STATE OF NEW JERSEY v. ROGER KIERAN EDWARDS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2262-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROGER KIERAN EDWARDS a/k/a

ROGER EDWARDS,

Defendant-Appellant.

____________________________

June 6, 2013

 

Argued May 21, 2013 - Decided

 

Before Judges Reisner, Hayden and Hoffman.

 

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 10-06-0187.

 

James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, of counsel and on the brief).

 

Emily R. Anderson, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Anderson, of counsel and on the brief).

PER CURIAM

Based on an incident that occurred on September 15, 2009, defendant Roger Kieran Edwards was indicted for third-degree resisting arrest, N.J.S.A. 2C:29-2a, by using or threatening to use physical force against Troopers Stanley and Szymonowicz after they told him that he was under arrest; fourth-degree criminal mischief, N.J.S.A. 2C:17-3a(1), for damaging the side door and window of a State Police vehicle; and terroristic threats, N.J.S.A. 2C:12-3a, for allegedly threatening Trooper Stanley while defendant was handcuffed to a bench in a holding cell. Defendant was convicted of resisting arrest and criminal mischief. He was acquitted of terroristic threats, but was convicted of the lesser included disorderly persons offense of harassment, N.J.S.A. 2C:33-4. He was sentenced to three years of probation, conditioned on the following terms: serving six months in the Warren County Jail, obtaining a mental health evaluation after his release, and complying with all recommended mental health treatment.

On this appeal, defendant raises the following five points of argument for our consideration:

POINT I

 

THE TRIAL COURT ERRED IN PRECLUDING DEFENSE COUNSEL FROM ASKING DEFENDANT ABOUT HIS LONG HISTORY OF MENTAL HEALTH PROBLEMS, BECAUSE THAT EVIDENCE WOULD HAVE BEEN RELEVANT TO EXPLAIN DEFENDANT'S PROFANE AND BIZARRE BEHAVIOR.

 

POINT II

 

THE PROSECUTOR'S CROSS-EXAMINATION OF DEFENDANT, WHICH WAS CRUDE AND PROFANE, SERVED TO DENY DEFENDANT A FAIR TRIAL.

 

POINT III

 

THE DEFENDANT WAS PREJUDICED BY THE TRIAL COURT'S INCOMPLETE JURY CHARGES ON RESISTING ARREST WHICH FAILED TO INSTRUCT THE JURY ON THE STATUTORY DEFENSE THAT A PERSON WHO IS ILLEGALLY ARRESTED CANNOT BE CONVICTED FOR ACTS OF RESISTANCE COMMITTED BEFORE THE POLICE ADVISED HIM THAT HE WAS UNDER ARREST. (Not Raised Below).

 

POINT IV

 

THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY ON THE DEFENSE OF NECESSITY, WHICH WAS THE ONLY DEFENSE OFFERED TO THE CHARGE OF CRIMINAL MISCHIEF. (Not Raised Below).

 

POINT V

 

THE TRIAL COURT ERRED IN REFUSING TO GIVE AN INSTRUCTION PURSUANT TO STATE V. W.B., 205 N.J. 588 (2011), THAT THE JURY COULD DRAW AN ADVERSE INFERENCE BASED UPON OFFICER SERRECCHIA'S FAILURE TO PRESERVE THE NOTES USED TO PREPARE HIS REPORT.

 

For the reasons that follow, we reverse defendant's conviction and remand for re-trial.

 

 

I

The following facts are drawn from the trial record. At around midnight on September 15, 2009, defendant called 911 to report that his son, who had recently been released from jail, had refused his request to leave defendant's house. Defendant told the 911 operator that his son was threatening to "smash [defendant's] computer[,] my phone and everything." The call was transferred to the State Police, but defendant did not stay on the line. However, he called 911 again, this time reporting that after initially leaving the house, the son returned, broke the door and a window, assaulted defendant, and ran away. Defendant stated that "now I want to press charges."

After the State Police arrived at defendant's house in Harmony, Warren County,1 defendant placed a third call to 911, this time stating that the State Police were "demanding I come out [of] my house. And I'm not coming out of my house." When the 911 operator asked why, defendant responded:

Because I had them in my house and they refused to take the report and they left and now [they're] standing at my door telling [me] they have [to] come in my house to take a report. I do not want to talk to the State Police. . . . I want them to leave.

 

Despite defendant's expressed wish that the police not enter his home and his expressed lack of interest in filing a police report against his son, the police entered his home, dragged him out, and arrested him.

According to Trooper Joseph Serrecchia, he and his partner, Trooper Michael Szymonowicz, responded to a 911 call about a "trespassing" incident. When they arrived at defendant's house they observed that the screen door and the inside door were both broken. They entered the house after defendant responded to their knock on the door. Defendant wore only pants, without a shirt, and appeared intoxicated. He told the troopers that his son broke into his house. However, when Serrecchia told defendant "he would need to fill out a form" defendant declined, stating that he "didn't want to provide his information, nor his son's information." Defendant also stated that he "fucking hate[d] cops." Shortly thereafter, Trooper Glen R. Stanley arrived at the house and entered without knocking. Defendant stated, "[w]ho fucking invited you inside my house," and asked Trooper Stanley to leave.

Trooper Serrecchia told defendant, who was not suspected of any crime, to calm down and told him that the troopers were going to go outside and try to locate his son. According to Serrecchia, as the troopers were leaving his house, defendant stated that "if anyone comes back in this house he's going to fucking kill them." The troopers drove around the rural area near defendant's house looking for the son but were unable to find him. Trooper Serrecchia returned to defendant's house and knocked on the next-door neighbor's door, hoping to find a witness to the trespassing incident. As he left the neighbor's house, Serrecchia saw Troopers Szymonowicz and Stanley "escort[ing]" defendant out of his house. "At that point Mr. Edwards became increasingly hostile and agitated and started flipping everyone off and started cursing," and the two escorting troopers told him he was under arrest.

Serrecchia testified that when they attempted to handcuff defendant, he began flailing his arms and "thrust his body forward taking both troopers to the ground." According to Serrecchia, when they finally handcuffed defendant and placed him in the police car he continued to struggle, banging his head against the car window and eventually causing the window to pop out of its frame. The trooper then sprayed defendant with OC spray,2 after which he calmed down and was transported to the headquarters.

According to Serrecchia, after being placed in a holding cell, defendant continued to be angry and profane, and still appeared to be drunk. When Trooper Stanley approached the holding cell, defendant began taunting him and "said he would kick Trooper Stanley's ass [if he saw him] out of uniform." Serrecchia admitted that when defendant made that comment, he was seated in a holding cell, handcuffed to a bench. Defendant's pants, which had fallen down, were still around his knees. For reasons Serrecchia could not explain, one of the troopers took a photograph of the nearly-naked defendant handcuffed to the bench.

Trooper Stanley testified that after unsuccessfully searching for the son, he and another trooper returned to defendant's house, intending to arrest him for stating "that he was going to kill people and based on his lack of cooperation with the investigation." Stanley testified that he knocked on the door but defendant refused to let him in. He could see defendant sitting in a recliner watching television. The door was locked, but Stanley reached in through the broken door and unlocked it. Stanley and Szymonowicz then entered the house and physically removed defendant from the dwelling. They told defendant, who was intoxicated and upset, that he was under arrest, and defendant resisted being handcuffed.

On cross-examination, Stanley recalled defendant stating that he wanted a lawyer. He did not "recall" telling defendant that he did not need a lawyer because he was "not under arrest." Stanley testified that defendant was still agitated when he arrived at the police station, and kept yelling while he was in the holding cell, handcuffed to a bench. Stanley agreed that defendant was in a "manic state," screaming that he wanted ice cream and that Stanley should be "kicked in the balls" because defendant did not get ice cream. Stanley also agreed that defendant "was saying a lot of odd things that night."

The State next presented testimony from defendant's landlord, Margaret Drenchko, who lived next door to the house defendant rented from her. She testified that on the night of the incident, she was awakened around midnight when one of her dogs barked. She saw "people outside with flashlights." She next stated, "[a]nd I was really frightened, because I did think it was Mr. Edwards. I thought, oh my God, he's gonna get me. That's just what I felt." There was no objection and the court gave no limiting instruction.

Drenchko then testified that the State Police knocked at her door and she said to them, "are you coming to take him away, are you arresting him." Again there was no objection and the court gave no limiting instruction. She then testified that "when I asked, are you taking him away," she also told the troopers that she was the landlord and offered to give them a key to defendant's rented house. Drenchko explained that she then watched the proceedings from her window because she was a former corrections officer and wanted to be sure that defendant did not falsely accuse the police of wrongdoing.

According to Drenchko, when defendant came out of his house, he stated to the police, "[w]hat the fuck gives you the fucking right to come in my fucking house and pull me the fuck out? . . . I want a lawyer." She then heard the following interchange between one of the troopers and defendant:

"[S]ir, you're not under arrest, you don't need a lawyer. . . . I want a lawyer. Sir, you're not under arrest, we had a 911 call, we need to ascertain if everything is okay." . . . So at that point, finally, one of the officers did say sir, you're under arrest. And he flipped them all the bird.

She also testified that she saw defendant take the officers "to the ground" as they were trying to handcuff him.

On cross-examination, Drenchko stated that she and defendant did not get along, and she was fearful of him "because of his erratic and bizarre behavior." On redirect she testified that the behavior defendant exhibited on the night of the incident was typical of the behavior that made her "fearful." Again, there was no objection and the court did not intervene with a curative instruction.

Before defendant testified, his attorney conducted voir dire, outside the jury's presence, to be sure defendant understood his right to remain silent. During that questioning, defendant stated that he had previously been involuntarily committed to psychiatric institutions at least three times in the past, and had previously been diagnosed with schizophrenia or schizoaffective disorder.3 However, defense counsel stated that he was not aware of any basis to believe that defendant was not competent to stand trial.

Defendant's trial testimony contradicted that of the troopers in a number of respects. He testified that his son broke into his house, punching him in the process. However, defendant testified that when the troopers arrived, he declined to fill out a complaint form at that time, and asked them to leave his house. He denied threatening to kill the troopers. He testified that as they were leaving his house, he stated that if his son broke into his house again, he would kill him.

According to defendant, when the troopers returned to his house, they entered without his permission and "dragged" him outside. They made him sit at a picnic table and began asking him questions. He refused to answer any questions without an attorney present. Defendant testified that the troopers told him he was not under arrest and he responded that if he was not under arrest, he was going back into his house. When he stood up to leave, two of the officers grabbed him and slammed him to the ground. He denied resisting arrest. He testified that the officers cuffed his hands very tightly and he began cursing at them.

Defendant testified that the officers then placed him in the patrol car, sprayed him with Mace and closed the door. Because he suffers from COPD, a pulmonary disease, he could not breathe and was choking. He testified that he kicked out one of the car windows to get fresh air, because he could not breathe due to the Mace, but he denied doing any other damage to the car. He testified that when he asked the troopers to loosen the handcuffs and threatened to kick the door, they pulled the car over and loosened the cuffs.

Defendant further testified that when he reached the police station, the troopers intentionally humiliated him by throwing water in his face, taking a photograph of him with his pants around his knees, and mocking him while he was using the bathroom.4 He denied threatening Trooper Stanley at the police station. He testified that in the photo that the police took, his hair was wet because the police threw water on him.

Although defendant was not on trial for using foul language, on cross-examination, the prosecutor questioned defendant extensively about his use of the words "fuck" and "bitch." The judge overruled defense counsel's repeated objections to those questions. The prosecutor also asked defendant several times if the troopers "lied" in their testimony. The following is an example:

Q: Did you say if you come back into my fucking house, I'll kill you?

 

A: No.

 

Q: So Trooper Serrecchia and Trooper Stanley lied.

 

A: That's my testimony.

 

Q: Totally lied.

 

A: Yes, sir.

Q: You, sir, who said the F word, my opinion, --

 

At this point, defense counsel once again objected that the prosecutor was simply repeating profanity over and over again to prejudice the jury against defendant rather than for any probative value it might have. The judge did not sustain the objection or give any curative instructions to the jury. Nor did the judge sustain an objection or give a curative instruction the next two times the prosecutor asked defendant if the police "lied" or were "liars."

In his summation, the prosecutor argued that "if you recall the officers when they testified referring to . . . the defendant's behavior as manic and bizarre and so forth and so on. I submit there's different words used. Threatening."

In charging the jury, the judge cautioned them as follows:

The State has introduced evidence that the defendant swore at police officers and made statements to them at his home for which he does not stand criminally charged. You may consider that evidence only as proof of defendant's mood and the reason for his arrest. You may not consider it under our evidence rules as any kind of indication of a propensity on defendant's part, or as proof of the terroristic threat with which he was charged.

 

There was no explanation as to how swearing at the officers could have legitimately related to "the reason for his arrest," nor was there any explanation as to what the term "propensity" meant in the context of the instruction.

II

After reviewing the record, as summarized above, we are convinced that defendant's trial was so infected with prejudicial error as to warrant reversal of his conviction. See R. 2:10-2; State v. Macon, 57 N.J.325, 336-37 (1971). First, we conclude that the prosecutor considerably exceeded the bounds of fairness in cross-examining defendant. We agree with defendant that the prosecutor's repeated, gratuitous questions about defendant's use of the words "fuck" and "bitch" served no legitimate purpose and was a blatant appeal to juror prejudice. See State v. Foglia, 415 N.J. Super. 106, 126-27 (App. Div.) (evidence of defendant's "boorish" conduct was irrelevant and prejudicial), certif. denied, 205 N.J. 15 (2010). The trial court permitted this inappropriate questioning, over defense counsel's repeated objections, and we are not confident that the court's jury charge was sufficient to undo the harm. See State v. Vallejo, 198 N.J. 122, 133-37 (2009); State v. Frost, 158 N.J. 76, 83-87 (1999). In addition, the prosecutor violated a fundamental principle of trial fairness by repeatedly asking defendant if the troopers "lied" in their testimony. See State v. Bunch, 180 N.J. 534, 549 (2004).

Further, the jury was permitted to hear Drenchko's repeated, irrelevant and prejudicial testimony about her fear of defendant and her desire that the troopers arrest him. Drenchko did not testify that she witnessed defendant's earlier confrontation with his son or with the troopers. Therefore, based on Drenchko's testimony, the jury could readily infer that Drenchko's fear was based on prior bad acts that defendant committed on other occasions. Her testimony violated the proscription of N.J.R.E. 404(b) against introducing evidence of prior bad acts to show a defendant's propensity for wrongdoing. See Vallejo, supra, 198 N.J. at 133.

Individually and cumulatively, the errors noted above were particularly harmful because defendant testified, and the case thus became a credibility contest between defendant and the State's witnesses. Further, the evidence was not so one-sided that we can conclude that the errors were harmless. Drenchko, who was clearly biased against defendant, nonetheless corroborated his testimony in some respects. For example, contrary to the troopers' testimony, Drenchko confirmed defendant's version that when he asked for a lawyer, the troopers told him that he was "not under arrest." The humiliating photograph of defendant, which the testifying troopers failed to explain, also lent support to defendant's testimony that he, rather than the troopers, was the victim in this entire episode.

In summary, because the errors we have noted unfairly impugned defendant's credibility, they rendered his trial unfair. See Frost, supra, 158 N.J. at 88-89; Foglia, supra, 415 N.J. Super. at 127-28. We therefore reverse defendant's conviction, vacate the sentence imposed, and remand this case for re-trial.5

Finally, we comment briefly on defendant's contention that he should have been permitted to present evidence concerning his mental illness. There appears to be no dispute that defendant in fact suffered from severe mental illness and had been involuntarily committed to psychiatric hospitals multiple times.6 "[E]vidence of mental defect, illness, or condition has been admitted . . . to assess credibility or otherwise evaluate the subjective perceptions of an actor." State v. Burr, 195 N.J. 119, 128 (2008). Evidence of a defendant's mental impairment can be "relevant to the jury's evaluation of defendant's demeanor and credibility as a witness at trial." State v. Sexton, 311 N.J. Super. 70, 88 (App. Div. 1998), aff'd on other grounds, 160 N.J. 93 (1999). However, we find no abuse of the trial judge's discretion in holding that such evidence must be presented through expert testimony, as it was in Burr. See Sexton, supra, 311 N.J. Super. at 88. Defendant may present expert testimony at the re-trial. Ibid.

Reversed and remanded.

 

1 Apparently, the State Police were called because Harmony does not have its own police force.

2 Trooper Serrecchia testified that OC spray is stronger than commercial pepper spray.

3 Earlier in the trial, the judge ruled that defense counsel could not ask his client about his mental health problems in front of the jury. After the close of the evidence, defense counsel made a further proffer that his client was receiving social security disability benefits based on his having bipolar disorder and schizoaffective disorder, and that just prior to living at the rented house in Harmony, he had been living in a group home after being released from Trenton State Psychiatric Hospital.

4 The jury was shown the photograph of the nearly-naked defendant, which the troopers had already identified during their testimony.

5 In light of our disposition of this appeal, we do not address defendant's Points III, IV and V. Nothing in our opinion precludes defendant from raising those issues at the re-trial.

6 At the sentencing hearing, the judge considered defendant's mental illness as a mitigating factor.