Opinion
DOCKET NO. A-4982-13T3
04-13-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TYQUAN K. JAMES, a/k/a DARNELL JONES, TYOUAN K. JAMES and TYQUAN JAMES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 12-04-0301. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Tyquan K. James appeals from his conviction of third-degree distribution of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-5(a)(1), (b)(3), following a 2014 jury trial. The trial court sentenced defendant to a six-year custodial extended term, subject to a three-year period of parole ineligibility.
Defendant does not appeal his sentence. --------
On appeal, defendant raises two grounds for reversal, neither of which were raised as issues in the trial court. Although we agree that the trial court erred on those two aspects of the case, we are unpersuaded that those errors or omissions require the reversal of the judgment of conviction or a new trial.
The State's proofs at the three-day trial showed that on December 16, 2011, defendant had a telephone conversation with the cocaine buyer, a long-time drug user. The two of them made arrangements to meet at a designated spot. The customer drove her car to the spot, stopped alongside defendant's car and handed him cash in exchange for cocaine. At that point defendant saw police coming and, according to the customer, exclaimed, "The narcs, go, go, go."
The customer was found in possession of the cocaine and defendant was found in possession of money. Defendant stipulated to the admission of the laboratory report and certificate confirming the seized CDS was cocaine. However, defendant denied that he sold the customer cocaine. Instead, he claimed that she gave him cash to pay a debt owed to him by her boyfriend for a prior sale of marijuana.
In addition to his own testimony, defendant presented testimony from his mother, who was in his vehicle at the time of the alleged drug sale. According to her account, defendant stopped and had parked his car at that location because she wanted to smoke a cigarette and the ashtray needed to be emptied. The mother denied observing any drug transaction or seeing her son walk over to the other vehicle. The prosecutor endeavored on cross-examination to impeach her credibility, principally drawing out pursuant to N.J.R.E. 609 her prior criminal conviction for possession of CDS with intent to distribute it.
Following the presentation of the proofs in this short trial, the judge and the parties had a brief charge conference. The only disputed aspect of the charge was the prosecutor's request to instruct the jury under Rule 404(b) that evidence of defendant's prior relationship with the customer could be used as proof of identification. The judge declined the State's request because there was no disputed issue of identification. The following day, the jury issued a guilty verdict on the sale count of the indictment.
Defendant's appeal is confined to the following points:
POINT IWe shall discuss these arguments in turn. Because neither issue was raised below, we are governed by a "plain error" scope of review. R. 2:10-2. Under that standard, this court "must disregard any error unless it is 'clearly capable of producing an unjust result.'" State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (quoting State v. Daniels, 182 N.J. 80, 95 (2004)). The "[r]eversal of [a] defendant's conviction is only required if there was error 'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" Ibid. (third alteration in original) (quoting Daniels, supra, 182 N.J. at 95). See also State v. Macon, 57 N.J. 325, 336 (1971)).
THE ASSISTANT PROSECUTOR IMPROPERLY USED A DEFENSE WITNESS'S VIOLATION OF PROBATION TO IMPEACH HER TESTIMONY, AND THEN, IN SUMMATION, HE CITED TO THAT SAME VIOLATION OF PROBATION WHEN URGING THE JURY TO REJECT HER TESTIMONY AS UNTRUTHFUL. (Not Raised Below).
POINT II
THE JURY INSTRUCTIONS ON THE STIPULATION THAT THE SEIZED ITEM WAS COCAINE WERE INCOMPLETE, TWICE FAILING TO TELL THE JURY THE CRITICAL LANGUAGE FROM THE MODEL INSTRUCTION THAT JURORS WERE FREE TO ACCEPT OR REJECT THE STIPULATION AS THEY SAW FIT. (Not Raised Below).
We first address the impeachment of defendant's mother. During his cross-examination of her, the prosecutor brought out her prior conviction of a drug offense, which was permissible under N.J.R.E. 609 and which defendant does not complain of on the present appeal. Defendant instead complains about the fact that the prosecutor went a step further and attempted to have the witness admit that she also was found to have violated her probation for that drug offense. She declined, however, to concede such a violation even after being shown a copy of her rap sheet. During the subsequent exchange among the witness, counsel, and the trial judge, it became apparent that the mother did not consider her post-conviction conduct to be a violation of probation but rather a discharge from the Drug Court.
Defendant argues that it was improper for the prosecutor to impeach the mother with her prior violation of probation. He relies upon our opinion in State v. Jenkins, 299 N.J. Super. 61, 73 (App. Div. 1997), which distinguished a testifying witness's prior criminal conviction from a prior violation of probation, the latter being only "a step in the corrections process that involves a potential loss of liberty[.]"
We disagree with defendant's claim that Jenkins requires automatic reversal of his conviction because of the improvident reference to the mother's violation of probation. In fact, in the Jenkins case itself, we did not reverse the defendant's conviction on this basis, but instead ordered a new trial for other unrelated reasons arising from repetitive personal opinions the prosecutor had expressed in closing argument. Id. at 70-71. Instead, we simply instructed that if the defendant in Jenkins testified in a retrial, the court "may, in its discretion, admit evidence of any sentence imposed upon [the] defendant for his probation violation without reference to the violation itself." Id. at 75.
We must bear in mind that trial judges are accorded substantial deference in their handling of evidential matters during the course of a trial. State v. Nelson, 173 N.J. 417, 470 (2002). Here, the judge was not apprised by defense counsel that he considered the mother's probation violation inadmissible, and neither party cited to Jenkins. The question thus becomes whether this previously unidentified error was so significant and prejudicial as to require a new trial. We think not.
The mother's probation violation that was erroneously disclosed to the jury was merely cumulative of other substantial grounds for the jurors to disbelieve her testimony. For one thing, the jurors were made aware that she herself had a prior drug conviction. In this case involving a drug offense charged against her son, that prior conviction alone provided a strong legitimate basis to consider her narrative with suspicion. In addition, the jurors surely would have reason to consider the mother a biased witness since her son was on trial with his liberty at stake. State v. Bass, ___ N.J. ___, ___ (2016) (slip op. at 19) (reiterating the significance of a witness's bias in assessing his or her credibility in a criminal trial); State v. Holmes, 290 N.J. Super. 302, 313 (App. Div. 1996). We are unpersuaded that the additional details concerning the mother's violation of probation in the aftermath of her drug conviction made her significantly less prone to be believed. Although we are cognizant that the prosecutor mentioned the probation violation in summation, to some extent the mother's placing of her violation into context served to counteract the prosecutor's use of this proof. In sum, we are unpersuaded that this limited aspect of the trial as a whole sufficed to create a manifest injustice compelling a new trial. R. 2:10-2.
Defendant's second point is that in issuing the discrete portion of the charge concerning the jurors' use of stipulations, the judge omitted the language of the model charge indicating that, "As with all evidence, undisputed facts can be accepted or rejected by the jury in reaching a verdict." Model Jury Charges (Criminal), "Stipulations" (2005). This cautionary language is consistent with case law holding that criminal jurors are not bound by stipulations and instead are free to accept or reject a particular stipulated fact. State v. Adim, 410 N.J. Super. 410, 428-29 (App. Div. 2009); State v. Wesner, 373 N.J. Super. 489, 491 (App. Div. 2004), certif. denied, 183 N.J. 214 (2005).
Again, this oversight was not called to the trial judge's attention. As with the probation violation issue, the error does not require automatic reversal and a new trial. In fact, in Wesner, we treated a similar omission as inconsequential because the jury was otherwise instructed that it was required to find every element of every charge proven beyond a reasonable doubt. Id. at 494-95. The same is true here. The judge specifically instructed the jury that defendant was presumed innocent, the State carries the ultimate burden of proof and that this burden never shifts to defendant, and that the State must prove every element of each offense beyond a reasonable doubt. Additionally, the judge emphasized the jury's fact-finding duty, noting that they were the "sole and . . . exclusive judges" of the evidence, the credibility of witnesses, and the weight to be given to the testimonial evidence presented.
The inadvertent charge omission concerning the use of stipulations, while regrettable, does not compel defendant's conviction to be set aside. Indeed, there was overwhelming direct and circumstantial evidence that defendant had engaged in a narcotics sale with the customer. The errors cited by defendant, whether considered individually or in combination, simply do not appear to be of a nature to have led the jury "to a result it otherwise might not have reached." State v. Oliver, 316 N.J. Super. 592, 596 (App. Div. 1998) (quoting Macon, supra, 57 N.J. at 336), aff'd, 162 N.J. 580 (2000).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION