STATE OF NEW JERSEY v. TIEHEEM YOUNG

NOT FOR PUBLICATION WITHOUT THE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.

TIEHEEM YOUNG, a/k/a TIEHEE YOUNG,

a/k/a TIEHEEM R. SHADEEN YOUNG, a/k/a

TIEHEEM R. YOUNG, a/k/a TIEHEEN YOUNG,

Defendant-Appellant.

________________________________________________________________

September 23, 2015

Submitted February 9, 2015 Decided

Before Judges Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 12-03-0273.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

Defendant Tieheem Young appeals from his convictions for first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); second-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(b) (count two); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (count three); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count four); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count five). Defendant was sentenced as a persistent offender pursuant to N.J.S.A. 2C:44-3a, and a second-time offender under the Graves Act, N.J.S.A. 2C:43-6(c)-(d), to an aggregate term of twenty-six years with an eighty-five percent parole ineligibility period.

Defendant raises the following issues in his appeal

POINT I

DEFENDANT WAS DENIED HIS CONFRONTATION-BASED RIGHT "TO IMPEACH [THE STATE'S PRIMARY] WITNESS WITH HIS CRIMINAL RECORD." VASQUEZ V. JONES, 496 F.3d 564, 571 (6TH CIR. 2007). ADDITIONALLY, THE JUDGE ABUSED HIS DISCRETION BECAUSE "THE STATE WOULD NOT HAVE SUFFERED UNDUE PREJUDICE SUFFICIENT TO OUTWEIGH THE PROBATIVE VALUE OF THE PRIOR CONVICTION[]." STATE V. BALTHROP, 92 N.J. 542, 546 (1983).

POINT II

THE TRIAL JUDGE FAILED TO PROPERLY ADDRESS THE JURY'S QUESTION REGARDING WHETHER IF THE VICTIM "FELT THAT THE DEFENDANT USED A GUN DURING THE ROBBERY, DOES THE LAW DETERMINE IT WAS A GUN." THE ANSWER GIVEN -- THAT IT WAS SIMPLY A FACTUAL CALL FOR THE JURY TO MAKE -- WAS WHOLLY INADEQUATE. (NOT RAISED BELOW).

After reviewing these arguments in light of the record and applicable legal principles, we conclude the trial court erred in denying defendant the opportunity to cross-examine the victim regarding his prior conviction, but that such error was harmless. The argument raised as plain error in Point II lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

I.

Defendant's conviction was based almost exclusively upon the testimony and identification of him made by the robbery victim, Antwan Thomas. The defense was that Thomas was mistaken.

The evidence pertinent to this issue can be summarized as follows.

In the early evening hours of November 21, 2011, Thomas was leaving his mother's Plainfield apartment to return to his own apartment, located in a separate building within the same apartment complex. As he opened the door to exit the building, Thomas saw two people walking toward the door. There was a lot of light from the hallways and light in front of the building. He held the door open because he recognized one of the two "immediately" as defendant, Tieheem Young, whose face he saw "clear as day." Thomas did not know the person accompanying defendant, but gave police a description of him and told them he would be able to recognize him if he saw him again. Thomas testified defendant was wearing a hoodie, sweatpants and the same glasses he was wearing in court. He also testified he had seen defendant in town two to three days before the robbery.

Thomas, who was approximately twenty-seven years old at the time of the robbery, first knew defendant when he was in seventh grade and they attended the same school. Although he did not talk to defendant or hang out with him, Thomas saw him regularly in school because his locker was right next to defendant's classroom. He knew defendant by his street name, Tie Freels. Since their time in school, Thomas saw defendant one to three times a year at his niece's house.

When he passed into the doorway, defendant grabbed Thomas, dragged him back inside, and tried to strike Thomas's face with his fist. As the two fell to the floor in a "tussle," defendant hit the back of Thomas's head with a handgun. As they were tussling, defendant asked Thomas who he was. Thomas replied, "It's Kool-Aid," and told defendant he did not have anything worth robbing him for. Defendant told him, "shut the fuck up." Defendant pressed the barrel of the gun to Thomas's head. Thomas testified he knew what the barrel of a gun felt like because he "had a gun put to [his] head before." Defendant's accomplice took Thomas's wallet, watch and phone while defendant kept the gun against Thomas's head. Thomas's wallet contained three prepaid debit cards, identification, his birth certificate, and social security cards belonging to him and his daughter.

After the items were taken, defendant let Thomas go while still holding a gun to his head. Defendant's companion handed defendant his glasses, which defendant put back on. Defendant asked Thomas repeatedly who was downstairs. Thomas replied he did not know what defendant was talking about. Defendant stood up. Thomas testified defendant looked at him "like that's when he realized who I was." Defendant cocked the gun and placed it in his waistband while telling defendant "if you tell, I know who you is." Thomas stated he could see the object in defendant's waistband was a gun, but could not identify its color because defendant was covering most of it with his hands. Defendant and his accomplice pulled ski masks over their faces and left.

Thomas first ran to his apartment to attend to his daughter and then, hearing gunshots, ran back to his mother's apartment.1 He saw defendant again, running toward Plainfield Avenue.

Thomas stated he was bleeding in the back of his head and his face was a little swollen. As he approached his mother's apartment, Thomas first saw his stepfather, Gregory Bennett, coming out of the door of the building. Bennett asked him what happened. Thomas testified he replied, "I just got robbed and I know who did -- who did it." Bennett called the police.

At trial, Bennett corroborated Thomas's description of this encounter. Bennett testified Thomas was bleeding, with tears in his eyes, and told him he was robbed, that his watch, wallet and phone were taken and that he knew one of the persons who robbed him. Bennett admitted having seven prior convictions, including one for robbery, for which he served a twelve-year prison term.

When Thomas got to his mother's apartment, he told her he knew the first name of the person who robbed him and was not sure of his last name, but knew someone who did know the robber's last name. Thomas used his mother's phone to call Jamila Mitchell, his niece's mother, who was able to provide defendant's last name, refreshing Thomas's recollection. Thomas was speaking to Mitchell when the police arrived.

At trial, Thomas's mother, Annette Thomas, corroborated his description of these events. She was present when the call was made to Mitchell and said the purpose of the call was "[b]ecause Antwan didn't know what his last name was, if he was Tieheem Young or he was Tieheem Jell (phonetic) or some stuff." Annette Thomas also testified she knew defendant's mother and "some of his family."

Thomas made an initial statement at the police station that same day, then went to the hospital, where he had a CT scan and received medication for his headache. On the following day, Thomas made a formal statement and identified defendant as the robber after viewing a photo array. Thomas told police he was 100% percent certain of his identification of defendant. He also identified defendant in court.

Defense counsel cross-examined Thomas at length. He used testimony given by Thomas in a pretrial motion hearing, the statement he had given to police and his testimony at trial in an effort to impeach him with inconsistencies. Thomas also admitted he had started wearing glasses shortly before trial and did not own them at the time of the robbery.

Police apprehended defendant sitting in a parked car the day after the robbery. The glasses Thomas described were in defendant's pocket. Defendant did not have any of the robbery proceeds in his possession. None of the stolen items were ever recovered. The police did not "ping" Thomas's cellphone to determine its location, a procedure they had followed only in homicides, and did not obtain a search warrant to search defendant's residence.

In summation, defense counsel focused on the reliability of Thomas's identification of defendant and argued he was mistaken. Counsel pointed out several alleged inconsistencies or deficiencies in Thomas's account, such as: his statements that he did not see a gun and could not describe the color of the gun, but was struck by a gun; that it "ma[de] no sense" for defendant to put on a ski mask after robbing Thomas; that there was "[n]o bad blood" between Thomas and defendant and if the robber was defendant, it made no sense that he never acknowledged Thomas; and that although Thomas had provided defendant's name to police, he did not furnish a physical description of him. Counsel argued that, although Thomas stated he knew his assailant as "Tieheem," the identification of "Tieheem Young" was the product of suggestion by others. Counsel imputed no bad motive to Thomas. Instead, he argued that Thomas merely misidentified defendant; the misidentification was "tendered and watered by [Mitchell], his mother, and everybody else"; and when it "spun out of control," it was not Thomas's nature to admit he was wrong. Counsel also argued there was no armed robbery because there was no gun.

In the charge conference, the trial judge reviewed the Model Jury Charge on identification, as modified following State v. Henderson, 208 N.J. 208 (2011), at length with counsel and tailored the charge to fit the evidence of the case. The jury was charged accordingly and there was no objection to the charge.

II.

When the State moved, prior to trial, to preclude defendant from cross-examining Thomas regarding an April 16, 2004 conviction for possession of a controlled dangerous substance, little was known about the conviction. The trial judge stated he had no evidence regarding the circumstances of Thomas's arrest or conviction; the only detail discussed was that Thomas received a three-year sentence of probation. Defense counsel conceded there was no evidence Thomas was "under the influence of anything at the time of this offense."

The court inquired as to what facts defense counsel planned to elicit regarding the conviction. Defense counsel responded

I would just elicit the fact that he had been convicted. I wouldn't necessarily talk about what the nature of the conviction is. I don't think it's relevant. However, just to make a point that he was convicted of an indictable offense in the past. And that's -- that's the only thing. I wouldn t inquire about what happened or what kind of conviction it was because I don't think it's necessary for this type of case.

In granting the State's motion, the judge stated that exclusion of a "nine-year-old conviction for a relatively minor offense" was a "close call." Citing State v. Balthrop, 92 N.J. 542 (1983), the judge acknowledged, "there's less prejudice to the State in the use of that than there would be in the use of a prior conviction to impeach the credibility of the defendant if he chose to testify." The judge then noted Thomas had no intervening convictions. He explained

We don't have the ten-year benchmark yet, but nine years is pretty close to that standard that we hold these convictions up against.

Considering, again, the relatively slight degree of the crime, the fact that there is no evidence that Thomas was under the influence of anything at the time of this incident, and considering that the crime doesn't involve a lack of veracity or fraud or dishonesty, and again considering that there's nothing else intervening since April 16th, 2004, I will exclude the use of that offense in attacking the credibility of Mr. Thomas.

If there was evidence of drug use it would certainly go to impairing his identification of the defendant and . . . relevant, although there's certainly a limiting instruction that must be given with regard to the use of that prior conviction if it was admitted. . . . So considering everything, I'm not going to allow it in.

Defendant argues that this ruling constituted an abuse of discretion because the trial judge failed to find that the "probative force of the conviction would be substantially outweighed by its remoteness as to create undue prejudice." Defendant also contends that limiting his cross-examination of Thomas violated his rights under the Confrontation Clause of the Sixth Amendment.

"[T]he decision whether to admit a prior conviction for purposes of attacking the credibility of a witness rests within the sound discretion of the trial court." State v. Leonard, 410 N.J. Super. 182, 187-88 (App. Div. 2009), certif. denied, 201 N.J. 157 (2010). As with all evidentiary rulings, the decision is "'entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). "An appellate court applying this standard 'should not substitute its own judgment for that of the trial court, unless the trial court's ruling is so wide of the mark that a manifest denial of justice resulted.'" State v. J.A.C., 210 N.J. 281, 295 (2012) (quoting Brown, supra, 170 N.J. at 147). [1094]

At the time of defendant's trial,2 N.J.R.E. 609 provided: "For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." The underlying rationale "is the belief that a person who has lived contrary to society's rules and laws by committing crimes should not be able to shield his credibility from the jury and present himself as a law-abiding individual." State v. T.J.M., 220 N.J. 220, 233 (2015). "Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the [party seeking exclusion]." Balthrop, supra, 92 N.J. at 545 (quoting State v. Sands, 76 N.J. 127, 144 (1978)).

"The key to exclusion is remoteness . . . [which] cannot [24] ordinarily be determined by the passage of time alone." Sands, supra, 76 N.J. at 144. The Supreme Court has described the required analysis

Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving. In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. Moreover, it is appropriate for the trial court in exercising its discretion to consider intervening convictions between the past conviction and the crime for which the defendant is being tried. . . . A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity [25] on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible.

[State v. Harris, 209 N.J. 431, 441 (2012) (quoting Sands, supra, 76 N.J. at 144-45).]

The "inquiry does not end at [remoteness]" as N.J.R.E. 609 also "encompass[es] . . . concerns about prejudice." State v. Hamilton, 193 N.J. 255, 267, 269 (2008). Accordingly, "evidence of prior convictions to affect the credibility of any witness can be excluded only when the probative value of the conviction 'is outweighed by a substantial danger of prejudice, undue consumption of time or confusion.'" Balthrop, supra, 92 N.J. at 544-45 (quoting State v. Balthrop, 179 N.J. Super. 14, 19 (App. Div. 1981), aff'd, 92 N.J. 542 (1983)).

In Balthrop, the defendant sought to impeach the credibility of two of the State's witnesses with their prior narcotics convictions, which were five and eight years old. Id. at 544. The trial court excluded the convictions on remoteness grounds. Ibid. We reversed, finding it problematic that "exclusion was ordered before either witness testified, without any attempt by the prosecution to justify it by a showing of undue prejudice." Balthrop, supra, 179 N.J. Super. at 21. The Supreme Court agreed, stating, "a trial court's ruling on any [Rule 403] issue should include some elaboration on the substantial danger of undue prejudice, or the absence thereof, that would accrue to the objecting party if the proferred [sic] evidence were introduced." Balthrop, supra, 92 N.J. at 546.

Here, as in Balthrop, the trial court granted the State's motion without making any findings as to prejudice to the State. Absent a finding of a substantial danger of prejudice, defendant should have been permitted to impeach Thomas's credibility with his prior conviction. See Balthrop, supra, 92 N.J. 544-45.

However, "[n]ot every trial error in a criminal case requires a reversal of the conviction." State v. Burton, 309 N.J. Super. 280, 289 (App. Div.), certif. denied, 156 N.J. 407 (1998). Finding an error was not harmless "depends upon some degree of possibility that it led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Id. at 289. We cannot conclude that such a possibility of an unjust result existed in this case.

First, we note that the cross-examination of Thomas was largely unrestricted. The only limitation complained of is the preclusion of Thomas's nine-year-old CDS conviction. Defense counsel exhaustively mined Thomas's statements and actions to exploit any possible deficiencies that might undermine his credibility.

Second, defense counsel's stated purpose was for general impeachment of Thomas, not to show any bias on his part. The three-year-probation term had presumably expired long before the robbery without any violation. As a result, there was nothing about the conviction that created an incentive for Thomas to inculpate anyone, falsely or mistakenly, as would be the case when a witness has reason to curry favor with the police. See Davis v. Alaska, 415 U.S. 308, 317-18, 94 S. Ct. 1105, 1111, 39 L. Ed. 2d 347, 354-55 (1974).

Contrary to defendant's argument, the Constitution does not "'confer[] a right in every case to impeach the general credibility of a witness through cross-examination about his [prior] convictions.'" Balthrop, supra, 92 N.J. at 547 (emphasis added) (quoting Davis, supra, 415 U.S. at 321, 94 S. Ct. at 1112-13, 39 L. Ed. 2d at 356 (Stewart, J., concurring)). The case for a violation of the Confrontation Clause is stronger when the prior conviction is probative of potential bias. The Supreme Court has noted a violation of the Confrontation Clause occurs when a defendant is "prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby 'to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.'" Del. v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436, 89 L. Ed. 2d 674, 684 (1986) (quoting Davis, supra, 415 U.S. at 318, 94 S. Ct. at 1111, 39 L. Ed. 2d at 355.) However, even when a witness's bias is in issue, the right to cross-examination is not unlimited. Although

"the exposure of a witness motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination[,]" [i]t does not follow . . . that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel's inquiry into the potential bias of a prosecution witness.

[Van Arsdall, supra, 475 U.S. at 678-79, 106 S. Ct. at 1435, 89 L. Ed. 2d at 683, (quoting Davis, supra, 415 U.S. at 316-17, 94 S. Ct. at 1110, 39 L. Ed. 2d at 354.)]

See also State v. P.H., 178 N.J. 378, 389-90 (2004) ("[T]he court may limit defense cross-examination that otherwise would result in harassment, prejudice, confusion of the issues, irrelevancy, or would jeopardize witness safety.")

In assessing whether the error here was harmless, we consider whether defendant was afforded a meaningful opportunity to cross-examine Thomas and what, if any, impact the exclusion of the prior conviction had upon the defense and the jury's ability to fairly weigh the evidence in the case.

The extensive cross-examination of Thomas served essential purposes of cross-examination. The jury was given "the opportunity to observe the witness's demeanor" and the "reliability of testimony given on direct-examination" was thoroughly "tested." State v. Cabbell, 207 N.J. 311, 328-30 (2011) (citations and internal quotation marks omitted).

Significantly, the defense theory was not that Thomas was biased or lied in testifying that defendant was his assailant; it was that he was simply mistaken. Since there was no indication Thomas was under the influence at the time of the robbery, evidence regarding prior possession that suggested drug use nine years earlier would not make it more likely the identification was a mistake. In his cross-examination, defense counsel explored all manner of details in Thomas's actions and statements to support the argument that Thomas was mistaken. Use of the nine-year-old conviction that resulted in a probationary term may have had some limited value as general impeachment material, but it is unlikely to have had any impact in buttressing the defense argument that Thomas's identification was a mistake.

Moreover, there was substantial contemporaneous evidence to support Thomas's assertion that he recognized defendant "immediately." After the robbery, he ran to his mother's apartment. Still bleeding from the attack, he told the first persons he encountered, his stepfather and mother, he had been robbed by someone he knew. He was able to provide the first name, Tieheem. His ability to provide a first name and inability to recall defendant's full name is consistent with the exposure he had to defendant over the years: a familiarity based upon regular, if casual, contact in school and a continuing, although irregular, contact with him at his relative's home. Within a day of the robbery, he identified defendant's photograph and advised the police officer he was 100% certain of the identification. As defense counsel noted in his summation, there was no "bad blood" between defendant and Thomas. In the absence of any evidence of bias, the circumstantial evidence supporting the reliability of his identification is substantial.

Finally, we note the jury was fully instructed that "[e]yewitness identification evidence must be scrutinized carefully." Model Jury Charge (Criminal), Identification: In-Court and Out-of-Court Identification (2012). We are satisfied that through counsel's extensive cross-examination of Thomas and the court's instruction, the jury was fully equipped to determine Thomas's credibility and whether his identification of defendant was a mistake. Therefore, we conclude defendant was not harmed by the erroneous evidentiary ruling and that his constitutional right to confrontation was not violated.

Affirmed.

1 In another pretrial motion, the trial judge denied the State's request to introduce evidence of bullet holes in the door of a neighboring apartment.

2 After defendant's trial, N.J.R.E. 609 was amended, effective July 1, 2014, to allow evidence of a conviction after more than ten years have passed "only if the court determines that its probative value outweighs its prejudicial effect, with the proponent of that evidence having the burden of proof." N.J.R.E. 609(b)(1).