Opinion
DOCKET NO. A-4021-12T4
04-20-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MAURICE MOSLEY, a/k/a MAURICE LEONARD MOSLEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and St. John. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-10-1905. Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Tried by a jury, defendant Maurice Mosley was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) & (2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); three counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(1), (2) & (3) (counts three, six, and eight); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four); second-degree unlawful purpose-firearms, N.J.S.A. 2C:39-4(a) (count five); and two counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) & (2) (counts seven and nine).
On appeal, defendant challenges his convictions raising these arguments for our consideration:
POINT IFollowing review of the arguments presented in light of the record and applicable law, we affirm.
TESTIMONY THAT DEFENDANT HAD A "FRESH" TEARDROP TATTOO UPON HIS ARREST ABOUT FIVE WEEKS AFTER THE HOMICIDE DENIED DEFENDANT A FAIR TRIAL BECAUSE THE JURY WAS LIKELY TO INFER THAT THE TATTOO MEMORIALIZED A RECENT KILLING; NAMELY, THE SUBJECT OF THE MURDER CHARGES AGAINST DEFENDANT. (Not Raised Below).
POINT II
THE COURT'S COMMENT THAT GREEN WAS A CREDIBLE WITNESS REMOVED THAT CRUCIAL ISSUE FROM THE JURY'S DETERMINATION, THEREBY DENYING DEFENDANT HIS RIGHT TO A FAIR TRIAL. (Not Raised Below).
We recite the facts found in the record. In the early morning hours of July 16, 2011, three youths were driving through a neighborhood in Newark. The trio approached a man walking toward them. The man was later identified as defendant. The driver pulled over and propositioned defendant, suggesting one of the woman passengers would be willing to provide sex and the two haggled over the prospect. Suddenly, defendant pulled out a gun and pointed it at the driver, instructing him to exit the vehicle. Defendant asked, "Why are you trying to trick these girls out? Bitches, get out of the car too." The women exited the vehicle from the passenger side.
With the gun pointed at the driver's head, defendant demanded the driver empty his pockets and lay on the ground. After the driver complied, defendant moved to the passenger side of the vehicle where he frisked the women. Returning to the driver, defendant told him to stand up and asked him "[W]hat [gang] are you [reppin']?" The driver responded he was not affiliated with a gang. Defendant lifted the driver's shirt sleeve, revealing a tattoo with the letters "MOP." The driver attempted to explain the tattoo stood for "money over power," that "[i]t [was]n't anything," and not representative of a gang affiliation. Defendant stated "Rep this," and fired four shots; one at each of the two women and two at the driver, then fled.
Newark police and emergency medical personnel responded to the shooting and found the driver "with an apparent gunshot wound to the stomach area or torso . . . and two females . . . with him." The driver was unable to speak and was "gasping for air." He later died from the gunshot wound. The women were given medical attention. They "appeared . . . visibly shaken," but coherent.
At the scene, only one of the women described the gunman, stating he was a black male, wearing jeans, a white t-shirt, a "fitted" hat and "a blue bandana" hanging from his pocket. She also recalled the shooter had braids and "tear drops" tattooed under one eye. At police headquarters, the women separately gave statements reciting the events. There, the other woman stated the shooter was "a black male" approximately twenty-two to twenty-four years of age, whose skin tone was "darker than [hers]," and was taller than her. She also described his clothing as "jean shorts, white t-shirt or tank top underneath with a shirt over, [a] blue fitted [hat], and a blue bandanna underneath." She did not recall seeing a facial tattoo.
The following month, the women separately participated in a photographic display. The procedure was videotaped and conducted by an officer whom the women had never met. Each was independently shown six pictures of the face of African-American males; the photographs were exhibited one at a time and not placed next to one another. Further, they were altered to eliminate facial tattoos. Each victim chose defendant's photograph from among the pictures shown, identifying him as the person who shot the driver. Based on the out-of-court identifications, police arrested defendant. He was later indicted.
Various pre-trial motions were filed and decided. The seven-day trial commenced on October 10, 2012. In addition to this evidence, the jury heard an anonymous 9-1-1 call. The caller reported the incident and describing the shooter as "a short dark-skinned . . . black man" and gave information regarding the direction the shooter fled. Police were not able to locate the caller as no party was listed to the number registered in the system. Police further explained, the 9-1-1 dispatcher unsuccessfully attempted to obtain information from the caller to confirm the caller's location.
Defendant's treating chiropractor testified and certain medical records were introduced by stipulation. These showed defendant was hit by a car less than two weeks before the shooting and was being treated for subluxation of his spine. In the accident, defendant also suffered fracture injuries to his face causing his right eye to swell. His chiropractor administered treatment two days following the shooting and recalled defendant's face was still swollen.
Defendant also presented alibi witnesses. He lived with his sister and aunt, who confirmed he did not wear braids and was home asleep when the shooting occurred. Because of injuries suffered in the accident, they each stated defendant was confined to the home, leaving only to go to his chiropractor.
Defendant testified on his own behalf. He spoke of being struck by a car earlier in July. He stated after the accident he "had a little pip in [his] step" and suggested "I never knew nobody that can get hit by a car and run." He stated he was confined to his home and was taking pain medication. Defendant denied being involved in the shooting, having a gun, or even being out of his house on the morning of the crimes.
As rebuttal, the State presented the emergency room physician who treated defendant after his car accident. She confirmed radiographic testing revealed defendant suffered "a right maxillary sinus fracture and a right orbital floor fracture." She did not cover the eye with a bandage and prescribed only antibiotics and nasal spray (not pain medication) to alleviate the swelling, which she estimated might last between one to two weeks.
On October 19, 2012, a jury unanimously convicted defendant on all charges. After merging counts two and five, the trial judge imposed a thirty-year prison term for the murder with thirty years of parole ineligibility. Sentences imposed on the remaining convictions were ordered to be served concurrently to the sentence for murder. This appeal ensued.
We first note the challenges raised on appeal have been presented for the first time as no objection was raised at trial. Our review considers whether identified errors rise to the level of "plain error." State v. Maloney, 216 N.J. 91, 104 (2013). Under this standard, a judgment of conviction will be reversed only if the error was "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice; the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Defendant argues testimony elicited from one of the arresting police officers represented a "de facto admission of guilt" or other crimes evidence, which is barred by N.J.R.E. 404(b). Specifically, police described defendant when arrested, identifying he had two teardrop tattoos, one of which the officer believed was recently inked. Defendant argues the statement was inadmissible character evidence, which resulted in jury prejudice and denied him his constitutional right to a fair trial. Defendant asserts the trial court erred by failing to mitigate the prejudicial impact of the comment on the jury by issuing a sua sponte instruction.
We recite the following testimony of Detective Rafael Ramos, elicited on direct:
[THE STATE]: Now[,] when you arrested [defendant,] did you notice tattoos on his face?No objection was voiced. On cross-examination, the issue was further probed:
[DETECTIVE RAMOS]: Yes.
Q: What tattoos?
A: Two [teardrops].
Q: And when you noticed them[,] did you notice anything about either one of the tattoos?
A: One was fresh. It . . . had just been tattooed not long [ago] because it had . . . the scab and stuff. It was freshly tattooed.
[DEFENSE COUNSEL]: Which . . . tattoo was fresh?
[DETECTIVE RAMOS]: The [teardrop] on the bottom.
Q: You're pointing to your left[?]
A: Oh, . . . he had a tattoo of a [teardrop] and a second tattoo of another [teardrop] on the bottom.
Q: Two [teardrops].
A: Yes.
Q: And they appeared to be fresh?
A: One was fresh.
Q: One of the two[?]
A: Correct.
Defendant also discussed his tattoos during his testimony:
[DEFENSE COUNSEL]: Okay. Now on July 4[], 2011, did you have . . . any tattoos on your face?
. . . .
[DEFENDANT]: Yes.
Q: What tattoos?
A: This one right here, the teardrops and the tattoo across my neck.
Q: Okay. So you have teardrops under which eye?
A: My right eye.
Q: How many?
A: Two.
Q: Did you have them on July 4th?
A: Absolutely.
Q: And did you have the other one on the left side of your face[ on] July 4th?
A: Yes.
"[E]vidence of a defendant's bad conduct on another occasion has a unique tendency to prejudice a jury against the defendant," and, therefore, "must be admitted cautiously." State v. Sheppard, 437 N.J. Super. 171, 188 (App. Div. 2014) (citation and internal quotation marks omitted). Consequently, a defendant's prior bad acts and past criminal conduct is generally inadmissible. See N.J.R.E. 404(b) (providing "evidence 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"). This rule is one of exclusion rather than inclusion, and precludes introduction of other crimes or bad acts evidence, offered solely to establish a defendant's propensity to commit crimes. State v. Herrerra, 211 N.J. 308, 339 (2012). The rule enumerates limited purposes for which introduction of such evidence may be allowed, such as to establish motive or intent when "relevant to a material issue in dispute." N.J.R.E. 404(b). However, courts must always examine the evidence to assure its "probative value [is] not . . . outweighed by the prejudice resulting from its introduction." State v. Reddish, 181 N.J. 553, 608 (2004). See also State v. Cofield, 127 N.J. 328, 336 (1992) ("The underlying danger of admitting other-crime evidence is that the jury may convict the defendant [simply] because he is a bad person in general." (citation and internal quotation marks omitted)).
Defendant argues introduction of the "fresh" nature of the tattoo was designed to sway the jury. He refers to what he characterizes as "a common belief that facial teardrop tattoos signify a life taken by the wearer." Therefore, he maintains the testimony led to "the inescapable inference" the fresh tattoo memorialized defendant committed a recent killing. We are not persuaded.
At trial, no evidence was presented to substantiate the supposition now proffered. In fact, no testimony was elicited and no contention was made by defendant to discuss the now alleged negative inference symbolized by teardrop tattoos. Indeed, other courts differ when addressing the meaning ascribed to tattooed teardrops. See Gonzales v. Quarterman, 458 F.3d 384, 394 (5th Cir. 2006) (recognizing "teardrop tattoos have many meanings, including mourning for a dead or imprisoned gang member, or prior incarceration"), cert. denied, 54 9 U.S. 1323, 127 S. Ct. 1909, 167 L. Ed. 2d 568 (2007); Jackson v. United States, 945 A.2d 621, 626 (D.C. 2008) ("A teardrop tattoo does not establish criminal behavior because . . . its meaning is "open to interpretation."); Michaels v. State, 970 A.2d 223, 227 (Del. 2009) ("A teardrop tattoo indicates that a person either has gang affiliations, has been in prison, or has participated in a murder.").
In this case, nothing suggested an attempt was made to draw some negative or criminal inference from the tattoo. Rather, the testimony by various witnesses discussing defendant's facial tattoo was solely elicited for identification purposes, similar in the nature to other distinguishing characteristics, such as hair color, skin tone, or scars. Here, identification of the shooter was a highly contested issue. The surviving victims had some variation in their description of the attacker. One noted one teardrop tattoo. Officer Ramos's comment about the freshness of one tattoo was presented to explain the victim's recollection of seeing only one teardrop on the shooter's eye. The other victim could not say with confidence the shooter had a teardrop tattoo. This fact was highlighted by the defense in its opening and closing, which noted the teardrop tattoo under defendant's left eye was "the most conspicuous thing you see on his face," suggesting anyone looking at defendant would notice it. The defense also countered the State's case by focusing on defendant's eye injury and explaining when he obtained the tattoos, as well as showing his height distinguished him from the man the victims described.
We note police were careful not to focus the out-of-court identification on defendant's facial tattoos. Thus, prejudice in the photographic display procedure was avoided, as the trial judge found the identification procedure was not impermissibly suggestive, nor did it result in a substantial likelihood of an irreparable misidentification. Manson v. Brathwaite, 432 U.S. 98, 107, 114, 97 S. Ct. 2243, 2249, 2253, 53 L. Ed. 2d 140, 149-50, 154 (1977); State v. Herrera, 187 N.J. 493, 503-04 (2006).
Finally, during voir dire, prospective jurors were screened for possible prejudice associated with tattoos. An open-ended question asked of a prospective juror was: "What significance at all, if any; what prejudice, if any, a perspective juror would have based on the fact that someone — simply that someone has a tattoo."
We conclude there was no prejudice to defendant. In this contest, the fact defendant had tattoos was evidential and used by both sides: to support the victims' eyewitness testimony and to rebut those statements in support of defendant's misidentification defense. The jury was given competing evidence on several issues to evaluate and make its findings. Specifically as to the tattoos, the jury obviously rejected defendant's testimony his tattoos predated the shootings and found the victims' descriptions and identification credible and compelling. This was the jurors' prerogative when fulfilling its function of weighing credibility. State v. Coleman, 46 N.J. 16, 43 (1965) (holding the jury "consider[s] the evidence in the light of human experiences and understandings" and is free "to reject any portions of . . . testimony" it finds to be discredited), cert. denied, 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966). See also State v. Pickett, 241 N.J. Super. 259, 266 (App. Div. 1990).
Accordingly, we reject defendant's contention that the judge erred by failing to sua sponte issue a limiting instruction relating to "other crimes" evidence. See Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 404 (2014) ("[W]here there is no request for such a specific instruction, the general instruction that the jurors should examine all of the evidence to see if any of it raises a reasonable doubt as to the defendant's guilt is sufficient." (citing State v. Bogus, 223 N.J. Super. 409, 429-32 (App. Div.), certif. denied, 111 N.J. 567 (1988))). Nothing supports defendant's claimed speculative prejudice because "the jury . . . likely believed that the 'fresh' teardrop tattoo signified a recent killing . . . ." (Emphasis added). All testimony regarding defendant's facial tattoos was merely descriptive of his identity, which avoided all inference of possible symbolism. We find no basis to disturb the jury's verdict.
Defendant also argues a comment by the judge wrongfully bolstered the credibility of one victim, thus denying him the right to a fair trial. To understand the statement we must recite the lengthy colloquy preceding the judge's ruling on the State's objection, which resulted in the complained comment. While testifying, one victim was asked on cross-examination whether the driver was the other victim's pimp. She replied:
[VICTIM]: No[,] he was not. It may have looked that way, but he was not.
. . . .
[DEFENSE COUNSEL]: Was he your pimp?
A: No.
Q: Do you know what a pimp is?
A: Yes.
. . . .
Q: This incident . . . that you described, [he] is driving you and [the other victim] around in the evening. Is that correct?
A: Yes.
Q: And you see at some point . . . a guy walking up the street, and [the driver] is the one that immediately calls out to this person and tries to arrange a sexual interlude, let's say. Is that correct?
. . . .
A: Yes.
. . . .
Q: [He] is the one that gets out to talk to him. Is that correct?
A: Yes.
Q: [He] is the one that is negotiating price. Is that correct?
A: Yes.
Q: [He] is the one that gets into the argument with him. Is that correct?
A: Yes.
Q: [He] is the one who is telling who to get out of the car, whether it's you or your best friend . . . . Is that correct?
A: Yes.
Q: [He] is the one who gets the money for this kind of transaction. Is that correct?
A: He holds the money.
Q: And [your friend] gets a percentage of it from what you said under oath before. Is that correct?
A. Yes.
Q: Maybe I'm stupid, but isn't that a pimp?
[THE STATE]: Objection, Your Honor.
THE COURT: Objection sustained.
[DEFENSE COUNSEL]: Isn't [the driver] your pimp?
[THE STATE]: Objection, Judge, under [Rule] 611 this . . . .
THE COURT: Objection sustained.
[DEFENSE COUNSEL]: For what reason, Judge?
THE COURT: Under [Rule] 611.
[DEFENSE COUNSEL]: I don't memorize the rules.
[THE STATE]: The rule is, the whole motive of your question is to embarrass or harass the witness. And that is [the] objection under [Rule] 611 of the Evidence Rules.
[DEFENSE COUNSEL]: The argument is to bring out what the role of [the driver] was. It is not to harass this woman. . . .
THE COURT: And the relevance?
[DEFENSE COUNSEL]: The credibility of this woman who is testifying under oath. If she's not telling the truth under oath, as to one thing, maybe she's not testifying truthfully as to other parts.
THE COURT: The witness is telling the truth as she knows it to be. Objection sustained.
[(Emphasis added).]
"It is axiomatic that a trial judge should do nothing to indicate to the jury the court's belief in the testimony of a witness." Biunno, et al., supra, comment 2 on N.J.R.E. 614. While judges may regularly intervene to expedite trials, avoid wasting time or resolve obscurities, State v. Guido, 40 N.J. 191, 207 (1963), "great restraint" should be exercised "in order not to influence the jury." State v. Taffaro, 195 N.J. 442, 451 (2008). See State v. O'Brien, 200 N.J. 520, 534 (2009) ("[T]rial judges possess broad discretion to intervene in a criminal trial where necessary.").
As stated by the Supreme Court:
The trial judge is an imposing figure. To the jurors[,] he [or she] is a symbol of experience, wisdom, and impartiality. If he [or she] so intervenes as to suggest disbelief, the impact upon the jurors may be critical. Hence in the usual case it is well to leave the primary burden of examination with counsel and to supplement their efforts, if necessary to clarify the scene, in a way which will lead the jurors to believe the objective is their better understanding.
[Guido, supra, 40 N.J. at 208.]
Defendant's reliance on O'Brien is misplaced. In that matter, the trial judge repeatedly interjected a line of questioning following the testimony of the defendant, which "le[ft] the impression that he did not believe [the] defendant's claim." O'Brien, supra, 200 N.J. at 537. The Court granted the defendant a new trial holding this line of questioning "was clearly capable of producing an unjust result," because "the only inference [the jury] could draw from the judicial intervention was that [the] defendant's testimony probably was not true." Id. at 537-38. The Court noted
Equally damaging to the defendant's constitutional right to a fair trial, the Court found error in a series of questions posed by the trial judge following testimony by the defendant's expert and the State's investigatory witness. See id. at 538-39.
[A]s we have said, a judge has a right to question witnesses in a criminal trial.
But that right is tethered to ensuring the fairness of the proceedings, to expedition, and to the clarification of ambiguities. None of those matters was at issue here. Here, the judge's questioning was gratuitous and evidenced incredulity with respect to [the] defendant's only defense, along with support for the State's witness. As in Guido, the "judge's repeated assurances to the jury that he was acting in the interest of justice with no purpose of aiding or hurting the prosecution or the defense" rang hollow and were not sufficient to cure the harm. Guido, supra, 40 N.J. at 208.
[Id. at 539.]
Here, the trial judge's statement that "the witness is telling the truth as she knows it to be," was not a comment on the witness's credibility or a retort to defendant's suggestion the witness should be believed. See id. at 537. Rather, it was an explanation for why the objection was sustained, after finding the repeated question was harassing under Rule 611. Further, the judge included an instruction in the final charge to the jury, reminding jurors the determination of motions in no way represented the court's opinion on the merits of the case. The judge also detailed the jury's role in determining the credibility of witnesses.
Following our review, we cannot agree the single comment, which was neutral and not suggestive in its content, in no way vouched for the witness or influenced the jury's performance of its factfinding role. See Taffaro, supra, 195 N.J. at 453. We reject the notion this statement amounts to "excessive judicial intervention" or had an "immeasurable effect" upon the jury's assessment of the witness's credibility.
Our review of the record confirms defendant's trial was fair. We reject the claims of error and find no basis to vacate the verdict.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION