STATE OF NEW JERSEY v. ANDRE TAYLOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6491-04T46491-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE TAYLOR,

Defendant-Appellant.

______________________________________

 

Submitted January 31, 2007 - Decided April 2, 2007

Before Judges Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Ind. No. 04-04-1325.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen W. Kirsch, 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

A jury convicted defendant of two counts of robbery and two weapons offenses and sentenced him to an aggregate nineteen-year custodial sentence with an eighty-five percent No Early Release Act (NERA) parole disqualifier. N.J.S.A. 2C:43-7.2. Defendant appeals, citing prosecutorial misconduct, reversible error in the admission of evidence of an alleged domestic violence (DV) incident involving him and his girlfriend, and the imposition of an excessive sentence. We reject all of defendant's arguments and affirm.

On November 20, 2003, Robert Romano, a mortgage broker, drove to 296 Dodd Street, East Orange, with his fiancée, Kerryl Ebneter, in Ebneter's white Toyota 4-Runner (SUV). They were planning to meet a prospective buyer of the property, Evelin Rivera, who was driven to the location in a Jeep operated by Orlando Figueroa. When Romano arrived, he parked behind the Jeep. Romano exited the SUV, leaving the keys in the ignition, and attempted to unlock the lockbox on the front door of the property but had difficulty doing so. He called to Ebneter for help. As Ebneter exited the vehicle, an individual on a bicycle rode past Romano's and Figueroa's parked cars. As he did so, Rivera locked her door. When Romano got the front door open, he called out to Rivera to come inside. As Rivera exited the Jeep, Romano screamed "hey, that's my truck" or "what are you doing?" The individual Rivera had seen minutes earlier on the bicycle, whom she later identified as defendant, was entering Romano's SUV from the passenger side. Defendant pointed a gun at Romano. In response, Romano yelled "take it, take it" and pushed Ebneter to the porch floor. Defendant then drove off in Romano's SUV. Figueroa, who had been sitting in the Jeep, pulled out and attempted to give chase but lost pursuit and returned to await the arrival of the police, who had been called.

In the early morning hours of November 21, 2003, Officer Howard Adams, having been briefed at the beginning of his shift about a stolen white SUV, spotted a white SUV while on routine patrol. After doing a license plate check, he confirmed the vehicle was in fact stolen and pursued it, attempting to pull it over. The driver jumped out of the vehicle while it was still moving and the vehicle crashed into a small tree. Officer Adams also exited his vehicle to give chase, but lost pursuit. Instead, he recovered the SUV and found chicken and French fries next to the vehicle. There was no physical evidence recovered linking defendant to the SUV. Defendant was arrested on December 3, 2003.

Keisha Morgan, defendant's girlfriend at the time, testified that around 11:00 p.m. on November 20, 2003, she saw defendant driving a white SUV with a silver bottom near her apartment building. The next day, defendant told her that "he had taken the car from a man at gunpoint," but did not "go into that much detail." Later that evening, Morgan asked defendant to go out and get her something to eat from the Chicken Shack. Morgan subsequently saw the white SUV being chased by the police. When defendant returned later that night, he told Morgan that he had been chased by the police, eventually abandoning the car and dropping her food. Morgan did not report to the police what she saw the previous night or her conversation with defendant about the SUV. Instead, the next day, she went to the police station on an unrelated matter and, while there, told police about what she saw.

During cross-examination, defense counsel, with caution from the court about "open[ing] the door," elicited testimony from Morgan that defendant had come to her home on November 21, 2003, and, while there, "injured [her] and destroyed [her] household." On redirect, without objection, Morgan elaborated on the circumstances surrounding her injuries. On recross-examination, Morgan admitted that although allegedly struck with a two-by-four and a television, she did not seek medical treatment. Moreover, when defense counsel asked if she was sliced in the face with a razor, Morgan responded, "Yes. It's an eyebrow -- eyebrow edger."

Defendant's computer-generated photo was part of a photo array shown to the victim and witnesses. Rivera picked out defendant from a six-photo array. None of the other witnesses could identify the individual they saw take the SUV. Police also recovered a gun from the apartment building in which Morgan resided. No fingerprints linking the gun to defendant were found. The building's superintendent testified that in late November 2003, he discovered the gun when it fell out of the ceiling as he was pulling on a headphone wire that was hanging out of a ceiling hole. According to the superintendent, a man he identified as defendant came to him and asked whether a gun had been found. The superintendent responded that he had not found a gun. During questioning following his arrest on December 3, 2003, the investigating officer showed defendant a photograph of the gun police recovered from the superintendent. Upon seeing the photograph, defendant exclaimed, "oh, shit, oh, shit, you found it." Defendant told police "that either his girlfriend or his superintendent gave him up."

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

POINT I

THE ASSISTANT PROSECUTOR'S SUMMATION GROSSLY EXCEEDED THE BOUNDS OF PROPRIETY WHEN HE: CASTIGATED DEFENSE COUNSEL FOR "TRYING TO TRIP UP" A STATE'S WITNESS DURING CROSS-EXAMINATION, MADE A "CALL TO ARMS" TO THE JURY TO VINDICATE THE POWERLESS THROUGH ITS VERDICT, AND SPOKE OF MATTERS OUTSIDE THE RECORD WHEN SHE INFORMED THE JURY OF THE PSYCHOLOGICAL UNDERPINNINGS FOR ARMED ROBBERY. (Not Raised Below).

POINT II

THE ASSISTANT PROSECUTOR IMPROPERLY QUESTIONED KEISHA MORGAN REGARDING SPECIFIC DETAILS OF HER UNRELATED DOMESTIC-VIOLENCE COMPLAINT AGAINST DEFENDANT. (Not Raised Below).

POINT III

DEFENDANT'S SENTENCE MUST BE REMANDED FOR RESENTENCING UNDER STATE V. NATALE AND STATE V. THOMAS.

I.

Defendant claims the prosecutor, during summation, made remarks that were demeaning, unrelated to the evidence, and exhorted jurors, through their verdict, to a "call to arms." Defense counsel did not object to these comments. Therefore, we review defendant's claims of prosecutorial misconduct under the standard of plain error, namely, whether the prosecutor's comments were "clearly capable of producing an unjust result." R. 2:10-2; see also R. 1:7-2.

"[T]he plain error remedy will be sparingly employed, not casually invoked." Jurman v. Samuel Braen, Inc., 47 N.J. 586, 590 (1966) (citing Ford v. Reichert, 23 N.J. 429 (1957)). Accordingly, "not 'any' possibility [of injustice] can be enough for a rerun of the trial. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971); see also State v. Branch, 182 N.J. 338, 353 (2005) (noting that there is no "mathematically precise formula" for deciding whether an error creates reasonable doubt). Moreover, where the claimed plain error involves allegations of prosecutorial misconduct, the conduct complained of must be more than simply improper. The conduct must be so egregious that it deprived the defendant of a fair trial. State v. Harvey, 151 N.J. 117, 216 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000); see also State v. Green, 318 N.J. Super. 361, 377-78 (App. Div. 1999) ("argumentative and highly improper" questioning by the prosecutor does not rise to the level of plain error), aff'd, 163 N.J. 140 (2000).

We begin our analysis recognizing that the State, through its prosecutor, is permitted wide latitude in advocating its position before the jury. See, e.g., State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); State v. Dixon, 125 N.J. 223, 259 (1991); State v. Shelton, 344 N.J. Super. 505, 519 (App. Div.), certif. denied, 171 N.J. 43 (2001). "The prosecutor is entitled to sum up the State's case graphically and forcefully as long as [her] argument is confined to facts in evidence or upon the reasonable inferences therefrom." State v. Hill, 47 N.J. 490, 499 (1966); see also State v. Timmendequas, 161 N.J. 515, 587 (1999) (a court is not a lecture hall; prosecutors may be forceful and graphic in their summations), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); State v. Tilghman, 345 N.J. Super. 571, 575 (App. Div. 2001), cert. granted, 188 N.J. 269 (2006). Further, where counsel fails to object to opposing counsel's summation, we presume that counsel did not view the comments as egregious errors. State v. Wilson, 57 N.J. 39, 50-51 (1970); State v. Robinson, 266 N.J. Super. 268, 281 (App. Div. 1993), rev'd on other grounds, 136 N.J. 476 (1994).

A. Demeaning defense counsel.

In her summation, the prosecutor noted that in cross-examining Morgan, a "[l]ong time was spent by the defendant's lawyer trying to trip her up on the dates and the times." We agree with defendant that this comment was improper. The use of the words "trip her up," in characterizing defense counsel's cross-examination, may have suggested to the jury that defense counsel was seeking to trick the witness rather than to legitimately question the witness' ability to recall certain facts or the witness' overall credibility. Although a defense attorney should not be criticized for simply doing his job, State v. Frost, 158 N.J. 76, 86 (1999), we conclude the remark was isolated, which we regard as insufficient to have deprived defendant of a fair trial. R. 2:10-2. See State v. Darrian, 255 N.J. Super. 435, 457-58 (App. Div.) (holding improper for prosecutor to suggest defense counsel was trying to "trip up" honest witnesses, but it was an isolated remark), certif. denied, 130 N.J. 13 (1992); see also State v. Watson, 224 N.J. Super. 354, 362 (App. Div.) (holding improper for prosecutor to imply that defense counsel's role was to obfuscate the facts, but the comment was isolated), certif. denied, 111 N.J. 620, cert. denied, Watson v. New Jersey, 488 U.S. 983, 109 S. Ct. 535, 102 L. Ed. 2d 566 (1988).

B. Introducing psychological reason for armed robbery not in evidence.

Defendant claims that the prosecutor's use of the word "power" to proffer a motive for defendant's action was improper given the absence of psychological evidence in the record to support this contention. The prosecutor's use of the word was said in the following context:

Don't forget what armed robbery is. Don't lose sight of what fear is. The reason we're all here. Don't forget really what reality is. It's about fear, taking somebody's car. There'd be a much easier way to take somebody's car, wouldn't there? Think about power. You take the car that way. It's about power, overpowering somebody. Watch what I can do. It's about instilling fear to make somebody do what you want them to do.

Defendant urges that those comments not only injected a psychological theory unsupported by the evidence but also improperly injected the prosecutor's personal belief into the case. See State v. Jenkins, 299 N.J. Super. 61, 69-71 (App. Div. 1997) (holding prosecutor improperly asserted "I don't think he was credible, and I don't think you should buy his story because I don't buy it. . . . That's the sign of a thief. That's what I think."); see also State v. Farrell, 61 N.J. 99, 103 (1972) (prosecutor improperly expressed his "strong" personal belief of this particular defendant's guilt). We disagree.

While there is no direct evidence that defendant's actions were motivated by power, the jury could reasonably infer that by using the gun, defendant intended to overpower the victims and instill fear into them. The prosecutor's insertion of "power" in this context does not rise to the level of error found in Jenkins and Farrell. We therefore find no plain error in the reference to "power" in this context.

C. Call to arms.

Defendant also contends the prosecutor exhorted the jury, through its verdict, to send a message to the community: "There's a lot of things in life that you can't do anything about that you have no power. But you can go in there and come out with justice, and that's what I'm asking for. Thank you." This comment was made immediately after the prosecutor discussed defendant's "power" over the victims during the commission of the armed robbery.

Prosecutors may not urge the jury to "send a message to the community" and may not "call" the jury "to arms" because such language diverts jurors' attention from the facts of the case, State v. Rose, 112 N.J. 454, 520 (1988), and "promote[s] a sense of partisanship with the jury that is incompatible with the jury's function." State v. Neal, 361 N.J. Super. 522, 537 (App. Div. 2003) (citing State v. Goode, 278 N.J. Super. 85, 89 (App. Div. 1994)); State v. Holmes, 255 N.J. Super. 248, 252 (App Div. 1992)). Moreover, use of "call to arms" language in a summation may constitute reversible error even in the absence of an objection. See Neal, supra, 361 N.J. Super. at 537-38; Goode, supra, 278 N.J. Super. at 92; Holmes, supra, 255 N.J. Super. at 252. However, when the improper language is fleeting, i.e., not a recurring theme in the summation, it is not necessarily reversible error. See Neal, supra, 361 N.J. Super. at 537-38. In Neal, the prosecutor told the jury that this was defendant's day of reckoning, saying

I'm asking you to held [sic] him accountable for what he did. I'm asking you to held [sic] him accountable for the lies that he told. I'm asking you to hold him accountable for the betrayal of his oath; not only the oath that he took in Grand Jury but his oath as a School Board member. And I'm asking you to hold him accountable for the betrayal of the children [of] Asbury Park.

[Neal, supra, 361 N.J. Super. at 537 (emphasis in original).]

In ordering a new trial, we found the prosecutor's comments especially inflammatory because "the theme was not fleeting" but one that was continuing throughout the summation. Id.

In the instant case, the prosecutor immediately went from using the word "power" to suggest defendant's motive to instill fear and overpower his victims, to using the word "power" to emphasize to the jurors their control over the ultimate outcome of the case. In other words, given the timing of the use of the word "power," the prosecutor was essentially telling the jury that they were not powerless, but were empowered to do justice.

We agree that the use of the word "power" in the context of the jury's role, juxtaposed to the absence of "power" by the victims against a gun-wielding robber, was improper because in this regard the prosecutor's remarks had the capacity to improperly foster partisanship, for which we expressed our disapproval in Neal, supra, 361 N.J. Super. at 537 (citing Goode, supra, 278 N.J. Super. at 89). We nonetheless conclude that even in this context, the prosecutor's remarks do not rise to the level of impropriety we disapproved in Neal, Goode, and Holmes in either content or length.

To summarize, when we review all of the prosecutor's challenged comments during summation, we are satisfied that because the comments were isolated, not strewn throughout the record as part of a continuing theme, they did not have the capacity, either singly or cumulatively, to deprive defendant of a fair trial under a plain error standard. R. 2:10-2.

II.

Defendant contends he introduced evidence of an alleged DV incident between he and Morgan only to "assist [Morgan] in recalling the events in proper chronological order because the alleged incident occurred around the same time" as Morgan claims she told police about defendant's involvement with the white SUV. Despite the limited purpose for introducing the evidence, defendant argues the State went "completely overboard" by eliciting specific details related to the alleged incident, contrary to N.J.R.E. 404(b), unduly prejudicing him.

Generally, the State is prohibited from introducing evidence of other wrongs to prove the "disposition of a person in order to show that [the person] acted in conformity therewith," but such evidence may be admitted for other purposes when the other purposes are "relevant to a material issue in dispute," provided its probative value is not outweighed by its prejudicial effect. N.J.R.E. 404(b). See State v. Darby, 174 N.J. 509, 520 (2002); see also State v. Long, 173 N.J. 138, 162 (2002). However, where, as in this case, the other wrongs or bad acts are introduced by the defendant, prejudice to the defendant is no longer a factor "and simple relevance to guilt or innocence should suffice." State v. Dreher, 302 N.J. Super. 408, 457 (App. Div.), certif. den. 152 N.J. 10 (1997), cert. denied, Dreher v. New Jersey, 524 U.S. 943, 118 S. Ct. 2353, 141 L. Ed. 2d 723 (1998).

On direct examination, Morgan testified that she reported defendant's alleged involvement with the white SUV while at the police station on an unrelated matter. From this testimony, the jury had no way of knowing that the unrelated matter involved allegations of DV against defendant.

Defendant argues that his trial counsel questioned Morgan about the DV matter in order to assist Morgan in recalling when she saw defendant with the white SUV because she gave conflicting dates as to when she saw defendant with the white SUV.

On redirect, without objection from the defense, the prosecutor asked Morgan how she was injured. Morgan responded, "[defendant] had taken a two by four and hit me. He had thrown a TV at me and took an eyebrow razor and cut me about my face." When the prosecutor asked whether she sought medical attention, Morgan stated, "No. I was too worried about my kids. There was so much turmoil going on at one time I didn't think it would be fair that I worry about myself. I was worried about my kids."

In our view, none of this testimony elicited by the prosecutor on redirect was necessary. In addition to weapons offenses, defendant was on trial for armed robbery, a crime of violence. With the additional testimony alleging acts of domestic violence against Morgan, defendant was portrayed as a violent person. Nonetheless, any prejudice generated by the prosecutor's improper questioning was highlighted during recross-examination when defense counsel, in questioning Morgan, re-described the alleged acts of violence as "sliced in the face with a razor," "hit by the two by four," and "television thrown at you." Defense counsel also reemphasized the fact that Morgan did not seek medical treatment for her alleged injuries.

Courts will typically reject objections to other wrong or bad acts evidence if that evidence was elicited consciously by the objecting party on cross-examination. See State v. Brown, 138 N.J. 481, 531-32 (1994). Moreover, "[t]he absence of an objection suggests that trial counsel perceived no error or prejudice, and, in any event, prevented the trial judge from remedying any possible confusion in a timely fashion." Bradford v. Kupper Assocs., 283 N.J. Super. 556, 573-74 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996). Trial errors "induced, encouraged, or acquiesced in or consented to by counsel" will not ordinarily be grounds for reversal as plain error. State v. Harper, 128 N.J. Super. 270, 276-77 (App. Div.), (counsel may not "condemn the very procedure he sought and urged, claiming it to be error and prejudicial"), certif. denied, 65 N.J. 74 (1974). "[W]here the invited error did not demonstrably impair a defendant's ability to maintain a defense on the merits . . . it has not been considered so egregious as to mandate a reversal on appeal." Id. at 277 (citations omitted). "The inquiry in this situation calls for a close, balancing examination of the nature of the error, its impact on the trial and the jury's verdict, and the quality of defendant's motives and conduct in bringing about the error." Id. at 278.

Defense counsel consciously opened the door to testimony about allegations of domestic violence. Although he did not get into the specifics of the allegations, he did not object to the prosecutor's additional questions related to Morgan's alleged injuries. Indeed, he highlighted those injuries during recross-examination. Additionally, defense counsel apparently attempted to demonstrate the incredulousness of the claimed injuries by eliciting from Morgan that she did not seek medical treatment, a fact she had previously acknowledged on direct.

The judge closely followed Morgan's testimony thereafter, preventing her from volunteering more information about the incident than the question required. The judge gave instructions to the jury expressly limiting the use of the evidence to context and motive, and defense counsel did not object to this limiting instruction. See State v. Winter, 96 N.J. 640 (1984) (where there is no support in the record for defendant's contention that the jury did not comply with the judge's instruction, the admission of prejudicial testimony was deemed cured by the judge's instructions to the jury to disregard it).

Although the testimony elicited on redirect and recross should have been disallowed by the court because it bore no relevance to any material fact in dispute, the court's limiting instruction to the jury cured the error. Id. at 646-47. As such, its erroneous admission did not deprive defendant of a fair trial. See id. at 648-49. Moreover, the State presented substantial evidence against defendant to the jury, including defendant's admissions to Morgan and the police, as well as eyewitness testimony upon which the jury could base its verdict. R. 2:10-2.

III.

Defendant asserts that because the nineteen-year sentence imposed exceeds the then fifteen-year presumptive term for first- degree crimes and is based upon "aggravating factors other than the mere fact of a prior record, defendant's sentence must be remanded" under State v. Natale, 184 N.J. 458 (2005). We agree.

Defendant's conviction is affirmed and the matter is remanded to the trial court for resentencing.

 

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A-6491-04T4

 

April 2, 2007