STATE OF NEW JERSEY v. BRIAN HOLMES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3199-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN HOLMES a/k/a RICHARD

BRIAN HOLMES,

Defendant-Appellant.

ArguedMarch 14, 2011 Decided July 29, 2011

 

Before Judges Lisa, Reisner and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-06-0529.

 

Jeffrey S. Mandel argued the cause for appellant (PinilisHalpern, LLP, attorneys; Mr. Mandel, of counsel and on the briefs).

 

Mary E. McAnally, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Ms. McAnally, of counsel and on the briefs).

 

PER CURIAM

Tried by a jury, defendant Brian Holmes, also known as Richard Holmes, was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); first-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(1) (count two); two counts of fourth-degree falsifying records, N.J.S.A. 2C:21-4(a) (counts four and nine); second-degree theft, N.J.S.A. 2C:20-3(a) (count five); and three counts of second-degree official misconduct, N.J.S.A. 2C:30-2(a) (counts six, eleven, and thirteen). Defendant was acquitted of first-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) and (b)(1) (count three); third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count seven); second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count eight); and third-degree theft, N.J.S.A. 2C:20-3(a) (count ten). A fourth count of second-degree official misconduct was dismissed prior to trial.

On January 23, 2009, defendant was sentenced to an aggregate of fourteen years subject to three and one-third years of parole ineligibility. Count one was merged into count two and, on the latter offense, a term of imprisonment of ten years, subject to three and one-third years of parole ineligibility, was imposed. Two one-year terms on the fourth-degree falsifying records counts were imposed concurrent to count one. A three-year concurrent sentence was imposed on a second-degree official misconduct.1 A four-year sentence was imposed on count eleven, third-degree official misconduct, consecutive to count two. On count five, a second-degree theft, and count thirteen, a second-degree official misconduct, sentences of six years were imposed concurrent to count two. Defendant appealed and for the reasons set forth below, we reverse the conviction and remand for a new trial.

a.

In 2005, a wire tap in an unrelated case disclosed that Sergeant Moises Hernandez of the New Jersey State Police had assisted a suspected drug dealer. Further investigation established that Hernandez was heavily involved in drug distribution; he was subsequently indicted for racketeering and other offenses.

When, on April 11, 2006, he was arrested a second time on drug-related charges, he was questioned as to whether other state troopers were involved in criminal wrongdoing. Hernandez eventually revealed defendant had been his accomplice on certain transactions. A plea agreement was reached whereby in exchange for his testimony against defendant, the prosecutor agreed to advise the Parole Board of Hernandez's cooperation, although he would not recommend parole.

Hernandez eventually pled guilty to charges of official misconduct, money laundering, conspiracy to distribute CDS, witness tampering, and racketeering. He was sentenced to twenty-four years imprisonment subject to five and one-half years parole ineligibility.

Hernandez's disclosure about defendant came after he failed a polygraph examination on the issue of whether other officers were involved in his crimes. After inculpating defendant, Hernandez passed a subsequent polygraph.

During the trial, the prosecutor elicited testimony from Hernandez regarding his change of heart without discussing the polygraph, but stated:

Q. Mr. Hernandez, let me back you up to a point where you are still denying [defendant's] involvement.

 

At that time, was anybody discussing a resolution of your case?

 

A. Well, there was some evidence pointing --

 

Q. Mr. Hernandez, I'm going to ask you --

 

[Defense counsel]: Your Honor, can he finish answering the question?

 

THE COURT: She could -- are you withdrawing the question?

 

[Prosecutor]: Let me speak to [defense counsel].

 

[Defense counsel]: You could ask the question.

 

Go ahead.

 

Q. Mr. Hernandez, when you were denying [defendant]'s involvement, was anyone discussing a plea agreement with you?

 

A. They told me that if I cooperated and tell them what I have done, truthfully, without omitting anything, that they would recommend 20 to 24-year sentence, State Prison.

 

Q. And, at that point, were you still denying [defendant]'s involvement?

 

A. To a certain extent, yes, I'm denying. Then --

 

Q. Mr. Hernandez, let me ask you a question.

 

When you say to a certain extent, were you denying that [defendant] committed criminal actions with you?

 

A. Yes.

 

Q. At some point that day, this is still the day of your arrest, were you confronted with evidence that you were lying about [defendant]'s involvement?

 

A. Yes.

 

Q. And, at that point --

 

[Defense counsel]: Can we come to side bar?

 

At that juncture, the court excused the jury from the courtroom and a lengthy discussion ensued. When the jury returned, the prosecutor continued with the examination in this fashion, although defense counsel's objection had been overruled:

Q. Mr. Hernandez, I believe where we left off, you were talking about telling the investigators that [defendant] was involved. Is that correct?

 

A. Yes.

 

Q. And after you told the investigators about [defendant's] involvement, did your plea number, that we were discussing at the time, change?

 

A. No.

 

Because Hernandez implicated defendant, an investigation ensued and, on June 20, 2006, defendant and Paul Bergrin, his attorney, met with Assistant Prosecutor Thomas Isenhour. Defendant agreed to take a polygraph test and signed a polygraph stipulation agreement in which he consented to use of the results in evidence if the case went to trial.

Lieutenant John Kaminskas of the Union County Prosecutor's Office administered the polygraph and described the testing process in addition to testifying about the results. He first explained the test to defendant, and did some preliminary questioning to ensure that defendant was a proper subject. Kaminskas told defendant in advance the questions that he intended to ask.

Once undergoing the test, defendant exhibited the strongest reactions to Kaminskas' three "relevant" questions: (1) "Were you ever involved with Moises Hernandez in his illegal drug activities?"; (2) "[S]ince becoming a State Trooper, did you ever come into possession of an illegal drug that you did not submit as evidence?"; and (3) "[D]id you ever pick up or drop off illegal drugs for Moises Hernandez[?]"

At trial, Hernandez testified regarding defendant's involvement in two police drug buys: the first, in August 2002, involved the seizure of fifty-six kilograms of cocaine; the second, in October 2002, involved the seizure of roughly 4600 pills of ecstasy.

The August 2002 Cocaine Transaction

Hernandez testified that an informant, Juan Carlos Guerra, also known as Kong, had agreed to connect him with high-ranking Mexican drug cartel members in exchange for receiving credit towards his sentencing in an unrelated matter. The consideration Kong received was tied to the quantity of drugs he could procure for police seizure. According to Hernandez, however, he eventually began laundering money for Kong to raise funds to bring "loads of narcotics from out in Mexico into New Jersey . . . ."

In August 2002, Kong told Hernandez that he anticipated 100 kilograms of cocaine were to be shipped into New Jersey from Mexico. Hernandez informed fellow officers in the Narcotics North Unit, of which he and defendant were members, of the shipment, and that an undercover buy would be made with the goal of enabling even bigger drug arrests in the future.

To secure the cartel's trust, those who arrived with the initial shipment were not to be arrested. Instead, the police would merely store the drugs until the release of a second shipment, estimated at 300 kilos. Kong explained to Hernandez that he would need to sell some of the drugs to provide a down payment for the larger supply.

Hernandez said that he had a conversation with defendant prior to the first shipment in which he told defendant that "we might have to put something to the side . . . to be payment for the driver because [Kong] didn't have cash on him." Once the arrangement was explained to him, defendant agreed to participate, and to write a report falsifying the delivery and quantity of drugs involved. Defendant was familiar with Kong, having debriefed him when he first became an informant in July 2002. Hernandez told defendant that "if this all works out," Kong would "take care of him, meaning, with money." The other officers did not speak with Kong, who only communicated with Hernandez in Spanish. Defendant does not speak Spanish.

In the early morning hours of August 21, 2002, Hernandez, defendant, and other State troopers conducted an undercover operation with Hernandez posing as a co-buyer with Kong. During the course of the transaction, Kong inspected the cocaine and informed Hernandez that there were fifty-six kilos. Hernandez put five kilos into a black plastic bag, then filled a black suitcase with the remaining kilos. He then delivered both containers to defendant, providing the following instructions:

I told him, this black bag, right here, contains five [kilos]. Keep that separate. Take this and hold it. He said, "No problem. No problem."

 

. . . .

 

I said, keep this bag with the five keys separate. Later on tonight call me and I will retrieve it from you. He goes, "I'm not holding this long." I said, no problem. So he agreed with everything.

Eventually, defendant authored a report about the undercover operation in which he was supposed to have said that fifty-one kilos of cocaine had been seized. Instead, defendant mistakenly described the amount as fifty-four kilos.

In fact, Samia Shoukry, a senior forensic scientist at the State Police laboratory, confirmed that the Narcotics North Unit had delivered fifty-one duct taped packages, four of which were double kilos and six of which were half-kilos, yielding a total of fifty-two kilos. State Trooper Jeff Kronenfeld, who transported the packages to the laboratory, testified that he did not alter their condition and assumed the report was not inaccurate, because although there were only fifty-one packages, some of them were heavier than others.

After processing the packages and writing his report, defendant called Hernandez at approximately 9:30 or 10:00 p.m. that evening. The two met at Hernandez's mother's home, and defendant delivered the five kilos of cocaine to Hernandez, who concealed them in his mother's shed. On Kong's instruction, Hernandez eventually gave the drugs to an individual named Jose Martinez. Martinez gave Hernandez $40,000 in exchange for the cocaine and directed him to turn the proceeds over to Kong. When Hernandez informed Kong of the payment, Kong told him "'[w]hen you see the big black guy,' which is [defendant], 'give him 20, and you hold on to the rest.'" That same day Hernandez met with defendant and delivered the $20,000 payment. Hernandez told defendant that the money came from Kong. The remaining $20,000 was used to pay the driver for the cocaine shipment. Although Hernandez did not profit from this specific transaction, he had profited from other dealings with Kong in the past.

On August 11, 2006, Sergeant Brian Royster authorized the destruction of the fifty-two kilos of cocaine seized by defendant, Hernandez, and the Narcotics North unit, since the case involving the cocaine was "administratively closed out."

The October 2002 Ecstasy Transaction

On October 14, 2002, Kong told Hernandez the cartel that had smuggled the cocaine was transporting a shipment of ecstasy pills. Cartel members were lodged at the Oak Grand Hotel in Elizabeth. Hernandez planned to stage a controlled buy, and assembled a team of officers from the Narcotics North unit to perform surveillance of the transaction: defendant and Detective Sergeants Caesar Humann and Thomas Ryan. Hernandez assigned defendant the task of writing the report, and told him that some of the drugs would be set aside to generate partial payments for the cartel members.

Hernandez testified that, prior to the controlled buy, Kong took the cartel members to Middlesex County to look at some warehouses that they might utilize when bringing in narcotics from out west. After the warehouse inspection, the controlled buy would take place that afternoon. In the meantime, cartel members relocated to the Ritz Motel, also in Elizabeth. Hernandez, defendant, Humann, and Ryan arrived separately at that location and undertook surveillance as Kong entered the motel to obtain the ecstasy pills. Following the buy, Kong met with Hernandez and defendant "down the road" while Humann and Ryan returned to the Newark police station.

Kong then produced three bags of ecstasy pills: one large, one medium, and one small. Kong instructed Hernandez to sell the medium bag, while the large bag would be seized as evidence. Kong kept the small bag. Defendant took possession of the large and medium bags. He drove to the Newark police station to process the large bag of pills into evidence. Hernandez later saw defendant, Humann, and Ryan counting the pills.

After defendant was done processing the drugs, he went to Hernandez's house, where Hernandez was watching sports with his wife's cousin, John Vaccaro. Defendant delivered the medium-sized bag of ecstasy to Hernandez, and the two spoke about when they could next expect to receive drugs. The bag, which contained over 600 pills, was given to Vaccaro, who later sold them. The proceeds from the sale paid off Hernandez's and Vaccaro's gambling debts. Defendant did not receive any money from the sale of the pills, as Hernandez told him that Kong would take care of him later on.

Defendant's report about the ecstasy transaction stated that members from another unit set up surveillance in Elizabeth to meet a confidential informant regarding a warehouse in Middlesex County to be inspected for a delivery of drugs at a later date. His report also stated that the confidential informant arrived at the Oak Grand Motel and picked up two Hispanic males who proceeded to the warehouse in Middlesex County. Afterwards, the men returned to the Oak Grand. The confidential informant and the two men entered a motel room and, inside, the confidential informant received a black plastic bag containing 4600 pills of ecstasy. Defendant's report was dated October 16, 2002, and purported to describe events occurring on October 14, 2002.

Humann testified that he conducted surveillance during the buy and was "shocked" when he saw defendant's report. He knew nothing about any warehouse in Middlesex County and assumed that another team must have conducted surveillance, but could not understand how that was possible as the day in question was a holiday. Although it was true that the Narcotics North unit had been looking for a warehouse in which to stage a controlled buy of the anticipated shipment of 300 kilos of cocaine, this occurred earlier in the year, in either September or late August of 2002. Likewise, while Narcotics North investigated the Oak Grand Hotel, they did so not on October 14, 2002, but two days later. He also found a discrepancy in the names of the officers defendant identified as having brought the ecstasy pills to the Newark police station. The report indicated four officers transported the evidence, which was inaccurate. The report did accurately identify the total drugs seized as 4600 pills.

Ryan confirmed that he too conducted surveillance during the controlled buys, but observed the report did not accurately name the hotel from which the ecstasy pills were seized. His recollection was that they were seized at the Ritz, not the Oak Grand, and that, to his knowledge, there was no surveillance of any warehouse in Middlesex County on that day. For that matter, he did not know of any other officers on duty that day. He denied transporting the ecstasy pills to the Newark police station, as implied in the report. Although he said the facts in the report were familiar, they arose from a totally different investigation that did not take place on October 14, 2002. He indicated it was unusual that no arrests were made in light of the number of pills seized, although he could not recall the precise amount.

Kong's Failure to Testify

Kong was not called by either party; the statements attributed to him were presented through Hernandez's testimony. Defense counsel raised no hearsay objections to any part of these statements, because he anticipated that Kong would be called as a witness. At the close of the State's case, defense counsel in fact accused the prosecutor of "playing games" because of this assumption:

If I didn't anticipate that Kong was going to testify I would have objected, because that would have been hearsay, what Kong said to [Hernandez] about the payment. I didn't object because I assumed[,] since . . . she's got [Hernandez] testifying to . . . out-of-court statements made by a third party, I'm assuming [Kong] will testify and I could cross-examine him on it, but she didn't put him on the witness stand.

 

As a result, defense counsel requested that he be permitted to argue to the jury that the State had failed to meet its burden of proof by neglecting to call Kong to corroborate Hernandez's testimony. Defense counsel did not request a Clawans2 instruction, nor did he request leave to argue an adverse inference to the jury based on Kong's nonproduction.

The court granted defense counsel the opportunity to comment upon the State's failure to call Kong as a witness, noting that Kong was "deeply secondary to the bad act"; namely, Hernandez's testimony that he paid $20,000 to defendant in exchange for his participation in the retention of a portion of the cocaine.

The court, however, added the following:

I'm going to permit the State to respond to the reason that these witnesses are equally available to the defense, if you are going to . . . say the witness . . . should have been called by the State. I'm mindful of the defendant's rights, that he has no duty to testify [or] . . . present any evidence, but when you put that fact before the jury, as to that issue, the State is permitted to comment upon what you say.

 

In response to defense counsel's closing argument, the prosecutor stated in his summation:

You know from hearing what Mr. Isenhour had to say why [Kong] is not here. He's a . . . confidential informant whose words are inherently suspect, and I would also point out to you that [defense counsel] and I have something in common, and that is subpoena power. We both have the ability to subpoena witnesses here to trial, and he didn't call [Kong] as a witness, either.

Defense counsel's objection to the prosecutor's latter comments was overruled.

Defendant's points on appeal are:

POINT I

DEFENDANT WAS DENIED A FAIR TRIAL BY THE INTRODUCTION OF HEARSAY TESTIMONY OF A FORMER STATE TROOPER THAT A STATE POLICE INFORMANT CORROBORATED DEFENDANT'S KNOWING PARTICIPATION IN ILLEGAL DRUG TRANSACTIONS (Not Raised Below)

 

A. The State violated the Confrontation Clause of the Federal and State Constitutions

 

B. The State deprived Defendant of a fair trial through its repeated use of hearsay, contrary to the New Jersey Rules of Evidence and State v. Bankston[3]

 

C. The non-testifying informant's statement should have been barred under N.J.R.E. 403

 

POINT II

THE RESULTS OF DEFENDANT'S POLYGRAPH EXAMINATION SHOULD NEVER HAVE BEEN PRESENTED TO THE JURY (PARTIALLY RAISED BELOW)

 

A. The trial court erred in admitting the polygraph evidence without first complying with [State v. ]A.O.'s[4] requirement that the polygraph be administered by a qualified expert using established techniques

 

B. The trial court failed in its role as the gatekeeper of unreliable evidence by allowing the polygraph to be admitted without evidence about the particular polygraph machine used by the 'expert'

 

C. The "Polygraph-Unfavorable" jury charge is misleading and insufficient

 

D. The polygraph results should have been precluded pursuant to N.J.R.E. 403

 

E. Allowing a counseled stipulation contemplates having an attorney free of conflicts of interest

 

POINT III

THE STATE'S FAILURE TO REVEAL TO DEFENSE COUNSEL THAT ITS PRIMARY INFORMANT FAILED TO SELECT DEFENDANT FROM A LINEUP UNTIL THE MIDDLE OF TRIAL VIOLATED BRADY v. MARYLAND[5]

 

POINT IV

THE STATE IMPERMISSIBLY VOUCHED FOR THE CREDIBILITY OF ITS WITNESSES AND HAD ANOTHER WITNESS TESTIFY ABOUT THE 'TYPES OF SENTENCES' JUDGES USUALLY IMPOSE

 

POINT V

THE STATE DEPRIVED DEFENDANT OF A FAIR TRIAL BY COMMENTING UPON DEFENDANT'S FAILURE TO PRODUCE A WITNESS, AND THE COURT IMPERMISSIBLY LIMITED DEFENSE COUNSEL'S SUMMATION BY THREATENING TO GIVE A CLAWANS CHARGE

 

POINT VI

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE SENTENCE WAS EXCESSIVE (NOT RAISED BELOW)

 

POINT VII

THE CONVICTION FOR OFFICIAL MISCONDUCT MUST BE REVERSED AND/OR AWAIT A RULING BY THE UNITED STATES SUPREME COURT IN WEYHRAUCH v. U.S.[6] (NOT RAISED BELOW)

 

I.

Defendant contends that the cumulative effect of Hernandez's testimony relating to Kong's multiple out-of-court statements to him amounted to plain error. Defendant also claims the admission of these hearsay statements violated his Sixth Amendment right to confrontation, relying on Bankston, supra, and its progeny. Additionally, he asserts that the statements should have been excluded under N.J.R.E. 403.

In support, defendant refers to multiple occasions during Hernandez's testimony in which he began his responses with the words "Kong said." Regarding Hernandez's testimony about the August 21, 2002 controlled buy of cocaine, for example, defendant alleges plain error in the admission of the following statements:

Kong calls me up and tells me, "Get ready, because there is a shipment coming in, about 100 kilos coming in this week."

 

. . . .

 

[Kong] made contact [with the Mexican male], told me to stop.

 

. . . .

 

Kong tells me to step out of the office.

 

. . . .

 

Kong . . . tells me, "Get a plastic bag and put these five inside the bag."

 

. . . .

 

Kong says to me, "The big black guy," which is [defendant], he said, "He's taking this? He know[s] what he has to do with this. Right"?

Regarding Hernandez's testimony about the October 14, 2002, controlled buy of ecstasy, defendant alleges plain error in the admission of the following statements:

[Kong] told me that once they finished looking at these warehouses that he had some pills that they brought with them . . . .

 

. . . .

 

[Kong] goes, "Yo take this. See what you could do out there."

 

. . . .

 

Because . . . one of the targets had told [Kong] that there was over 4,000 pills, or something in there.

 

In Bankston, the Supreme Court held the hearsay rule and the confrontation clause are violated when an officer testifies, either directly or impliedly, about information from a non-testifying informant that inculpates a defendant in the crime. Bankston, supra, 63 N.J. at 268-71. This case, however, is distinguishable.

Here, Hernandez, a participant in the crime, personally observed it occur. He testified as an eyewitness about facts within his personal knowledge and not as an investigating officer about hearsay statements from a non-testifying source. Kong's out-of-court statements did not raise the inference that Hernandez had knowledge of defendant's guilt greater than that which was presented to the jury, the "vice Bankston and its progeny seek to eradicate[.]" State v. Kemp, 195 N.J. 136, 155 (2008); see also State v. Branch, 182 N.J. 338, 351 (2005) (officer "may not imply to the jury that he [or she] possesses superior knowledge, outside the record," of guilt). Therefore, the prosecutor did not present incriminating hearsay proofs to the jury indirectly through the testimony of investigating officers which bore on defendant's putative guilt. Cf. State v. Irving, 114 N.J. 427, 445-46 (1989) (logical inference from detective's testimony was that an informant had told him that the defendant committed the crime); State v. Thomas, 168 N.J. Super. 10, 15 (App. Div. 1979) (detective's testimony about his interviews with witnesses was hearsay and violated the defendant's right to confrontation).

Hernandez's testimony about Kong's statements were being offered for their truth in the absence of any type of limiting instruction to the jury. The Sixth Amendment's Confrontation Clause, which prohibits the admission of out-of-court statements except under limited circumstances, is nonetheless inapplicable. Kong's statements to Hernandez obviously were not made during police interrogation potentially relevant to a later criminal prosecution, Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006), but were, in fact, made during criminal activity. Nor did the statements violate defendant's right to confrontation.

Since defendant did not object to the statements, error arising from their admission is reviewed under the plain error standard. State v. Daniels, 182 N.J. 80, 95 (2004). Errors not of constitutional magnitude will be disregarded unless "clearly capable of producing an unjust result." R. 2:10-2. That is, such errors must be "sufficient to raise a reasonable doubt as to whether [they] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

Kong's statements were introduced for the purpose of explaining the alleged criminal episodes to the jury. Moreover, not all of the statements were hearsay; some were simply directions that Kong allegedly gave to Hernandez. Given Hernandez's testimony that he personally gave money to defendant in exchange for cocaine, gave him a bag of ecstasy pills, and instructed him as to the preparation of fictitious reports, even if Kong's statements are characterized as hearsay, and therefore improperly admitted, the admission nevertheless did not lead the jury to a result it might not have otherwise reached. Ibid.

II.

Defendant also contends that his right to a fair trial was violated, as prohibited in Bankston, by the prosecutor's questions regarding the "evidence" with which Hernandez had been presented resulting in his decision to inculpate defendant. The "evidence" was Hernandez's polygraph test results, which were excluded from the trial. In addition to the line of questioning during which the prosecutor directly asked Hernandez about being confronted with evidence that he was lying about defendant's involvement, and his affirmative response, the prosecutor commented in closing about Hernandez being confronted about lying:

[Hernandez] was told the plea offer to him was going to be 20 to 24 years. He then denied [defendant] was involved. He was confronted with other evidence that he was lying, and . . . he implicated [defendant], and the plea offer was 24 years. So what benefit, what pressure was placed on him to get him to testify against Brian Holmes? He got four more years than he expected to.

[Emphasis added.]

The theme of Bankston and its progeny is that a testifying police officer may not imply to the jury that he or she has superior knowledge of guilt, found outside the record and, that as a result, his or her testimony is worthy of greater weight. Kemp, supra, 195 N.J. at 155 (quoting Branch, supra, 182 N.J. at 351). Precisely that concern arises from these circumstances.

For the prosecutor to elicit that Hernandez was confronted with unspecified evidence, and then imply to the jury that there was "other evidence" that damned defendant, was prejudicial. The phrase used by the prosecutor, "confronted with other information," is taken from State v. Castagna, 187 N.J. 293, 308 (2006). In that case, however, defense counsel, not the prosecutor, was attempting to question a witness about polygraph results which caused the witness to eventually admit injuring a victim despite her prior denials. Ibid. The question was phrased in that manner so that defense counsel would avoid eliciting information regarding the polygraph exam that resulted in the witness's change of heart. Ibid.

In this case, however, it was the State attempting to elicit the information. The nature of the inference sought to be drawn by questioning the witness about being confronted with evidence of lying was an entirely different matter in Castagna than here, where the issue was Hernandez being confronted with evidence that he was lying about defendant's culpability.

The prosecutor's allusion clearly created a reasonable inference that the evidence inculpated defendant. Hernandez, when "confronted" with the evidence, confessed not to his own involvement, as in Castagna, but to defendant's involvement. The prosecutor's comment therefore had the real capacity to prejudice the jury. No limiting instruction was given clarifying that the State was not actually in possession of some other evidence, not available to the jury, incriminating defendant. Additionally, in this case, a guilty verdict necessarily required the jury to find Hernandez credible.

A prosecutor must confine his or her comments to "evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Smith, 167 N.J. 158, 178 (2001). If a prosecutor's arguments are reasonably drawn from the facts, what the prosecutor states "'by way of comment, denunciation or appeal, will afford no ground for reversal.'" Ibid. (quoting State v. Johnson, 31 N.J. 489, 510 (1960)). A prosecutor may also respond to defense counsel's arguments, but his or her comments must be directly responsive and he or she "'may not retaliate with improprieties of [his or her] own.'" State v. Marks, 201 N.J. Super. 514, 535 (App. Div. 1985) (quoting State v. West, 29 N.J. 327, 338 (1959)), certif. denied, 102 N.J. 393 (1986). Comments that "create[] a real danger of prejudice to the accused" will be deemed reversible error. Smith, supra, 167 N.J. at 178 (internal quotation omitted).

Here, the prosecutor's remarks were not as clearly egregious as other cases involving prosecutorial misconduct. See State v. Bradshaw, 195 N.J. 493, 510 (2008) (prosecutor's comment that "people with handicaps . . . have stronger sensory perception" was not a reasonable inference from the evidence); State v. Murphy, 412 N.J. Super. 553, 561-63 (App. Div.) (prosecutor's comment that the testifying officer had "no stake in the outcome" of the proceedings was harmful error), certif. denied, 203 N.J. 440 (2010); State v. Murphy, 376 N.J. Super. 114, 124 (App. Div. 2005) (prosecutor's "prisoner of war allusion" improper because it had clear capacity to enhance a State witness's credibility).

Regardless, the prosecutor's remark was likely prejudicial. That Hernandez was "confronted with other evidence" that he lied about defendant's involvement in the crimes implied that the State had access to undisclosed evidence. It also created a real possibility of bolstering Hernandez's credibility by implying that, whatever the nature of the "evidence" the prosecutor alluded to, it was strong enough to make Hernandez change his testimony and "come clean." It put defendant in the position of combating an inference that incriminating evidence existed outside of the record, when his only viable response was inadmissible evidence, namely, the polygraph results showing that Hernandez lied, which was itself unreliable and incriminating. This prejudice was further compounded by the court's failure to take any curative action, given that defendant's guilt hinged on Hernandez's credibility. When Hernandez's question and response, and the reference to the information made in summation, are added to the prosecutor's comment regarding defendant's failure to produce Kong, the prejudicial effect resulting from the allusion to other evidence is more pronounced.

III.

Defendant next contends the prosecutor's comment in summation regarding his own ability to produce Kong impermissibly shifted the burden of presenting evidence away from the State. In response to defendant's argument that the jury should be skeptical about Hernandez in light of the fact Kong did not testify, the prosecutor stated the following: "[Defense counsel] and I have something in common, and that is subpoena power. We both have the ability to subpoena witnesses . . . and he didn't call [Kong] as a witness either." Even if not an actual suggestion to the jury that it draw an adverse inference from defendant's failure to produce a witness, it nonetheless cut against the presumption of innocence. The comment was unrelated to exposing any deficiency in defendant's testimony or weakness in defendant's presentation of his case. See Irving, supra, 114 N.J. at 444 (prosecutor's comments on absent defense witness not error since it "did not cause prejudice beyond that which defendant created by his own words" in testifying that the absent witness was his alibi); State v. Scherzer, 301 N.J. Super. 363, 445-46 (App. Div.) (not prejudicial for prosecutor to remark on absent defense witnesses because the trial court "took immediate and effective corrective action"), certif. denied, 151 N.J. 466 (1997).

The natural inference from the comment was that, if called, Kong's testimony would have been unfavorable to defendant. It was Hernandez who testified about Kong and who either stated or implied that Kong was the only other person with knowledge of defendant's involvement in the scheme. Defense counsel stressed the lack of this corroborating testimony, to which the prosecutor's comment was not likely responsive. Defense counsel had not claimed the State was obligated to call Kong; thus, it cannot be said, as in Irving, supra, 114 N.J. at 444, that defendant "exposed the lacuna" and that the prosecutor "merely called greater attention to it." The comment made defendant appear to have avoided calling a witness because the testimony would have been unfavorable to him, even though he had no burden to call any witness. Clearly, when joined with the other circumstances in the case, there was a danger that the jury would draw an adverse inference both as to defendant's burden of proof and the nature of the testimony that would have been presented had Kong been called.

Counsel timely objected to the remarks about "other evidence" and the statement in summation. The remarks were not stricken from the record, and no curative instruction given to the jury.

IV.

Defendant alleges further error occurred when Assistant Prosecutor Isenhour testified on direct as follows:

There is a general principle in the law that says that as a matter of -- I don't want to step on the Judge's toes here, but as a general principle we don't impose more than two consecutive sentences. It can be done, but the Court has to be very specific in terms of what -- how they justify that. The kind of rule of thumb we use is that you could get two consecutive to one another.

This testimony was presented to establish that, as four consecutive sentences were imposed, Hernandez did not receive a benefit from his plea agreement, thereby bolstering his credibility. Defense counsel objected. Isenhour concluded, "[w]e were . . . very happy to get that many sentences consecutive because it would have been very difficult, absent an agreement, to get those at a later time."

In summation, the prosecutor argued:

[Y]ou heard that Moe Hernandez plead to four consecutive sentences. Mr. Isenhour told you, judges typically won't give more than two consecutive sentences, and . . . Mr. Isenhour told you, yes, technically that is a benefit, but in a practical sense is it really a benefit if the Judge wouldn't have given him anymore time for those Complaints?

 

. . . .

Now, . . . yes, [Hernandez] was facing 10 years on that charge or 5 years on that charge. Ask yourself, reasonably, would a Judge give someone six consecutive sentences for that one act like that?

Defense counsel objected to the latter remarks.

The law does not support the inferences the State urged the jury to adopt. Multiple prison sentences imposed for multiple offenses "shall run concurrently or consecutively as the court determines at the time of sentence," but there is "no overall outer limit on the cumulation of consecutive sentences . . . ." N.J.S.A. 2C:44-5(a). As a result, Isenhour's testimony that, as a "general principle, we don't impose more than two consecutive sentences" for multiple offenses was misleading. A trial court is authorized to impose more than two consecutive sentences, but must focus on "'the fairness of the overall sentence,'" and must articulate its reasons on the record. State v. Abdullah, 184 N.J. 497, 515 (2005) (quoting State v. Miller, 108 N.J. 112, 122 (1987)). N.J.S.A. 2C:44-5(a) does not imply a "rule of thumb."

It cannot be overstated that Hernandez's credibility was critical to the case, and his motive for testifying against defendant was material to the jury's evaluation of his credibility. See State v. Taylor, 49 N.J. 440, 448 (1967) (a "witness' interest in helping the State to achieve a conviction of the defendant on trial" is "material to an evaluation of [the witness's] credibility"). By urging the jury to infer that Hernandez did not obtain a benefit by agreeing to a plea deal, based upon a misleading recitation of the law on sentences, the State invited the jury to speculate about how a court would have sentenced Hernandez, if his case had ultimately gone to trial. The "trial court had the obligation . . . to dispel the tantalizingly simple but mistaken legal theory the prosecutor offered in summation to the jury," that as a "general principle" courts do not impose more than two consecutive sentences in spite of the law permitting it. See State v. Whitaker, 200 N.J. 444, 465 (2009) (explaining the role of the trial court in correcting mistaken recitations of law).

When this testimony is considered cumulatively with other errors, real prejudice becomes apparent. In a case that hinged on Hernandez's credibility, the comments raise a reasonable doubt as to whether the jury reached a result it otherwise might not have reached. Thus, the comments had the capacity to lead to an unjust result, irrespective of the sufficiency of the evidence. See State v. Frost, 158 N.J. 76, 87 (1999) (when credibility is such a critical issue, "[t]he impact of violating a defendant's right to a fair trial cannot be measured by, or weighed against, the quantum of evidence bearing upon his or her guilt").

V.

We will not reach defendant's other points on appeal, as in our opinion the combination of errors previously discussed suffices to warrant a new trial. We add the following comments, however, to provide the trial court with guidance as to the admission of the polygraph results. Pursuant to State v. Mervilus, 418 N.J. Super. 138, 148 (App. Div. 2011), we expect "a record be created on the omnibus issue of whether polygraph evidence should be permitted or barred." We further expect the State "to prove that polygraph test results are 'generally accepted, within the relevant scientific community, to be reliable.'" Ibid. (citing State v. Chun, 194 N.J. 54, 91 (2008)). Therefore, if the State intends to introduce polygraph evidence at the re-trial, it must first satisfy that standard, as explained in Mervilus.

Reversed and remanded.

1 This sentence was imposed in error the charge was second-degree in nature, requiring a minimum sentence of five years. Since we reverse the conviction, no remand will be required to correct this error.

2 State v. Clawans, 38 N.J. 162 (1962).

3 63 N.J. 263 (1973).

4 198 N.J. 69 (2009).

5 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

6 ___ U.S. ___, 130 S. Ct. 2963, 177 L. Ed. 2d 695 (2010), vacated and remanded for further proceedings by Skilling v. United States, ___ U.S. ___, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010).