The prosecutor pursued this line of questioning even though defendant was under no obligation to volunteer his alibi any earlier, and in fact had no reason to do so in his first statement since he was arrested on March 3, 2005 only for receiving stolen property on that date, and was not questioned about the earlier, February 25 carjacking. Indeed, there was no inconsistency whatsoever between defendant's post-arrest statement on March 3, which explained his actions on that date, and trial testimony, which explained his whereabouts on February 25. See N.J.R.E. 803(a) (1). These errors were compounded by the prosecutor's summation, which yet again stressed the glaring omission in both of defendant's previous statements of any reference to the specifics of the alibi presented at trial. These references, both singly and cumulatively, worked to undercut defendant's alibi defense and were unduly prejudicial. Because we conclude that the prosecutor's violation of defendant's state law privilege against self-incrimination was "clearly capable of producing an unjust result," Rule 2:10-2; see also State v. Macon, 57 N.J. 325, 337 (1971), we are constrained to reverse defendant's conviction.

 
Reversed and remanded.

No gun was found on defendant at that time, nor was any weapon ever recovered.

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

(continued)

(continued)

15

A-5009-05T1

 

April 3, 2007