STATE OF NEW JERSEY v. TODD A. MOSBY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3233-08T43233-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TODD A. MOSBY,

Defendant-Appellant.

_______________________________________

 

Submitted March 8, 2010 - Decided

Before Judges Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-06-1142.

The Toscano Law Firm, L.L.C., attorneys for appellant (Patrick P. Toscano, Jr., on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Todd A. Mosby appeals from his conviction of official misconduct, and abuse or neglect of a child. For the reasons that follow, we reverse and remand for a new trial.

I.

Defendant was charged in a seven-count indictment with second degree official misconduct, contrary to N.J.S.A. 2C:30-2 (counts one, three and four); fourth degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b) (counts two, five and six); and fourth degree abuse or neglect of a child, contrary to N.J.S.A. 9:6-3 (count seven). Prior to trial, the court severed counts one and two. The matter proceeded to trial on the remaining counts.

The State presented testimony which established that, at the time of the charged offenses, defendant was an officer in the Garfield Police Department (GPD). He had joined the GPD in 2001, having previously worked as a police officer in the City of Orange. After joining the GPD, defendant was assigned to patrol duty on the night shift, from 11:00 p.m. to 7:00 a.m.

In the summer of 2006, T.S., a female who was then almost seventeen years old, was dating A.M., who she met in high school. On the evening of August 1, 2006, A.M. was at T.S.'s home in Garfield. They had an argument and A.M. left to walk home. Later that evening, T.S. spoke with A.M. by phone. She said that, around 1:49 a.m., she walked to a baseball field near her home to meet A.M..

T.S. testified that she and A.M. talked in an effort to resolve their differences. T.S. stated that, after about thirty or forty minutes, they started to return to T.S.'s home. A.M. was going to sleep over. They started to walk out of the baseball field, when T.S. observed a police car approaching them. Defendant was driving the car.

Defendant told her that he had been at her house on a prior occasion but T.S. did not recognize him. He directed A.M. to go sit down on a bench. According to T.S., defendant said that she was "gorgeous" and he asked what she was "doing with a kid like that?" Defendant stated that A.M. was "only trying to get in [her] pants." He told her to go home. She called A.M. and they started to walk towards T.S.'s house.

Defendant asked where A.M. lived and she told him that his house was on the other side of the city. Defendant decided to give A.M. a ride home. A.M. and T.S. got into the back seat of defendant's patrol car. Defendant drove A.M. to his house and A.M. got out of the car. T.S. told A.M. that she would call him when she got home. T.S. got back into the car and sat in the front seat of the car.

Defendant drove back to the baseball field and parked the patrol car near an empty building. According to T.S., it was about 2:40 a.m. Defendant asked her if she had sexual relations with A.M. Defendant also asked her whether she had sexual relations with other men. T.S. said that A.M. was "the only guy." Defendant moved the car to another location and asked T.S. other questions of a sexual nature. According to T.S., defendant asked her about her "favorite position" and whether she liked "oral sex." T.S. said that she was shocked by these questions.

T.S. further identified that defendant began touching her ear, her legs near the thigh and her chest. Defendant told T.S. that she had a sexy body, pretty face and beautiful smile. She kept moving her body away from him. She thought he was never going to let her get out of the car. According to T.S., defendant told her that he just wanted her to be "comfortable with him."

At around 4:30 a.m., A.M. called T.S. on her cell phone. He asked her what she was doing. He wanted to know why she had not called him. T.S. told A.M. that she was still "with the cop" and they were talking. He said, "all right" and asked her to call him when she got home.

T.S. stated that defendant again began to rub her ear. She became very nervous. According to T.S., defendant touched her leg and kept "getting closer and closer to [her] vagina[.]" Defendant told T.S. that she was "horny" and "want[ed] to have sex." Defendant said that if he were "to push up on" her, she "would have sex with [him]." T.S. denied it but defendant said that if he were a younger cop, she would "definitely" have sex with him and kiss him. T.S. said that she would not. He asked her to give him a hug.

T.S. did not hug defendant. Defendant said that he was going to be the teacher and she was going to be his student. He said that he would give T.S. a "lesson." He asked her to "give [him] a hug." He pulled her close and she patted him on the back. He then grabbed her, squeezed her tightly and insisted that she kiss him. T.S. said that defendant kissed her on the cheek and the lips.

T.S. testified that she pushed defendant off and asked him what he was doing. Defendant then drove out of the parking lot and continued to discuss sexual matters with her. He dropped her off at home. T.S. said that she was hysterical. She tried to phone A.M. but he did not answer because he was apparently asleep. The next day, T.S. told her mother about the incident. She reported the matter to the Bergen County Prosecutor's Office.

Defendant testified that on August 2, 2006, at around 4:15 a.m. or 4:30 a.m., he observed T.S. and A.M. in the park. Defendant stated that T.S.'s breasts were exposed and she was sitting on A.M. and performing a "lap dance." Defendant approached them and demanded to know what they were doing in the park at that hour. He said that he could have arrested them but elected not to do so. Defendant stated that, based on his training and experience, he believed that A.M. was a member of the "Bloods" street gang.

Defendant further testified that T.S. and A.M. began to leave the park and go their separate ways. Defendant was concerned that A.M. was going to walk home at that late hour. He decided to give A.M. a ride to his home and asked whether T.S. wanted to go along. She agreed. A.M. and T.S. got into the rear seat of defendant's patrol car.

Defendant stated that Sergeant Jeffrey Camiscioli (Camiscioli) of the GPD drove up next to his car and defendant told him that he was going to drive T.S. and A.M. home. According to defendant, Camiscioli said "okay, go ahead" and drove off. Defendant dropped A.M. off at his house and A.M. went inside. Defendant wanted to speak to T.S. because he knew her and her family.

Defendant asked T.S. whether she wanted to sit in the front seat with him. She said that she did and got into the front seat. They were separated by police equipment. Defendant spoke to T.S. about her family. According to defendant, T.S. was hysterical that he would tell her mother that she had been out with A.M.

Defendant additionally testified that he and T.S. were sitting in the patrol car in front of her house when T.S. received a phone call from A.M. According to defendant, A.M. asked T.S. whether she had gotten home. T.S. replied that she was at home but she was still speaking to the police officer and she would call him. Defendant stated that T.S. did not appear to be in fear.

Defendant denied that he spoke to T.S. about sexual matters. He said that T.S. lied when she said that he touched her breast or chest. Defendant stated that he was with T.S. in the patrol car for twenty minutes, at the most. He also stated that, when T.S. got out of the patrol car, she leaned over and gave him a kiss.

Camiscioli testified that he observed defendant speaking with two teenagers about 2:00 a.m. to 2:30 a.m. Sergeant Joseph Marsh (Marsh) of the GPD is the gang liaison to the Bergen County Prosecutor's Office Gang Task Force. Marsh testified that he did not believe that A.M. was a member of the "Bloods."

The jury found defendant guilty on two counts of official misconduct and one count of abuse or neglect of a child. The trial court sentenced defendant to concurrent, five-year terms for the official misconduct convictions. The court also imposed a concurrent, eighteen-month term for the abuse or neglect conviction. The court ordered defendant to pay certain fines and penalties, mandated that defendant forfeit his governmental employment, and directed that he have no contact with T.S. or her family. This appeal followed.

II.

Defendant argues that the trial court erred by denying his motion for a mistrial based on what defendant says was egregious prosecutorial misconduct. Defendant maintains that a mistrial was warranted because the assistant prosecutor identified A.M. in front of the jury, even though A.M. failed to comply with the defense subpoena, did not testify and appeared in the courtroom while the assistant prosecutor was presenting his closing argument. Defendant contends that the court's instruction regarding A.M. was insufficient to cure the prejudice resulting from the assistant prosecutor's improper conduct.

The following facts inform our decision on these issues. William Wilks (Wilks), a private investigator retained by the defense, testified that made several attempts to contact A.M. at his home. On December 16, 2008, defense counsel informed the court that a subpoena had been served upon A.M. requiring that he be present on that date but A.M. did not appear. Defense counsel stated that he did not want the court to issue a warrant for A.M.'s arrest. He said that he was ready to proceed with his closing argument and he would comment on A.M.'s failure to appear.

The court stated that it would issue a charge to the jury pursuant to State v. Clawans, 38 N.J. 162 (1962), indicating that the jurors should not draw any negative inferences in favor of either party because A.M. had not been called as a witness in the case. The court commented that such inferences were not warranted in this case because A.M. had been equally available to both parties.

The assistant prosecutor argued that the State did not need A.M.'s testimony because he was not in the car at the time the alleged offenses were committed. The assistant prosecutor further argued that A.M.'s statement to the police was "consistent in all material respects" with T.S.'s trial testimony. The assistant prosecutor therefore argued that it was not appropriate for the jury to draw an adverse inference in favor of either party because A.M. had not been called as a witness.

In response, defense counsel argued that a subpoena had been served upon A.M. and he did not appear. The assistant prosecutor asserted that the defense did not want A.M. to appear because his testimony would hurt the defense. The trial court ruled that a Clawans charge would be given to the jury, as previously determined.

The court asked defendant whether he wanted to proceed with summations, or whether he would prefer to wait for thirty minutes so that the individual who served the subpoena could testify. The court pointed out that, in the absence of testimony regarding the subpoena, defense counsel would have to limit his comments to Wilks' testimony on his efforts to contact A.M. Defendant agreed to proceed with the closing arguments.

In his summation, defense counsel asserted that T.S.'s story made "no common sense whatsoever." He said that A.M. "knew everything that went on that night." Referring to A.M., counsel asked rhetorically, "Where is he?" Counsel discussed the attempts the defense made to have A.M. testify and said that it was important that he be there because his testimony would have undermined T.S.'s assertions concerning the time in which the alleged offenses were said to have occurred.

During the assistant prosecutor's summation, A.M. walked into the courtroom and sat down in the front row of the public section of the courtroom. The transcript indicates that the assistant prosecutor referred to A.M. by his first name. Defense counsel immediately objected and moved for a mistrial.

The assistant prosecutor did not deny mentioning A.M.'s name. He said, however, that while the defense was trying to contact the person who served the subpoena, his office took steps to get A.M. to appear in court in order to show that A.M. had not willfully ignored the defense subpoena. The court reserved its decision on defendant's motion.

The assistant prosecutor then completed his summation. He noted, among other things, that the State had refuted defendant's assertion that A.M. was a member of the "Bloods" gang. The assistant prosecutor stated:

[t]hey thought we were going to call him and they were setting it up that we were now going to call a Bloods member. Folks, I didn't need to call [A.M.]. They said [A.M.] knows everything about the night before. Bull. He knows nothing about what took place in that car when he was -

Defense counsel objected. The court sustained the objection and told the jury to "[n]egate that reference[,]" but it is unclear what reference the court was referring to. The court told the jury to rely upon its recollection of the testimony. The assistant prosecutor continued with his summation and stated that "there was no testimony by this defendant that [A.M.] was in that car when he was there with that young lady."

After the jury had been dismissed for the day, defense counsel renewed his motion for a mistrial, again noting his objection to A.M.'s appearance during his closing argument and the assistant prosecutor's identification of him. The court stated that it had no idea why A.M. had been brought into the court at that time. The court said, "[a]ll of a sudden this guy walks in in the middle of your summation for a show. That's exactly what it was." The court added that A.M. "should not have been walked into this courtroom and [he should] certainly never [have been] identified in front of a jury, never."

The following day, the court conducted a hearing outside the presence of the jury on A.M.'s failure to comply with the defense subpoena. A.M. testified that he was served with the subpoena, which directed that he appear on December 16, 2008, but he mistakenly believed that December 16 was a Wednesday rather than a Tuesday. The State's detective, Ishmael Alisini (Alisini), testified that on December 16, the assistant prosecutor instructed him to find A.M. and bring him to the front row of the courtroom. Alisini said that, after contacting A.M.'s mother and girlfriend, he arranged to pick up A.M. and transport him to the courthouse. Alisini accompanied A.M. into the courtroom and told him to sit in the front row.

The trial court found that the assistant prosecutor had acted improperly by having A.M. brought into the courtroom and identified before the jury during his summation. The court found, however, that a mistrial was not warranted under the circumstances. The court stated that it would give the jury a Clawans charge regarding A.M., as it had previously ruled.

Later that day, the court gave the jury the following instruction:

During the course of the trial reference has been made to [A.M.]. The [c]ourt has determined that the non-production of [A.M.] as a witness is excusable as a matter of law. This witness was equally available to either side in the event they chose to call him to testify.

Therefore, you should not speculate as to what his testimony would have been had he been called to testify by either side nor may you draw any inferences against or in favor of either party from his failure to testify at this trial.

Again, I want to remind you that in criminal trials the defendant is under no obligation to call any witnesses or offer any evidence in his defense and you may not infer any negative inference from the non-production of this witness or any other witness for that matter.

However, in that regard, the defense contends that the testimony in this case has revealed that the defense contacted [A.M.] six times telephonically and that their Investigator William Wilks also went to [A.M.'s] home on two occasions last week to speak to him.

Further, that [A.M.] was personally served with a subpoena on 12/12/08, at around 12:15 p.m., by the defense . . . mandating his appearance to testify at 9 a.m. on 12/16/08 which was yesterday. Of course you will rely on your own recollection of what the testimony was in this case giving whatever weight you deem it's entitled in deciding what facts exist because that's your function.

[A.M.] did not appear yesterday at 9 a.m. pursuant to his subpoena. And thereafter [defense counsel] . . . decided in his case here to rest and proceeded to give and complete his closing statement and closing arguments.

[The assistant prosecutor] on behalf of the State then proceeded to give his closing statement and during the closing statement [A.M.] appeared and was brought into court in the front row in the courtroom there by one of the prosecutor's investigators.

III.

A prosecutor is "'charged not simply with the task of securing victory for the State but, more fundamentally, with seeing that justice is served.'" State v. Wakefield, 190 N.J. 397, 437 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008) (quoting State v. Reddish, 181 N.J. 553, 641 (2004)). A prosecutor must refrain from engaging in conduct "'lacking in the essentials of fair play[.]'" Ibid. (quoting State v. Siciliano, 21 N.J. 249, 262 (1956)). A new trial will be ordered if the prosecutor's conduct was "'clearly and unmistakably improper'" and "'substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" Id. at 438 (quoting State v. Smith, 167 N.J. 158, 181-82 (2001)).

Here, the trial court correctly determined that the assistant prosecutor had acted improperly by having A.M. brought into the courtroom during his closing argument, having him seated in the front row and identifying him in front of the jury. The assistant prosecutor explained to the trial court that he had a detective from his office locate A.M. and bring him to court so that he could show that A.M. was not in contempt of court. However, as the trial court observed, once defense counsel determined that he would not seek a warrant for A.M.'s arrest and would proceed with his closing argument, there was no need for the assistant prosecutor to demonstrate to the court that A.M. had not willfully refused to comply with the defense subpoena.

Furthermore, as the trial court pointed out, there was no reason for the assistant prosecutor to identify A.M. before the jury during his summation. The assistant prosecutor stated that he merely wanted defendant's attorney to know that A.M. was in court, but the evidentiary portion of the trial was over. Even if this was the assistant prosecutor's purpose, he could have made A.M.'s presence known to defense counsel outside the presence of the jury. We therefore conclude that the assistant prosecutor's actions were clearly and unmistakably improper.

We also conclude that the assistant prosecutor's actions substantially prejudiced defendant's right to a fair trial. As the record shows, during his closing argument, defendant's attorney pointed out the steps the defense had taken to have A.M. appear and testify. Although A.M. was not in the patrol car when defendant is said to have committed the charged offenses, defense counsel argued to the jury that A.M.'s testimony would have corroborated portions of defendant's testimony and thereby raise reasonable doubt as to whether T.S. was telling the truth.

A.M.'s appearance in the courtroom during the assistant prosecutor's closing argument, and the assistant prosecutor's identification of him before the jury, substantially undermined this portion of defense counsel's closing argument. A.M.'s appearance suggested to the jury that, despite defense counsel's assertions, the defense had not made a diligent effort to have A.M. testify. A.M.'s appearance also suggested to the jury that, had he testified, A.M. might have contradicted rather than supported defendant's testimony.

We are convinced that, under the circumstances the trial court erred by failing to grant defendant's motion for a mistrial. We recognize that, during a trial, inadmissible evidence may at times come to the attention of a jury. State v. Winter, 96 N.J. 640, 646 (1984). The admission of such evidence does not always constitute reversible error. Ibid. (citing Bruton v. United States, 391 U.S. 123, 135, 88 S. Ct. 1620, 1627, 20 L. Ed. 2d 476, 484 (1968)).

The decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.

[Id. at 646-47.]

Nevertheless, we are convinced that the trial court should have granted defendant's motion for a mistrial. In our view, the instruction provided to the jury did not cure the prejudice that resulted from the assistant prosecutor's improper action. The court told the jury that it should not speculate on what A.M. might have said if he testified, and it should not draw any inference in favor of either party based on his failure to appear. However, this instruction came after defense counsel had already forcefully argued that A.M.'s testimony would have undermined T.S.'s credibility. Under the circumstances, it would be difficult, if not impossible, for the jury to ignore all that had been said about A.M. when assessing the credibility of T.S. and defendant. Furthermore, the jury may have been led to believe that the defense had deliberately avoided calling A.M. as a witness because his testimony would be unfavorable.

Moreover, the appearance of A.M. in the courtroom and the assistant prosecutor's identification of him before the jury had the effect of prejudicing the defense, wholly aside from any inferences that could be drawn based on his failure to testify. A.M.'s appearance had the clear capacity to undermine defense counsel's credibility. If the jury believed that defense counsel had not been candid when he asserted that the defense made every effort to call A.M. as a witness, the jury also could believe that the remainder of counsel's closing argument was not worthy of belief.

Defendant additionally argues that his right to a fair trial was denied by certain other comments made by the assistant prosecutor in his summation. Defendant argues that the assistant prosecutor improperly appealed to the jurors' emotions and sympathies. In view of our decision that a new trial is warranted for other reasons, we need not address these contentions.

Reversed and remanded for a new trial.

 

We note that the attorney representing the State on this appeal was not the trial prosecutor.

The State says in its brief that it listened to the tape but could not hear the assistant prosecutor use A.M.'s name. However, on the transcript of December 17, 2008, the assistant prosecutor acknowledged that he spoke loud enough for the jury to hear him identify A.M.

(continued)

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A-3233-08T4

 

April 19, 2010