STATE OF NEW JERSEY v. KEVIN REGAN

NOT FOR PUBLICATION WITHOUT THE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.

KEVIN REGAN,

Defendant-Appellant.

_________________________________

February 9, 2016

Argued December 9, 2015 Decided

Before Judges Koblitz, Kennedy and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 11-11-00715.

Stefan Van Jura, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Van Jura, of counsel and on the brief).

Nathan C. Howe, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Howe, of counsel and on the brief).

PER CURIAM

In 2004, our Supreme Court departed from federal law and stated that "at no time during cross-examination may the prosecutor reference the defendant's attendance at trial or his ability to hear the testimony of preceding witnesses." State v. Daniels, 182 N.J. 80, 99 (2004). Here, in cross-examining defendant Kevin Regan, the prosecutor referenced that defendant had been present at trial "watching the testimony" of other witnesses and then twice accused defendant of "tailor[ing]" his testimony. Because defendant's credibility was a central issue at trial, we conclude that such conduct by the prosecutor was 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 102 (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Thus, we are compelled to reverse defendant's conviction of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), and remand for a new trial.

I.

The criminal charges against defendant arose out of an assault that took place during a house party hosted by defendant's girlfriend, Kara Cicero. Approximately fifteen to twenty people attended the party, alcohol was consumed, and a number of the attendees participated in a drinking game called beer pong.

During that party, the victim, Dillan Holmes,1 was punched and kicked by several assailants. Holmes's nose was broken, the orbital bones of both his eyes were fractured, and his mouth was cut. Holmes was hospitalized for his injuries; he required plastic surgery, received stitches for the cut to his mouth, and temporarily lost his sense of smell and vision.

At trial, defendant, co-defendant Alexander Karousatos and seven other witnesses who attended the party testified. Their testimony provided conflicting and varying accounts of what happened. At some point during the party, Holmes placed his hands on the head of a woman. That woman's boyfriend, Clint Benson, confronted Holmes and warned him not to touch his girlfriend. Shortly thereafter, Karousatos bumped into Holmes in the dining room, words were exchanged, and Karousatos punched Holmes. Several witnesses testified that defendant then punched Holmes; some of those witnesses further testified that defendant punched Holmes more than once. Thereafter, the altercation continued on the back deck. Witnesses testified that defendant punched Holmes while they were on the back deck, and one of those witnesses testified that defendant "punched [Holmes] in the face multiple times." Several witnesses also testified that Holmes was punched and hit by other people, including Karousatos, Cicero, Benson and Todd Shamro.

Defendant testified that he first interacted with Holmes when he saw Karousatos and Holmes brush shoulders, then push and shove each other. According to defendant, he broke up that fight and pushed Holmes away from a china cabinet. Thereafter, defendant saw Holmes and Cicero arguing on the back deck. When Holmes grabbed Cicero, defendant punched Holmes one time in the mouth. Defendant testified that he had no further involvement in the assault on Holmes, but saw Benson and Shamro kick Holmes and another man push Holmes down the deck stairs.

On cross-examination, the prosecutor confronted defendant with the differences between defendant's statements to the police following the incident and his testimony at trial. Defendant had told the police that he had not been involved in the assault and he did not know who hit Holmes. On cross-examination, however, defendant acknowledged that his statement to the police was not true. The prosecutor then had the following exchange with defendant

Q So, you've been in the -- you've been present watching the testimony in this case and you've seen numerous witnesses testify identifying you as an assailant in the living room, correct?

A Yes.

Q And an assailant on the deck, correct?

A In some cases, yes.

Q And knowing that you have an interest in wanting to tailor your testimony before the jury?

A No, I'm just telling the truth.

Q You know that these witnesses have all testified, in most cases testified that you were involved in the beating of [Holmes]. So when you take the witness stand you want to tailor it to make it so that you weren't involved at all, correct?

A I just said no, I'm telling the truth right now.

Before trial, Cicero pled guilty to simple assault and obstruction of justice, and the charges against Benson and Shamro were dismissed. Consequently, the remaining defendants at trial were defendant and Karousatos.

After hearing all of the evidence, the jury found defendant guilty of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). Defendant was sentenced to three years of probation, with special conditions that he serve 270 days in the county jail, undergo a substance abuse evaluation and treatment, and participate in an anger management program. Defendant was also ordered to pay restitution, assessments and penalties.

II.

On appeal, defendant contends

POINT I: MULTI-FACETED, EGREGIOUS PROSECUTORIAL MISCONDUCT DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).

[A]. Argument That The State Dismissed The Charges Against Co-Defendants Benson And Shamro Because It Had Insufficient Evidence To Prosecute Them, And Therefore, The Jury Should Not Consider Their Involvement In Assessing Defendant's Culpability.

[B]. Allegation That Defendant Tailored His Testimony Based On Defendant's Observation Of Testimony Adduced Against Him At Trial.

[C]. Elicitation Of Co-Defendant's Opinion On The Truthfulness Of The State's Witnesses Against Defendant.

POINT II: THE COURT ERRED IN CHARGING THE JURY THAT IT COULD FIND SIGNIFICANT BODILY INJURY BASED SOLELY ON THE PUNCH TO THE VICTIM'S MOUTH, WHICH COULD NOT MEET THE DEFINITION OF "SIGNIFICANT" BODILY INJURY.

A.

Defendant argues that the prosecutor engaged in three forms of misconduct by (1) accusing defendant of tailoring his testimony, (2) arguing that the jury should not consider the involvement of Benson and Shamro, and (3) asking Karousatos for his opinion on the truthfulness of other witnesses. We begin with an analysis of the prosecutor's accusation of tailoring because we determine that conduct in itself constitutes prosecutorial misconduct.

In State v. Daniels, our Supreme Court prohibited prosecutors from "drawing the jury's attention to the defendant's presence during trial and his concomitant opportunity to tailor his testimony." Daniels, supra, 182 N.J. at 98. The Court held that prosecutorial comments suggesting that a defendant tailored his or her testimony undermines his exercise of fundamental rights. Ibid. Among those rights are his "right to be present at trial, to be confronted with the witnesses against him and to hear the State's evidence, to present witnesses and evidence in his defense, and to testify on his own behalf." Id. at 97-98 (citations omitted).

The Court also identified two categories of tailoring accusations: generic and specific. Id. at 98. Generic accusations are those with "no specific evidentiary basis," and are completely prohibited. Ibid. Prosecutors are permitted, however, in a limited fashion to make specific accusations "[i]f there is evidence of tailoring" in the record. Id. at 98-99. Nevertheless, "at no time" can the prosecutor comment on "the defendant's attendance at trial or his [or her] ability to hear the testimony of preceding witnesses." Id. at 99.

The same prohibition applies to a prosecutor's cross-examination. Ibid. A "prosecutor must have 'reasonable grounds' for posing questions during cross-examination that impugn a witness's credibility," and "if there is evidence in the record that a defendant tailored his [or her] testimony, the prosecutor may cross-examine [him or her] based on that evidence." Ibid. (quoting State v. Rose, 112 N.J. 454, 504 (1988)). The prosecutor is prohibited, however, from "referenc[ing] the defendant's attendance at trial or his [or her] ability to hear the testimony of preceding witnesses." Ibid.

The Supreme Court has since described its Daniels mandates as "a blanket prohibition" and a "bright-line rule" arising from its "supervisory role over the administration of criminal justice." State v. Feal, 194 N.J. 293, 298 (2008).

The Court in Feal and Daniels also noted, however, that not every improper comment or question by a prosecutor will warrant reversal and a new trial. Id. at 312; Daniels, supra, 182 N.J. at 96. A "court may reverse only if the prosecutor's comments were 'so egregious that [the comment] deprived the defendant of a fair trial.'" Daniels, supra, 182 N.J. at 96 (quoting State v. Frost, 158 N.J. 76, 83 (1999)). Thus, "prosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83. Moreover, where a defendant fails to object to the challenged comment or question, the defendant must establish plain error. See R. 2:10-2; Feal, supra, 194 N.J. at 312. The plain error must be "sufficient [to raise] a reasonable doubt as to whether the error led the jury to a result that it otherwise might not have reached." Feal, supra, 194 N.J. at 312 (alteration in original) (quoting Daniels, supra, 182 N.J. at 102).

Here, during cross-examination of defendant, the prosecutor made an explicit comment that defendant had been present at trial "watching the testimony in this case." The prosecutor then twice accused defendant of "tailor[ing]" his testimony based on what he knew the other witnesses had testified. While the State contends that such repeated questions were "nothing more than a fleeting mistake," we conclude that the comments and questions constitute misconduct as prohibited by the Supreme Court in Daniels.

At trial, defendant made no objection to the comments or questions during cross-examination. Accordingly, the question turns to whether the misconduct constitutes plain error. See R. 2:10-2. Defendant's defense was built on his testimony. He apparently hoped to convince the jury that he hit Holmes only once in the mouth and caused Holmes no significant bodily injury. Because other witnesses testified differently, defendant's credibility was questionable, but remained a central issue at trial. As a consequence, the prosecutor's comments and questions cannot be characterized as "fleeting references." See Feal, supra, 194 N.J. at 313 (holding that defendant did not establish plain error where the prosecutor made only "fleeting references" to defendant's presence in the courtroom). Here, the attack on defendant's credibility was central to the prosecution's case. If the jury believed defendant, the jury might not have convicted him of aggravated assault. Critically, the prosecutor's comments and questions were sufficient to raise a reasonable doubt as to whether the error led the jury to a result that it otherwise might not have reached. We emphasize that we are not suggesting that prosecutors cannot attack defendant's credibility if a defendant chooses to testify at trial. Instead, we are enforcing a clear rule laid down in Daniels: prosecutors may cross defendants on evidence in the record, but "at no time during cross-examination may the prosecutor reference the defendant's attendance at trial or his [or her] ability to hear the testimony of preceding witnesses." Daniels, supra, 182 N.J. at 99.

Accordingly, the prosecutor's improper challenge to defendant's credibility in violation of defendant's exercise of his constitutional right to be present at trial, warrants reversal of the conviction and a new trial.

We need not address defendant's other contentions about prosecutorial misconduct. We will, however, address the issue of the jury charge concerning significant bodily injury so as to provide guidance at the retrial.

B.

Defendant contends that the court improperly charged the jury, over his objection, by instructing the jury that the victim's injury to the mouth could constitute significant bodily injury. Defendant argues that there was no evidence to support such an instruction. Instead, defendant contends that the court erred by including such an instruction when the State never alleged such an injury.

Under N.J.S.A. 2C:12-1(b)(7), a person is guilty of aggravated assault, when he or she "[a]ttempts to . . . or causes significant bodily injury [to another] purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury." Thus, a jury must be instructed that to find a defendant guilty, it must find that he or she caused a significant bodily injury, which is defined as "creat[ing] a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses." Model Jury Charge (Criminal), "Aggravated Assault - Significant Bodily Injury N.J.S.A. 2C:12-1(b)(7)" (2012).

Here, there was a factual dispute as to the injuries caused by defendant. Specifically, this dispute concerned whether the victim's injury to the mouth could constitute a significant bodily injury. Accordingly, at the retrial, if the court finds that the State presented evidence that the victim's mouth injury could constitute a significant bodily injury, then the court should mold the charges to reflect that evidence. For example, the charge could instruct the jury that if the jury finds that defendant hit the victim only in the mouth, the jury must also find that the State has proven a loss of function or temporary loss of one of the five senses due to the injury to the victim's mouth.

Reversed and remanded.

1 We use a fictitious name for the victim to protect his privacy interests.