STATE OF NEW JERSEY v. FLOYD NANCE III

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0808-07T40808-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FLOYD NANCE III,

Defendant-Appellant.

___________________________________________

 

Submitted November 19, 2008 - Decided

Before Judges Rodr guez, Waugh and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 06-12-0551.

Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief).

PER CURIAM

Following a jury trial, defendant Floyd Nance III was convicted of third-degree possession of cocaine, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third-degree distribution of CDS, N.J.S.A. 2C:35-5a(1); and second-degree possession of CDS with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1a. The judge merged the third-degree convictions into the second-degree conviction and imposed a five-year term. We reverse because the judge erroneously excluded the testimony of two defense witnesses, deeming them to be alibi witnesses whose identity was not disclosed contrary to Rule 3:12-2.

On the day of trial, defendant provided a list of witnesses that he would call. Among them were the names of Carmen Mejias and Gloria Copes. The State objected to these witnesses. Defense counsel proffered that these witnesses would testify that it was defendant's habit to go crabbing on summer afternoons after being released from work. The judge found them to be alibi witnesses. Because defense counsel had not complied with the relevant alibi defense notice requirement, pursuant to Rule 3:12-2, the judge barred Carmen Mejias and Copes from testifying. Defense counsel objected on the record, requesting instead that the judge grant a reasonable postponement of the matter. The State objected and the judge agreed, denying defendant's request.

Because defendant had a 1990 conviction for unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), for which he received a three-year term, a pretrial Sands-Brunson hearing was held to determine whether defendant's prior convictions could be used to impeach his credibility. The judge ruled that the State could use defendant's prior convictions for impeachment purposes; with defense counsel being permitted to comment on the remoteness of the conviction. The judge gave a limiting instruction to the jury after such evidence was admitted.

One witness testified for the State, Detective Braheem Days of the Burlington County Prosecutor's Office. He testified that on July 10, 2006, acting in an undercover capacity, he purchased twelve bags of CDS from defendant for $100. On the day of the controlled purchase, Days went to a location where he was briefed. Days placed a telephone call to a police informant to arrange for a meeting with defendant. Days drove to meet defendant at an area within 500 feet of the Westside Apartment Complex, a public housing project. Shortly after, Days made the telephone call, defendant arrived and got into the rear passenger side of Days' car. Days told defendant he wanted to purchase $100 worth of cocaine. Defendant reached into his pocket and grabbed a clear plastic bag with small pink plastic bags inside. Defendant handed twelve of the small pink bags to Days. Days paid him $100.

Days testified that when he is involved in a controlled buy, he pays close attention to a suspect's facial features because he knows he will have to identify the person later. Days identified defendant in court as the person from whom he purchased the cocaine on July 10, 2006. After defendant got out of the car, Days went back to the meet location. He completed two other controlled buys that day, not involving defendant. At the meet location, Days identified defendant in a single photograph shown to him. Days initialed and dated the back of the photograph. This photograph was the same as was shown to him prior to meeting defendant that afternoon. Days testified that the substance obtained from defendant tested positive for .16 grams of cocaine. Defendant stipulated to chain of custody regarding the CDS.

Defendant called Juan Mejias as a character witness. He testified to knowing defendant for about nine years. According to Juan Mejias, defendant was a "nice guy" who "gets along with everybody." Mejias testified that every day after work, unless it was lightning, defendant and his family would go crabbing. Mejias, however, could not testify whether this occurred on July 10, 2006.

Defendant testified that every day at 2:30 p.m., at the end of his work shift, he would return home to retrieve his crabbing bucket. At 3:00 p.m., defendant's girlfriend would pick him and his children up to take them to Red Bridge for crabbing. They would continue to crab until about 8:30 p.m. or 9:00 p.m. Defendant would sell the crabs to people who had pre-placed orders through defendant's mother. He has done this for the past four years. Defendant remembered crabbing on July 10, 2006, because it was just a few days after his birthday.

At the close of the State's case and, again after the close of all evidence, defendant moved pursuant to Rule 3:18-1 to dismiss the indictment based on lack of evidence presented. The judge denied the motions. Pursuant to Rule 3:20-1, defendant moved for a new trial arguing that the verdict was against the weight of the evidence. Defendant also moved for a new trial, based on the exclusion of the testimony of Carmen Mejias and Copes. The judge denied the motions.

On appeal, defendant contends:

THE TRIAL COURT ERRED IN PRECLUDING DEFENSE WITNESSES, INCORRECTLY DEEMED TO BE "ALIBI" WITNESSES, FROM TESTIFYING AT TRIAL.

We agree.

Carmen Mejias and Copes were not alibi witnesses. Thus, the notice requirements of Rule 3:12-2 did not preclude their testimony. Rule 3:12-2 provides,

(a) Alibi. If a defendant intends to rely in any way on an alibi, within 10 days after a written demand by the prosecutor the defendant shall furnish a signed alibi, stating the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi.

. . .

(b) Failure to Furnish. If the information required in paragraph (a) is not furnished, the court may refuse to allow the party in default to present witnesses at trial as to defendant's absence from or presence at the scene of the alleged offense, or make such other order or grant such adjournment, or delay during trial, as the interest of justice requires.

[R. 3:12-2.]

The word "alibi" literally means "elsewhere; in another place," and has "its evidential efficacy in the physical impossibility of the accused's guilt." State v. Echols, 398 N.J. Super. 192, 207 (App. Div.), certif. granted on petition, certif. denied on cross-petition, 195 N.J. 522 (2008) (quoting State v. Mucci, 25 N.J. 423, 431 (1957)). In asserting that he has an alibi, "a defendant is alleging he was elsewhere at the time the crime was committed and therefore could not commit it." State v. Mitchell, 149 N.J. Super. 259, 262 (App. Div. 1977). See also Echols, supra, 398 N.J. Super. at 207-08; State v. Volpone, 150 N.J. Super. 524, 528 (App. Div.), aff'd, 75 N.J. 543 (1977).

However, the alibi-notice rule does not cover testimony alleging that a defendant was not at the scene of the crime with only an inferential suggestion that defendant was elsewhere. Volpone, supra, 150 N.J. Super. at 528. The rationale for such a holding is that it is the State's burden to prove defendant was at the scene of the crime at the time crime was committed. State v. Garvin, 44 N.J. 268, 272 (1965); Volpone, supra, 150 N.J. Super. at 528. Therefore, testimony that defendant was not at the scene of the crime does not disadvantage the State because the State already has the burden to prove defendant was at the scene. Volpone, supra, 150 N.J. Super. at 528. On the other hand, if no alibi notice is given, the State would be disadvantaged if the defense were to offer proof that defendant was not only not at the scene of the crime but was in another place instead. Ibid. Under these circumstances, we have held that the State should be permitted advance knowledge of the claim in order to investigate and attempt to refute the assertion. Ibid.

Here, defendant proffered that Carmen Mejias and Copes would testify that it was defendant's custom to go crabbing on a regular basis in the summer on workdays after his shift ended. This would thus give rise to an inference that it was highly unlikely defendant would have been in the location where the drug transaction took place.

We conclude that the proffered testimony was not properly "alibi," but habit or routine practice, which is admissible pursuant to N.J.R.E. 406. In other words, the alibi-notice rule, Rule 3:12-2, was not applicable. On the other hand, Rule 3:13-3(d)(3), the general discovery rule, was applicable. This rule requires a continuing duty on the part of defendant to disclose the names and addresses of potential witnesses. Although a defendant is not required to reveal the name of all persons who have the potential to become a witness, the defendant is required to furnish such information "where he knows that the person will definitely be called as a witness." State v. Stevens, 222 N.J. Super. 602, 620 (App. Div.), certif. denied, 111 N.J. 575 (1988), aff'd, 115 N.J. 289 (1989) (citing In re Lependorf, 212 N.J. Super. 284 (App. Div. 1986)). It is within the trial judge's discretion on how to sanction for such a violation. State v. Burnett, 198 N.J. Super. 53, 60 (App. Div. 1984), certif. denied, 101 N.J. 269 (1985). This court has held that otherwise viable defenses should not be suppressed whenever there is a failure to comply with discovery rules. Id. at 60-61. Furthermore, it has been noted that "the sanction of preclusion is a drastic remedy and should be applied only after other alternatives are fully explored." Id. at 61.

Although defendant violated Rule 3:13-3(d)(3), which requires a defendant to provide witnesses information to the State no later than seven days before arraignment or status conference, this violation was not "repeated and flagrant." See Burnett, supra, 198 N.J. at 61. Therefore, we conclude that a measure less severe than preclusion should have been considered. The judge should have granted a short adjournment of the trial to permit the State to review the background of the proposed witnesses.

In concluding that it was harmful error to exclude the testimony of Carmen Mejias and Copes, we are mindful that Juan Mejias gave similar testimony regarding going crabbing with defendant on summer afternoons. This was in response to the assistant prosecutor's question. However, he was called as a character witness. His testimony was given in the context of his familiarity with defendant. The jury may not have made the connection that Mejias was giving "habit or custom" evidence about defendant that, if believed, negated the latter's guilt. Moreover, the proffered testimony of Carmen Mejias and Copes was not unduly cumulative. Accordingly, the convictions are reversed. The matter is remanded for a new trial.

Because there will be a new trial and for the guidance of the judge, we address the following contentions:

THE TRIAL COURT ERRED BY ALLOWING THE STATE TO OFFER DEFENDANT'S NICKNAME, "SHUG," AS INDICIA OF GUILT, THEREBY PREJUDICING DEFENDANT'S RIGHT TO A FAIR TRIAL (Not Raised Below).

We disagree.

It is well-settled that alias's of defendant should be kept from the jury unless the name is relevant to some aspect of the case. State v. Salaam, 225 N.J. Super. 66, 72 (App. Div.), certif. denied, 111 N.J. 609 (1988) (quoting State v. Stanhope, 676 P.2d 1146, 1151 (Ariz. Ct. App. 1984)). "The principle objection to the use of an alias in a criminal proceeding is that an alias implies that the defendant belongs to the criminal class and thereby prejudices the jury." Salaam, supra, 225 N.J. Super. at 73 (quoting State v. Muniz, 622 P.2d 1035, 1037 (N.M. 1981)). However, the admission of irrelevant aliases will only be considered reversible error if "some tangible form of prejudice is demonstrated, i.e., where such names have been intentionally offered as indicia of guilt." Salaam, supra, 225 N.J. Super. at 73. We have applied Salaam to "instances where a defendant has a pejorative nickname, such as 'Marijuana' or 'Trouble.'" State v. Paduani, 307 N.J. Super. 134, 147 (App. Div.), certif. denied, 153 N.J. 216 (1998).

Here, defense counsel appears to have first introduced defendant's nickname, "Shug" or "Big Shug," at trial during direct examination. Defendant testified that his grandmother gave him the nickname. The prosecutor proceeded to question defendant about whether he knew "Shug" was short for sugar and that sugar is a white powder with sparkles in it like cocaine. Defendant responded that he was not aware it was a street name for cocaine.

Because no objection to the nickname "Shug" was made during trial, defendant must demonstrate that the reference to his nickname was "clearly capable of producing an unjust result" and therefore amounted to plain error. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).

We conclude that it was not error at all to permit reference to the nickname "Shug." First, defendant has not shown prejudice. The name was relevant to the case because it had been provided to the police prior to the controlled purchase. Third, the name itself did not have a pejorative meaning. There was no evidence that "Shug" is associated with cocaine. The prosecutor suggested that in his question. However, facts stated in questions are not evidence unless adopted as a fact by the witness. See N.J. Civil Jury Charge 1.11A Role of Jury, Judge and Attorneys (Revised 507). Moreover, unless there was evidence that "Shug" is a street name for cocaine, the comment is prejudicial. This should not re-occur at the new trial.

We also address this contention:

THE ADMITTANCE INTO EVIDENCE OF DEFENDANT'S REMOTE CRIMINAL CONVICTION TO AFFECT HIS CREDIBILITY CONSTITUTED A CLEAR ABUSE OF DISCRETION AND VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL.

We conclude that it was not error to permit evidence of the prior conviction.

N.J.R.E. 609 allows for a witness's prior convictions to be admitted for impeachment purposes. However, if a prior conviction is admitted and it is the same or similar to the crime charged, the trial judge must "sanitize" the evidence and limit cross examination to the degree and the date of the prior offense. State v. Brunson, 132 N.J. 377, 391 (1993). "[A]ny evidence of the specific crime of which defendant was convicted" must be excluded. Ibid. Nonetheless, we will not reverse a trial court's decision unless there is an abuse of discretion. State v. Hutson, 211 N.J. Super. 49, 53 (App. Div. 1986), aff'd, 107 N.J. 222 (1987).

Here, the trial judge has discretion in whether to exclude a prior conviction for remoteness. We conclude that the trial judge did not abuse his discretion. However, at the time of the retrial there must be a new Brunson analysis regarding the admissibility of the prior conviction.

Defendant also contends that:

THE TRIAL COURT'S FAILURE TO DECLARE A MISTRIAL AFTER THE JURY ANNOUNCED THAT IT COULD NOT REACH A VERDICT, AND ITS SUBSEQUENT COERCIVE SUPPLEMENTAL INSTRUCTION VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL (Not Raised Below).

We disagree.

This contention is based on the fact that after about ninety minutes of deliberations, the jury announced that it was deadlocked. The judge urged the jurors to "continue to attempt to reach a jury verdict, which is unanimous."

We conclude that it was too early in the deliberation process to declare a mistrial. The judge did not give the Czachor charge. However, the language he used was not coercive nor oppressive to minority or hold out jurors. The charge, as given, was neutral enough to pass muster.

In addition, defendant urges as plain error, the following contentions:

THE TRIAL COURT ERRED BY ADMITTING IDENTIFICATION EVIDENCE OBTAINED THROUGH AN IMPERMISSIBLY SUGGESTIVE PROCEDURE (Not Raised Below).

MISSTATEMENT OF THE LAW BY THE PROSECUTOR DURING SUMMATION DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (Not Raised Below).

THE TRIAL COURT ERRED IN FAILING TO PROVIDE AN ALIBI INSTRUCTION TO THE JURY DURING ITS FINAL CHARGE (Not Raised Below).

CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (Not Raised Below).

These arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We merely add the following. The only identification here was by a police officer. Wade does not require similar scrutiny for a police officer's testimony as that of a lay witness. The jury was advised that all instructions on the law, including reasonable doubt, were the exclusive province of the jury. Therefore, even if the assistant prosecutor misstated the law, a reversal is not warranted.

 
The convictions are reversed and the matter remanded for a new trial.

State v. Sands, 76 N.J. 127 (1978).

State v. Brunson, 132 N.J. 377 (1993).

State v. Czachor, 82 N.J. 392, 407 (1980).

United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 1933, 18 L. Ed. 2d 1149, 1158 (1967).

(continued)

(continued)

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A-0808-07T4

December 11, 2008