Opinion
DOCKET NO. A-3390-11T3
06-22-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY K. COLE, Defendant-Appellant.
Susan Brody, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Brody, of counsel and on the brief). Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney, Ms. Piderit, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Kennedy and O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-04-0566. Susan Brody, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Brody, of counsel and on the brief). Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney, Ms. Piderit, of counsel and on the brief). PER CURIAM
On August 12, 2011, a jury convicted defendant Anthony K. Cole of first degree attempted murder, N.J.S.A. 2C:11-3(a)(1); fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); third degree hindering apprehension, N.J.S.A. 2C:29-3(b); and fourth degree certain persons not to have weapons, N.J.S.A. 2C:39-7(a). At sentencing, the trial judge merged the possession of a weapon for an unlawful purpose charge into the attempted murder charge and sentenced defendant to a term of twenty years incarceration, subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:4 3-7.2(a). The judge imposed a concurrent five-year term for unlawful possession of a weapon, a consecutive five-year term for hindering apprehension, and a consecutive eighteen-month term for certain persons not to have weapons.
On appeal, defendant argues:
POINT I - THE ADMISSION, OVER OBJECTION, OF THE NON-INTERVIEW PORTION OF DEFENDANT'S VIDEOTAPED STATEMENT DEPRIVED HIM OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
POINT II - MISCONDUCT BY THE PROSECUTOR DURING BOTH HIS OPENING STATEMENT AND HIS SUMMATION RESULTED IN THE DENIAL OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
POINT III - THE CONVICTION FOR HINDERING APPREHENSION MUST BE VACATED BECAUSE THAT STATE FAILED TO PROVE AN ESSENTIAL ELEMENT OF THAT OFFENSE.
POINT IV - THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE; THE COURT MISAPPLIED AGGRAVATING FACTORS AND IMPROPERLY IMPOSED TWO CONSECUTIVE TERMS.
We have carefully reviewed the record and applicable law, and for the reasons that follow, we reverse the judgment of conviction and remand for a new trial.
I.
We glean the following facts from the trial record. At about 8:45 p.m. on September 7, 2009, David Donatelli, an employee of South Plainfield, was working in Spring Lake Park when he felt someone touch his shoulder from behind and a "whip on [his] throat." Realizing his neck had been cut, Donatelli ran to an area nearby where other employees were assembled and told them he had been attacked. He never saw or heard his attacker. He was transported to a hospital where he underwent emergency surgery. The physician who performed the surgery testified that, based upon his training and experience, the wound was caused by a sharp object and created a substantial risk of death.
A witness in the park at the time testified he saw a five foot, seven inch African-American male jogging at a faster than normal pace near the area of the attack. The following day, the police found gloves in that area which did not appear to have been exposed to the elements for a prolonged period of time. The blood on one glove matched Donatelli's DNA and skin cells recovered from inside of the gloves matched defendant's DNA.
Defendant was thereafter arrested and charged with the crimes related to the assault on Donatelli. Defendant also matched the physical description given by the witness.
Defendant was taken to the police station where he was apprised of his Miranda rights and thereafter agreed to waive those rights and answer the questions of the interrogating officers. A video/audio recording of defendant's interrogation was admitted into evidence at trial and played to the jury. In the recording, defendant maintained his innocence throughout the interrogation. Although he admitted being in the park at the time of the incident, he claimed he left after receiving a telephone call from his mother requesting that he return home to cut up boxes for recycling. He also denied the gloves found in the park belonged to him. At one point during the interrogation, the detective who was questioning defendant stepped out of the interrogation room, leaving defendant alone in the room. The detective told defendant he was not permitted to leave.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The video recording equipment continued to record defendant while he was alone in the interrogation room. Overruling defendant's objection, the trial court admitted into evidence this six-minute portion of the video recording. The video shows defendant mumbling to himself in an agitated state. He appears to be muttering words under his breath; at one point he can be heard whispering the word "motherfucker." The video also shows defendant mouthing words, making facial expressions and gesticulating as though engaged in a conversation with another person. This seemingly irrational behavior ceased immediately when the police officers returned, and defendant resumed the demeanor he exhibited at the commencement of the interrogation.
To refute defendant's claim that he received a call from his mother at the time of the assault, the State presented evidence of defendant's cellular telephone records to establish defendant did not receive such a call the night of the incident. Defendant's mother testified as a State's witness and explained she was not required to cut up boxes before putting them out for pick-up by the municipality. She also testified that she would not have called her son to help with chores at that time of the day.
In his summation, the prosecutor commented upon, without objection, defendant's conduct when he was alone in the interrogation room, and argued that the change in defendant's demeanor should be construed as evidence of his guilt. The prosecutor stated that
[a]ll of the statements that [defendant] made [during the time of his interview] are
to be analyzed and considered in the context of the level of anger and disturbance that existed when the police leave the room. You observed it, members of the jury. He's the pillar of the community, the Mayor of the metropolis throughout the whole interview.
And on that board as soon as the police officers leave, he knows that they got him and that's when his hand goes down his pants and he's mouthing "M F'er" to the world because he knew they got him. And you saw the switch and that's how you're to analyze the credibility of the statements made by the defendant on [that day]. Utilize those portions of his statement when law enforcement was not in the room.
Able to turn it on and off at his leisure, and unless guilty, there is no need to manipulate your presentation, your appearance to law enforcement. Manipulation is the process by which a guilty party attempts to get over.
[(Emphasis added).]
II.
We turn first to defendant's challenge to the introduction of this evidence and the State's invitation to the jury to rely on that evidence as indicative of defendant's guilt. Defendant argues the trial court committed reversible error in permitting the State to show the jury the video/audio recording of his behavior when alone in the interrogation room because this recording was devoid of probative value and unduly prejudicial. See N.J.R.E. 403(a). He contends the State compounded the magnitude of the prejudice caused by this error when the prosecutor urged the jury in summation to infer a consciousness of guilt from defendant's inscrutable and equivocal behavior. He adds there was no evidence upon which a jury could have rationally concluded that this conduct was indicative of a consciousness of guilt, or that he was reacting to a realization that the police knew he was culpable and that they had "got him."
By contrast, defendant argues his conduct was consistent with one who was innocent and frustrated over being restrained against his will. However, mindful the jury lacked the ability to discern the true reason underlying his conduct, defendant argues this portion of the video should have been excluded lest the jury engage in unfounded, prejudicial speculation. Defendant also contends that the prosecutor's arguments during summation that this behavior betrayed a consciousness of guilt were improper.
Prior to summation, the State argued that the disparity between defendant's conduct when the police were present and when he was alone was relevant on the issue of his credibility. The trial judge accepted that argument and found this portion of the video would enable the jury "to understand the full tenor and context of the [d]efendant's statement." The judge added that juries often view videotaped statements and are permitted to see "acts and facial expression[s]," "gaps in which a [d]efendant is nonresponsive," and "times when the [d]efendant may get angry during questioning."
The court invited defense counsel to draft a limiting instruction "so that the jury does not in any way use the conduct and expressions of the defendant in an inappropriate way to infer anything about them that might impact inappropriately negatively." Defense counsel failed to submit these instructions and the court did not craft its own instructions. This "evidence" was thus submitted to the jury without any legal guidance from the court respecting its proper use, if any, nor even respecting the State's initially claimed justification for its admission.
It is well-established that certain conduct after the commission of a crime may indicate a defendant's consciousness of guilt. State v. Phillips, 166 N.J. Super. 153, 159 (App. Div. 1979), certif. denied, 85 N.J. 93 (1980). To be admissible, the conduct must be "intrinsically indicative of a consciousness of guilt, such as unexplained flight, or an unusual exhibition of remorse for the victim of the crime, or the switching of clothes with a cell mate before a lineup." State v. Pindale, 249 N.J. Super. 266, 283 (App. Div. 1991) (quoting Phillips, supra, 166 N.J. Super. at 160. If the alleged conduct is not intrinsically self-inculpatory but is admitted to show culpability, there is the risk a jury will impermissibly "speculate, unaided by any evidential base, as to defendant's motive in so conducting himself." Phillips, supra, 166 N.J. Super. at 160.
The most common example of conduct that can give rise to an inference of consciousness of guilt is flight. We briefly turn to flight, therefore, to more fully explicate the type of evidence which may properly provide the factual predicate for such consideration by a jury. Flight from custody or the scene of a crime is generally admissible to draw an inference of guilt, State v. Mann, 132 N.J. 410, 418 (1993), if done with the purpose of avoiding apprehension, prosecution, or arrest. Id. at 418-19; State v. Ingram, 196 N.J. 23, 46 (2008); State v. Wilson, 57 N.J. 39, 49 (1970). "Mere departure" is not enough. State v. Long, 119 N.J. 439, 499 (1990).
"For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." Ingram, supra, 196 N.J. at 46. Accordingly, an adequate jury instruction on flight would require the jury to find not only a departure, but also "a motive for the departure, such as an attempt to avoid arrest or prosecution, that would turn the departure into flight." Mann, supra, 132 N.J. at 421.
Although evidence of flight is generally admissible, "[t]he potential for prejudice to the defendant and the marginal probative value of evidence of flight," requires the court to carefully consider the manner in which such evidence is presented to a jury. Mann, supra, 132 N.J. at 420. The probative value of flight evidence depends on:
the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.
[Ibid. (quoting United States v. Myers, 550 F.2d 1036, 1049 (1977)).]
Even in those instances where evidence of a defendant's consciousness of guilt is admitted for another purpose, such evidence must be accompanied by a limiting instruction advising the jury that the evidence is probative for only that other, limited purpose and may not be used to draw any inference of defendant's consciousness of guilt. See State v. Williams, 190 N.J. 114, 134 (2007).
The conclusion we draw from examining precedent on flight is that such evidence must unequivocally support a reasonable inference that the actor's conduct following the commission of a crime may be relied upon as evidence of the actor's guilt. Given the indirect value of such evidence, and its potential for profound prejudice to a defendant, we do not permit equivocal evidence to be utilized by a jury in this manner, and we carefully craft a charge to the jury explaining the proper uses and limits of such evidence.
This careful approach to the use of evidence as consciousness of guilt, and, therefore, guilt, is fully consistent with our Rules of Evidence, which preclude the use of relevant evidence if it is found to be unduly prejudicial. Guided by these principles, we turn to the case before us.
Under N.J.R.E. 403,
[R]elevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.
Here, the source of defendant's anxiety and agitation was, at best, equivocal and uncertain. While it is conceivable that his conduct could have been caused, as the State had argued, by the knowledge he was culpable and the realization the police had sufficient evidence to convict him, it is equally conceivable that his conduct was prompted by the belief he was being wrongly accused. Thus, because defendant's conduct was not "intrinsically indicative of a consciousness of guilt," there was a substantial risk the admission of this evidence would allow the jury to impermissibly speculate about the cause of his behavior without an appropriate evidential base or guidance by the court. Accordingly, whatever arguments may have been made by the State to justify the admission of this evidence initially, we are satisfied that the admission and use of this evidence under the circumstances of this case was error warranting reversal and remand for a new trial.
Because this case is being remanded for a new trial, we will not engage in speculating how this evidence might have been admissible, notwithstanding the formidable barrier of N.J.R.E. 403. --------
The remainder of defendant's arguments are without sufficient merit to require discussion in a written opinion, Rule 2:11-3(E)(2), or are obviated by our conclusions above.
Reversed and remanded for a new trial. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION