STATE OF NEW JERSEY v. TAQUAN D. FLOYD
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1646-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TAQUAN D. FLOYD,
Defendant-Appellant.
_____________________________________
Submitted January 29, 2018 – Decided April 12, 2018
Before Judges Messano and Accurso.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
13-08-1128.
Joseph E. Krakora, Public Defender, attorney
for appellant (Marcia Blum, Assistant Deputy
Public Defender, of counsel and on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Susan Berkow, Special
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
The juvenile complaints against defendant Taquan D. Floyd
were waived from the Family Part, see
N.J.S.A. 2A:4A-26.1, and the
grand jury charged defendant with an armed robbery (first robbery)
and related weapons offenses committed on April 23, 2013 (counts
one through three), and an armed robbery (second robbery) and
related offenses committed on April 25, 2013 (counts four through
eight). The judge denied defendant's motion to sever counts one
through three, and the jury convicted defendant on all counts.
After denying defendant's motion for acquittal notwithstanding the
verdict or alternatively for two new trials, the judge imposed an
aggregate sentence of twenty-five years' imprisonment with an
eighty-five percent period of parole ineligibility under the No
Early Release Act (NERA),
N.J.S.A. 2C:43-7.2.
Defendant raises the following points on appeal:
POINT I
THE CONVICTIONS MUST BE REVERSED BECAUSE THE
STATE FAILED TO PROVE IDENTIFICATION BEYOND A
REASONABLE DOUBT. (NOT RAISED BELOW)
POINT II
THE TRIAL COURT'S REFUSAL TO GRANT RELIEF FROM
THE PREJUDICIAL JOINDER OF THE TWO ROBBERIES
VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO
DUE PROCESS AND A FAIR TRIAL.
POINT III
THE TRIAL COURT'S FAILURE TO INSTRUCT THE
JURY, WITH RESPECT TO THE FIRST ROBBERY, THAT
IT COULD ONLY USE THE EVIDENCE OF THE SECOND
ROBBERY TO ESTABLISH THE IDENTITY OF THE FIRST
ROBBER, AND THAT IT COULD NOT USE THE EVIDENCE
OF EITHER ROBBERY TO INFER THAT DEFENDANT HAD
2 A-1646-15T4
A PROPENSITY TO COMMIT ROBBERY, VIOLATED
DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE
PROCESS AND A FAIR TRIAL. (NOT RAISED BELOW)
POINT IV
THE SENTENCE OF 25 YEARS, WITH A PAROLE TERM
OF MORE THAN 21 YEARS, WAS IMPOSED AFTER THE
COURT FAILED TO FIND RELEVANT MITIGATION AND
IS EXCESSIVE FOR THIS DEFENDANT WHO WAS A
JUVENILE AT THE TIME OF THE OFFENSE.
Having considered the arguments in light of the record and
applicable legal standards, we affirm in part, reverse in part and
remand for further proceedings consistent with this opinion.
I.
The State alleged the first robbery took place around 9:00
p.m., after the victim withdrew money from an ATM and was walking
back to his disabled car nearby. An African-American man armed
with a handgun confronted the victim, made a demand, and the victim
surrendered his wallet. The robber fled. When police responded,
the victim provided a description of his assailant, including that
he wore a striped shirt.
Two nights later, between approximately 11:00 and 11:30 p.m.,
the second victim withdrew money from the same ATM as his
girlfriend waited in a nearby-parked car. An African-American man
armed with a handgun demanded the victim's money, the victim
surrendered his wallet and the robber fled. Police responded and
the victim provided a description of his assailant. Police saw a
3 A-1646-15T4
group of people approximately one block away, one of whom fit the
general description. Upon approaching, one of the men, later
identified as defendant, fled, throwing a gun over some fencing
before he was apprehended.
Shortly thereafter, the victim and his girlfriend identified
defendant during a "show up." While being processed, defendant
made several incriminating statements. Police ultimately
recovered the gun and the second victim's wallet, which included
his identification and ATM card, near the scene. In defendant's
pocket was a clip of ammunition that fit the gun. Underneath his
hooded sweatshirt, defendant wore a striped shirt.
On April 29, police conducted a photographic identification
procedure with the first victim. He told police he was nearly
certain that a photograph of defendant was that of his assailant.
Defendant moved to suppress the out-of-court identifications.
Following a Wade1 hearing at which both victim[s] testified, the
judge suppressed the photographic identification, but not the
"show up" identification made by the second victim and his
girlfriend.2
1
United States v. Wade,
388 U.S. 218 (1967).
2
Neither ruling is challenged on appeal.
4 A-1646-15T4
The judge took no testimony during the hearing on defendant's
severance motion. The State argued that pursuant to N.J.R.E.
404(b), "[t]he evidence of robbery number two would be admissible
to prove the identity of the robber on robbery number one."
Recognizing the "two crimes have to be very similar," the
prosecutor explained
we've got . . . two robberies that . . .
occurred within two days at the same ATM, at
the same bank. Both were committed by young
black males. Both robbers possessed
semiautomatic handguns, both used the similar
phrase and both . . . wore a striped shirt.
[V]ictim number one . . . will identify
I believe the striped shirt worn by
[defendant] when he was arrested in robbery
number two.3
The judge properly framed the issue as whether evidence of
the second robbery would be admitted at a separate trial on the
first robbery "and vice versa . . . pursuant to [N.J.R.E.] 404(b)."
Applying the four prong test set out in State v. Cofield,
127 N.J.
328, 338 (1992), the judge reasoned the evidence would be relevant
on the material issue of identity regarding the first robbery. He
noted there were "two pieces of evidence discovered in the [second]
3
At the Wade hearing, victim one acknowledged that he identified
defendant's photograph because of the striped shirt defendant was
wearing. The fact that none of the other photographs included a
man wearing a striped shirt was the reason the judge suppressed
the out-of-court identification.
5 A-1646-15T4
robbery . . . that connect defendant to the [first] robbery,"
namely "a similar striped shirt . . . and the same type of handgun."
The judge also concluded the evidence met Cofield's second prong,
i.e., the second robbery was similar in kind and reasonably close
in time to the first robbery. Ibid.
Here both robberies occurred in the evening
at the Chase ATM machine on the corner of
Nielsen and Richmond Streets in New Brunswick.
In both robberies, the assailant approached
the victim from behind, pointed a gun at the
victim, and demanded [using] the same phrase,
"give me everything." The victims in both
cases describe the assailant as a young black
male wearing a striped shirt armed with a
semiautomatic handgun.
Defense counsel immediately pointed out that the second victim
never said his assailant wore a "striped shirt." The judge
concluded, however, that defendant was wearing a striped shirt two
days after the first robbery, and the first victim could identify
the shirt, which "is a similarity that's enough to let it in." He
denied the severance motion.
Although the court suppressed the first victim's out-of-court
identification of defendant, at trial the victim identified
defendant in court as the person who robbed him. No other witness
identified defendant as the perpetrator of the first robbery.
Both the victim of the second robbery and his girlfriend
identified defendant in court. Several police witnesses who chased
6 A-1646-15T4
and apprehended defendant and retrieved the gun and other evidence
also identified him in court.
II.
A.
In Point I, defendant argues we must reverse his convictions
because the State failed to prove identification beyond a
reasonable doubt. He notes that neither victim said his assailant
had facial tattoos, but, it was undisputed defendant had such
tattoos at the time of the robberies. The argument lacks
sufficient merit to warrant discussion. R. 2:11-3(e)(2). Both
victims identified defendant in court, and the eyewitness
identifications and circumstantial evidence linking defendant to
the second robbery was overwhelming.
B.
In Point II, defendant argues the judge erred in denying his
motion to sever counts one through three from the remaining counts.
He contends this error requires reversal of his convictions on all
counts. While we agree the judge erred in not granting the
severance motion, and that the error prejudiced the jury's
consideration of the evidence as to counts one through three,
given the overwhelming evidence of defendant's guilt on the
remaining charges, the error did not deny defendant a fair trial
on counts four through eight.
7 A-1646-15T4
Rule 3:7-6 allows the State to charge multiple offenses in a
single indictment "if the offenses . . . are of the same or similar
character or are based on the same act or transaction or on [two]
or more acts or transactions connected together." "Although
joinder is favored, economy and efficiency interests do not
override a defendant's right to a fair trial." State v. Sterling,
215 N.J. 65, 72-73 (2013) (citing State v. Chenique-Puey,
145 N.J.
334, 341 (1996); State v. Coruzzi,
189 N.J. Super. 273, 298 (App.
Div. 1983)). Rule 3:15-2(b) provides relief from prejudicial
joinder. Id. at 73.
"The test for assessing prejudice is 'whether, assuming the
charges were tried separately, evidence of the offenses sought to
be severed would be admissible under [N.J.R.E. 404(b)] in the
trial of the remaining charges.'" Ibid. (quoting Chenique-Puey,
145 N.J. at 341). "If the evidence would be admissible at both
trials, then the trial court may consolidate the charges because
'a defendant will not suffer any more prejudice in a joint trial
than he would in separate trials.'" Chenique-Puey,
145 N.J. at
341 (emphasis added) (quoting Coruzzi,
189 N.J. Super. at 299).
"[E]vidence of other crimes, wrongs, or acts is not admissible
to prove the disposition of a person in order to show that such
person acted in conformity therewith," but such evidence "may be
admitted for other purposes, such as proof of . . . identity . . .
8 A-1646-15T4
[if] relevant to a material issue in dispute." N.J.R.E. 404(b).
The Court has established a four-prong "rule of general application
in order to avoid the over-use of extrinsic evidence of other
crimes or wrongs" pursuant to N.J.R.E. 404(b). Cofield,
127 N.J.
at 338.
1. The evidence of the other crime must be
admissible as relevant to a material issue;
2. It must be similar in kind and reasonably
close in time to the offense charged;
3. The evidence of the other crime must be
clear and convincing; and
4. The probative value of the evidence must
not be outweighed by its apparent prejudice.
[Ibid.]
We review the court's severance decision and evidentiary ruling
on 404(b) evidence for an abuse of discretion. Sterling,
215 N.J.
at 73; State v. Rose,
206 N.J. 141, 157-58 (2011). However, we
conduct a plenary review "[i]f the trial court acts [on the
severance motion] under a misconception of the applicable law,"
State v. Brown,
118 N.J. 595, 604 (1990), or fails to analyze
properly the admissibility of the proffered 404(b) evidence. State
v. Lykes,
192 N.J. 519, 534 (2007).
Initially, in deciding defendant's severance motion, the
judge contemplated only one-half of the prejudice equation, i.e.,
he considered whether evidence of the second robbery would have
9 A-1646-15T4
been admitted at a separate trial of the first robbery, but he
never contemplated whether evidence of the first robbery would
have been admitted at a separate trial of the second robbery.
Based on the trial evidence briefly outlined above, we are hard-
pressed to see how the first victim's testimony would have provided
any evidence relevant to a material issue in dispute as to the
second robbery.
We also conclude that the judge erred in deciding evidence
of the second robbery was admissible under Cofield to prove
identity in the first robbery. In general, our courts have found
other-crime evidence probative of identity in two types of cases:
1) when specific evidence connects multiple offenses; or 2) when
the crimes are "signature crimes." See generally Sterling,
215 N.J. at 92-93 (discussing the different types of identity evidence
under 404(b)). Our decision in State v. Pierro,
355 N.J. Super.
109 (App. Div. 2002), is a good example of the first species.
There, we affirmed the joinder of two home burglaries committed
four days apart at different houses because police found specific
items stolen during the first burglary when they arrested defendant
for the second burglary. Id. at 117. The Court has also said
that "[o]ther-crimes evidence may . . . be admitted on the issue
of identity when a particular weapon or disguise used in one crime
10 A-1646-15T4
connects a defendant to another offense." Sterling, supra,
215 N.J. at 93.
In deciding evidence of the second robbery was admissible
under 404(b) on the issue of the identity of the first robber, the
judge premised his consideration of the Cofield factors upon two
items — the striped shirt and the handgun. Although the prosecutor
represented to the judge that the victim of the first robbery
would identify the shirt worn by his assailant, he failed to do
so at trial. When the prosecutor showed the victim the striped
shirt defendant wore when arrested, the victim said it looked
similar, but recalled it was of different colors and had a
distinctive insignia. When the prosecutor showed him the gun
recovered after the second robbery, the victim said it was very
similar but he could not say with certainty it was the same gun.
He recalled the gun used by his assailant was a different color.4
In short, the evidence from the second robbery was not probative
of the issue of identification because it was not "specific
evidence" that clearly and convincingly linked both robberies.
In addition, the State has never asserted, nor could it, that
the two robberies were "signature crimes." Sterling,
215 N.J. at
4
In fact, during the charge conference, the judge suggested but
ultimately did not provide a curative instruction so the jury
understood that the gun recovered after the second robbery was not
the gun described by the victim in the first robbery.
11 A-1646-15T4
94-95 (noting the "high burden that would be required when other-
crimes evidence is admitted to prove identity through the use of
a signature-crime analysis"). In discussing signature crimes, the
court explained,
the prior criminal activity with which
defendant is identified must be so nearly
identical in method as to earmark the crime
as defendant's handiwork. The conduct in
question must be unusual and distinctive so
as to be like a signature, and there must be
proof of sufficient facts in both crimes to
establish an unusual pattern.
[State v. Gillispie,
208 N.J. 59, 87 (2011)
(quoting State v. Fortin,
162 N.J. 517, 532
(2000)).]
Especially in the context of joinder of separate crimes, the
Court recognized nearly thirty years ago
[t]here is indeed always a danger when several
crimes are tried together, that the jury may
use the evidence cumulatively; that is, that,
although so much as would be admissible upon
any one of the charges might not have
persuaded them of the accused's guilt, the sum
of it will convince them as to all.
[State v. Pitts,
116 N.J. 580, 601 (1989)
(quoting United States v. Lotsch,
102 F.2d 35,
36 (2d Cir. 1939)).]
Here, the only identification of the perpetrator of the first
robbery was the victim's in-court identification made years after
the events. That evidence would not have been admissible at a
separate trial on the second robbery. More importantly, in
12 A-1646-15T4
deciding whether defendant was the person who committed the first
robbery, jurors received substantial prejudicial testimony that
defendant robbed a different victim on a different night at
gunpoint, even though there was no clear and convincing specific
evidence linking the two crimes. It was error for the judge to
deny defendant's motion to sever the counts involving the first
robbery from the remaining counts of the indictment.5
We must now evaluate the consequences of that error. The
Court has repeatedly recognized the "inherent prejudice in the
admission of other-crimes evidence." State v. Barden,
195 N.J.
375, 390 (2008). However, where the trial court errs by improperly
joining offenses, the reviewing court must assess whether the
error "led to an unjust result. The possibility must be real, one
sufficient to raise a reasonable doubt as to whether [it] led the
jury to a verdict it otherwise might not have reached.'" Sterling,
215 N.J. at 101 (citation omitted). This requires "an independent
analysis of the quality of the evidence of defendant's guilt on a
conviction-by-conviction basis." Id. at 102.
5
For the first time on appeal, the State argues the evidence was
admissible under 404(b) as proof of defendant's "common scheme or
plan" to rob users of the ATM. That argument is unavailing,
because this exception requires crimes that are part of an
"integrated plan, of which the other crimes . . . are components."
State v. Stevens,
115 N.J. 289, 305-06 (1989).
13 A-1646-15T4
Here, the evidence of defendant's guilt as to the second
robbery is overwhelming. Police found defendant a block from the
robbery minutes after it took place, standing several feet away
from where officers later found the victim's wallet and
credentials. The State also introduced another officer's
dashboard recording confirming testimony that defendant discarded
a gun as he ran. The victim positively identified the gun as the
robbery weapon at trial. The victim and his girlfriend both
positively identified defendant at the out-of-court show-up
identification and again in court. Finally, the State introduced
admissions defendant made at police headquarters describing the
gun, how much he had paid for it, and that he would have shot the
victim if the gun had been loaded.
In Sterling,
215 N.J. at 104, the Court affirmed the
defendant's conviction regarding one of the assaults, despite
improper joinder of other assaults, because of "the strong,
independent proof of [the] defendant's guilt." See also Gillispie,
208 N.J. at 93 (finding no harmful error from wrongful admission
of 404(b) evidence due to the "overwhelming proof submitted by the
State throughout each trial of [the] defendants' guilt,
independent of the other-crimes evidence").
In this case, the proof of defendant's guilt of the second
robbery was overwhelming. The improper admission of evidence of
14 A-1646-15T4
the first robbery did not lead the jury to an unjust result as to
counts four through eight. Therefore, we reverse defendant's
convictions on counts one, two and three of the indictment, but
affirm his convictions on the remaining counts.
C.
Without objection, the judge instructed the jury that "the
events of April 23[], 2013 cannot be used as evidence regarding
the events of April 25[], 2013, and the events of April 25[], 2013
cannot be evidence regarding the events of April 23[], 2013." The
judge reiterated later, "I caution and remind you each date stands
and falls on its own merits. April 23[] and April 25[] are
separate and distinct counts." Defendant did not ask for, and the
judge did not provide, the instructions contained in Model Jury
Charge (Criminal), "Proof of Other Crimes, Wrongs, or Acts"
(September 12, 2016).
Defendant contends "the court was obligated to charge, with
respect to the first robbery, that the other-crime evidence could
only be used as evidence of the identity of the perpetrator, and
could not be used as evidence that [defendant] had a disposition
to commit robbery." Defendant argues the error in the charge
requires reversal on all counts.
"When dealing with other-crimes evidence, a court must
precisely instruct the jury that the proper use of such evidence
15 A-1646-15T4
is to prove a relevant issue in dispute and not to impugn the
character of the defendant." State v. Blakney,
189 N.J. 88, 92
(2006). The court must "narrowly focus the jury's attention on
the specific use of other-crime evidence," rather than "reference
only to the generalities of the Rule." Cofield,
127 N.J. at 341.
Obviously, the judge's instructions were inadequate. The judge
twice told the jury it must consider the evidence of each crime
separately — that the evidence of the first robbery was not to be
considered at all when weighing the evidence of the second robbery,
and vice versa. Those instructions were, of course, contrary to
the raison d'etre for admitting 404(b) evidence in the first place,
and more restrictive than the model charge, which explains the
permissible use of other-crimes evidence. He did not tell the
jury of the prohibited uses of other-crimes evidence.
The Court has said that
[i]n 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)
(second alteration in original) (emphasis
added) (quoting State v. Jordan,
147 N.J. 409,
422 (1997)).]
16 A-1646-15T4
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,
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,
187 N.J.
at 289.
As already noted, the evidence of defendant's guilt of the
second robbery was overwhelming. The Court has recognized that
even in the context of errors in the jury charge on other-crimes
evidence, the overall strength of the State's case must be
considered in deciding whether there was plain error in the charge.
See, e.g., State v. Marrero,
148 N.J. 469, 497 (1997); State v.
G.S.,
145 N.J. 460, 475 (1996); Stevens,
115 N.J. at 309. We
affirm defendant's convictions in counts four through eight.
We reverse defendant's conviction on counts one through
three, vacate the sentences imposed on those counts and, should
the State decide to retry defendant on counts one through three,
remand for a new trial on those counts. We affirm the judgment
of conviction as to counts four through eight, and remand the
matter to the Law Division for further proceedings should the
17 A-1646-15T4
State choose not to retry defendant on counts one through three.
See State v. Young,
379 N.J. Super. 498, 508 (App. Div. 2005)
(citing State v. Espino,
264 N.J. Super. 62, 70-71 (App. Div.
1993) ("[W]hen the conviction on one or more counts is vacated on
appeal, the sentencing court should be able to review what remains
of its original sentence plan and to reconstruct the sentence to
ensure that the punishment fits both the crime and the criminal.").
As a result, we need not consider the sentencing argument defendant
raises in Point IV.
Affirmed in part; reversed in part; remanded. We do not
retain jurisdiction.
18 A-1646-15T4
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