NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1515-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GARY P. PRICHARD,
Defendant-Appellant.
Argued June 4, 2025 – Decided July 28, 2025
Before Judges Marczyk, Paganelli, and Torregrossa- O'Connor.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 21-12-1099 and 21-12-1100.
Kaitlin Coeli McCaffrey (Van Der Veen, Hartshorn, Levin & Lindheim) argued the cause for appellant.
Anthony J. Robinson, Assistant Prosecutor, argued the cause for respondent (Yolanda Ciccone, Middlesex County Prosecutor, attorney; Anthony J. Robinson, of counsel and on the brief).
PER CURIAM Defendant Gary P. Prichard appeals his jury trial conviction for second-
degree attempted kidnapping and fourth-degree possession of a deadly weapon
for an unlawful purpose. The principal issue we address is whether the trial
court issued a proper curative instruction to address a witness's inadmissible and
prejudicial testimony that defendant was a member of the Pagan motorcycle
gang. Following our review of the record and the applicable legal principles ,
we conclude the court's instruction was insufficient to cure the prejudice and,
therefore, we reverse and remand for a new trial.
I.
This matter arises from an encounter that occurred on January 25, 2021,
in New Brunswick. There was significant disagreement between defendant and
the victim, Marilyn Contreras's, version of the events. Defendant testified he
was driving home from work on the day of the incident, intending to meet his
date, Zoe Capaldo, later that evening. He stated he drove down Easton Avenue,
approached an intersection, and stopped at a stop sign. He explained he tried to
turn left but was prevented from doing so because Contreras, a pedestrian, was
crossing in front of him and stopped in the middle of the street to look at her
phone. Defendant indicated he "blew" his car horn, which caused Contreras to
drop her phone. He testified Contreras then picked up her phone, stood in the
A-1515-23 2 street, and "started cursing" and screaming at him. Defendant stated as he turned
left, Contreras "kicked [the] passenger rear side of [his] truck."
Defendant testified he proceeded to drive for a couple of seconds, but then
"got really mad" about the encounter and turned around because he "wanted to
confront [Contreras]" Defendant stated he drove around slowly, "looking to see
where she was." He testified he pulled his vehicle alongside Contreras in front
of a restaurant, and a verbal altercation ensued, during which defendant
acknowledged "[he] was belligerent."
Defendant recounted he was a short distance from Contreras when she
started approaching his vehicle. He testified he pulled out a "fake" gun from the
center console and told her to "get the f[***] away from [his] car" because he
believed Contreras was going to kick his vehicle again. (Emphasis added). He
claimed he never aimed the gun at Contreras, but upon seeing the gun, she
screamed and jumped behind a nearby pile of cardboard boxes, "which . . . was
what . . . the gun was for, . . . to stop any problems from happening." He stated
he then drove away.
Nicole Hodges, an employee of the restaurant near where the altercation
occurred, testified she was closing the restaurant when she heard "a lot of
commotion going on outside," including "some screaming." Hodges stated she
A-1515-23 3 went outside and saw a woman crying and appearing "hysterical." Hodges then
contacted the police, providing a description of defendant and the vehicle.
Detective Keith Walcott responded to the scene to investigate the incident
and took a statement from Contreras, who reported that an individual in a red
truck pulled alongside her, pointed "a black handgun at her through the open
passenger side window," and twice yelled "get in the f[*****]g car," and then
sped off. (Emphasis added). Detective Walcott subsequently obtained
surveillance from nearby businesses, residences, and Rutgers University, which
depicted defendant's vehicle. The video surveillance did not capture the actual
interaction between defendant and Contreras.
A few days later, police stopped defendant in his vehicle and arrested him.
Detectives obtained and executed a search warrant on defendant's vehicle and
found an imitation handgun (starter pistol) loaded with blank rounds in
defendant's trunk. Subsequently, defendant was charged with attempted
kidnapping, N.J.S.A. 2C:5-1(a)(3) and 2C:13-1(b)(2), and possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(e).
At the time of defendant's arrest, he had been seeing two women, Capaldo,
and Diana Perez. At trial, defendant testified he was in a non-exclusive
relationship with Capaldo for about two years prior to the arrest and had met
A-1515-23 4 Perez in September 2020. Defendant stated Perez's behavior changed in
December when she connected with an old friend and started "doing hard drugs."
Defendant indicated he was against drug use and never participated in drug
activity because he lost a family member to drugs.
Against this backdrop, defendant was released from jail approximately
two weeks after his arrest. Perez hired an attorney to represent defendant, and
defendant resided with her following his release. According to defendant, he
and Perez had several arguments concerning her use of drugs, which led
defendant to move back to New Brunswick. Defendant testified that in late April
2021, he invited Perez and other people to his home. Defendant testified he and
Perez got into an argument after he observed her ingest "something." Defendant
stated he ended the relationship the next morning but informed Perez they could
remain friends.
Defendant explained Perez would attempt to contact him and appeared at
his home unannounced on Father's Day in June 2021, at which point he informed
her not to call or text him anymore. Defendant testified that when he offered
Perez $1,400 for gifts she had given him, she threw the money in his face and
said "[he] was gonna regret breaking up with her." Defendant recalled two
subsequent arguments with Perez in July and August 2021, when she showed up
A-1515-23 5 at two bars he frequented, and he reiterated he did not want to be with her. Perez
entered a rehabilitation facility in August 2021.
In September 2021, Perez went to the New Brunswick Police Department
and provided a statement to Detective Walcott related to the pending attempted
kidnapping and weapon charges against defendant. Perez stated defendant
spoke with her about the incident and asked "if [she] was willing to find
[Contreras] [and] offer her [$5,000 to $10,000] just to drop the case" against
him. Perez also alleged defendant subsequently asked her "if [she] could find
someone to get rid of this girl." Perez informed Detective Walcott that she told
defendant "[she]'ll look into it," but did not intend to do so. Thereafter,
defendant was charged with witness tampering, N.J.S.A. 2C:28-5(a)(2).
Following a grand jury indictment on all three counts, defendant moved
to sever the witness tampering charge. Defendant argued the charge should be
severed from the others due to the risk of the proceeding becoming "a trial within
a trial" to expose Perez's motivations. Defendant contended there would be a
substantial risk of prejudice in the underlying case because "it[ was] basically a
he said/she said" case, which would be decided based on who the jury finds more
credible. Defendant asserted it would be prejudicial to have to litigate the
A-1515-23 6 allegations of a "scorned" ex-girlfriend with drug issues—made months after the
alleged incident—together with the charges involving Contreras.
After an N.J.R.E. 104 hearing, the court determined Perez's statements
were admissible regarding defendant's motive with respect to the underlying
kidnapping and weapons charges under N.J.R.E. 404(b) and the four-part
Cofield1 test. The court rejected defendant's argument that there would be undue
prejudice if the evidence was utilized at trial because the witness tampering
charge stemmed from defendant asking his ex-girlfriend to "figure out a way"
to prevent the victim of the attempted kidnapping from testifying. Accordingly,
the court was satisfied the Cofield prongs had been met and, therefore, denied
defendant's motion to sever.
The trial commenced in June 2023. On the first day of trial, Hodges and
Contreras testified about the incident, as noted above, and Contreras identified
defendant as the driver of the vehicle. The State also introduced the recording
of Hodges's 9-1-1 call.
On the second day of trial, the State presented testimony from Perez. She
recounted her allegation that defendant wanted her to bribe Contreras to drop
the charges against him. She claimed she declined to do so, and a few weeks
1 State v. Cofield, 127 N.J. 328 (1992). A-1515-23 7 later, defendant asked if she could find someone to "rough . . . [Contreras] up,
like[] scare her, [and] beat her up." She indicated that when she did not agree
to defendant's request, he asked her if she could "find someone to kill this girl[.]"
She testified that after defendant made these requests, she "locked [her]self in
[her] room" and began using drugs for an extensive period of time. She stated
she went to the police immediately after finishing rehab because she would use
drugs again if she kept the information to herself.
Defendant's primary challenge in this appeal involves Perez's subsequent
testimony where she made prejudicial comments, at times unsolicited, regarding
defendant's alleged prior drug use, drunk driving history, and gang affiliation.
Initially, Perez stated she did not want defendant to know she was in recovery,
"let alone, do drugs in front of him," because she "knew from a close family
member of his how he was so against that." However, defense counsel and Perez
then engaged in the following colloquy:
[Defense counsel:] All right. . . . [Defendant] wasn't into the whole drug scene. Fair to say?
[Perez:] You're asking me –
[Defense counsel:] Yeah.
[Perez:] . . . I'm going to tell the truth. [Defendant] did cocaine.
A-1515-23 8 [Defense counsel:] Okay. And then the next day is when he told you, this is officially over. I'm on pretrial release. You can't come anymore. It's over. And that's when you got upset. That's when the relationship went downhill.
[Perez:] No. That's –
[Defense counsel:] That was on April 25[], 2021.
[Perez:] . . . [O]kay. It wasn't that. It was the second time [defendant] called me when he got arrested, again, um, for D-W-I while on [p]robation . . . .
[Defense counsel]: Objection, Judge.
....
THE COURT: Sustained.
THE COURT: Jury . . . disregard that last answer, please.
[Perez]: Sorry.
Thereafter, defense counsel questioned Perez about her familiarity with
Capaldo. Perez responded defendant "was trying for us to become friends and
get together. And I made it very clear to [defendant], I will never do the
threesome thing." When defense counsel inquired as to why she did not tell
Detective Walcott "anything about threesomes," Perez made unsolicited remarks
about defendant's affiliation with the Pagan motorcycle gang. She stated:
A-1515-23 9 Well, what I'm saying to you is, everything that I'm speaking about here, I spoke to Detective Walcott . . . about [defendant] being a Pagan, I spoke about that. . . .
[Defense counsel]: Judge, objection. What's . . . I don't know what she's talking about?
THE COURT: . . . Sidebar.
At sidebar, defense counsel told the judge, "I am not asking her about
that," to which the judge agreed and stated, "[s]he's just going crazy," "throwing
a lot of stuff and now she's got him . . . ." (Emphasis added). The judge stated:
"if something is objectionable, then just . . . object to it. Okay? But she wants
to control this dialogue so much that now she's compromised this case three
times, now with, he's a Pagan." (Emphasis added). The judge indicated "[t]hat's
not . . . good," and he noted Perez's response "ha[d] nothing to do with the
question," and "she just wants to put out there whatever she wants to put out
there." The judge determined he would advise the jury to disregard that last
answer.
Defense counsel, however, requested a mistrial, to which the judge
responded, "I'm going to reserve on that." 2 The judge informed defense counsel
that if he did not get the answer he wanted on cross-examination, "the objection
2 The judge never ruled on the mistrial motion. A-1515-23 10 is, [j]udge, non[-]responsive." The judge stated Perez has "got to get control of
herself and there's no way of telling her that right now." The court rejected the
State's argument that Perez was in control of herself and she answered the
questions posed to her. The judge commented, "she's answering the questions
kind of that [defense counsel] wants, but she's throwing extra stuff in there about
. . . threesomes, he's got arrested for a [DWI], he's a Pagan member now, [and]
he does cocaine." (Emphasis added).
The judge indicated "[t]his is all stuff that's way beyond the questions,"
and reiterated that Perez was "compromising the case." The judge stated:
Nobody ever asked if . . . defendant does drugs? She threw that out there. That's the problem. She's . . . not listening to the questions. She wants to . . . answer the way she wants to answer. . . .
You[, defense counsel,] have to ask her more precise questions and if you don't ask a precise question, she's going to answer the way she's going to answer. But if she [answers,] . . . like she's done now three times already, she might compromise this case. . . . I'm going to tell the jury to strike . . . that last answer.
When the court went back onto the record, it advised the jury, "I will need you
to completely disregard that last answer given by the witness in this case.
Okay?"
A-1515-23 11 Defendant testified on the third day of trial, disputing Contreras's version
of the events. He acknowledged that turning around to confront Contreras after
she kicked his truck "was probably the worst decision of [his] life" due to
"everything that followed." He conceded he parked his car near Contreras and
then "pulled out the gun" from his center console when she started walking
toward his vehicle. Defendant testified he told Contreras to "get the f[***] away
from [his] car," at which point she screamed and jumped behind the pile of
cardboard boxes.
Defendant denied ever telling Contreras to get into the car and stated it
would not make sense for him to say that because he had planned to meet
Capaldo later that evening, and the area was heavily populated. He also denied
asking Perez to bribe Contreras because he did not have any money after his
release from jail. He contended Perez's allegation that he asked her to find
someone to kill Contreras was "100 percent . . . made-up, delusional lies."
The jury returned a verdict finding defendant guilty of attempted
kidnapping and possession of a weapon for an unlawful purpose. However,
defendant was found not guilty of witness tampering.
When the State moved to revoke defendant's release pending sentencing,
defense counsel objected, arguing he had asked for a mistrial because a witness
A-1515-23 12 inappropriately testified defendant was a member of the Pagan biker gang.
However, because the judge who presided over the trial was absent that day, the
substitute judge asked if there had already been a ruling on the request for a
mistrial. Defense counsel explained, "[the trial judge] ruled that . . . he wasn't
going to issue a mistrial . . . at [that] time." The substitute judge then declined
to "override" that decision.
Defendant was sentenced in October 2023. The court sentenced defendant
to eight years' imprisonment, subject to an eighty-five percent parole disqualifier
under the No Early Release Act, N.J.S.A. 2C:43-7.2, for the second-degree
attempted kidnapping charge, and to one year incarceration for the fourth-degree
possession of a deadly weapon for an unlawful purpose charge, to run concurrent
with the sentence for attempted kidnapping.
II.
Defendant raises the following points on appeal:
POINT I
DEFENSE'S MOTION FOR MISTRIAL SHOULD HAVE BEEN GRANTED.
a. There is no trial court decision to afford deference.
A-1515-23 13 POINT II
THE TRIAL COURT ERRED BY DENYING THE DEFENSE'S MOTION TO SEVER.
a. Relevance to Material Issue in Genuine Dispute.
b. Clear and Convincing Evidence.
c. Prejudice.
POINT III
THE TRIAL COURT'S FAILURE TO CONSIDER ANY MITIGATING FACTORS AND IMPOSITION OF A LENGTHY STATE PRISON SENTENCE CONSTITUTED AN ABUSE OF DISCRETION.
A decision to grant or deny a motion for a mistrial is left to the sound
discretion of the trial judge. State v. Smith, 224 N.J. 36, 47 (2016); State v.
Jackson, 211 N.J. 394, 407 (2012). "[A]n appellate court will not disturb a trial
court's ruling on a motion for a mistrial, absent an abuse of discretion that results
in a manifest injustice." Jackson, 211 N.J. at 407 (alteration in original) (quoting
State v. Harvey, 151 N.J. 117, 205 (1997)). "The grant of a mistrial is an
extraordinary remedy to be exercised only when necessary 'to prevent an
obvious failure of justice.'" State v. Yough, 208 N.J. 385, 397 (2011) (quoting
Harvey, 151 N.J. at 205). "Of course, declaring a mistrial is never a preferred
course." State v. Smith, 471 N.J. Super. 548, 579 (App. Div. 2022). "If there is
A-1515-23 14 'an appropriate alternative course of action,' a mistrial is not a proper exercise
of discretion." Smith, 224 N.J. at 47 (quoting State v. Allah, 170 N.J. 269, 281
(2002)). "For example, a curative instruction, a short adjournment or
continuance, or some other remedy, may provide a viable alternative to a
mistrial, depending on the facts of the case." Ibid.
"The same deferential standard that applies to the mistrial-or-no-mistrial
decision applies to review of the curative instruction itself." State v. Herbert,
457 N.J. Super. 490, 503 (App. Div. 2019) (citing State v. Winter, 96 N.J. 640,
647 (1984)). "[A] trial court is in the best position to assess the impact of an
evidentiary ruling." Ibid. (citing Crawn v. Campo, 136 N.J. 494, 512 (1994)).
Defendant argues that although a trial court has discretion to declare a
mistrial, no deference is warranted here because the court never formally ruled
on his motion. He contends the court's "one-sentence instruction to the jury" to
disregard Perez's testimony about defendant's affiliation with the Pagans did not
constitute a ruling on his motion for a mistrial. Moreover, he asserts Perez's
testimony about his prior DWI conviction, drug use, and membership in "a
notoriously violent and criminal biker gang" was "undoubtedly prejudicial,"
portrayed him as a "villain," and "could not be remedied through a curative or
limiting instruction."
A-1515-23 15 Defendant asserts these prejudicial comments are even more severe in a
"he said, she said" attempted kidnapping case because the verdict "hinged on
who the jury found most credible." Specifically, according to defendant,
because no witnesses or cameras observed the interaction and no surveillance
cameras captured the incident, and given defendant did not dispute grabbing the
imitation firearm, the "only real" issue was whether the jury believed Contreras's
testimony that defendant told her to get into the vehicle, or defendant's testimony
that he told Contreras to get away from his vehicle.
Defendant avers the testimony about his Pagan gang affiliation
"improperly tilt[ed] the scale[s] of credibility heavily in . . . Contreras' favor,"
and that the jury could have been "improperly swayed" by Perez's comments.
He contends it is unreasonable to believe the jurors could disregard this
testimony but, even if they attempted to do so, "it would be impossible to not let
this information prejudice their decision."
The State concedes Perez "volunteered" statements that were "objectively
and admittedly irrelevant" and "untethered" to the questions. However, it avers
Perez making "[a] few off-hand, unsolicited remarks" about defendant's history
"could not have been material" because the jury considered additional testimony
from several other witnesses. It further contends Perez's statements neither
A-1515-23 16 prejudiced defendant nor improperly influenced the jury because her testimony
was limited to the witness tampering count, and defendant's acquittal on that
count "represents the jury's categorical disregard of Perez's testimony" on that
issue and, by extension, tangential issues.
Our Supreme Court has articulated:
The decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.
[Winter, 96 N.J. at 646-47.]
"The authority is abundant that courts presume juries follow instructions."
Herbert, 457 N.J. Super. at 503. Yet, "[t]here are undoubtedly situations in
which notwithstanding the most exemplary charge, a juror will find it impossible
to disregard such a prejudicial statement." State v. Boone, 66 N.J. 38, 48 (1974);
see also Herbert, 457 N.J. Super. at 504 ("The naive assumption that prejudicial
effects can be overcome by instructions to the jury . . . all practicing lawyers
know to be unmitigated fiction." (quoting Krulewitch v. United States, 336 U.S.
440, 453 (1949) (Jackson, J., concurring))).
A-1515-23 17 In addressing an objection to an improper reference to a defendant's gang
affiliation in a murder case, this court has observed that a trial court's decision
"to opt for a curative or limiting instruction, instead of a mistrial or new trial,
depends on at least three factors." Id. at 505. First, courts "consider the nature
of the inadmissible evidence the jury heard, and its prejudicial effect." Ibid.
"The adequacy of a curative instruction necessarily focuses on the capacity of
the offending evidence to lead to a verdict that could not otherwise be justly
reached." Ibid. (quoting Winter, 96 N.J. at 647). "[W]hile a general charge may
suffice to cure 'only slightly improper' remarks, 'a single curative instruction
may not be sufficient to cure the prejudice resulting from cumulative errors at
trial.'" Ibid. (quoting State v. Vallejo, 198 N.J. 122, 136 (2009)). Accordingly,
"[a]n instruction can be curative only if the judicial medicine suits the ailment."
Id. at 508.
The second factor recognizes that "an instruction's timing and substance
affect[s] its likelihood of success." Id. at 505. The instruction must be "firm,
clear, and accomplished without delay." Vallejo, 198 N.J. at 134. Our Court
"has consistently stressed the importance of immediacy and specificity when
trial judges provide curative instructions to alleviate potential prejudice to a
defendant from inadmissible evidence that has seeped into a trial." Id. at 135.
A-1515-23 18 "[A] swift and firm instruction is better than a delayed one" in order to inhibit
any prejudicial evidence from cementing in the minds of the jury. Herbert, 457
N.J. Super. at 505. With respect to the substance, "a specific and explanatory
instruction is often more effective than a general, conclusory one." Id. at 506.
Under the third factor, the "court must ultimately consider its tolerance
for the risk of imperfect compliance." Id. at 507. Determining "whether an error
is reason for reversal depends finally upon some degree of possibility that it led
to an unjust verdict." State v. Macon, 57 N.J. 325, 335 (1971). However, "not
'any' possibility can be enough for a rerun of the trial. The possibility must be
real, one sufficient to raise a reasonable doubt as to whether the error led the
jury to a result it otherwise might not have reached." Id. at 336.
Applying these principles to the facts presented here, we conclude the trial
judge's instruction did not remedy the prejudicial impact of Perez's inadmissible
testimony that defendant was a member of the Pagan motorcycle gang. The
court's instruction did not "clearly and sharply address the prejudicial aspect" of
the testimony. Herbert, 457 N.J. Super. at 508. The Pagan gang reference was
highly inflammatory and prejudicial. The trial judge recognized the negative
impact of the testimony repeatedly noting Perez "compromised" the case.
A-1515-23 19 The Vallejo Court recognized "[o]ther-crimes evidence is considered
highly prejudicial." 198 N.J. at 133. As this court has noted, "[a]lthough
evidence of membership in a street gang is not . . . evidence of actual criminal
activity, it is at the very least strongly suggestive of such activity." State v.
Goodman, 415 N.J. Super. 210, 227 (App. Div. 2010). Consequently, "[a] 'mere
. . . allegation[] of gang membership carries a strong taint of criminality.'"
Herbert, 457 N.J. Super. at 509 (second alteration in original) (quoting
Goodman, 415 N.J. Super. at 227). Such evidence runs the risk that "the jury
may conclude [the] defendant is a bad person with a propensity to commit
crimes." Ibid. Indeed, "[t]here is widespread agreement that other-crime
evidence has a unique tendency to turn a jury against the defendant." Ibid.
(quoting State v. Stevens, 115 N.J. 289, 302 (1989)).
Given the prejudicial nature of defendant's purported gang affiliation, the
court's one-line instruction here was too general and conclusory to dispel its
unsavory suggestion of defendant's criminal propensity. In fact, it lacked any
of the specificity of the curative instruction that the trial court gave in Herbert,
which we nevertheless found inadequate for other reasons. 457 N.J. Super. at
A-1515-23 20 509-11. Moreover, it also fell far short of the detailed suggested curative
instruction we set forth in Herbert.3
3 In Herbert, we stated:
To increase the likelihood the jurors would actually disregard the detective's statement, the judge could have explained that giving it weight would disserve the fact-finding function, and would unfairly prejudice their view of defendant. To further guard against misuse, the court should have provided a warning akin to that accompanying admissible Rule 404(b) evidence. For example, the judge could have stated:
Ladies and gentlemen, you just heard Detective Crawley mention that [the] defendant is a member of a gang. I am striking that statement, and direct you to disregard it and give it no weight whatsoever. Let me explain why.
First, the statement is unsupported by any evidence in this case. Regardless of whether the detective actually believes what he says, his statement may be based on hearsay, or rumor, or mistaken information. It would be unfair to [the] defendant, and wrong for you to credit the detective's statement without proof, without evidence. Without proof, it is nothing more than an allegation. You are obliged to make fact-findings based not on allegations, but on the evidence presented in this courtroom, and only that evidence, in accord with the instructions I give you.
A-1515-23 21 There has been, and will be no evidence that gangs were involved in this homicide, or [the] defendant is himself a gang member. The detective's statement by itself is not evidence.
Second, because we knew in advance that there would be no evidence in this trial to support the detective's statement, the detective was directed not to mention gangs. He did so anyway, in violation of my direction. You should disregard his statement.
Third, you must not conclude, based on the detective's unsupported statement, that [the] defendant is a bad person, or that he was more likely to commit the crimes charged based on the detective's characterization of him. The statement is unsupported and should be given no weight.
While I am on the subject, I also direct you to disregard and give no weight to the detective's statement that the neighborhood near the school is a "high gang area." The detective provided no evidence to support that statement. That statement also violated my direction that unsupported statements about gangs were prohibited. It would be unfair and wrong for you to conclude that the alleged presence of gangs in the area provided a reason for the homicide, or supported a finding that defendant committed it.
A-1515-23 22 Perez's testimony regarding defendant's Pagan affiliation cannot be
dismissed as a fleeting comment likely to evade the minds of jurors; rather, it
had the potential to remain with the jury as a strong suggestion of criminality.
Indeed, like in Herbert, the trial came to a halt once Perez referenced defendant's
membership in the Pagans. Id. at 508-09. Consequently, that remark—carrying
a clear potential of prejudice—likely did not go unnoticed by the jury.
Although the State contends defendant's acquittal on the witness
tampering offense indicates the jury "categorical[ly] disregard[ed]" Perez's
testimony on all issues, this argument ignores the unrelated and irrelevant
references to gang membership, which carried the taint of criminality.
Moreover, "[o]ur jurisprudence does not allow us to conjecture regarding the
nature of the deliberations in the jury room." State v. Muhammad, 182 N.J. 551,
578 (2005). "We will not speculate about the foundations of the jury verdict."
State v. Montalvo, 229 N.J. 300, 324 (2017). We know the jury determined that
the State failed to prove the jury tampering charge beyond a reasonable doubt.
To repeat, the statements regarding gangs are unsupported; it would be unfair and wrong if you gave them any weight; and I direct you to disregard them.
[Herbert, 457 N.J. Super. at 511 n.7.]
A-1515-23 23 We cannot, however, in turn, infer that it completely disregarded Perez's
testimony, particularly in light of the inadequate curative instruction. In other
words, the jury may have found there was insufficient corroborating evidence
regarding the witness tampering charge. However, it does not follow that the
jury would wholly ignore Perez's proclaiming that defendant is a Pagan gang
member.
We further determine, because of the insufficient curative instruction, the
risk of the jury's non-compliance with following the court's instruction was high.
This was not a case that involved otherwise overwhelming evidence of
defendant's guilt. There was no video surveillance of the altercation or
eyewitness testimony. Rather, the State's case depended almost exclusively on
Contreras's account of the confrontation with defendant. Because defendant
testified in his defense, his credibility was front and center for the jury to
evaluate. Perez's unsolicited testimony regarding defendant's gang affiliation
had the potential to cause substantial prejudice and the capacity to impact the
jury verdict, given this case rested on the credibility of defendant and Contreras.
Painting defendant as a member of a notorious biker gang—after Perez had also
cast additional aspersions on defendant's character regarding drug use and a
prior DWI—had the clear capacity to irremediably taint his credibility.
A-1515-23 24 Although we ordinarily accord deference to the trial court in ruling on a
motion for a mistrial, the court never squarely addressed that motion. Moreover,
while the court instructed the jury not to consider Perez's unsolicited comment
regarding defendant's membership in the Pagan motorcycle gang, we conclude
it was insufficient and did not cure the highly inflammatory and prejudicial
impact of the testimony. Accordingly, we are constrained to reverse and remand
for a new trial. Because defendant was acquitted of witness tampering, we need
not address the severance issue. Because we reverse, we need not address
defendant's sentence.
Reversed and remanded for a new trial.
A-1515-23 25