NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0536-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUIS ALMONTE,
Defendant-Appellant. _______________________
Submitted February 1, 2021 – Decided July 27, 2021
Before Judges Gooden Brown and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 16-07- 0112.
Joseph E. Krakora, Public Defender, attorney for appellant (David J. Reich, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Daniel Finkelstein, Deputy Attorney General, of counsel and on the brief).
PER CURIAM Following a jury trial, defendant and co-defendant Jorge Oviedo-Difo,
who was tried in absentia, were convicted of second-degree possession of a
handgun without a permit, N.J.S.A. 2C:39-5(b) (count one); and two counts of
fourth-degree possession of prohibited weapons and devices, N.J.S.A. 2C:39-
3(f)(1) and 2C:39-3(j) (counts two and three, respectively). Defendant was
sentenced to an aggregate term of five years' imprisonment with a forty-two-
month period of parole ineligibility.
The convictions stemmed from a multi-state sting operation conducted by
the Drug Enforcement Administration (DEA) to identify members of a
Philadelphia crew that perpetrated home invasions to rob drug dealers. The
physical items forming the evidential bases for the charges were recovered
during a consent search of the co-defendant's vehicle conducted at a rest stop on
the New Jersey Turnpike when the co-defendant and defendant were en route to
a fabricated home invasion in New York that had been arranged by a confidential
informant (CI) working for the DEA.
Defendant now appeals from his convictions raising the following points
for our consideration:
POINT I[1]
1 We condensed Point I for clarity.
2 A-0536-18 THE TRIAL COURT ABDICATED ITS LEGAL OBLIGATION TO ACT AS A GATEKEEPER WITH RESPECT TO THE INTRODUCTION OF EVIDENCE OF OTHER BAD ACTS.
A. The Trial Court Failed To Find Clear And Convincing Evidence Other Bad Acts Were Committed.
B. The Trial Court Failed To Submit Required Jury Instructions Concerning The Other Bad Acts Evidence.
C. The Trial Court Failed To Sanitize The Other Bad Acts Evidence.
D. The Court Allowed The Jury To Hear Substantial Amounts Of Other Patently Inadmissible Testimony.
POINT II
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING [DEFENDANT'S] MOTION TO SEVER AND THEN PERMITTING HIS ABSENT CO-DEFENDANT'S POST-ARREST STATEMENT TO BE USED TO INCULPATE HIM.
POINT III
A NEW TRIAL IS WARRANTED IN VIEW OF THE PREJUDICE CAUSED BY THE PROSECUTOR'S MISCONDUCT.
POINT IV
3 A-0536-18 A NEW TRIAL IS WARRANTED IN VIEW OF THE CUMULATIVE ERRORS IN THIS CASE (NOT RAISED BELOW).
After considering the arguments presented in light of the record and applicable
law, we affirm.
I.
Following significant motion practice, trial commenced on June 14, 2018.
We glean these facts from the record of the four-day trial, during which the State
produced three witnesses, DEA Agent Steven Chapman, the CI, and New Jersey
State Police Detective Joseph Czech. Agent Chapman testified that during a
sting operation conducted in late 2015 to early 2016, the DEA obtained a phone
number and a code word to contact a suspected crew operating out of
Philadelphia that robbed drug dealers. Because the identity of the crew members
was unknown, the DEA gave the phone number to a paid CI to identify the
members and infiltrate the crew.
On December 29, 2015, at the behest of the DEA, the CI contacted an
individual identified as co-defendant Oviedo-Difo at the phone number acquired
during the investigation. Once the CI confirmed that co-defendant Oviedo-Difo
was interested in participating in a robbery, the CI arranged a meeting in New
York to discuss a fabricated robbery of a stash house in the Bronx. The phone
4 A-0536-18 conversation between the CI and co-defendant Oviedo-Difo to arrange the
meeting was recorded. According to Chapman, the DEA planned to arrest the
crew members when they arrived to rob the stash house.
The CI testified that co-defendant Oviedo-Difo and an individual later
identified as defendant attended the prearranged meeting in Manhattan. During
the meeting, the CI informed defendants he had a contact inside an apartment
containing money and drugs, and that the contact would give them access to the
apartment for the robbery. The CI told defendants he would call them the day
before the planned robbery and asked them how they would commit the robbery.
According to the CI, co-defendant Oviedo-Difo responded that they would bring
"tape and a ski mask." When the CI specifically asked if they were "coming
with guns," both defendants responded "[o]f course" as they anticipated that the
apartment occupant would be armed. The CI suggested that defendants "wear a
hat and a hoodie" to conceal their identities.
The New York meeting took place in an SUV parked at a prearranged
location, lasted approximately twenty minutes, and was secretly recorded by the
CI, who was seated in the back seat next to defendant and had an unobstructed
view of defendant. Co-defendant Oviedo-Difo sat in the driver's seat and an
unidentified male sat in the front passenger seat. The audio recording of the
5 A-0536-18 meeting was played for the jury during the trial and a transcript was provided as
an aid.
A few weeks after the meeting, the CI called co-defendant Oviedo-Difo
and told him that everything was set for the following day. On the day of the
planned robbery, January 20, 2016, co-defendant Oviedo-Difo told the CI in a
phone conversation that they were "getting ready to leave." Throughout the day,
Oviedo-Difo and the CI continued to communicate via telephone and the
conversations were recorded.
Defendants traveled from Philadelphia in co-defendant Oviedo-Difo's
vehicle to meet the CI for the robbery in New York. However, while en route,
the car began to overheat, and, at about 4:00 p.m., Oviedo-Difo told the CI that
he had to pull off at a rest stop on the New Jersey Turnpike. At the request of
the DEA, members of the New Jersey State Police responded to the Grover
Cleveland Rest Area and arrested defendants when they observed them approach
the disabled vehicle described to the officers by the DEA. Although the vehicle
was not surveilled when it left Philadelphia, the DEA was aware of its location
through the telephonic communications between the CI and co-defendant
Oviedo-Difo.
6 A-0536-18 After obtaining consent from co-defendant Oviedo-Difo, the registered
owner of the vehicle, Detective Czech testified that he and other unit members
searched the vehicle, beginning at 6:35 p.m. The search uncovered a semi-
automatic Smith and Wesson handgun 2 loaded with a large capacity magazine
and hollow-point bullets hidden inside a sock secreted behind the radio in the
"dashboard center console compartment" of the vehicle. Neither defendant had
a permit for the gun. Suspected robbery tools consisting of two black ski masks,
black gloves, duct tape, zip ties, and a black hooded sweatshirt were found on
the backseat. In the rear portion of the vehicle, officers recovered a bag of
suspected burglary tools consisting of screwdrivers, pliers, socket wrenches, and
the like.
After being administered his Miranda 3 warnings, co-defendant Oviedo-
Difo gave a statement to police. Detective Czech testified that, in the statement,
Oviedo-Difo explained that he was giving defendant a ride from Philadelphia to
New York to meet someone in the music industry when "[his] truck broke
2 Subsequent testing confirmed that the gun was operable. 3 Miranda v. Arizona, 384 U.S. 436 (1966).
7 A-0536-18 down." Oviedo-Difo admitted that other than the hooded sweatshirt, 4 the gloves,
and the ski masks, 5 the items found in the back seat and the rear of the vehicle
belonged to him. When questioned by police, he provided innocuous and
inconsistent explanations for the presence of the items in the vehicle. Oviedo-
Difo also stated he installed an after-market radio in the compartment where the
gun was found but denied any knowledge or ownership of the gun.
Defendant testified on his own behalf. He emphatically denied being
present at the New York meeting, denied that it was his voice on the audio
recording of the meeting, and denied any knowledge of a planned robbery. He
stated that co-defendant Oviedo-Difo was "an acquaintance" he met "[a]t the
barbershop" in Philadelphia. Defendant explained that the only reason he was
in Oviedo-Difo's vehicle when they were arrested was because he needed a ride
to New York for a business meeting with a client in the music industry and
defendant's car was unreliable. Defendant stated he had "an entertainment
company" that "manage[d] artists and musical events." Defendant claimed he
did not know there was a gun in the car and did not notice the items in the rear
4 Oviedo-Difo was wearing a black hooded sweatshirt when he was arrested. 5 Oviedo-Difo described the ski masks as hats that were needed for the frigid New York temperature.
8 A-0536-18 of the car when he placed his "jacket" 6 there. Defendant expressly denied
ownership of the ski masks. After he was convicted and sentenced, this appeal
followed.
II.
A.
In Point I, defendant argues that "[i]n view of the absence of an express
finding of clear and convincing evidence that [defendant's] voice was on the
recording or that he ever met or spoke with the informant," as required under
Rule 404(b), 7 it was reversible error for the trial judge "to submit the audio
recording and the transcript of that recording to the jury" when defendant
"vehement[ly] dispute[d]" the account. Defendant asserts further that the judge
erred in failing "to instruct the jury concerning the limited purposes for which
the other bad acts at issue could be considered" and erred in failing "to sanitize
6 The jacket referred to the hooded sweatshirt recovered from the back seat of the vehicle. 7 Under State v. Cofield, 127 N.J. 328, 338 (1992), the Court adopted a four- prong test to screen for admissibility of other crime evidence under Rule 404(b), requiring that the evidence be "relevant to a material issue;" "similar in kind and reasonably close in time to the offense charged;" "clear and convincing;" and have "probative value" that is "not . . . outweighed by its apparent prejudice." (citations omitted).
9 A-0536-18 the other bad acts evidence" to redact discussions about the details of the
planned robbery to "minimize its harmful impact." Defendant also contends he
was deprived of "a fair trial" by repeated "testimony linking [him] to the alleged
planned robbery" elicited from the CI and Agent Chapman, which evidence "had
no probative significance concerning the weapons possession charge[,] . . . was
patently inadmissible under other well established evidence rules," and
"embellished and distorted the facts." The State counters that "[e]vidence of the
robbery was intrinsic" to the charged crimes and therefore admissible. We
agree. 8
"[E]vidence that is intrinsic to the charged crime is exempt from the
strictures of Rule 404(b) even if it constitutes evidence of uncharged misconduct
that would normally fall under Rule 404(b) because it is not evidence of other
8 Defendant asserts that because the judge admitted the evidence in question under Rule 404(b) on the State's application, the State is now precluded from arguing an alternate theory on appeal. However, the general rule promulgated in Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), that "appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available" does not apply "where an issue was raised in the trial court even if argument before the trial court was based on a different theory from that advanced in the appellate court." Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 2:6-2 (2020). Moreover, because an appeal is taken from the court's ruling rather than reasons for the ruling, we may rely on grounds other than those upon which the trial court relied. See State v. Williams, 444 N.J. Super. 603, 617 (App. Div. 2016).
10 A-0536-18 crimes, wrongs, or acts." State v. Rose, 206 N.J. 141, 177 (2011) (citation and
quotation marks omitted).
Thus, evidence that is intrinsic to a charged crime need only satisfy the evidence rules relating to relevancy, most importantly the Rule 403 balancing test. Thus, characterization of evidence as "intrinsic" significantly affects the calculus because the principle animating Rule 403 is that relevant evidence is admissible unless its probative value is substantially outweighed by a negative feature of the evidence, whereas Rule 404(b) operates from the premise that evidence of other bad acts is inadmissible unless proffered for a proper purpose. It is therefore more likely that evidence of uncharged misconduct will be admitted into evidence if it is considered intrinsic to the charged crime and subject only to Rule 403 than if it is not considered intrinsic evidence and subject to both Rule 404(b) and Rule 403.
[Id. at 177-78.]
Accord State v. Santamaria, 236 N.J. 390, 410 (2019) ("[I]f evidence is found
to be intrinsic to the crime at issue, it does not constitute other-acts evidence
and is subject only to the limits of Rule 403.").
To determine if evidence is "intrinsic," our Supreme Court adopted the
test articulated in United States v. Green, 617 F.3d 233 (3d Cir. 2010), which
limits intrinsic evidence to "two narrow categories of evidence." Rose, 206 N.J.
at 180.
11 A-0536-18 First, evidence is intrinsic if it "directly proves" the charged offense. This gives effect to Rule 404(b)'s applicability only to evidence of "other crimes, wrongs, or acts." If uncharged misconduct directly proves the charged offense, it is not evidence of some "other" crime. Second, "uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime."
[Id. at 180 (quoting Green, 617 F.3d at 248-49).]
"[T]he Court predicted that its holding would have little impact upon evidentiary
rulings" and would not exclude "evidence that is currently admissible as
background or 'completes the story' evidence under the inextricably intertwined
test" encompassed in the doctrine of intrinsic evidence. State v. Brockington,
439 N.J. Super. 311, 327 (App. Div. 2015) (quoting Rose, 206 N.J. at 180).
Here, proof of the planned robbery was intrinsic to proving certain
statutory elements of the possessory crimes charged. To prove defendant
possessed the loaded handgun found secreted in co-defendant Oviedo-Difo's
vehicle, the State had to prove defendant knew the gun was in the car. See State
v. Brown, 80 N.J. 587, 600 (1979) (explaining that proof of "knowledge and
control" are "essential elements of constructive possession"). Thus, proof of the
planned robbery provided essential background that was admissible as intrinsic
evidence under the inextricably intertwined test. "Such evidence, even though
12 A-0536-18 inconclusive as to all the elements of the charged offenses, is admissible because
it has probative value as to one or more of the statutory elements the State must
establish beyond a reasonable doubt." Brockington, 439 N.J. Super. at 328.
Accordingly, the evidence was subject only to a Rule 403 analysis, and
not a Rule 404(b) analysis as defendant contends. See State v. Skinner, 218 N.J.
496, 517 n.5 (2014) (observing that "details that . . . dovetail with the facts of
the case" constitute direct proof of the charged offense, which "should be
analyzed for relevance under [Rule] 401 and evaluated under [Rule] 403's
standard for prejudice, and not the standard for prejudice under a Cofield
analysis" (citing Rose, 206 N.J. at 177-78)). Because the evidence here is
clearly relevant to material facts at issue in the determination of defendant's guilt
of the charged offenses, "the question is whether the evidence should be
excluded because 'its probative value is substantially outweighed by the risk of
. . . undue prejudice.'" Brockington, 439 N.J. Super. at 333 (quoting Rule 403).
"The mere possibility that evidence could be prejudicial does not justify
its exclusion." State v. Long, 173 N.J. 138, 164 (2002) (quoting State v. Morton,
155 N.J. 383, 453-54 (1998)). "Even when evidence is 'highly damaging' to a
defendant's case, 'this cannot by itself be a reason to exclude otherwise
admissible and probative evidence.'" Brockington, 439 N.J. Super. at 333
13 A-0536-18 (quoting State v. Frost, 242 N.J. Super. 601, 620-21 (App. Div. 1990)).
"Evidence claimed to be unduly prejudicial is excluded only when its 'probative
value is so significantly outweighed by [its] inherently inflammatory potential
as to have a probable capacity to divert the minds of the jurors from a reasonable
and fair evaluation' of the issues in the case." Long, 173 N.J. at 163-64 (quoting
State v. Koskovich, 168 N.J. 448, 486 (2001)).
Here, neither the CI's testimony detailing the New York planning meeting
nor the CI's identification of defendant as a participant at the meeting was so
inherently inflammatory as to have a probable capacity to divert the minds of
the jurors from a reasonable and fair evaluation of the issues in the case. Instead,
the testimony was essential to the jury's fair evaluation of the issues in dispute.
The jury was free to accept the testimony as proof of defendant's knowledge of
the planned robbery and attendant possession of the gun needed to commit the
crime or reject it as inadequate particularly in light of defendant's denials. We
therefore conclude that the probative value of the evidence was not outweighed,
let alone, significantly outweighed, by undue prejudice and sanitization was not
required. We also reject defendant's argument and reach the same conclusion
with respect to the testimony of Agent Chapman concerning the DEA's plan to
arrest defendants when they arrived to commit the robbery, which plan was
14 A-0536-18 thwarted by co-defendant Oviedo-Difo's vehicle breaking down before they
arrived.
As a participant in the New York planning meeting, with personal
knowledge of what transpired, the CI provided the necessary foundation for the
admission of the audio recording and transcript. See N.J.R.E. 602 (permitting a
witness to testify to a matter about which "the witness has personal knowledge");
see also N.J.R.E. 901 ("To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must present evidence sufficient
to support a finding that the item is what its proponent claims."). "The proponent
of the evidence is only required to make a prima facie showing of authenticity."
State v. Mays, 321 N.J. Super. 619, 628 (App. Div. 1999). "Once a prima facie
showing is made, . . . the ultimate question of authenticity of the evidence is left
to the jury." Ibid.
Moreover, as a participant in the conversation, the CI was permitted to
opine on the meaning of the discussions. See N.J.R.E. 701 (permitting "the
witness' testimony in the form of opinions or inferences" when it "is rationally
based on the witness' perception" and "will assist in understanding the witness'
testimony"). Further, hearsay statements the CI attributed to defendants were
admissible as statements offered against a party. See N.J.R.E. 803(b)(5)
15 A-0536-18 (exempting from exclusion as hearsay a statement "offered against a party-
opponent" that was "made at the time the party-opponent and the declarant were
participating in a plan to commit a crime . . . and the statement was made in
furtherance of that plan"); see also Mays, 321 N.J. Super. at 629 ("Since the
telephone call was properly authenticated, the content of the conversation, albeit
hearsay, was admissible as a statement offered against a party, the defendant."
(citing N.J.R.E. 803(b))). Because we are satisfied that the evidence was
admissible as intrinsic evidence and complied with all evidentiary requirements,
it was "exempt from the strictures of Rule 404(b)" and did not require a limiting
instruction. Rose, 206 N.J. at 177.
B.
In Point II, defendant argues the judge erred in denying his pre-trial
motion to sever his trial from co-defendant Oviedo-Difo, who "had absconded
from the country" and "was not expected to return." Defendant continues that
"[e]ven if one were to overlook this error, there was no justification for the court
allowing the use of Oviedo-Difo's post-arrest statement to inculpate
[defendant]."
Two or more defendants may be charged and tried jointly "if they are alleged to have participated in the same act or transaction" constituting the offense. Indeed, under those circumstances, a joint trial is
16 A-0536-18 "preferable" because it serves judicial economy, avoids inconsistent verdicts, and allows for a "more accurate assessment of relative culpability."
[State v. Weaver, 219 N.J. 131, 148 (2014) (quoting State v. Brown, 118 N.J. 595, 605 (1990)); see R. 3:7- 1 (indictment); R. 3:15-1 (trial).]
However, "[i]f, for any reason, it appears that a defendant . . . is prejudiced
by the joint trial, the trial court may sever." Id. at 148-49 (citing R. 3:15-2(b)).
"The decision to sever is within the trial court's discretion, and it will be reversed
only if it constitutes an abuse of discretion." Id. at 149. "[I]n deciding whether
to grant a severance the trial court must balance the possible prejudice to the
defendant against the government's interest in judicial economy and must
consider the ways in which it can lessen the prejudice by other means. . . ." State
v. Morant, 241 N.J. Super. 121, 134 (App. Div. 1990) (quoting State v. Barrett,
220 N.J. Super. 308, 311 (Law Div. 1987)). "[I]f by proper instructions and
charges to the jury the separate status of codefendants can be maintained, the
'danger by association' which inheres in all joint trials is effectively overcome."
Ibid.
Here, defendant argues the joint trial unduly prejudiced his right to a fair
trial because of co-defendant Oviedo-Difo's absence from the trial and the
State's use of Oviedo-Difo's "statement to [defendant's] detriment." Without
17 A-0536-18 question, severance is appropriate where a joint trial would deprive a defendant
of his right to a fair trial. State v. Sanchez, 143 N.J. 273, 282 (1996). However,
in State v. Melendez, 129 N.J. 48, 50 (1992), the Court held that the trial court
did not abuse its discretion in denying the motion for severance where the co-
defendant "failed to return to court the day after the State had rested its case."
Likewise, here, we discern no abuse of discretion in the judge's denial of
severance based on co-defendant Oviedo-Difo's absence from the trial.
The use of co-defendant Oviedo-Difo's statement against defendant during
the trial is more problematic. "We recognize that the United States Supreme
Court permits use of a co-defendant's statement that does not directly
incriminate another defendant as long as all references to the defendant are
removed." Weaver, 219 N.J. at 159 (citing Richardson v. Marsh, 481 U.S. 200,
211 n.5 (1987)). Further, in State v. Broxton, 49 N.J. 373, 377 (1967), the Court
found no error in trying defendants jointly where "nothing in any confession . . .
on its face or because of some collateral circumstance identified any other
defendant as one of the culprits." See also State v. Mayberry, 52 N.J. 413, 421
(1968) (finding severance was not warranted where only basis for severance
motion was that some evidence would be admissible only as to one co-
defendant).
18 A-0536-18 Here, it is undisputed that co-defendant Oviedo-Difo's statement made
references to defendant. However, those references did not incriminate
defendant but exculpated him. Indeed, during summations, defense counsel
stated "frankly, Oviedo[-]Difo exculpates my client, exonerates him with respect
to any guns." Notably, co-defendant Oviedo-Difo admitted that other than the
jacket, ski masks, and gloves, the items found in the rear of the vehicle were his
possessions. The fact that Oviedo-Difo gave conflicting accounts of why he had
certain items in the car neither implicated nor incriminated defendant.
Significantly, by confirming that he was giving defendant a ride to New York
for a business meeting, Oviedo-Difo's statement was consistent with and
corroborated defendant's testimony. For that reason, while it was error to use
Oviedo-Difo's statement at the joint trial without eliminating all references to
defendant, the error was harmless. See State v. Haskell, 100 N.J. 469, 479
(1985) ("From time to time, cases may arise where the admission of a co-
defendant's statement in a joint trial constitutes harmless error."); State v. Carter,
54 N.J. 436, 442-46 (1969) (finding that error, if any, was harmless in allowing
testimony of oral non-inculpatory statement of defendants at their joint trial).
19 A-0536-18 C.
In Point III, defendant argues that "the various instances of prosecutorial
misconduct which occurred in th[e] case" individually and cumulatively
"deprived [him] of his constitutional right to a fair trial." Specifically, defendant
asserts that comments made by the prosecutor in opening and closing statements
as well as during cross-examination of defendant require reversal of his
convictions.
"[P]rosecutorial misconduct can be a ground for reversal where the
prosecutor's misconduct was so egregious that it deprived the defendant of a fair
trial." State v. Frost, 158 N.J. 76, 83 (1999). "In determining whether a
prosecutor's misconduct was sufficiently egregious, an appellate court 'must take
into account the tenor of the trial and the degree of responsiveness of both
counsel and the court to improprieties when they occurred.'" Ibid. (quoting State
v. Marshall, 123 N.J. 1, 153 (1991)). "Specifically, an appellate court must
consider (1) whether defense counsel made timely and proper objections to the
improper remarks; (2) whether the remarks were withdrawn promptly; and (3)
whether the court ordered the remarks stricken from the record and instructed
the jury to disregard them." Ibid.
20 A-0536-18 "Generally, if no objection was made to the improper remarks, the remarks
will not be deemed prejudicial." Ibid. "The failure to object suggests that
defense counsel did not believe the remarks were prejudicial at the time they
were made." Id. at 84. "The failure to object also deprives the court of an
opportunity to take curative action." Ibid. Because defense counsel did not
object to many instances now claimed on appeal to constitute prosecutorial
misconduct, "defendant must demonstrate plain error to prevail." State v.
Timmendequas, 161 N.J. 515, 576 (1999). "Plain error is 'error possessing a
clear capacity to bring about an unjust result and which substantially prejudiced
the defendant's fundamental right to have the jury fairly evaluate the merits of
his defense.'" Id. at 576-77 (quoting State v. Irving, 114 N.J. 427, 444 (1989)).
First, defendant argues the prosecutor "provided the jury with inaccurate
facts about [defendant] . . . during . . . opening statement" by telling "the jury
they would hear from Agent Chapman that [defendant] was a known burglary
ring suspect in a pending criminal investigation." During opening statement,
the prosecutor said, "Agent Chapman will tell you that he was investigating a
burglary ring of which [co-defendant Oviedo-Difo] and [defendant] were
suspected of being members." At trial, Agent Chapman testified that when they
began the investigation, they did not know the identity of the crew members.
21 A-0536-18 However, as a result of the investigation, the identities of the crew members
were ascertained. Because defendant did not object, we review the remark under
the plain error standard of review. See R. 2:10-2 ("[T]the appellate court may,
in the interests of justice, notice plain error not brought to the attention of the
trial . . . court.").
"A prosecutor's opening statement 'should provide an outline or roadmap
of the State's case' . . . ." State v. Land, 435 N.J. Super. 249, 269 (App. Div.
2014) (quoting State v. Walden, 370 N.J. Super. 549, 558 (App. Div. 2004)).
"A prosecutor in [his or] her opening statement may state only those facts that
[he or] she intends to prove in good faith. [He or s]he also may argue all
inferences that properly may be drawn from those facts." Timmendequas, 161
N.J. at 577. "As all damaging evidence is inherently prejudicial, the court
affords the prosecutor considerable leeway in making [his or] her opening."
Ibid. "However, the court must patrol the boundaries of propriety to ensure that
defendant's right to a fair trial is not compromised." Ibid.
Applying these principles, we conclude that the statement was a fair
comment on the evidence actually produced at trial. Moreover, because the
judge clearly advised the jury that "opening statement[s were] not evidence,"
and "[w]e presume that the jury followed the court's specific admonitions
22 A-0536-18 regarding the role of opening statements," id. at 578, we find no plain error and
no evidence that the prosecutor's statement substantially prejudiced defendant's
right to a fair trial.
Next, defendant argues that in summations, the prosecutor "improperly
vouch[ed] for his own witness" by telling the jury that the CI was "a reliable
witness." Defendant further asserts the prosecutor made improper "[r]eferences
to the absence" of "a motive [to lie]" by asking the jury "[w]hat reason would
[the CI] have to lie" and by telling the jury that "if [the CI] told a lie he could
be prosecuted" and "would have jeopardized the stream of payment he received
as a paid informant." Additionally, defendant asserts the prosecutor
"overstepped his bounds in maligning [defendant]" by telling the jury that
defendant was "lying . . . because he doesn't want you to convict him." Once
again, defendant failed to object to any of these comments.
"Prosecutors are afforded considerable leeway in closing arguments as
long as their comments are reasonably related to the scope of the evidence
presented." Frost, 158 N.J. at 82. "In other words, as long as the prosecutor
'stays within the evidence and the legitimate inferences therefrom,' [t]here is no
error." State v. McNeil-Thomas, 238 N.J. 256, 275 (2019) (alteration in
original) (first quoting State v. R.B., 183 N.J. 308, 330 (2005); and then quoting
23 A-0536-18 State v. Carter, 91 N.J. 86, 125 (1982)). However, certain comments that deviate
from these well-established principles are not permissible.
In that regard, while prosecutors are typically barred from arguing that a
witness had no motive to lie, see R.B., 183 N.J. at 331-32, it is well-settled that
the State "may argue that a witness is credible, so long as the prosecutor does
not personally vouch for the witness or refer to matters outside the record as
support for the witness's credibility." Walden, 370 N.J. Super. at 560. Further,
"[w]hile a prosecutor has the right to call to the jury's attention discrepancies in
a defendant's testimony and then argue that the defendant was not truthful, a
prosecutor cannot express a personal opinion regarding the credibility of a
defendant's testimony. . . ." State v. Jenkins, 299 N.J. Super. 61, 70 (App. Div.
1997). Additionally, "[i]t is well settled that when a defendant takes the witness
stand in a criminal case, he puts his character in issue and it is proper for the
State . . . to call attention to his interest in the result." State v. Sinclair, 57 N.J.
56, 65 (1970).
Our task is "to consider the 'fair import' of the State's summation in its
entirety." State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v.
Wakefield, 190 N.J. 397, 457 (2007)). When reviewing a prosecutor's
summation, we consider "the context in which the challenged portions were
24 A-0536-18 made, including determining whether the remarks were a measured response to
defendant's summation made in an attempt to 'right the scale.'" State v. Murray,
338 N.J. Super. 80, 88 (App. Div. 2001) (quoting State v. Engel, 249 N.J. Super.
336, 379 (App. Div. 1991)).
Here, we are satisfied there was no misconduct "so egregious that it
deprived the defendant of a fair trial." Jackson, 211 N.J. at 409 (quoting Frost,
158 N.J. at 83). During the trial, defense counsel attempted to undermine the
credibility of the CI by extensively cross-examining both Agent Chapman and
the CI about the CI's criminal record, the fact that the CI avoided imprisonment
by working for the DEA as an informant, the large payments the CI received
while working for the DEA, the monetary incentive for the CI to dupe targets to
enhance his payments, and the role and responsibilities of an informant. During
summations, defense counsel continued this line of defense by assiduously
attacking the credibility of the CI, pointing out to the jury that he was "a felon"
who was "paid very generously" by the DEA and who "lie[d] so much that [he
didn't] know the truth from a lie anymore." Counsel stated that although "[the
prosecutor] may think his witnesses were truthful," in fact, the CI whose "word
[was] the [government's] key evidence" was not "truthful."
25 A-0536-18 We view the challenged comments regarding the CI's credibility and
reliability as "a measured response to defendant's summation." Murray, 338 N.J.
Super. at 88 (citation omitted). Indeed, the prosecutor responded during
summation that the CI had a monetary incentive not to lie. "A prosecutor is not
forced to idly sit as a defense attorney attacks the credibility of the State's
witnesses; a response is permitted." State v. Hawk, 327 N.J. Super. 276, 284
(App. Div. 2000). See State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.
1996) ("A prosecutor may respond to an issue or argument raised by defense
counsel.").
Regarding the prosecutor's comment that defendant was lying because he
did not want to be convicted, immediately preceding those remarks, the
prosecutor stated:
So, when you're evaluating the testimony of the witnesses who testified in this case, think about who's got a reason to lie to you. [The CI] has every reason in the world to tell you the truth because if he lies once this great source of income dries up for him. [Defendant], on the other hand, doesn't want to be convicted of the crimes with which he's charged. He doesn't want to acknowledge that he was with [co- defendant Oviedo-Difo]. He doesn't want to acknowledge that they planned this crime together. He doesn't want to acknowledge that he knew this gun was there. If he admits that[,] you're going to convict him. He has every motive in the world to lie and his
26 A-0536-18 testimony just in one short morning was wildly inconsistent from one question to the next.
Because the prosecutor did not express a personal opinion regarding
defendant's credibility but relied on evidence presented during the trial and the
legitimate inferences therefrom, the comments were permissible "within the
context of the trial as a whole." McNeil-Thomas, 238 N.J. at 276 (quoting State
v. Feaster, 156 N.J. 1, 64 (1998)). Moreover, "[t]he failure to object suggests
that defense counsel did not believe the remarks were prejudicial at the time
they were made," Frost, 158 N.J. at 84, and the judge clearly advised the jury
that "summations" were "not evidence and should not be treated as evidence."
Next, defendant argues that "[t]he prosecutor's cross-examination
regarding [defendant's] prior employment and non-payment of income taxes was
likewise improper." According to defendant, "[t]he overall message the
prosecutor sought to convey in pursuing this line of attack was to highlight
[defendant's] lack of business income" to "suggest that [defendant's] financial
status gave him an incentive to rob." Defendant asserts the "impropriety" was
27 A-0536-18 "compounded" by the "prosecutor's unsolicited remark," "That's a nice watch,"
to "insinuate[e defendant] was a criminal because of the watch he wore." 9
"[I]t is generally improper to use a defendant's poverty to establish a
criminal motive." State v. Stewart, 162 N.J. Super. 96, 100 (App. Div. 1978).
Undoubtedly a lack of money is logically connected with a crime involving financial gain. The trouble is that it would prove too much against too many. As said in 2 Wigmore, Evidence (3d ed. 1940), § 392, p. 341:
"The lack of money by A might be relevant enough to show the probability of A's desiring to commit a crime in order to obtain money. But the practical result of such a doctrine would be to put a poor person under so much unfair suspicion and at such a relative disadvantage that for reasons of fairness this argument has seldom been countenanced as evidence of the graver crimes, particularly of violence."
[State v. Mathis, 47 N.J. 455, 471-72 (1966).]
Here, during direct examination, defendant testified the only reason he
was in co-defendant Oviedo-Difo's vehicle was because Oviedo-Difo was giving
9 The State acknowledges that the "watch" comment "was not ideal." However, the judge sustained defense counsel's objection, explaining "[s]omeone could have a nice watch because it's a gift." We agree that the comment was objectionable, but it was fleeting and isolated. "[A] 'fleeting and isolated' remark is not grounds for reversal." State v. Gorthy, 226 N.J. 516, 540 (2016) (quoting State v. Watson, 224 N.J. Super. 354, 362 (App. Div. 1988)).
28 A-0536-18 him a ride to New York for a business meeting "with a new artist." Defendant
testified that he had a production company with "a music studio" and an "office"
located in Philadelphia and that he made trips to New York "[o]nce or twice a
week." According to defendant, his clients were "new artists that have dreams."
He stated that operating the company was his full-time job and he had been in
the music business for "[a]round [twelve] to [fifteen] years."
On cross-examination, the prosecutor inquired whether defendant filed a
tax return for his company to which defendant responded that he did not because
"the company [was] not generating any income." When the prosecutor asked
whether defendant was "breaking the law" by not filing a tax return for the
company, defense counsel objected. The judge sustained the objection and
instructed the jury to "disregard th[e] comment." In response to the prosecutor's
additional questions about the company, defendant testified that he started the
company in 2016 but the company had not made any money to date. He stated
that prior to starting the company, he worked for a trucking company "for about
eight or ten years" but did not recall whether he ever filed a tax return in
connection with that job.
We are convinced that the prosecutor's questions about defendant's
employment history and non-payment of taxes were not intended to elicit
29 A-0536-18 evidence of impecuniosity on the part of defendant to prove motive or
willingness to commit a crime but to impugn defendant's credibility by
undermining his claim that he was traveling to New York for a business meeting
rather than to commit the planned robbery. Defendant squarely put his
employment at issue during his direct examination. The cross-examination was
pertinent to challenge defendant's credibility as well as his substantive testimony
about his claimed business. See Feaster, 184 N.J. at 248 (explaining "[o]ne of
the essential purposes of cross-examination is to test the reliability of testimony
given on direct-examination").
Contrary to defendant's suggestion, the cross-examination was not an
impermissible collateral attack on defendant's credibility founded on an
extraneous issue. See, e.g., State v. Scott, 229 N.J. 469, 495 (2017) (Albin, J.,
concurring) (explaining "a defendant, on trial for aggravated assault, cannot be
asked whether he misstated his income on his tax returns" as a means of
challenging credibility). In any event, the questioning "was not an influential
factor leading to conviction in this case." State v. Copeland, 94 N.J. Super. 196,
202 (App. Div. 1967). To hold otherwise, "we would have to assume that the
jury concluded that defendant[] committed the crime for lack of money, even
though at no point in the trial did anyone suggest either expressly or by
30 A-0536-18 necessary implication that such a view was tenable." Id. at 203. We therefore
find no prejudicial error. See R. 2:10-2.
Equally unavailing is defendant's challenge to the prosecutor's cross-
examination regarding defendant undergoing throat surgery one week after
defense counsel received the audio recording of the New York meeting with the
CI. Defendant ardently testified on direct examination that he did not attend the
New York meeting and that it was not his voice on the audio recording. In
response to the prosecutor's questions on cross-examination, defendant admitted
having "an operation for a cyst . . . in [his] throat" but did not "remember when
[he] had th[e] operation" or "when th[e] recording was given to [his] attorney."
Defendant argues the questioning "violated the rules of permissible conduct"
because "there was no evidence in the record regarding either of the two dates
referred to by the prosecutor" and no "evidence that the operation changed
[defendant's] voice" as "insinuated" by the prosecutor during summations.
Although a prosecutor is precluded from asking "questions about topics
for which []he had no basis in truth," "[c]ross-examination relating to a witness's
credibility need not be based on evidence adduced at trial." State v. Martini,
131 N.J. 176, 255 (1993). See State v. Rose, 112 N.J. 454, 500 (1988)
(explaining that a question in cross-examination is improper where "no facts
31 A-0536-18 concerning the event on which the question was based were in evidence and the
prosecutor made no proffer indicating his ability to prove the occurrence").
Here, there was no objection to the line of questioning, leading us to conclude
that the prosecutor had adequate grounds to question defendant about the throat
surgery and its timing, and defense counsel did not deem the questioning
prejudicial. In any event, in the absence of an objection, we are satisfied that
whatever error may have occurred in permitting this line of cross-examination,
it was not clearly capable of producing an unjust result. See R. 2:10-2.
D.
Finally, in Point IV, defendant argues the cumulative errors "deprived
[him] of his fundamental right to a fair trial." "We have recognized in the past
that even when an individual error or series of errors does not rise to reversible
error, when considered in combination, their cumulative effect can cast
sufficient doubt on a verdict to require reversal." State v. Jenewicz, 193 N.J.
440, 473 (2008). However, here, because we conclude there were no reversible
errors either alone or combined, defendant's cumulative error argument must
also fail.
Affirmed.
32 A-0536-18