STATE OF NEW JERSEY v. STANLEY JENKINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STANLEY JENKINS,

Defendant-Appellant.

___________________________________

September 8, 2014

Submitted July 30, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 11-04-0425.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Deputy Public Defender II, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Stanley Jenkins appeals his conviction for third-degree receiving stolen property, contrary to N.J.S.A. 2C:20-7(a). We reverse and remand for a new trial.

I.

We discern the following facts and procedural history from the record on appeal.

On the morning of November 17, 2011, Gregory Miller entered the Moorestown branch of Beneficial Bank. He eventually approached one of the tellers and told her to give him "all your money, hundreds, fifties, and twenties," adding that he did not "want to hurt anybody." After Miller repeated his request, the teller gave him money from her drawer, which included "bait money" that could be identified as having come from the bank. Miller, who had a cellphone to his ear throughout the exchange, then left the bank. The teller set off several alarms in the bank and contacted the police.

Another teller, who was alerted by the first teller's actions, used the camera in her cellphone to take pictures of Miller, the car that pulled up next to him, and Miller getting into the car. The description of the car was broadcast by the police.

A Moorestown police officer patrolling the area looking for a car that fit that description, stopped the car being driven by Jenkins. The only passenger, who was sitting in the rear seat, was Miller. He was identified at the scene by one of the tellers as the bank robber.

Both Miller and Jenkins were arrested. During a subsequent search of the vehicle, the bait money was found in the glove compartment. When interviewed by the police, Miller asserted that Jenkins had agreed to help him rob the bank by driving him there.

Jenkins was charged with second-degree robbery, contrary to N.J.S.A. 2C:15-1(a)(2) (count one); third-degree hindering apprehension, contrary to N.J.S.A. 2C:29-3(a)(2) (count two); and third-degree receiving stolen property, contrary to N.J.S.A. 2C:20-7(a) (count three). He was tried over four days in January 2012. The robbery charge was the only one tried to the jury. However, the trial judge charged third-degree receiving stolen property as a lesser-included offence. The jury acquitted Jenkins of robbery, but found him guilty on the receiving charge.1 This appeal followed.

I.

Jenkins raises the following issue on appeal:

POINT I: THE PROSECUTOR COMMITTED SUCH FLAGRANT MISCONDUCT THROUGHOUT THE COURSE OF THE TRIAL, AND PARTICULARLY IN SUMMATION, THAT JENKINS WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below)

Jenkins argues, correctly, that the case presented to the jury turned primarily on the issue of credibility. Miller testified that Jenkins was a knowing participant in the robbery from its inception, while Jenkins testified that he believed he was driving Miller to pick up his paycheck and that they argued when he found out what Miller had done. There was testimony that could support those versions of events.

When Jenkins testified, he told the jury that he had been convicted of a crime in 1996 and been sentenced to a minimum six-year term. During summation, the prosecutor made the following arguments to the jury:

Now, I heard a lot of things from Mr. Jenkins that Mr. Jenkins was a good guy, Mr. Jenkins was a hard-working guy. Mr. Jenkins is a convicted felon, too. And, ladies and gentlemen, you're not going to get a choir boy to commit a crime with you. You're not going to go down and you're not going to get Mother Superior to commit a crime with you. You're going to get other felons to commit a crime with you.

. . .

The two men you had testifying before you are both convicted felons, but those are exactly the kind of people who commit bank robberies. Those are exactly the kind of people that would commit bank robberies together.

[(Emphasis added).]

Defense counsel made no objection to those comments. Jenkins now argues that they require reversal of his conviction.

Because Jenkins did not object at trial, we review his argument under the plain error rule. See State v. Jenkins, 178 N.J. 347, 360 (2004). Plain error is error that is "clearly capable of producing an unjust result," which should "in the interests of justice" be noticed even if "not brought to the attention of the trial . . . court." R. 2:10-2; see also Jenkins, supra, 178 N.J. at 360-61. "[T]he possibility of injustice [must be] 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

2 N.J.R.E. 609 permits the use of prior convictions solely for impeachment purposes. The Supreme Court requires trial judges to give careful instructions to a jury concerning that limited use because "a jury might use a prior conviction as evidence of a defendant's criminal disposition and not as evidence probative of a defendant's credibility." State v. Brunson, 132 N.J.377, 390 (1993). The judge gave such a charge in this case.

The prosecutor's remarks quoted above were a brazen effort to solicit the jury's use of the prior conviction in precisely the way Brunsonprohibits. He clearly argued that Jenkins, a convicted felon, was the kind of person who "would commit a bank robbery." That he included Miller in his statement does not change that fact.

Prosecutors have a duty to refrain from employing "improper methods calculated to produce a wrongful conviction." State v. Wakefield, 190 N.J.397, 436 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)). Thus, prosecutors must "refrain from any conduct lacking in the essentials of fair play, and where [] conduct has crossed the line and resulted in foul play, the reversal of the judgment below will be ordered." Wakefield, supra, 190 N.J.at 437 (quoting State v. Siciliano, 21 N.J.249, 262 (1956)). "[T]o justify reversal, the prosecutor's conduct must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of [his] defense." Id.at 438 (quoting State v. Papasavvas, 163 N.J.565, 625 (2000)).

In light of the clearly inappropriate and blatant nature of the prosecutor's misconduct in this case,2we reverse and remand for a new trial. Such conduct cannot be characterized as anything other than "clearly and unmistakably improper" conduct that "substantially prejudiced [Jenkins's] fundamental right to have a jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J.515, 575 (1999).

Reversed and remanded.

1 Jenkins was sentenced to incarceration for five years, with 471 days of jail credit.

2 Later in his summation, the prosecutor made arguments that (1) appeared to shift the burden of proof and (2) told the jury not to consider the lesser-included offence if they were not going to find Jenkins guilty of the robbery charge. Defense counsel objected following the summation and the judge issued appropriate corrective charges. Those arguments were also inappropriate.