STATE OF NEW JERSEY v. ALIREZA FASSIHI

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0704-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ALIREZA FASSIHI, a/k/a
RAZA, ALIREZA S. FASSIHI,
ALIRZEZA FASSIHI, ALIREZA
SHIRAZI FASSIHI, ALI FASSIHI,
and ALI REZA,

     Defendant-Appellant.
_________________________________

              Submitted January 10, 2018 – Decided March 22, 2018

              Before Judges Koblitz and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              15-04-1209.

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

              Mary Eva Colalillo, Camden County Prosecutor,
              attorney for respondent (Nancy P. Scharff,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
     Defendant Alireza Fassihi appeals from his conviction after

a trial by jury on two counts of possession of a weapon with the

purpose to use it unlawfully against the person of another,


N.J.S.A. 2C:39-4(d) and 
N.J.S.A. 2C:39-5(d).   On appeal, defendant

argues he was denied his right to a fair trial based upon the

prosecutor's improper cross-examination relating to his silence

at the time of his arrest.   Defendant also argues that the judge

failed to instruct the jury on self-defense.   We reverse.

     We derive the following facts from the trial record. On

January 23, 2015, defendant drove Stephanie Monzo, a friend, to

the local Walmart.     Monzo entered the store while defendant

remained in the car.     As Monzo shopped, three Walmart asset

protection associates approached her based upon a suspicion of

shoplifting.   One of the associates requested that she "come into

their office," but Monzo did not comply.       One associate then

advised Monzo to return the merchandise to the shelf. She refused,

and instead threw the merchandise onto the ground while threatening

to call police.   Monzo then called defendant but was only able to

say "these guys are gripping me up," prior to ending the call.

     As an associate attempted to contain Monzo and diffuse the

situation, defendant entered the store and began to intervene,

despite having been advised to back away.      When defendant took

hold of Monzo in an attempt to leave the store, another associate

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interceded. A physical altercation ensued. Defendant then reached

into his pocket and took out a knife.         Due to store protocol, once

a weapon is exposed, an associate must disengage in order to

neutralize a hostile environment.            Defendant and Monzo "pretty

quickly" exited the store and departed in defendant's vehicle.

     After defendant and Monzo left the store, a customer of

Walmart, who observed the altercation, called the police and gave

a description of defendant's vehicle.          Defendant was detained by

the police a short distance away in the parking lot of a gas

station.     Subsequently, defendant was arrested.

     A Camden County indictment charged defendant with third-

degree aggravated assault, 
N.J.S.A. 2C:12-1(b)(2)(count one); two

third-degree possession of a weapon for unlawful purpose, 
N.J.S.A.

2C:39-4(d)    (counts   two   and   four);   and   fourth-degree   unlawful

possession of a weapon for unlawful purpose, 
N.J.S.A. 2C:39-5(d).

     The trial began on June 21, 2016.          Prior to trial, the State

moved to dismiss counts one and four of the indictment.               Those

counts were dismissed and counts two and three were re-numbered

as counts one and two, respectfully.1




1
   We refer to the counts in their original form as designated on
the judgment of conviction.


                                      3                             A-0704-16T1
      During the trial, defendant testified regarding the events

that occurred which resulted in his arrest and indictment. 2                      In

pertinent part, defendant testified that when he entered the store,

he saw Monzo being restrained by "two guys in plain clothes" and

thought      "they   were   trying   to       rob   her   and   me."    Defendant

acknowledged that he exhibited the knife in his possession to get

the person with whom he was physically involved "off of" him.

Defendant further testified that after he and Monzo left the store,

they walked to his car and that, upon starting his car, he observed

a woman "trying to take my license plate down," which caused him

to be "confused."         According to defendant, as they were driving

from the scene, Monzo admitted that she was shoplifting. Defendant

also testified that upon Monzo's admission, he pulled his vehicle

into the gas station where he was later arrested at gunpoint.

Defendant stated that, prior to the arrest, he was experiencing

"so   many    different     emotions,"        including    anger   at   Monzo   for

stealing.

      During the cross-examination of defendant, the prosecutor

engaged in the following line of questioning:

                   Q.   So you never called the police
              regarding that you or she was trying to be
              robbed [sic] by these two individuals,
              correct?

2
  We recite the substance of defendant's direct testimony to place
the cross examination in context.

                                          4                                A-0704-16T1
A.   Right, that's correct.

     Q.    You didn’t shout to the other
customers to call the police because you
thought you were being robbed, all right. You
left the store, you never called the police
and said "we were just almost robbed" or
anything like that?

A.   No.

     Q. In fact, you did see a police officer
later that night and you didn’t report that
to him, right?

A.   No, I never saw a police officer later
that night. Where did you get that from?

     Q. You were stopped by a police officer
later that night in the parking lot, correct?

A. Yeah, it was after the fact,         after
everything had already happened.

     Q. After the fact, but you didn’t report
to him that a crime had been committed or that
you thought that a crime had been committed —

A. Yeah, it was after, [Monzo] had told me
in the car —

      Q. — or there's two people back there —

A. — that she was shoplifting so then I was
aware of what happened.

     Q. You didn't report to him that a crime
had been committed back at the Walmart?

A.   I'm sorry?

     Q. You didn’t report to them that a crime
had almost been committed back at Walmart,
correct? You never told them we almost were
robbed by two individuals back at Walmart?

                      5                          A-0704-16T1
          A.   No.

    There was no timely objection to the line of questioning by

defense counsel.     However, during the charge conference, defense

counsel objected to the questions on the basis of defendant's

"Fifth Amendment privilege."      In response to the objection, the

judge ruled that the privilege was not implicated.

          I mean, as I see it, it doesn't run to any
          argument that his Fifth Amendment privilege
          not to testify was implicated. He testified
          that he effectively was being robbed or
          thought he was being robbed. The inquiry is
          well, if you thought you were being robbed,
          why didn't you call the police, not why didn't
          you tell the police about this or make a
          statement to the police after the fact. None
          of that was — you know, nothing about this
          charge was raised.

               And I think frankly it's fair cross-
          examination.

    The   judge    then   addressed   whether   a   curative   charge   was

necessary:

          Well, I don't see it's necessary for me to
          give any curative charge. Frankly[] if I give
          a curative charge, I think it would highlight
          it and perhaps[,] you know, be to Mr.
          Fassihi's detriment if I started talking about
          the fact that he was arrested or in custody —
          because clearly he was in custody.         The
          officer testified he had the gun and he was
          being arrested. The cross-examination really
          didn't dwell on after you were arrested
          further statements. When the police was there
          probably was an appropriate question — but I
          don't think it raises to the level where I
          have to give a curative instruction because I

                                      6                            A-0704-16T1
          think it just highlights against points that
          the prosecutor was trying to make in the
          failure to make a call.

     The jury found defendant guilty on both counts.   On July 29,

2016, defendant was sentenced to a four-year term in state prison

on count two with a concurrent eighteen-month term of imprisonment

on count three.   The appropriate fines and penalties were imposed.

Defendant appealed.

     On appeal, defendant argues:

          POINT I

          THE PROSECUTION'S HIGHLY IMPROPER CROSS-
          EXAMINATION OF DEFENDANT ABOUT HIS POST-ARREST
          SILINCE [SIC], OBJECTED TO BELOW, REQUIRES
          REVERSAL OF DEFENDANT'S CONVICTIONS.      U.S.
          CONST. AMEND. V, XIV []; N.J. CONST. ART. I,
          [] ¶ 1.

          POINT II

          THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY
          ON THE LAW OF SELF-DEFENSE, AS REQUESTED BELOW
          BY DEFENSE COUNSEL, REQUIRES REVERSAL OF
          DEFENDANT'S CONVICTIONS. U.S. CONST. AMEND.
          XIV []; N.J. CONST. ART. I, [] ¶ 1, 10.

     The scope of our review is de novo as it involves purely

questions of law and the application of law to the facts of the

case.   State v. Cleveland, 
371 N.J. Super. 286, 295 (App. Div.

2004); see also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,


140 N.J. 366, 378 (1995)("A trial court's interpretation of the




                                 7                          A-0704-16T1
law and the legal consequences that flow from established facts

are not entitled to any special deference.").

     Generally,    the   scope    of   cross-examination   is   a    matter

addressed to the trial judge's discretion.          State v. Murray, 
240 N.J. Super. 378, 394 (App. Div. 1990); see also State v. Silva,


131 N.J. 438, 444 (1993).    "Although counsel is customarily given

considerable latitude in the cross-examination of witnesses, that

latitude is subject to limits reasonably imposed by the trial

court in the exercise of its sound discretion."        State v. Spencer,


319 N.J. Super. 284, 302 (App. Div. 1999) (citing State v. Rose,


112 N.J. 454, 499 (1988)).       "It is well-established that the scope

of cross-examination is a matter for the control of the trial

court and an appellate court will not interfere with such control

unless clear error and prejudice are shown."            Murray, 
240 N.J.

Super. at 394 (citations omitted).

     A defendant has a constitutional right to remain silent. U.S.

Const. amend. V; State v. Brown, 
190 N.J. 144, 153 (2007).           On the

other hand, federal courts generally permit the use of pre-arrest

silence to impeach a defendant.            Jenkins v. Anderson, 
447 U.S. 231, 238-39 (1980).      However, the Jenkins Court invited state

courts to formulate their own "evidentiary rules defining the

situations in which silence is viewed as more probative than

prejudicial."     Id. at 240.      Generally speaking, "our state-law

                                       8                            A-0704-16T1
privilege       against    self-incrimination          is,    if    anything,     more

protective than the [F]ifth [A]mendment."                    State v. Strong, 
110 N.J. 583, 595 (1988) (citations omitted).

          New Jersey does not have a state constitutional equivalent

to the Fifth Amendment.               Rather, our "privilege against self-

incrimination . . . is deeply rooted in this State's common law

and codified in both statute and an evidence rule."                         State v.

Muhammad, 
182 N.J. 551, 567 (2005).                  
N.J.S.A. 2A:84A-19 and its

correlated      evidence      rule,    N.J.R.E.      503,    provide   that     "every

natural person has a right to refuse to disclose in an action or

to    a    police   officer    or   other       official    any   matter   that   will

incriminate him or expose him to a penalty or a forfeiture of his

estate . . . ."

          Initially, the Court described this privilege expansively.

              [I]t should certainly follow that a defendant
              is under no obligation to volunteer to the
              authorities at the first opportunity the
              exculpatory story he later tells at his trial
              and cannot be penalized directly or indirectly
              if he does not. While the situation in Ripa[3]
              was that of the State offering evidence of a
              refusal to answer as substantive proof of
              guilty [sic] on its own case, we think the
              result should be no different when it is
              presented by way of attempted impeachment of
              a defendant's exculpatory testimony through
              cross-examination, and we so hold as a matter
              of state law.    The privilege of silence is

3
     State v. Ripa, 
45 N.J. 199 (1965).


                                            9                                 A-0704-16T1
           substantially eroded and reliance upon it
           unjustifiably penalized in either situation.

           [State v.   Deatore,    
70 N.J.   100,   115-16
           (1976).]

      The question in Deatore was whether,

           if a defendant . . . testifies exculpatorily
           at trial and had not told that story, but
           remained silent, at or near the time of his
           arrest, his silence and failure to volunteer
           then, whether or not he was questioned, may
           properly be brought to the attention of the
           jury on cross-examination in order to permit
           the inference that the exculpatory testimony
           is therefore untrue.

           [Id. at 108.]

      The Court rejected the argument and determined "that such

cross-examination of a defendant is improper."        Id. at 109.   The

Court also rejected the federal distinction between silence before

and silence after Miranda4 warnings as meaningless because "[t]he

right to remain silent existed long before Miranda; that decision,

for present purposes, required only that a defendant be reminded

of it so that he could make an appropriate choice before any

interrogation."   Id. at 117 n.10.

      In Muhammad, 
182 N.J. at 558, the Court reaffirmed "that a

suspect's silence while in custody, under interrogation, or 'at

or near' the time of his arrest cannot be used against him in a



4
    Miranda v. Arizona, 
384 U.S. 436 (1966).

                                  10                           A-0704-16T1
criminal trial."     In that case, Muhammed did not testify at trial,

but   counsel     offered     an    exculpatory    version   of    the    events

surrounding the crime in question.             Id. at 562.    With respect to

the prosecutor's arguments to the jury, the Court drew a sharp

distinction between pointing out the significant inconsistency

between     the   officers'        testimony   respecting    the   defendant's

statements at police headquarters and asking "the jury to reject

the consent defense because defendant remained silent when he had

the opportunity to present it to the police." Id. at 566 (footnote

omitted).

      The Muhammad Court noted that federal courts permit the use

of silence prior to Miranda warnings, but reasoned that under New

Jersey law, "[b]arring the use of silence 'at or near' the time

of arrest avoids the often murky inquiry into pinpointing the

precise moment a suspect is placed in custody or under arrest."

Id. at 568-69.      The Court found that the facts before it "f[ell]

squarely within the ambit of Deatore, and [State v. Lyle, 
73 N.J.
 403 (1977)]."     Id. at 572.

            Those references in which the prosecutor drew
            inferences of guilt from defendant's silence
            were patent violations of Deatore, and Lyle.
            Defendant was not obliged to give the police
            the exculpatory story his attorney presented
            at trial, and the State was not permitted to
            use his silence to convict him. Because we
            conclude that the prosecutor's violation of
            defendant's state law privilege against self-

                                        11                               A-0704-16T1
          incrimination  was   "clearly   capable   of
          producing   an  unjust   result,"   we   are
          constrained    to    reverse     defendant's
          conviction.

          [Id. at 573-74 (footnote omitted) (citations
          omitted).]

     The State may cross-examine a defendant on the differences

between freely given post-Miranda statements and the testimony

given at trial.   State v. Kucinski, 
227 N.J. 603, 624 (2017); see

also State v. Elkwisni, 
190 N.J. 169, 178-79 (2007); State v.

Tucker, 
190 N.J. 183, 189-90 (2007).      In Elkwisni, the Court held

that it was improper, however, for the State to comment on a

defendant's silence at the time they are placed under arrest.

Elkwisni, 
190 N.J. at 181.    Notwithstanding, the Court found that

the brief questioning was "harmless and could not have affected

the outcome of the case."    Ibid.   The Court held that in the future

"the trial court should, at a minimum, instruct the jury that such

evidence should be limited to assessing defendant's credibility

and that it may not be used in determining whether defendant is

guilty or not guilty."   Id. at 182.

     Concerning the line of questioning, we are satisfied that the

prosecutor's questions inquiring why defendant failed to seek the

assistance of others or to call the police while in the Walmart

did not implicate his Fifth Amendment privilege.     To the contrary,

the prosecutor's questions relating to why defendant did not report

                                 12                            A-0704-16T1
the   perceived   "robbery"   to   the   police   who    arrested    him     did

implicate the privilege and clearly transgressed Elkwisni.

      Similar to the circumstances the Court faced in Elkwisni, we

too could find the brief improper line of inquiry and defendant's

responses constituted harmless error.       We do not reach that result

as we conclude that the failure to provide the "minimum" limiting

charge addressed in Elkwisni was also erroneous.             The jury was not

instructed that defendant's responses to the prosecutor's cross-

examination questioning his pre-arrest silence should be limited

to assessing defendant's credibility and should not be used to

determine whether defendant was guilty or not guilty.                  In the

absence of that required instruction, our confidence is undermined

that the jury "justly reached" the verdict.          See State v. Winter,


96 N.J. 640, 647 (1984).

      Because we hold that the failure to provide the limiting

instruction warrants reversal of defendant's convictions, we do

not   address   defendant's   argument    relating      to   the   failure    to

instruct the jury on a separate self-defense charge.

      Reversed and remanded.




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