Opinion
DOCKET NO. A-3732-10T1
08-12-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANTE WILSON, a/k/a TE-MOB, Defendant-Appellant.
Kelly Anderson Smith argued the cause for appellant. Jeffrey P. Mongiello, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Mongiello, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-12-1517. Kelly Anderson Smith argued the cause for appellant. Jeffrey P. Mongiello, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Mongiello, of counsel and on the brief). PER CURIAM
Defendant Dante Wilson appeals his conviction for the following offenses: (1) first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1); (2) second-degree conspiracy to possess a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:5-2 and 2C:35-5(a)(1); (3) third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); (4) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and (5) second-degree possession of a weapon while committing a CDS offense, N.J.S.A. 2C:39-4.1(a). We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
William Troy Mayes, the State's primary witness, began transporting heroin to Pittsburgh, Pennsylvania in 2002. The victim, Cage Suttle, assisted Mayes with bagging the heroin and transporting it from Elizabeth, where they both lived, to Pittsburgh, where it was resold. In the process, Mayes became familiar with a gang known as the C.R.E.A.M. Team, members of which were engaged in the sale of heroin in Pittsburgh. Mayes did not know all of the C.R.E.A.M. Team members or their names, but he became familiar with about five members during his trips to Pittsburgh.
In early April 2004, Mayes sent Suttle to Pittsburgh with a package of heroin. Because Mayes was dissatisfied with its quality, he requested that Suttle bring the heroin back to Elizabeth. Mayes intended to return the heroin to the supplier from whom he had purchased it.
Suttle initially told Mayes he wanted to sell the heroin to people he knew in Pittsburgh who wanted to buy a large quantity of the drug. Mayes responded that he did not want to sell it because the heroin was "bad." Suttle later approached Mayes and suggested they rob the people from Pittsburgh rather than sell them the heroin. Mayes did not want to rob anyone or sell the "bad" heroin and attempted to dissuade Suttle from going through with either plan.
Shortly before midnight on April 7, Mayes was in front of his aunt's home in Elizabeth, meeting with his heroin source. The source gave him a "finger" of heroin, which consists of approximately ten grams of heroin in a glove. As Mayes was talking with his source, a silver Ford Explorer SUV with Pennsylvania license plates pulled up and double parked in front of the house. Suttle was in the passenger's seat of the Explorer.
Mayes went over to the Explorer and stood on the driver's side. He testified that the street light was near the car and it was "[r]eally lit up out there." According to Mayes, he looked into the Explorer to see who Suttle had with him, explaining "when you gonna deal with somebody and you dealing with that amount of money and that amount of [heroin], you want to see who you dealing with, what type of vibe you get from them."
The driver of the Explorer was later identified as Eurie Nunley, a drug dealer from Pittsburgh. Suttle was sitting in the front passenger seat. A man, subsequently identified as Wilson, was sitting in the back seat. Mayes recognized Nunley and Wilson, both of whom he had seen in the past with a friend who was affiliated with the C.R.E.A.M. Team in Pittsburgh, but he did not know their names. He had not been expecting to see Suttle or anyone from Pittsburgh at that time.
Mayes told Nunley to come inside his aunt's house, so he could show him some new heroin. Nunley, Suttle, and Mayes went inside the house to talk. Shortly thereafter, however, Suttle left and went outside. Nunley and Mayes remained inside. Mayes showed Nunley the finger of heroin, and told him that he would bring heroin from that batch to Pittsburgh later.
While Mayes was showing Nunley the heroin, he heard three or four shots from outside the house. As Mayes and Nunley were going downstairs to see what had happened, Nunley expressed concern that Mayes might be setting him up.
Once outside, Mayes saw the Explorer with its passenger door and glove compartment open. Money was scattered on the floor and around the car. Mayes then saw Wilson running towards him and holding a gun pointed at him. After Nunley yelled "nah, nah" to Wilson, he and Wilson got inside the Explorer and drove away. As they were doing so, they backed into the car parked behind the Explorer.
A.E., a neighbor who lived across the street, witnessed the shooting from a window in his apartment. He testified that he heard four "continuous" gunshots from "under [his] window." After A.E. heard the first shot, he "ran" to the window and saw "a guy chasing another guy on the sidewalk running after him with a gun in his hand." He witnessed one of the men shoot the other.
A.E. described the two men as black males. He could not see their faces, but testified that they were about the "same size, medium build." According to A.E., one of the men had hair with "stripes." He did not know the proper name for the hairstyle.
After the last shot was fired, A.E. saw the shooter go on "top of the victim and kind of twist him to the side" and go through his pockets and take money. A.E. then heard the shooter yell towards men who had come out of the adjacent house, "Let's go, let's go, let's get out of here."
On direct examination, A.E. testified that a "couple guys" came out of the house. On cross-examination, he testified that there had been three men. Mayes testified that his supplier left before he invited Nunley and Suttle into the house. Consequently, the identity of the third man, if there was one, is uncertain.
The shooter got into the passenger's seat of the Explorer, while one of the men who had just come out of the house got into the driver's seat. The Explorer backed into the car behind it, then pulled away. A.E. saw another man go back inside the house. The third man got into another vehicle parked on the street and drove away.
A.E. called 9-1-1 to report the shooting. Fifteen minutes later, he saw a Pontiac sedan pull up. A man came out of the house and got into the car, which then drove away. According to Mayes, after the shooting, he had called C. H. and asked him to pick him up at his aunt's house. C.H. confirmed that he had, and also testified that he had driven Suttle to Walnut Street in Elizabeth earlier that evening. He saw Suttle get into a silver SUV.
Mayes was subsequently arrested and questioned by the police. After viewing a photo array, he identified the driver of the Explorer as Nunley. Following a second photo array, Mayes identified Wilson as the shooter. With the assistance of the police in Pennsylvania, the Elizabeth police arranged for a lineup in Pittsburgh. Mayes identified Wilson from a group of six men. Mayes testified that he had no doubt about his choice.
In December 2004, Wilson was indicted and charged with the offenses for which he was convicted, except that the first count of the indictment charged first-degree murder. N.J.S.A. 2C:11-3(a)(1) or (2). Nunley was charged as a co-defendant in the same indictment, but was tried separately and acquitted.
Prior to trial, Wilson moved to bar testimony concerning Mayes's identification of him from the photo array and lineup, requesting a full Wade hearing. He also moved to suppress letters he had written while in the Union County Jail awaiting trial. The letters had been seized by officials at the jail.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
In March 2010, the trial judge held an evidentiary hearing to determine whether a full Wade hearing was necessary. Detective Paul Pasternak testified about the lineup in Pittsburgh, where Wilson was being held in the Allegheny County Jail. According to Pasternak, he did not prepare the lineup himself. Another detective, who "knew very little [] about the case," gathered five other men to participate in the lineup with Wilson. The participants were dressed in orange prison uniforms and "were similar in appearance." Pasternak took photos of all the participants. Mayes then identified Wilson during the lineup.
The trial judge denied the motion for a full Wade hearing. He determined that Wilson had not presented sufficient evidence of impermissible suggestiveness during the identification procedure to warrant a further hearing.
On March 23 and 26, the judge held another hearing regarding the motion to suppress the letters obtained through the seizure of Wilson's mail. Detective Richard Gregory testified that Mayes had informed him that inmates recently released from the Union County Jail warned Mayes not to testify against Wilson and Nunley at trial. Gregory confirmed that the individuals Mayes claimed had threatened him were actually in jail at or around the same time as Nunley and Wilson. Gregory also testified that he had learned Wilson was suspected of having engaged in witness retaliation involving another crime in Pittsburgh.
Special Investigator Stephen Pilot, who worked for the Union County Jail, testified that the mail cover on Wilson was conducted because the Prosecutor's Office had contacted him for assistance regarding the threats to Mayes and concern about witness tampering. Pilot explained that the mail search was permitted by a provision of the New Jersey Administrative Code applicable to county jails. Pilot did not know whether the inmates were aware that their mail was subject to such searches.
Following Pilot's testimony, the motion judge issued a preliminary ruling denying the motion to suppress. On April 12, the judge issued a more detailed oral opinion, in which he found that Gregory and Pilot "were credible and believable witnesses." He denied Wilson's motion to suppress the letters, citing the threats received by Mayes and the intelligence from law enforcement officials in Pittsburgh that Wilson was a suspect in a retaliatory murder in 2003. The judge concluded that, because the mail cover was based on reasonable information supporting a concern about threats and witness tampering, it was authorized by N.J.A.C. 10A:31-19.5 and was not a pretext for obtaining incriminating evidence against Wilson.
The three-week trial took place in April 2010. The State presented the testimony of Mayes, A.E., and C.H., who testified to the facts outlined above. Mayes's aunt testified that Mayes arrived at her home alone on the night of the shooting. Mayes and two other men, one of whom was Suttle, subsequently came into her house together. Mayes's aunt did not get a good look at the other man. When she heard the shots, she went over to her window and saw a man holding a revolver get into an SUV on the passenger side.
Pasternak testified that he spoke with both Mayes's aunt and A.E. the day after the shooting. A.E. gave him the Explorer's license plate number. Pasternak ascertained that it was a Pennsylvania vehicle. He subsequently learned that it had been rented by Erika Sams. The Explorer was found on fire in Pittsburgh on April 8, 2004.
Sams testified that she was a friend of Nunley. She had never seen Nunley and Wilson together, but she had seen Wilson before. At the time of the shooting, Wilson had braids in his hair. According to Sams, she rented the Explorer for Nunley. He later told her the car had been stolen. The prosecutor and defense counsel agreed to admit an affidavit in place of the testimony of a witness who had "overheard" Nunley talking to someone on the telephone about coming to New Jersey and getting a rental vehicle for the trip.
The State then sought to introduce two of the seized letters. Wilson opposed the introduction of his letter to Nunley, based on the fact that it was written in gang-related language. He argued that the letter, written in 2008, was irrelevant to whether he knew Nunley in 2004, when the crime occurred. He also objected that the State did not propose to offer expert testimony on gangs to interpret the letter. The trial judge overruled the objection, allowing the State to use the letter to show that Nunley and Wilson knew each other, which he held was relevant to proving the conspiracy charge against Wilson.
The second letter was written by Wilson to a former girlfriend. In the letter, Wilson asked her to "squeeze [her] memory together," reminding her that he had been with her for several days in early April 2004 at his mother's house. In closing, he wrote: "Get on top of this for me. Have my letter with you while you speak to my lawyer if your memory is that bad."
Q. P. testified that Wilson hung around regularly with members of the C.R.E.A.M. Team in Pittsburgh. However, he also testified that he had never seen Nunley and Wilson together.
The State called the former girlfriend as a witness. She testified that she and Wilson had a dating relationship between 2004 and 2008. During her direct examination, she testified that she was always by Wilson's side from April 1 until April 10, 2004. The prosecutor then used her earlier, inconsistent testimony before the grand jury to impeach that assertion.
Wilson called Officer Derrick Cheatem, who was one of the investigators at the scene on the day of the shooting. He testified that A.E. had told him that there was a third man in the Explorer when it drove away.
Although, as noted, A.E. testified that a third man had come out of the house, he also testified that only one of the men who came out of the house got into the Explorer, another went back into the house, and the third drove away in another car.
Zhongzue Hua, M.D., testified about the results of Suttle's autopsy. Hua was the supervisor of the Union County Medical Examiner's Office. Although Hua regularly performed autopsies, Leonard Zaretski, M.D., had performed Suttle's autopsy. Hua relied on Zaretski's certified report of the autopsy to form his opinion that the cause of Suttle's death was homicide from three gunshot wounds. Wilson did not object to Hua's qualifications or to his testifying at trial instead of Zaretski, nor did he ask that Zaretski be called to testify or at least submit to cross-examination.
The judge held a charge conference to review the jury charges with all counsel present. He read the proposed charges to the parties, including charges on the jail mail and photographs from the lineup, which showed all of the participants in prison attire. Defense counsel had no objection and did not request any further limiting instructions.
During his summation, the prosecutor referred to the link between Wilson and the C.R.E.A.M. Team seven times. He asserted that the group provided Wilson's motive to kill Suttle:
Because, number one, the C.R.E.A.M. Team gives you motive. Cash Rules Everything Around Me. And in this particular case the cash was on the floor and the cash was running up [the street] and [Wilson], ruled by that cash, decided I'm going to shoot the guy that is trying to steal my cash.Defense counsel did not object to the summation. Nevertheless, following the summations, the trial judge cautioned the jury that "[a]rguments, statements, remarks, openings and summations of counsel are not evidence and should not be treated by you as evidence."
The C.R.E.A.M. Team gives you the motive and the C.R.E.A.M. Team gives you the beginning of the link between [Nunley and Wilson].
With respect to the photographs from the lineup, the judge charged as follows:
The photographs are not evidence that [Wilson] has ever been arrested or convicted of any crime . . . . There were photographs that were taken of the individuals who participated in that lineup and those pictures depict the individuals in orange jumpsuits or what you may recognize as attire that inmates at a jail are commonly required to dress in.
. . . .
Moreover, the fact that [Wilson] was
asked to dress in this same jail garb or attire is also not to be used in any manner in your deliberations. All defendants in a lineup should be required to dress or wear similar clothing and this is done to ensure that there is nothing suggestible in an identification process and you are not to consider the manner in which the defendant was dressed during this lineup as prejudicing him in any way.
The jury returned a guilty verdict against Wilson on all counts, except that it found him guilty of the lesser-included offense of first-degree aggravated manslaughter rather than first-degree murder as charged in the indictment. Wilson was sentenced on August 13. This appeal followed.
II.
Wilson raises the following issues on appeal:
POINT I: EVIDENCE OF THE C.R.E.A.M. TEAM AS IT RELATED TO THE DEFENDANT SHOULD HAVE BEEN SUBJECTED TO A 404(B) ANALYSIS. THE UNADULTERATED ADMISSION OF SAME AND THE RESULTING PREJUDICE VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS AND DENIED HIM A FAIR TRIAL. (PARTIALLY RAISED BELOW)
A. Defendant Was Further Prejudiced and Suffered Irreparable Harm When the Court Failed to Provide the Jury with Limiting Instructions or Charge Regarding C.R.E.A.M. Team Testimony.
B. The State Committed Prosecutorial Misconduct by Referring to Facts Not in Evidence and Continuously Inflaming Jurors with Defendant's C.R.E.A.M. Team
Membership, Constituting Plain Error.
POINT II: THE TRIAL COURT'S FAILURE TO SUPPRESS DEFENDANT'S JAIL MAIL SEIZED WITHOUT A WARRANT VIOLATED DEFENDANT'S FOURTH AMENDMENT AND CONSTITUTIONAL RIGHTS.
A. The Court Erred in Failing to Grant Defendant's Suppression Motion.
B. The Jail Mail At Issue Should Have Been Subjected to a 404(b) Analysis and Sanitized Appropriately. The Court's Failure to Conduct Same Irreparably Prejudiced the Defendant.
C. The Court Failed to Properly Instruct Jurors as to the "Jail Mail" Thereby Permitting Defendant to Suffer Irreparable Prejudice Resulting in an Unfair Trial.
POINT III: DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES AGAINST HIM WAS VIOLATED WHEN THE STATE CALLED A SURROGATE MEDICAL EXAMINER TO TESTIFY TO ANOTHER EXPERT'S AUTOPSY REPORT. (NOT RAISED BELOW)
POINT IV: TRIAL COURT ERRED BY FAILING TO ORDER A FULL WADE HEARING TO DETERMINE IF THE STATE WAS IMPERMISSIBLY SUGGESTIVE IN THE WITNESS IDENTIFICATION OF DEFENDANT.
A. Defendant's Due Process Rights Were Violated: As The Undocumented Lineup Was Suggestive.
B. The Trial Court Erred in Denying Defendant's Motion to Suppress A Lineup Identification
as Defendant Was Denied Right to Counsel.
POINT V: THE COURT ERRED BY ADMITTING PHOTOGRAPHS OF DEFENDANT'S PRISON UNIFORM.
A.
For the first time on appeal, Wilson argues that references to the C.R.E.A.M. Team during the trial and during the State's summation amounted to the impermissible admission of other-crimes evidence contrary to N.J.R.E. 404(b). Wilson relies on State v. Goodman, 415 N.J. Super. 210, 228 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011), in which we observed that "the average juror would likely conclude that a gang member has engaged in criminal activity," potentially resulting in prejudice to a defendant in the same way as the admission of evidence of specific prior crimes.
Because there was no objection at trial, we review this issue to determine whether there was plain error. The Supreme Court recently described the parameters of plain error as follows:
Plain error is error that "is 'clearly capable of producing an unjust result.'" State v. Singleton, 211 N.J. 157, 182-83 (2012) (quoting R. 2:10-2); State v. Reeds, 197 N.J. 280, 298 (2009). "The error must have been of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached." Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 2:10-2Even if there had been an objection, we would need to reverse only if the error is "clearly capable of producing an unjust result." R. 2:10-2. "[T]he possibility of injustice [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. Taffaro, 195 N.J. 442, 454 (2008) (quoting Macon, supra, 57 N.J. at 336).
(citations omitted); see also State v. Winder, 200 N.J. 231, 252-53 (2009) (considering substance of trial court's voir dire and finding no plain error). As the Court has held, "to rerun a trial when the error could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal." State v. Macon, 57 N.J. 325, 333 (1971). It is defendant's burden to demonstrate that the trial courts' procedures constituted plain error. See State v. Morton, 155 N.J. 383, 421 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); State v. Chew, 150 N.J. 30, 82 (1997) (citing United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508, 520 (1993)), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999); State v. Tierney, 356 N.J. Super. 468, 477 (App. Div.) (citations omitted), certif. denied, 176 N.J. 72 (2003).
In determining whether defendant has demonstrated that the errors here had "'a clear capacity to bring about an unjust result,'" we assess "'the overall strength of the State's case.'" State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Chapland, 187 N.J. 275, 288-89 (2006)); see also State v. Sowell, 213 N.J. 89, 107-08 (2013) (affirming conviction given strength of evidence against defendant despite admission of improper expert testimony).
[State v. Weston, ___ N.J. ___, ___ (2015) slip op. at 25-26.]
i.
N.J.R.E. 404(b) generally precludes the admission of evidence pertaining to other crimes or wrongs, except to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity[,] or absence of mistake or accident when such matters are relevant to a material issue in dispute." In State v. Cofield, 127 N.J. 328, 338 (1992), the Supreme Court articulated a four-factor test to govern the admissibility of such evidence for those permitted purposes. The Cofield test requires that:
1. The evidence of the other crime must be admissible as relevant to a material issue;In Williams, however, the Court observed that the second Cofield factor "is not one that can be found in the language of Evidence Rule 404(b). Cofield's second prong, therefore, need not receive universal application in Rule 404(b) disputes." Id. at 131.
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.
[State v. Williams, 190 N.J. 114, 122 (2007) (citing Cofield, supra, 127 N.J. at 338).]
There was no direct evidence that Wilson was actually a member of the C.R.E.A.M. Team. The most potentially prejudicial evidence elicited from any of the witnesses was that Wilson had some association with its members. There was also testimony that people associated with the C.R.E.A.M. Team were involved with drugs in Pittsburgh, as was Wilson.
Because defense counsel never objected to the many references to the C.R.E.A.M. Team during the trial, the judge was never asked to perform a Cofield analysis. In addition, the judge was never asked to give the jury a Cofield limiting instruction, either at the time the C.R.E.A.M. Team was first mentioned or during his final instructions to the jury. The issue is whether he should have done so sua sponte.
This issue must be viewed in the context of the events that gave rise to the charges against Wilson. They arose from the homicide of someone, Suttle, who was involved with selling drugs and acted as a courier between Mayes and drug dealers in Pittsburgh, who were at least associated with the C.R.E.A.M. Team. The allegation was that Wilson had accompanied Suttle and Nunley, a drug dealer from Pittsburgh, to Mayes's aunt's residence. Suttle knew Mayes was meeting with his source when he arrived with Wilson and Nunley, in an attempt to persuade Mayes to sell drugs to Nunley. While the case could have been, and probably should have been, presented without specific reference to the name "C.R.E.A.M. Team," it most likely could not have been presented without some reference to drug dealers from Pittsburgh.
Wilson's defense was that he was not the individual in the Explorer and, as a result, could not have been the man who shot Suttle. Defense counsel started both his opening statement and his summation with the assertion that Wilson was not in New Jersey at the time Suttle was killed. During cross-examinations of the witnesses, defense counsel sought to establish that witnesses who testified that they had seen Wilson in the company of people associated with members of the C.R.E.A.M. Team had never seen Wilson with Nunley, in an attempt to disassociate Wilson from Nunley. Defense counsel suggested that another Pittsburgh drug dealer was the shooter. Consequently, we think it likely that defense counsel did not object as a matter of trial strategy.
Although an appropriate objection might well have led to the exclusion of the name "C.R.E.A.M. Team" and the giving of limiting instructions, references to drug dealers from Pittsburgh, which were an integral part of the State's case, would not have been precluded. Consequently, we hold that any error related to references to the C.R.E.A.M. Team was not of "sufficient [magnitude] to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.
ii.
Wilson also argues, again for the first time on appeal, that he is entitled to a new trial because the prosecutor argued repeatedly during summation that he was a member of the C.R.E.A.M. Team. Wilson contends that those assertions were not supported by the evidence and constituted prosecutorial misconduct. As previously noted, there was evidence that that Wilson associated with members or associates of the C.R.E.A.M. Team, but none that he was actually a member.
Although prosecutors have considerable latitude in presenting closing arguments, they "may not exceed the parameters of 'permissibly forceful advocacy' established by decisional law." State v. Munoz, 340 N.J. Super. 204, 217 (App. Div.) (citing State v. Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)), certif. denied by State v. Pantoja, 169 N.J. 610 (2001). Prosecutorial misconduct can be grounds for reversal where the prosecutor's behavior was so "'egregious that it deprived [the] defendant of a fair trial.'" Marshall, supra, 123 N.J. at 153 (quoting State v. Ramseur, 106 N.J. 123, 322 (1987)).
Courts have found prosecutorial comments to be improper in instances where the remarks diverted the jury's attention from the facts of the case. Ramseur, supra, 106 N.J. at 322. It is considered misconduct for a prosecutor to misstate the evidence or to assume the existence of prejudicial facts not in evidence. See Darden v. Wainwright, 477 U.S. 168, 182, 106 S. Ct. 2464, 2472, 91 L. Ed. 2d 144, 157 (1986). Prosecutors must "refrain from improper methods calculated to produce a wrongful conviction." Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 2d. 1314, 1322 (1935). To determine whether a prosecutorial statement warrants reversal, however, courts will examine them within the context of the trial in its entirety. State v. Tirone, 64 N.J. 222, 229 (1974).
Generally, however, if no objection was made during or after the summation, the remarks will not be deemed prejudicial. Ramseur, supra, 106 N.J. at 323. "A timely objection gives the trial [judge] and the prosecutor an opportunity to counteract the effect of any unseemly remark." State v. Johnson, 31 N.J. 489, 511 (1960). The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made and deprives the court of an opportunity to take curative action. State v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J. 25 (1997). And, as was the case in Ramseur, the trial judge gave the standard detailed instruction that an attorney's statements are not evidence.
Viewed in context and in light of the absence of any objection, we conclude that any error related to the prosecutor's inaccurate argument that Wilson was a member of the C.R.E.A.M. Team was not of "sufficient [magnitude] to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.
Because of our conclusion that any error was harmless, we need not consider whether the assertion that Wilson was a member of the C.R.E.A.M. Team was a fair argument based on the testimony. --------
B.
We now turn to Wilson's arguments concerning denial of his motions to suppress. Wilson contends that the trial judge should have held a full Wade hearing to determine whether Mayes's identification of him as the shooter was impermissibly suggestive. He further contends that the seizure of his letters from the Union County Jail was unlawful.
The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows:
[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).Our review of the motion judge's legal conclusions is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); Goodman, supra, 415 N.J. Super. at 225.
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should
an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.
[State v. Elders, 192 N.J. 224, 243-44 (2007) (third alteration in original).]
i.
Wilson asserts that admission of Mayes's out-of-court identification at the lineup resulted in a denial of his right to a fair trial because it was not preceded by a full pre-trial Wade hearing. Because Mayes's identification predated the Supreme Court's decision in State v. Henderson, 208 N.J. 208 (2011), we apply the two factors articulated by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977), and adopted by our Supreme Court in State v. Madison, 109 N.J. 223, 232-33 (1988). Henderson, supra, 208 N.J. at 302.
The Manson/Madison factors require the trial judge to determine first whether the identification procedure was impermissibly suggestive. State v. Herrera, 187 N.J. 493, 503 (2006). "[I]mpermissible suggestibility" is present if "'the identification was not actually that of the eyewitness, but imposed upon him so that a substantial likelihood of irreparable misidentification can be said to exist.'" State v. King, 390 N.J. Super. 344, 359 (App. Div. 2007) (emphasis omitted) (quoting Madison, supra, 109 N.J. at 234).
Police officers are required to document the identification procedure at the time it is conducted. See State v. Delgado, 188 N.J. 48, 63 (2006). The documentation includes "written record[s] detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results." Ibid. We accord a trial judge's findings regarding the impermissible suggestiveness of the identification procedure "'considerable weight.'" State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973)). "The findings of the trial judge as to reliability of the witnesses are [also] entitled to considerable weight." State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.), certif. denied, 178 N.J. 250 (2003). The identification may be admitted into evidence as long as "there is sufficient credible evidence in the record to support the findings." Adams, supra, 194 N.J. at 203.
Wilson bases his argument on the fact that Pasternak was present in the room with Mayes while the lineup was taking place. He also contends that the record does not reflect whether the individuals, other than Wilson, who participated in the October 5 lineup were the same or substantially the same as those pictured in the August 9 photo array. Wilson argues that Mayes "may have made his identification, not based on what he observed on the night of the shooting, but rather upon the repeated consistency of viewing defendant in each presentation."
Pasternak testified at the suppression hearing that he did not speak to Mayes during the lineup. He also testified that the people in the lineup were "similar in appearance." We are satisfied that there was sufficient evidence to support the trial judge's finding that Pasternak's presence in the room during the lineup was not indicative of impermissible suggestibility. The judge concluded that Wilson had not satisfied his obligation to demonstrate that there was an issue as to impermissible suggestibility sufficient to warrant a Wade hearing. We agree.
ii.
With respect to the intercepted mail, Wilson argues that mail sent while he was in jail was improperly searched and that the trial judge erred when he held that the mail cover was appropriate under N.J.A.C. 10A:31-19.5.
The United States Supreme Court has distinguished between restrictions imposed on pretrial detainees for the purpose of punishment and those that are simply incident to some other legitimate governmental purpose. "[I]f a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to 'punishment.'" Bell v. Wolfish, 441 U.S. 520, 539, 99 S. Ct. 1861, 1874, 60 L. Ed. 2d 447, 468 (1979). There is "no dispute that internal security of detention facilities is a legitimate governmental interest." Block v. Rutherford, 468 U.S. 576, 586, 104 S. Ct. 3227, 3232, 82 L. Ed. 2d 438, 447 (1984).
N.J.A.C. 10A:31-19.6(b) provides:
Inmates shall be permitted to seal outgoing correspondence and such correspondence shall not be opened . . . unless there is evidence to suspect that there is contraband or disapproved content enclosed or that a criminal activity is involved.In addition, N.J.A.C. 10A:31-19.5(d) states:
Incoming inmate correspondence may not be read except when there is reliable information indicating that the mail is a threat to order and security, contains contraband or disapproved content, or when mail is being used in the furtherance of illegal activity. It shall be theThat provision is sufficiently related to the security interests of controlling inmates rather than punishing the detainee to satisfy the Supreme Court's concerns in Bell and Block.
responsibility of the adult county correctional facility Administrator to document that sufficient reason exists to read an inmate's correspondence.
Pilot requested and received authorization from his superior to conduct two mail covers after receiving information from the Prosecutor's Office about possible tampering with witnesses in the upcoming Wilson and Nunley trials and threats against Mayes coming from inmates in the county jail. The Prosecutor's Office did not specifically request or direct implementation of the mail cover.
The judge concluded that the mail covers were based on reliable information sufficient to raise legitimate concern that the mail was being used to further an illegal activity, specifically potential witness tampering and possible threats against Mayes. The judge concluded that the seizure of the letters was authorized by N.J.A.C. 10A:31-19.6, and determined that Wilson had not provided evidence that the search was pretextual or based on anything other than reliable information of potential illegal activity.
In State v. Jackson, 321 N.J. Super. 365 (Law. Div. 1999), the defendant was awaiting trial when the State received information from an informant that the defendant was receiving mail from an alibi witness. Id. at 369. At the request of the Prosecutor's Office, his incoming mail was "monitored." Id. at 370. The State opposed defendant's motion to suppress, asserting that defendant's rights to privacy were diminished because he was incarcerated. Id. at 372. After balancing constitutional rights and penal restrictions, the trial judge determined that the fact that defendant was a pretrial detainee entitled him to the "presumption of innocence . . . insulat[ing] him from surreptitious attempts of the prosecutor to obtain evidence without the benefit of a warrant. Defendant's expectations of privacy may be greatly diminished, but they are not completely extinguished." Id. at 379.
The trial judge in Jackson explained his reasons for granting defendant's motion to suppress as follows:
Here, the State sought to establish the reliability of this anonymous informant by corroborating certain information about mail defendant was expected to receive from his girlfriend. However, that corroborating information was also obtained by the State without the benefit of a search warrant. While it is true that the jail authorities could have opened and examined incoming mail addressed to the defendant for security purposes, that procedure was not followed in respect of the envelopes that were photocopied. The only reason these letters were intercepted and the envelopes copied was the request of the prosecutor.
[Id. at 382 (citation omitted).]
In this case, however, the mail covers were initiated by the officials of the Union County Jail after they were alerted to possible illegal activity by the Prosecutor's Office. The trial judge credited the testimony of the jail officials who testified that they had sufficient reason to conduct a mail cover beyond the Prosecutor's request, including their own inquiry concerning Wilson and Nunley.
Wilson also argues that the trial judge failed to conduct an N.J.R.E. 404(b) analysis of the letters, and did not issue an appropriate limiting instruction to the jury. We note, however, that defense counsel agreed to redaction of the letters during trial, so that they were sanitized prior to presentation to the jury. In addition, defense counsel did not request the judge to perform a Cofield analysis or deliver any cautionary instruction to the jury.
We see no possibility of injustice sufficient to raise a reasonable doubt as to whether any error with respect to intercepted letters led the jury to a result it otherwise might not have reached.
C.
Wilson next contends that the trial judge committed error when he permitted Hua to testify concerning the results of Suttle's autopsy, when it was Zaretski, rather than Hua, who had actually performed the autopsy. Wilson did not raise the issue during trial.
The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee a defendant the right "to be confronted with the witnesses against him." The Confrontation Clause "prohibit[s] the use of out-of-court testimonial hearsay, untested by cross-examination, as a substitute for in-court testimony." State ex rel. J.A., 195 N.J. 324, 342 (2008) (discussing Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)). As a result, there is "a preference for the in-court testimony of a witness, whose veracity can be tested by the rigors of cross-examination." Ibid.
The United States Supreme Court has held that the Constitution does not compel a defendant to insist that the prosecution call a live witness, whose testimony might be more damaging than helpful to his case. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 328, 129 S. Ct. 2527, 2542, 174 L. Ed. 2d 314, 332 (2009) ("It is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis."). Consequently, "[t]he defendant always has the burden of raising his Confrontation Clause objection." Id. at 327, 129 S. Ct. at 2541, 174 L. Ed. 2d at 331. It is the defendant's choice "to assert (or forfeit by silence) his Confrontation Clause right." Id. at 326, 129 S. Ct. at 2541, 174 L. Ed. 2d at 331.
Our Supreme Court has reached the same conclusion with respect to the New Jersey Constitution.
Defense counsel, many times as a matter of trial strategy, will refrain from objecting to hearsay that may inure to the advantage of the defendant. Because counsel and the defendant know their case and their defenses, they are in the best position to make the tactical decision whether to raise a Confrontation Clause objection.We note that Williams also involved testimony by Hua regarding an autopsy performed by Zaretski. Id. at 96.
[State v. Williams, 219 N.J. 89, 99 (2014).]
Had Wilson wished to cross-examine Zaretski, he should have "provide[d] reasonable advance notice to [the] prosecutor[] that [he] wish[ed] to cross-examine the author[] of [the report] at trial." State v. Kent, 391 N.J. Super. 352, 380 (App. Div. 2007); see also Williams supra, 219 N.J. at 102. Because of his failure to object or request to cross-examine Zaretski during trial, Wilson must establish that the admission of Hua's testimony was plain error.
Wilson bases his argument that he was prejudiced on what he views as differences between Hua's and Zaretski's opinions concerning the trajectory of the shots fired at Suttle's back. While that might have been an important issue as related to the murder charge, we must view the issue in light of the fact that the jury acquitted Wilson of murder and instead convicted him of first-degree aggravated manslaughter. Wilson has not established that the substitution of Hua for Zaretski as the testifying expert resulted in a loss of his opportunity to develop significant exculpatory evidence or that any error was of sufficient magnitude to raise a reasonable doubt as to whether the jury would have reached a more favorable result had Zaretski testified. As we have noted, the primary issue at trial, as framed by the defense, was whether Wilson was at the scene of the shooting at all. The autopsy evidence did not relate to that issue.
D.
Finally, Wilson contends that he was prejudiced by the introduction of the lineup photographs because the participants, including Wilson, were wearing orange jail jumpsuits.
References or evidence suggesting that a defendant was previously involved with criminal conduct are generally considered improper. See State v. Miller, 159 N.J. Super. 552, 562 (App. Div.), certif. denied, 78 N.J. 329 (1978). Our courts are "especially vigilant in protecting a defendant's right not to be compelled to appear at trial in prison attire" in order to protect the presumption of innocence. State v. Maisonet, 166 N.J. 9, 18 (2001). However, references to a photograph as a "mug shot" or otherwise obtained from police sources have been found to be harmless error where they are solitary and fleeting, and accompanied by an appropriate cautionary instruction to the jury. See also State v. Harris, 156 N.J. 122, 173 (1998); State v. Mays, 321 N.J. Super. 619, 632 (App. Div.), certif. denied, 162 N.J. 132 (1999); State v. Porambo, 226 N.J. Super. 416, 426 (App. Div. 1988).
The error may also be harmless even when a photograph of a defendant in prison garb has been admitted into evidence. State v. Burton, 309 N.J. Super. 280, 289 (App. Div.), certif. denied, 156 N.J. 407 (1998) (determining admission of photograph of defendant in prison garb as part of photographic array used to identify defendant to be harmless error in light of "overwhelming evidence of guilt"). In Burton, however, we cautioned against the admission of such photographs in the future. Id. at 288-89.
In this case, the State sought admission of the photographs because Wilson had challenged the accuracy of Mayes's identification at the lineup. The State wanted to show that the participants were similar in appearance. Defense counsel was apparently not concerned about the clothing worn in the photographs. He told the judge that he did not "think the jury is going to look that deeply into the fact that this is the Allegheny County Jail," adding that "[t]hey might just say he was there because of this charge."
Following further discussion of the issue during the charge conference, the judge proposed an appropriate charge to address the issue raised by the prison clothing worn by the participants in the lineup. Defense counsel had no objection to the proposed charge, which was given to the jury as follows:
The photographs are not evidence that [Wilson] has ever been arrested or convicted or any crime . . . . There were photographs that were taken of the individuals who participated in that lineup and those pictures depict the individuals in orange jumpsuits or what you may recognize as attire that inmates at a jail are commonly required to dress in.The charge not only told the jury to disregard Wilson's clothing, but suggested to the jury that he had only been asked to wear that clothing to make him look like the others in the lineup.
. . . .
Moreover, the fact that [Wilson] was asked to dress in this same jail garb or attire is also not to be used in any manner in your deliberations. All defendants in a lineup should be required to dress or wear similar clothing and this is done to ensure that there is nothing suggestible in an identification process and you are not to consider the manner in which the defendant was dressed during this lineup as prejudicing him in any way.
Viewing the issue in context, and mindful that there was strong evidence of Wilson's guilt, we find no error of sufficient magnitude to raise a reasonable doubt as to whether the admission of the photographs led the jury to a result it would otherwise not have reached.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION