STATE OF NEW JERSEY v. KRYSTAL L. SAGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0379-12T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KRYSTAL L. SAGE,

Defendant-Appellant.

______________________________________________

Submitted May 6,2014 Decided August7, 2014

 

Before Judges Messano and Rothstadt.

 

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-04-0854.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

The Atlantic County grand jury indicted defendant Krystal L. Sage and co-defendant Amber Parker, charging both with third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3, and third-degree theft of property in excess of $500, N.J.S.A. 2C:20-3. The charges arose after Parker's grandmother, Ms. Trackman, returned home from a month-long vacation to find cash, jewelry, paintings, and housewares missing. Parker entered the Pre-trial Intervention Program (PTI), conditioned upon her truthful testimony against defendant.

At trial, the judge dismissed the conspiracy charge on defendant's motion after the State rested. The jury found defendant guilty of the lesser-included offense of fourth-degree theft. After denying defendant's motion for a new trial, the judge sentenced her to two years of probation and imposed appropriate fines and penalties. This appeal followed.

Defendant raises the following issues for our consideration:

POINT I:

 

INADEQUATE JURY INSTRUCTIONS, INCLUDING FAILURE TO INSTRUCT ON AN APPLICABLE LESSER-INCLUDED OFFENSE, FAILURE TO PROPERLY INSTRUCT ON AN ESSENTIAL ELEMENT OF THE OFFENSE, AND OMISSION OF A CRITICAL CHARGE, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST., AMEND. V, VI, XIV, N.J. CONST., (1947), ART. I, PARS. 1, 9, 10. (Not Raised Below)

 

A. THE TRIAL COURT ERRED IN FAILING TO CHARGE DISORDERLY-PERSONS THEFT AS A LESSER-INCLUDED OFFENSE WHEN THE EVIDENCE AT TRIAL CLEARLY INDICATED THAT THE JURY COULD HAVE FOUND DEFENDANT GUILTY OF THE LESSER OFFENSE

 

B. THE TRIAL COURT FAILED TO PROPERLY DEFINE "PROPERTY" OR "MOVEABLE PROPERTY" IN ITS FINAL JURY CHARGE IN THEFT AND, INSTEAD, ERRONEOUSLY INSTRUCTED JURORS THAT THEY WERE TO CONSIDER THE ITEMS ALLEGED BY THE STATE TO HAVE BEEN STOLEN AS THE PROPERTY REFERRED TO BY THE OFFENSE CHARGE

 

C. THE TRIAL COURT'S MODIFICATION TO THE MODEL CRIMINAL JURY CHARGE ON "INSTRUCTIONS AFTER JURY IS SWORN" OMITTED THE CRITICAL INSTRUCTION ON DIRECT AND CIRCUMSTANTIAL EVIDENCE WHICH WAS NECESSARY FOR EVALUATION OF THE STATE'S CASE AS IT WAS PRESENTED AND LATER FOR DELIBERATIONS

 

POINT II:

 

THE COURT ERRED IN PERMITTING THE PROSECUTOR TO INTRODUCE IRRELEVANT AND HIGHLY PREJUDICIAL TESTIMONY REGARDING THE CO-DEFENDANT'S CHARACTER, DISABILITY, AND FRIENDSHIPS. (Not Raised Below)

 

POINT III:

 

REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCT, INCLUDING APPEALS TO THE JUROR'S EMOTIONS, BOLSTERING OF THE STATE'S KEY WITNESS, AND REQUIRING DEFENDANT TO CHARACTERIZE THE STATE'S CHIEF WITNESS AS A LIAR, DENIED DEFENDANT HER RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS VI, XIV; N.J. CONST. ART I, PARS. 1, 10. (Not Raised Below)

 

Having considered these arguments in light of the record and applicable legal standards, we affirm.

I.

Shortly after moving into their new home, Trackman and her husband departed on a month-long vacation. She had not given anyone permission to stay in her home, and, upon her return, noticed that things were missing, including several pieces of jewelry of great sentimental value. Trackman learned that her son had permitted his daughter, co-defendant Parker, to stay in the house while Trackman was on vacation.

Parker testified that she arrived at the Trackman's home the day after her grandparents left. She claimed that she was given permission to remain in the house while they were away because "they needed [her] to babysit" it, and because the heat in her father's house was not working. Although not permitted to have friends in the house, Parker allowed defendant, her husband and their infant daughter to stay with her for about two weeks.

On January 12, 2011, Parker accompanied defendant to Rock's Jewelry Store and permitted defendant to use her (Parker's) identification to pawn jewelry. The store attendant handed defendant $575 in exchange, which Parker stated defendant used to buy food for the house, cigarettes, and baby care items. She gave Parker less than $50.

On January 17, Parker and defendant went to Frank's Jewelry Store ("Frank's"). Parker remained in the car with defendant's daughter while defendant entered the store. After defendant returned, she asked Parker to take "other stuff," including a gold ring and two paintings, into the store. Parker believed that the items belonged to defendant, as she had seen defendant load them in the car. Parker received $130 in exchange for the items, which she gave to defendant.

Defendant called Parker on March 15, 2011 and asked to meet with her at a bank in May's Landing. When Parker arrived, defendant asked her to sign a typed document, which defendant subsequently had notarized inside the bank. At trial, Parker read the document aloud before the jury:

To Whom It May Concern: This letter is to state that I, Amber Parker, asked Krystal Sage to pawn jewelry and coins that she was under the impression they were mine [sic]. I had given her gas money, ten dollars, money for cigarettes, seven dollars, and a pack of diapers, twelve dollars. Krystal was not aware that this was not my jewelry. I had given Krystal and Chris Sage a white blanket because they did not have one, which I thought was mine. I did not give Krystal or Chris Sage any type of money or anything other than the blanket and approximately thirty dollars.

The State introduced into evidence a receipt from Frank's dated January 5, 2011 ("the January 5 receipt") in the amount of $219. The parties then stipulated that "on January 5, 2011, [defendant] went into Frank's . . . and gave the proprietor two pieces of jewelry in exchange for cash and [defendant] received [the January 5 receipt] . . . ." Trackman identified the items on the January 5 receipt as a bracelet given to her by her husband and a one-hundred year old ring that belonged to her grandmother. Based on other receipts entered into evidence, the parties stipulated that defendant performed similar transactions at Rock's Jewelry Store on January 17, 22, and 24, and February 12 and 18, 2011. Trackman, however, was unable to positively identify the various items involved in those transactions as hers. Trackman testified that she received several thousand dollars from her insurance company as a result of her property losses.

Defendant testified that she met Parker through a mutual friend approximately three weeks before she and her family began staying at the Trackman home. Parker permitted defendant, who was unemployed, to stay with her until defendant "figured out everything." Defendant claimed she and her family only spent three nights there.

There were unpacked boxes all over the Trackman home, but defendant denied that she or her husband had ever gone through them. Defendant testified that she pawned items that did not belong to her on one occasion, when she and Parker went to Frank's Jewelers, and Parker borrowed her identification to pawn some jewelry because she had forgotten hers. Although not entirely clear from the transcripts, it would appear that defendant claimed this occurred on January 5, 2011. Defendant thought those items belonged to Parker and complied. With the exception of this occasion, defendant claimed that everything else she pawned was her own property.

Defendant testified that on January 17, after she and her family had left the Trackman home, Parker asked for a ride to CVS in Egg Harbor Township. Defendant agreed to pick Parker up at the Trackman home, and she watched Parker remove paintings from the house and put them in the backseat. Defendant assumed the paintings belonged to Parker. Parker told defendant that she needed to go to Rock's Jewelers to "get rid of something." Parker went inside to pawn the paintings; when she returned to the car, defendant went inside to pawn some jewelry herself.

In late February, police contacted defendant about her time at the Trackman residence. Defendant stated that, except for a white blanket Parker gave her as a gift, she had not taken anything from the home. A few weeks later, Parker, who was having problems with her father, was staying with defendant in a motel when defendant received a letter indicating that she was being indicted. Defendant testified that she instructed Parker to "take care" of the matter, and that Parker typed and signed the statement that was notarized at the bank on March 15.

 

 

II.

When asked by the prosecutor to tell the jury "a little bit about [Parker]," Trackman testified that her granddaughter was born with Arnold-Chiari Syndrome, which caused a blockage of spinal fluid and developmental disabilities. Trackman stated that Parker had "very poor judgment . . . [and] behave[d] like a much younger child . . . ." Trackman said Parker was "easily manipulated[,]" and "would do things to make people like her." There was no objection to any of this testimony.

In Point II, defendant argues that Trackman's testimony in this regard was "irrelevant, prejudicial[,] . . . inadmissible" and deprived her of a fair trial. The State contends that the evidence was properly admitted under N.J.R.E. 404(a) and N.J.R.E. 608 because it "relates to the character of the witness," in this case, Parker. We disagree that Trackman's testimony was properly admitted as character evidence, and the State's argument in this regard lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). However, we are convinced that the admission of Trackman's opinions about Parker's medical conditions and her personality did not amount to plain error.

"Except as otherwise provided in these rules or by law, all relevant evidence is admissible." N.J.R.E. 402. "'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. N.J.R.E. 403 provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury, or (b) undue delay, waste of time, or needless presentation of cumulative evidence."

We disagree with defendant's assertion that the evidence was irrelevant. The dynamics of Parker's friendship with defendant, and whether or not she were easily led by others, was highly probative of whether Parker or defendant essentially masterminded the scheme to pawn Trackman's valuables.

However, Trackman's description of Parker's medical condition and its sequelae was clearly hearsay, in that it expressed a medical opinion that Trackman was unqualified to give. See e.g., State v. McLean, 205 N.J. 438, 449-60 (2011) (explaining differences between expert opinion testimony and lay opinion testimony). However, we see no reason why Trackman should have been prohibited from describing, in a general sense, her granddaughter's personality. The only issue is whether Trackman's testimony in this regard should have been excluded under N.J.R.E. 403.

"[E]vidence claimed to be unduly prejudicial is excluded only when its 'probative value is so significantly outweighed by its inherently inflammatorypotential as to have aprobable capacityto divert the minds of the jurors from areasonable and fair evaluation' of the issues in the case." State v. Wakefield, 190 N.J. 397, 434 (quoting State v. Koskovich, 168 N.J.448, 486 (2001)). We have said that "[d]amaging evidence usually is very prejudicial but the question . . . is whether the risk of undue prejudice [is] too high." State v. Bowens, 219 N.J. Super. 290, 297 (App. Div. 1987).

In this case, Trackman's characterization of her granddaughter's personality traits was not left alone to linger in the juror's minds. In what was a very short trial, Parker's appearance immediately followed Trackman, and, on the next and final day of trial, defendant testified. In other words, the jury had ample opportunity to assess the credibility of defendant and Parker, and judge for itself whether Trackman's description of her granddaughter's personality rang true. In short, admission of the brief, challenged testimony did not amount to plain error. R. 2:10-2.

III.

 

In Point I, defendant raises several challenges to the jury charge, none of which were raised below. We therefore review the claims by applying the plain error standard. See State v. Torres, 183 N.J. 554, 564 (2005) ("Because defendant failed to object to the instruction at trial and raised it for the first time on appeal, we consider this issue under the plain error rule.").

"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (alteration in original) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006) (citing State v. DiFrisco, 137 N.J. 434, 491 (1994)). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, "[i]f the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J.157, 182 (2012) (citing State v. Macon, 57 N.J.325, 333-34 (1971)).

A.

At the charge conference, defense counsel agreed with the judge that there was no rational basis to charge the jury with the disorderly persons offense of theft of less than $200. Accordingly, the judge provided the jury with Model Jury Charge (Criminal), "Gradation of Theft Offenses Dependent on the Amount of Money or Value of Property Involved," (N.J.S.A. 2C:20-2b) (Revised 4/14/03), advising the jury of the need to determine the value of the property involved if it found defendant guilty of theft. The jury verdict sheet asked if the State had proven the value of the property taken was "over $500 dollars?" The jury answered, "no." The next question asked if the value of the property was "between $200 and $500 dollars?" The jury answered, "yes."

Defendant now argues that the judge should have sua sponte charged disorderly persons theft of less than $200 because the record suggests a "rational basis for such a charge," as the jury was not asked which specific items defendant took from Trackman's home, and some items allegedly stolen, like the white quilt blanket, were worth little money.

Absent a defendant's specific request that the jury be charged on lesser-included offenses, a trial court has the independent obligation to issue such an instruction "'when the facts adduced at trialclearly indicate that ajury could convict on the lesser while acquitting on the greater offense.'" State v. Rivera, 205 N.J. 472, 489 (2011) (quoting State v.Thomas, 187 N.J.119, 132 (2006)). The court has no duty to issue a sua sponte charge if the evidence "'does not clearly indicate or warrant such a charge.'" Ibid.(quoting Thomas, supra, 187 N.J.at 132.) "[T]he notion that the facts must "'clearly indicate the appropriateness' of the jury instruction is paramount"; the court is not obligated to "'meticulously . . . sift through the entire record in every trialto see if some combination of facts and inferences might rationally sustain a[n unrequested] charge.'" Ibid. (quoting State v. Thomas, supra, 187 N.J.at 134.

Furthermore, we have expressed our "concern[] about a defendant's ability to seek reversal based on the failure to charge the jury on a lesser-included offense after . . . agreeing [such a charge] should not be given." State v. Ramsey, 415 N.J. Super.257, 264 (App. Div. 2010). "A defendant has little to risk if he could gamble 'all or nothing' on the outcome and obtain a reversal upon conviction if the lesser offense were clearly indicated by the evidence." Ibid.

Here, the State contended defendant was responsible for the theft of numerous items from the Trackman home and that the value of those items exceed $500. Defendant denied taking anything, admitting only that she accepted some modest gifts from Parker, allowed Parker to borrow her identification and pawn items on January 5, 2011, and pawned her own property on some of the other occasions. The January 5 receipt was in the amount of $219, thereby supporting the jury's finding of theft that exceeded $200 but not $500.

We need not delve into defense counsel's innermost thoughts to understand his acquiescence in not charging the disorderly persons offense, except to say that was entirely consistent with the "all-or-nothing" strategy. When the evidence is considered in full, it did not rationally support a verdict of theft of property worth less than $200, and the judge was not obligated to sua sponte charge the disorderly persons offense.

B.

Next, defendant argues that the judge omitted two parts of the model jury charges and that each omission amounts to plain error.

After the jury was sworn, the judge provided Model Jury Charge (Criminal), "Instructions After Jury is Sworn" (2011). He omitted, however, that portion of the model charge that discusses the difference between circumstantial and direct evidence. Model Jury Charge (Criminal), "Theft of Movable Property," N.J.S.A. 2C:20-3a (Revised 2/11/08), states that "[p]roperty means anything of value," and provides an explanatory list of "appropriate phrases" that the judge may use. In this case, the judge stated, "property means anything of value, essentially. Anything of value . . . certainly would include the property described by the evidence in this case as jewelry, . . . coins, and . . . cash." The judge also stated that "[t]he defendant must knowingly take or exercise unlawful control over moveable property," but did not provide the model charge's further explanation of the concept.1

Defendant argues that the omission in the preliminary charge affected the jury's ability to consider the evidence fairly, and theomissions in the substantive charge effectively usurped the jury's fact-finding function by requiring it to find that the items at issue were "property" and "moveable property," rather than permitting the jury to arrive at this conclusion on its own.

Both arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(2). It suffices to say that the judge included the instructions on direct and circumstantial evidence in his final jury charge. The instructions regarding "property" and "moveable property" were tailored to the facts of the case, and did not create a "risk that the . . . ultimate determination of guilt or innocence [was] based on speculation, misunderstanding, or confusion . . . ." State v. Olivio, 123 N.J.550, 567-568 (1991).

IV.

In Point III, defendant argues that the prosecutor appealed to the jury's emotions, improperly bolstered a "key witness['s]" credibility and asked defendant to characterize the credibility of the State's witness, all of which amount to misconduct that requires reversal. There was no objection to any of the alleged instances of misconduct at trial.

"New Jersey courts have commented repeatedly on the special role filled by those entrusted with the responsibility to represent the State in criminal matters, observing that the primary duty of a prosecutor is not to obtain convictions but to see that justice is done." State v. Smith, 212 N.J. 365, 402-03 (2012) (citing State v. Daniels, 182 N.J. 80, 96 (2004)). "A finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). To warrant reversal, the prosecutor's conduct must constitute a clear infraction and "'substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense.'" State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (quoting State v. Bucanis, 26 N.J. 45, 56 (1958)).

A court must consider the following three factors in assessing "the impact of improper prosecutorial remarks: '(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.'" State v. Jackson, 211 N.J.394, 409 (2012) (quoting Smith, supra, 167 N.J. at 182). We consider the prosecutor's comments in the context of the entire summation. Ibid.

Defendant again argues that Trackman's testimony was an improper appeal to the jury's emotions. For the reasons set forth above, we find the argument lacks merit. R.2:11-3(e)(2).

During summation, the prosecutor reminded the jury that Parker was enrolled in PTI conditioned upon truthfully testifying against defendant. He stated, "I would submit to you that for the most part, [Parker] did testify truthfully to you." This was in response to defendant's arguments that Parker's testimony was in avoidance of her own responsibility for the theft, and that it was not credible. Contrary to defendant's claim, the prosecutor's comment did not express a "personal belief or opinion as to the truthfulness of . . . [the] witness's testimony." State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993).

Lastly, defendant claims that during cross-examination, the prosecutor improperly asked her to comment on the credibility of Parker during the following exchange:

Q: [Y]ou heard [Parker]'s testimony . . . that she did not go with you to Frank's Jewelers.

A: That is correct, she did say that.

Q: So it's your testimony that . . . when she said that, that was false?

A: Yes.

Later, the prosecutor asked

Q: [Parker] testified that there were . . . some paintings . . . in the trunk of the car when you guys went [to Rock's Jewelers on January 12], correct?

A: Yes.

Q: I said "correct." [T]hat is what she testified to. Was her testimony correct?

A: No, it was not.

Q: [C]an you tell me how it was false?

A: She had removed the paintings from the home and put them in the back seat of the car.

The prosecutor also asked if ["Parker] gets nervous easy," and defendant responded "yes." Next, the prosecutor asked, "You saw her yesterday. She appeared to be somewhat nervous, correct?" Defendant agreed.

We agree with defendant that the prosecutor's questions were clearly improper. See State v. Frisby, 174 N.J. 583, 594 (2002) (explaining that asking one witness to "assess[] . . . another witness's credibility is prohibited"). However, "[a] finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" Smith, supra, 167 N.J. at 181 (quoting Frost, supra, 158 N.J. at 83.

Here, the improper questions were limited, and the jury had the opportunity to judge for itself the credibility of Parker and defendant. Defendant was in no way denied a fair trial. The prosecutor's improper cross-examination, therefore, does not warrant reversal.

Affirmed.

 

1 The model charge defines "moveable property" as "property the location of which can be changed, including things growing on, affixed to, or found in land, or documents, although the rights represented thereto have no physical location."