Opinion
DOCKET NO. A-5758-10T3
03-11-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DONALD R. JONES, a/k/a DONALD RAY JONES, DONALD JONES, TONY BARLOW, OMAR JONES, OMAR SCHARIEF, OMAR SHARIF, OMAR YASIN and UMAR YASIN, Defendant-Appellant.
John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief). Brian D. Gillet, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel; Susan L. Berkow, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Simonelli and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-11-1891.
John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief).
Brian D. Gillet, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel; Susan L. Berkow, on the brief). PER CURIAM
Defendant Donald R. Jones appeals from a judgment of conviction. As persuasive as the State's admissible evidence was, the State relied on testimony and insinuation suggesting defendant's involvement in a rash of burglaries in the vicinity of his home that ended when he was arrested. The prosecutor stressed the prejudicial and inadmissible testimony in questioning the State's witnesses and in his summation. Because the State's persistent focus on defendant's propensity to burglarize casts significant doubt on the fairness of the trial and the reliability of the verdict, we reverse.
I
Defendant was charged in a seven-count indictment based on two burglaries and one attempted burglary in Edison. Two counts were dismissed before the case was submitted to the jury — one charging defendant with conspiring with his brother Ernest B. Jones to commit theft and receiving stolen property, and one charging defendant with the attempted burglary. Defendant's brother pled guilty prior to defendant's trial.
The State dismissed the third attempted burglary charge, prior to trial, and the trial judge granted defendant's motion for judgment of acquittal on conspiracy at the close of the State's case.
The jury acquitted defendant of burglarizing two homes in Edison, N.J.S.A. 2C:18-2, but found him guilty of three third-degree crimes based on property removed from those homes. Defendant was convicted of one count of receiving property stolen from the homes, N.J.S.A. 2C:20-7, and of two counts of theft, one for the property taken from each home, N.J.S.A. 2C:20-3.
The judge merged defendant's conviction for receiving stolen property with his convictions for theft and granted the State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3a. On the thefts, defendant was sentenced to a ten-year term of imprisonment, five to be served without possibility of parole, and a consecutive five-year term, two and one-half to be served without possibility of parole. In addition, the judge required defendant to pay restitution in the amount of $1625 and imposed the appropriate fines, penalties and assessments.
II
The stolen property was taken in May 2008 from the homes of Anthony Wojciechowski, in Edison, and Joseph Frangos, also in Edison. It was found in the apartment defendant shared with his girlfriend, Margaret Wiggins, on June 10, 2008. Wiggins, the lessee, consented to two searches of the apartment that led to the discovery of the stolen property. The apartment building — 4A at 4 "X" Boulevard in Edison — is within walking distance of the burglarized homes. Defendant did not testify at trial, and neither did Ernest Jones or Wiggins.
"X" is used instead of the street name to comply with the Administrative Determinations by the Supreme Court on the Report and Recommendations of the Supreme Court Special Committee on Public Access to Court Records (July 22, 2009).
Wojciechowski and Frangos testified and each identified the property taken from his home and both noted that larger items of value were not taken. But neither of the victims was home when the burglary occurred and neither saw the perpetrator. There was no evidence that any person saw the perpetrator of either burglary or anyone suspicious near either home at the time.
Frangos' home was invaded while he was taking his son to school on the morning of May 13, 2008. He was gone for about forty minutes. When he returned, a window in the back of the house had been smashed, his entertainment center had been opened and its contents pulled out, and his bedroom was torn apart. Missing were, Frangos' jewelry collection, his fiancee's computer on which the invitations and place settings for their upcoming wedding were stored, pillowcases and other smaller items — such as rings, an iPod and headphones.
Wojciechowski visited his family in Maryland between May 27 and 29, 2008. When he came home, Wojciechowski found his house looking like a "tornado had hit it." Every drawer had been emptied. Missing were, a watch he had for thirty-seven years that was given to him by his former employer, a coin collection, which formerly belonged to his then deceased son, a large jar used to keep change Wojciechowski was saving to spend on vacation, pictures of his deceased wife, and a set of sterling silver flatware his mother-in-law had given the couple when they married.
When the police first searched Wiggins' apartment they found men's and women's clothing in the apartment's only bedroom. Some of the stolen items were in boxes stacked on the side of the bed where the men's clothing was found, but none of that clothing was identified as belonging to or worn by defendant. Other stolen items were visible, sitting out with the men's clothing.
In a second search of the apartment that was conducted after detectives spoke with defendant's brother, Ernest Jones, additional stolen property was found hidden in a hallway closet behind Wiggins' belongings.
Defense counsel did not object to the admission of hearsay implicit in the detective's explanation for conducting the second search, presumably because it tended to implicate his brother, not his client.
Neither Ernest Jones nor Wiggins testified at defendant's trial. Other than the property recovered, the proximity of the burglarized homes to the apartment defendant shared with Wiggins, and the fact that defendant and his brother were both walking near that apartment when arrested on June 10, 2008, there was no admissible evidence connecting defendant with these thefts.
III
Defendant raises five issues on appeal:
I. THE STATE REPEATEDLY AND IMPROPERLY ELICITED TESTIMONY THAT MR. JONES HAD BEEN ARRESTED BY METUCHEN POLICE IN CONNECTION WITH AN ATTEMPTED BURGLARY NOT INCLUDED IN THE PRESENT INDICTMENT, DESPITE THE JUDGE'S EXPLICIT BAR AGAINST INTRODUCING THAT EVIDENCE. THEREFORE A MISTRIAL SHOULD HAVE BEEN GRANTED.
II. THE ADMISSION OF TESTIMONIAL HEARSAY BY WIGGINS, IDENTIFYING THE PART OF THE BEDROOM IN WHICH MR. JONES STORED HIS POSSESSIONS, VIOLATED MR. JONES' CONFRONTATION RIGHTS, BECAUSE HE WAS UNABLE TO SUBJECT HER STATEMENTS TO THE CRUCIBLE OF CROSS-EXAMINATION. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST., ART. I, PAR. 10.
III. MULTIPLE INSTANCES OF PROSECUTORIAL MISCONDUCT DENIED DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
IV. THE JURY INSTRUCTIONS ON THEFT WERE SO HOPELESSLY MUDDLED THAT THE JURY CONVICTED MR. JONES FOR RECEIVING STOLEN PROPERTY FROM HIMSELF AND TWO COUNTS OF THEFT OF THE SAME PROPERTY, BUT NOT GUILTY OF THE TWO BURGLARIES LINKED TO THE THEFTS.
V. THE EXTENDED TERM OF TEN YEARS, FIVE YEARS WITHOUT PAROLE, FOR ONE THEFT, AND A CONSECUTIVE SENTENCE OF FIVE YEARS, TWO-AND-A-HALF YEARS WITHOUT PAROLE, FOR THE SECOND THEFT, WAS MANIFESTLY EXCESSIVE.
We conclude that the admission of evidence suggesting defendant committed other burglaries and egregious misconduct on the part of the prosecutor require reversal. Consequently, we do not address the arguments presented in support of defendant's second, fourth and fifth points.
A
A pretrial ruling on joinder provides background essential to understanding the significance of the inadmissible and prejudicial evidence. The grand jurors for Middlesex County returned two indictments charging defendant with burglaries: this indictment, which charged defendant with seven property crimes committed in Edison between May 13 and June 10, 2008; and another indictment that charged defendant with two attempted burglaries committed in Metuchen on June 10, 2008, the date defendant was arrested and Wiggins' apartment was searched. Viewing the indictments as related, the State sought leave to prosecute defendant on both indictments in a single trial two days before the trial for this indictment.
During the colloquy on the motion, there was some discussion indicating that joinder had been discussed but not resolved on a prior occasion with a different judge, but there is no indication that the State moved for joinder at that time. Defense counsel was first given a copy of the motion in court two days before the jury was sworn.
The judge denied the State's motion to join the indictments and barred the State from introducing evidence of the Metuchen charges in the trial on the Edison indictment. Although the court's ruling was made without prejudice to the State seeking leave to establish a basis for admitting evidence of his other bad acts for a purpose permissible pursuant to N.J.R.E. 404(b), the State never sought that relief.
B
With the exception of Wojciechowski and Frangos, the State's witnesses were all police officers. The State's first witness was Detective Frank Varga of the Edison Police Department. He is the officer who detained defendant on June 10, 2008.
Varga testified that he was on a "[s]pecial assignment[,] plainclothes[,] to burglary surveillance detail." The prosecutor asked the detective why he was assigned to burglary, and Varga explained that "[t]here was a rash of burglaries in the general area near Roosevelt Park area, Metuchen/Edison border." He further explained that officers from the Metuchen Police Department were also involved in surveillance because the area in which the burglaries were occurring was partially in Metuchen and partially in Edison.
According to Varga, he was driving around "keeping an eye out for possible suspect[s] walking in the area of burglaries that were occurring." Consequently, he was listening to radio transmissions from both police agencies. He explained that in response to a Metuchen broadcast about an attempted burglary, he went to the area of "X" Boulevard in Metuchen. Varga elaborated, "I was responding to that area in regards to the Metuchen broadcast for attempted burglary with a suspect description of a black male, white tank top —." Varga's description of the suspect was interrupted by defense counsel's objection.
At sidebar, the prosecutor acknowledged that the officer was referring to one of the attempted burglaries charged in the second indictment and not at issue in this trial, and he advised the judge that he had not expected the detective to include that reference in his response. The judge instructed the prosecutor, noting that the witness was "injecting into the minds of these jurors that he's detained [defendant] because he matched the description of a person who committed another burglary which we've already decided should not be part of this case."
The prosecutor offered to lead, and defense counsel did not object. The court did not strike the testimony or give a curative or limiting instruction.
Varga continued, indicating that he saw defendant walking up a dirt path leading from a row of high tension lines below and toward the grass and the apartment complex on "X" Boulevard. As Varga approached defendant, defendant dropped a small dish towel and painter's hat. At that point, Varga detained defendant, and defendant was taken to the police station when other officers arrived.
Detective Sergeant Thomas Lacik, also of the Edison Police Department, explained that he too was on surveillance duty with officers from Metuchen because both towns were "having some burglaries" in the area of their common border. The prosecutor asked Lacik if he responded to 4 "X" Boulevard, and Lacik said he had. The prosecutor's next question was "Why?" Lacik explained, "There was a burglary reported in Metuchen and to shore up —."
Lacik's response, like Varga's, was interrupted by an objection from defense counsel, who requested a mistrial on the ground that this was the second time a State's witness had referenced the Metuchen burglary.
The judge reiterated his ruling precluding evidence of the attempted burglaries in Metuchen and advised the prosecutor of his obligation to instruct his witnesses accordingly. In this instance, the judge also addressed the jury. He directed, "I'm going to strike the last answer. That's not evidence in this case. You're not to consider it in your deliberations for any purpose." That instruction did not refer to Varga's earlier answer to a similar question.
The prosecutor, through leading questions posed to Lacik, then established that Lacik had gone to 4 "X" Boulevard on June 10, 2008, because Varga had detained someone there. Without objection, Lacik further testified that he knew that defendant had lived at that address in the past because of contact that he had with defendant on a prior occasion.
According to Lacik, defendant provided his address and home phone number at the police station, and an officer called that number. A male answered and told the officer that Miss Wiggins was not at home. Consequently, Lacik and other officers went to 4 "X" Boulevard. There, Lacik saw defendant's brother walking away from the complex and toward the high tension lines in the area of Wiggins' apartment. He followed and arrested Ernest. According to Lacik, neither defendant nor Ernest had a car. Without identifying the burglaries to which he was referring, the prosecutor asked Lacik if "[t]hese burglaries all occurred within the area of walking distance of 4 ["X"] Boulevard?" Lacik said, "Yes."
While cross-examining Lacik, defense counsel elicited information about an attempted burglary of a home on "Y" Place in Edison for which defendant was not charged. Lacik acknowledged that the victim of that attempted burglary was unable to positively identify either defendant or his brother as the person he saw trying to enter his home.
"Y" is used instead of the street name to comply with the Administrative Determinations by the Supreme Court on the Report and Recommendations of the Supreme Court Special Committee on Public Access to Court Records (July 22, 2009).
In his opening statement, defense counsel mentioned the "Y" Place burglary and that the police were investigating a number of unsolved burglaries in the area on the day defendant was arrested.
On redirect, the prosecutor asked Lacik to elaborate on the reasons for defendant's detention on June 10, 2008. After extensive argument about whether defense counsel's question about the "Y" Place burglary in Edison responded to the prosecutor's eliciting testimony about Metuchen burglaries or opened the door to questions about burglaries in Metuchen, the judge struck Lacik's response and gave the jurors this direction, which refers to a stipulation the parties crafted to establish that the police were not acting arbitrarily:
I am striking the last answer to the last question by the prosecutor. This case has nothing to do with why the defendant was arrested. The evidence that you'll be considering related to these charges are as a result of what was found after the search of a home for the most part. It has nothing to do with why the defendant was arrested in this case. The parties in this case have reached a stipulation and the stipulation is this. That the defendant, Donald Jones, was in lawful police custody on June 10, [2008], when the police sought permission to search a home. And you're not to speculate or speculate about the reasons for defendant's arrest at that time.
This is what a stipulation is. A stipulation is when the parties agree to certain facts. The jury should treat these facts as undisputed. That is, the parties agree that these facts are true. As with all evidence undisputed facts can be accepted or rejected by the jury in reaching a verdict.
Detectives Alan Engel of Edison and Arthur Flaherty of Metuchen also testified. They were the officers who were present when Wiggins consented to a search of her apartment and who found the property belonging to Frangos and Wojciechowski.
Engel, acknowledging that he was part of a burglary task force, explained why: "We were experiencing a series of residential burglaries in a specific area that bordered our town in another town." The prosecutor asked whether the area was "within approximately walking distance of 4 ["X"] Boulevard in Edison," and Engel said it was, that he had gone to 4 "X" Boulevard when defendant was detained and taken to the police station and that defendant gave 4 "X" Boulevard as his address and provided the phone number. Engel subsequently placed the phone call answered by the male who said Wiggins was not home.
Engel also indicated that he was familiar with the apartment and defendant from the past, and he knew where Wiggins worked. According to Engel, when he approached Wiggins in the parking lot of the apartment complex she seemed distressed. Wiggins said, "Not again," and she asked him where defendant was. Engel also said that Wiggins was emotional because "[s]he thought this part of her life was over, was in the past." The judge directed the jury to disregard that testimony.
When the prosecutor questioned Flaherty about his role in the investigation, he explained that he was working on a joint task force with officers from Edison because both towns were having "some burglaries." After identifying the items retrieved during the search of Wiggins' apartment, Flaherty was asked why he seized them. He responded, "Because they're items that we believed were taken from burglaries in other jurisdictions either Edison or ours." The prosecutor asked why Flaherty believed that, and Flaherty responded, "From reports that we read of items missing . . . ."
The judge intervened and questioned, "They seized the items because [they] matched the description on the police report[?]" Flaherty responded, "Correct." Pursuing the matter, the prosecutor asked, "Is that the entire reason you seized those items or not?" Flaherty said, "No." The prosecutor then asked Flaherty what other reasons he had. Flaherty responded: "The additional reason was when we spoke to Miss Wiggins, the woman on the lease of the apartment, she stated items of interest could be belongings to [sic] Mr. Jones and that's where he kept his belongings. That's why we searched that area."
On redirect, the prosecutor asked Flaherty if he was correct that the items he seized were taken in burglaries in both Metuchen and Edison, and Flaherty said he believed so. The prosecutor also posed this question: "And the burglaries that you were investigating that you had the inventory list from were those addresses within walking distance of 4 ["X"] Boulevard in Edison?" Flaherty confirmed that they were.
Addressing Flaherty once again, the prosecutor said:
One last question. After June 10, 2008, did the burglary rate in the area within walking distance of 4 ["X"] Boulevard remain the same or change?
Defense counsel objected. The judge sustained that objection, and in doing so rejected the prosecutor's contention that defense counsel could explore other possible reasons for the decline in the burglary rate on cross-examination.
During his testimony, Engel also explained why he searched Wiggins' apartment twice. By his account, after completing the first search, he returned to headquarters and spoke to defendant's brother Ernest, who had been arrested by Lacik. In response to what Ernest told him, he returned to Wiggins' apartment. There, he "explained to Miss Wiggins that there is another area in the apartment that we received information that there was stolen proceeds hidden," and then searched a "hallway closet behind all of Miss Wiggins' personal effects." There, he found the sterling silver flatware taken from the Wojciechowski home. Engel also confirmed that the Wojciechowski home was within walking distance of 4 "X" Boulevard.
Before summations, defense counsel asked the judge to advise the jurors that the statements made by Wiggins, which Engel and Flaherty had repeated during their testimony, could not be considered for their truth. The judge determined to include an instruction indicating that Miss Wiggins' statements were admitted only to explain why the officers did what they did and that the jurors could not consider those statements for any other purpose. The judge further indicated that he would so instruct the jury in the final charge, and he did. That instruction did not include any reference to the testimony implying that Ernest Jones had disclosed the location of Wojciechowski's silverware or Varga's testimony about looking for a suspect who was walking, but defense counsel did not ask the judge to elaborate.
The instruction included in the final charge was as follows:
You will recall that Detectives Flaherty and Engel testified that Margaret Wiggins had made statements to them while they were at her residence. While those statements are hearsay, which is generally inadmissible, they have been admitted for the sole purpose of explaining the officers' conduct in seizing certain evidence. Accordingly, that testimony may not be used for any other purpose or in any other manner in arriving at your verdict.
In bringing the State's summation to a conclusion, the prosecutor argued:
The defendant lives right there where the burglaries are occurring. They are all occurring by somebody that is walking to those burglaries. It is for a man who has no car and is walking back even on this really hot day the police are out looking. He has the stolen items. This is not complicated. Based on what Ernest Jones tells them they go back and find additional stolen items in the defendant's residence
and they find the property there. The judge will tell you [that] you can consider what Miss Wiggins said to explain why it is the detectives received it and that's why they seized it. That's it. The defendant is guilty. It's not very complicated. It's like finding your necklaces in the judge's pocket. You can probably figure out who took it. And that's the reality. The defendant lives in that residence. He knows he lives there. The woman that lives there knows he lives there. The detectives know him from before know he lives there. Even his brother tells the detectives where to find more stuff in the defendant's residence. That is the burglary, the theft and the receiving stolen property.
As previously noted, we find it unnecessary to address defendant's claim based on the admission of hearsay statements made by Wiggins. It is worth noting, however, that despite the prosecutor's reference to the judge's ruling limiting the jurors use of that testimony, the prosecutor's argument is best understood as inviting reliance on the truth of the statements made by Wiggins that the judge's limiting instruction prohibited.
The prosecutor's summation also relied on the truth of other matters implied in hearsay statements not addressed by the judge's limiting instruction — Varga's testimony about looking for a suspect walking near "X" Boulevard, which implied that a witness had seen a suspect walking, and Engel's testimony explaining that he returned to search the hallway closet in Wiggins' apartment because of what Ernest Jones told him. See State v. Bankston, 63 N.J. 263, 26871 (1973) (discussing the impermissible limitation on the right of crossexamination resulting from the introduction of testimony suggesting that a nontestifying witness has provided information implicating the defendant in a crime).
There was no evidence that the person who burglarized the home of either Wojciechowski or Frangos walked to or away from the home or that any person was seen walking in the vicinity of either home at the time of these respective burglaries.
IV
There is no question that the testimony set forth above suggested defendant's involvement in crimes that were not the subject of this trial. The law governing admission of such evidence is clear. Evidence Rule 404(b) prohibits use of evidence of defendant's bad conduct "to prove the disposition of a person in order to show that such person acted in conformity" with that disposition, but it permits use of such evidence for other limited purposes "relevant to a material issue in dispute." N.J.R.E. 404(b). The permissible uses include providing "necessary background" for other evidence and giving information "to avoid confusing the jury." State v. Rose, 206 N.J. 141, 181 (2011). Admission of such evidence is limited by N.J.R.E. 404(b), because it "has a 'unique tendency' to prejudice a jury against the defendant." State v. Gillispie, 208 N.J. 59, 85 (2011) (quoting State v. Reddish, 181 N.J. 553, 608 (2004)). "The underlying danger . . . is that the jury may convict the defendant because he is 'a "bad" person in general.'" State v. Cofield, 127 N.J. 328, 336 (1992) (quoting State v. Gibbons, 105 N.J. 67, 77 (1987)).
Consistent with the prejudice N.J.R.E. 404(b) is designed to prevent, admission of evidence and presentation of arguments that are suggestive of a defendant's prior criminal activity — such as gang membership, mugshots, references to defendant being in jail or prison, and aliases suggesting membership in a criminal class — have been held to implicate the considerations addressed by N.J.R.E. 404(b). See State v. Harris, 156 N.J. 122, 172-73 (1998); State v. Goodman, 415 N.J. Super. 210, 227-28 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011); State v. Salaam, 225 N.J. Super. 66, 72-76 (App. Div.), certif. denied, 111 N.J. 609 (1988); State v. Childs, 204 N.J. Super. 639, 651-52 (App. Div. 1985). Moreover, where the jury is permitted to consider such evidence for a permissible purpose, judges must give the jury precise guidance on "'the permitted and prohibited purposes of the evidence.'" State v. Barden, 195 N.J. 375, 394 (2008) (quoting Cofield, supra, 127 N.J. at 341). That guidance should be given twice, when the testimony is given and in the final instruction. State v. Blakney, 189 N.J. 88, 93 (2006); State v. Angoy, 329 N.J. Super. 79, 89-90 (App. Div.), certif. denied, 165 N.J. 138 (2000). With respect to prohibited uses, the model instruction provides:
[Y]ou may not use this evidence to decide that the defendant has a tendency to commit crimes or that he/she is a bad person. That is, you may not decide that, just because
the defendant has committed other crimes, wrongs, or acts, he/she must be guilty of the present crime[s]. I have admitted the evidence only to help you decide the specific question of [describe specific purpose]. You may not consider it for any other purpose and may not find the defendant guilty now simply because the State has offered evidence that he/she committed other crimes, wrongs, or acts.
[Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs or Acts" (2007).]
As previously noted, in this case the State never sought leave to introduce evidence of defendant's other wrongs for a purpose permissible under N.J.R.E. 404(b). Nevertheless, the officers testified that they were investigating a series of burglaries in the vicinity of defendant's home that were of a sufficient number to warrant the establishment of a task force comprised of detectives from two police departments. Those detectives indicated that they found property stolen from homes other than those of Wojciechowski and Frangos among defendant's belongings, and they testified that they were looking for the suspect in another burglary near defendant's home when they encountered and detained defendant.
In addition to that testimony blatantly linking defendant to other burglaries, there were more subtle references to his prior bad acts. For example, Detective Lacik's knowledge of defendant's address based on their prior contact and Wiggins saying "Not again" when the police approached her in the parking lot of the complex and asking where defendant was.
The most egregious reference to defendant's propensity to commit burglary was implied in the final question the prosecutor posed to Flaherty, which suggested not only that defendant was responsible for numerous burglaries within walking distance of his home, but also that the crimes diminished when he was arrested: "One last question. After June 10, 2008, did the burglary rate in the area within walking distance of 4 ["X"] Boulevard remain the same or change?"
Despite the repetitious insinuations of defendant's prior criminality, the jurors were never directed, in accordance with the model charge, that they could "not find the defendant guilty now simply because the State has offered evidence that he/she committed other crimes, wrongs, or acts."
The prosecutor exacerbated the prejudice by reinforcing the evidence of defendant's propensity in his summation. He stated, "The defendant lives right there where the burglaries are occurring." He also said, "The detectives know him from before know he lives there."
We recognize that defense counsel did not object to each bit of testimony and argument suggesting defendant's involvement in other crimes and did not request an instruction directly addressing the risk of prejudice inherent in that testimony. Even when there is no objection at trial, a reviewing court will reverse when there is error "clearly capable of producing an unjust result." R. 2:10-2; Rose, supra, 206 N.J. at 157.
This is such a case. Given the clear implications of the repetitive testimony linking defendant with an ongoing rash of burglaries and prior criminality, even if we were to assume that any curative instruction could have eradicated the prejudice we could not conclude that rulings sustaining defense counsel's objections and striking testimony were adequate in the circumstances of this case. Indeed, viewing collectively the prejudicial testimony, the prosecutor's highly inflammatory and irrelevant linking of defendant with other burglaries and suggesting his commission of past crimes, it is difficult to envision any instruction that could have adequately addressed the prejudice naturally flowing from the repeated insinuations of defendant's propensity to burglarize. The overall effect was clearly capable of producing an unjust result — a verdict based on the jurors concluding that defendant is a bad person. The jurors were never told that this inference was impermissible.
We reject the State's contention that defense counsel's opening statement and introduction of testimony establishing that a victim of an attempted burglary was unable to identify defendant, justified the State's presentation of other crimes evidence to rebut an inference of arbitrary police action. The stipulation addressed any legitimate concern the State may have had about the jurors concluding the officers were acting arbitrarily. Moreover, before defense counsel questioned a State's witness about "Y" Place, the prosecutor had elicited testimony about other crimes.
Reversal is required for another reason as well. "Prosecutorial misconduct is a basis for reversal of a criminal conviction if the conduct was so egregious that it deprived the defendant of the right to a fair trial." State v. Josephs, 174 N.J. 44, 124 (2002); see also State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). In this case the prosecutor's egregious questioning and improper reliance on hearsay and evidence of propensity in summation "crossed the line that separates forceful from impermissible closing argument." State v. Rose, 112 N.J. 454, 518 (1988). Viewing the prosecutor's conduct in its entirety, we are convinced that it was capable of depriving defendant of a fair trial.
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