NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0940-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RASUAN WILSON,
Defendant-Appellant. _____________________________
Submitted October 15, 2018 – Decided December 14, 2018
Before Judges Sumners and Mitterhoff.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-09-2217.
Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Mareka Amelia Watson, Assistant Deputy Public Defender, of counsel and on the brief).
Theodore N. Stephens, II, Acting Essex County Prosecutor, attorney for respondent (Stephen Anton Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Following a retrial, defendant was found guilty of possession of firearm
and possession of controlled dangerous substances (CDS) charges. He appeals
arguing:
POINT I
BECAUSE CREDIBILITY WAS THE CRITICAL ISSUE AT TRIAL, THE IMPROPER RESTRICTION OF CROSS-EXAMINATION BEARING ON THE CREDIBILITY OF ONE OF THE KEY POLICE WITNESSES COUPLED WITH THE PROSECUTOR'S IMPROPER BOLSTERING OF BOTH POLICE OFFICERS' TESTIMONY, DEPRIVED DEFENDANT OF A FAIR TRIAL.
A. The Trial Judge Committed Reversible Error By Prohibiting Defense Counsel From Cross-Examining Sergeant Ruane About An Excessive-Force Judgment Against Him to Expose his Bias and Motive to Testify Falsely.
B. The Prosecutor's Exhortation That the Police Witnesses Were Credible Because Their Jobs and Their Standing Within The Police Department Are Secure Constituted Misconduct, Warranting Reversal. (Not Raised Below)
POINT II
BECAUSE THE TRIAL COURT CONSIDERED DEFENDANT'S PRIOR ARRESTS AND DISMISSED JUVENILE PETITIONS IN WEIGHING AGGRAVATING FACTORS THREE AND NINE; AND BECAUSE THE TRIAL COURT FAILED TO FIND MITIGATING FACTOR 11, THE MATTER SHOULD BE REMANDED FOR RESENTENCING.
A-0940-16T3 2 Having considered the arguments presented and applicable law, we affirm.
I
Defendant was indicted for second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b); fourth-degree possession of a defaced firearm,
N.J.SA. 2C:39-3(d); second-degree possession of a firearm while committing a
CDS distribution offense, N.J.S.A. 2C:39-4.1; two counts of third-degree
possession of CDS, N.J.S.A. 2C:35-10(a)(1); two counts of third-degree
possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), -5(b)
(3); two counts of third-degree possession of CDS with the intent to distribute
within 1000 feet of a school, N.J.S.A. 2C:35-7; two counts of second-degree
possession of CDS with the intent to distribute within 500 feet of public
property, N.J.S.A. 2C:39-7.1; fourth-degree possession with the intent to
distribute marijuana, N.J.S.A. 2C:5(a)(1), -5(b)(12); third-degree possession
with the intent to distribute marijuana within 1000 feet of a school, N.J.S.A.
2C:35-7; and third-degree possession with the intent to distribute marijuana
within 500 feet of public property, N.J.S.A. 2C:35-7.1.
Prior to trial, the State dismissed all of the charges pertaining to the intent
to distribute CDS offenses and the charge of possession of a firearm while
committing a CDS intent to distribute offense. After three days of deliberations,
A-0940-16T3 3 a mistrial was declared when the jury could not reach a verdict on the remaining
charges of unlawful possession of a handgun, possession of a defaced firearm,
and two counts of possession of CDS.
Three months later, defendant was re-tried before a different judge on the
outstanding charges.1 Carried over from the first trial was an evidentiary ruling
granting the State's in limine motion to prevent defense counsel from
questioning one of the arresting Newark police officers, Sergeant Thomas
Ruane, about a jury verdict in a civil lawsuit in which he was found to have used
excessive force in a shooting that killed two people, and resulted in a settlement
in excess of one million dollars. 2 The judge rejected defendant's opposition that
it was necessary to attack Sgt. Ruane's credibility by cross-examining him about
the lawsuit. Defense counsel proffered to confine his cross-examination by
asking Sgt. Ruane about the nature of the incident, and whether he: recalled the
plaintiff; shot the plaintiff; and was found to have used excessive force and
abused his office. The judge cited N.J.R.E. 403, 608, and 609, in barring that
line of questioning to Sgt. Ruane.
1 It was stipulated that defendant did not have a permit to legally possess the weapon, and that the weapon was missing its serial number, thereby making it a defaced firearm. 2 Defendant did not attempt to revisit the ruling at the re-trial. A-0940-16T3 4 II
The trial record reveals the following. On a sunlit early evening in June
2013, Officer Danny Costa and Sgt. Ruane were on routine patrol in a marked
police vehicle in a neighborhood comprised of a mix of residential townhouses,
owned by the Newark Housing Authority (NHA), and commercial properties.
Noticing defendant and another man talking – but not engaged in any suspected
criminal activity – while standing between two townhouses, Sgt. Ruane parked
the vehicle about thirty feet away from them in order to conduct some
community policing. Neither officer knew, nor had any prior contact with either
man.
As the uniformed officers exited the vehicle and approached the men,
according to Officer Costa, defendant "strain[ed] himself to face me," and then
reached in the center of his back near his waistband to pull out a black object
believed to be a handgun. Upon seeing defendant drop the object over an
adjacent wooden fence and hearing a loud metallic noise when it hit the concrete,
Officer Costa shouted "Gun!" to alert Sgt. Ruane. Sgt. Ruane also asserted that
he saw defendant discard a black object over the fence and heard the sound of
metal hitting the concrete. However, the police incident report, which Officer
Costa authored, only described defendant removing a "dark object" from hi s
A-0940-16T3 5 waistband and it made no mention of either officer seeing the barrel of a gun or
the gun itself.
Officer Costa retrieved a black handgun with a wooden handle from
behind the fence where he saw defendant dispose of the object. Defendant was
arrested and searched. Defendant was found to be in possession of Oxycodone,
a generic form of Xanax, and marijuana. The other man, who was talking with
defendant, walked away and was never located or identified.
The police did not seek to determine if surveillance cameras in the area
had recorded defendant's alleged possession of the handgun because they
believed corroborative evidence was not necessary to their investigation.
Officer Costa did not recall seeing any surveillance cameras that may have
recorded the incident, but he did not answer a question on the police report about
whether a surveillance camera was visible at the scene of the incident. Because
fingerprint analysis did not reveal defendant's fingerprint on the handgun, the
State presented an expert, who explained that it was difficult to obtain a
fingerprint off a handgun, particularly a handgun like the one recovered in this
case.
Defendant exercised his right not to testify. He did, however, present two
witnesses. His girlfriend, the mother of his children, testified that although she
A-0940-16T3 6 did not observe the police drive up and place defendant under arrest, he did not
have a handgun. To support her statement, she detailed what she and defendant
did that day prior to his arrest. The NHA's Manager of Public Safety testified
that there were NHA surveillance cameras in the area of defendant's arrest, but
that the police did not request to view any recording that might have depicted
the incident. Yet, he was not aware if the authority's surveillance cameras in the
area were operational on the day of the incident.
During summation, defense counsel maintained that defendant never
possessed the handgun and was falsely arrested. He argued the police officers'
testimony was not credible and unsupported by corroborative evidence, such as
surveillance videos and fingerprints. To refute counsel's assertion, the
prosecutor stated:
The State submits to you that Officer Costa and Sergeant Ruane have a low interest in the outcome of this case. Because after this incident occurred on June 12[], 2013, they both continued to be involved with the Newark Police Department, and they both continue to be involved in other cases.
There was no objection to these comments.
The jury found defendant guilty on all charges. Defendant was later
sentenced to an aggregate term of seven years of incarceration, with three years
and six months of parole ineligibility.
A-0940-16T3 7 III
We first address defendant's argument in Point I that the trial judge erred
in granting the State's in limine motion to bar him from cross-examining Sgt.
Ruane regarding the incident for which a civil jury found him liable for using
excessive force.3 Because his conviction turned on the credibility of the officers'
testimony, defendant argues the ruling denied him due process and a fair trial
because he was not allowed to present a defense by confronting Sgt. Ruane.
U.S. Const. amends V, VI, XIV; N.J. Const. art. I ¶ 1, 10.
A judge's decision to admit or exclude evidence is "entitled to deference
absent a showing of an abuse of discretion, i.e., [that] there has been a clear error
of judgment." Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016) (alteration
in original) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). "Although a
trial court retains broad discretion in determining the admissibility of evidence,
that discretion is abused when relevant evidence offered by the defense and
necessary for a fair trial is kept from the jury." State v. Cope, 224 N.J. 530,
3 Defendant's also asserts, "the trial judge denied defendant's request to examine Costa and Ruane's internal affairs records in camera." However, because he did not brief that issue, we deem it abandoned. See Pressler & Verniero, Current N.J. Court Rules, cmt. 4 on R. 2:6-2 (2018); see also Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived."). A-0940-16T3 8 554-55 (2016). "Thus, we will reverse an evidentiary ruling only if it 'was so
wide [of] the mark that a manifest denial of justice resulted.'" Ibid. (quoting
Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).
The Sixth Amendment to the Constitution of the United States and Article
I, Paragraph 10 of our state Constitution guarantee an accused in a criminal case
the right to confront adverse witnesses. State v. Guenther, 181 N.J. 129, 147
(2004). "A defendant's right to confrontation is exercised through cross-
examination, which is recognized as the most effective means of testing the
State's evidence and ensuring its reliability." Ibid. (citations omitted). The
Confrontation Clause was not, however, "intended to sweep aside all evidence
rules regulating the manner in which a witness is impeached with regard to
general credibility." Id. at 150 (citing Davis v. Alaska, 415 U.S. 308, 321,
(1974)) (Stewart, J., concurring).
In this case, we cannot conclude the initial trial judge abused his discretion
in applying N.J.R.E. 403 and N.J.R.E. 608 to bar defendant's attorney from
questioning Sgt. Ruane about the incident in which the civil jury found that he
used excessive force in a shooting.4 Under N.J.R.E. 403, evidence that is
4 As for the trial court's consideration of N.J.R.E. 609, the rule has no bearing on the State's in limine motion. The rule addresses the admission of a witness 's conviction of a crime. Sgt. Ruane was not convicted of a crime. A-0940-16T3 9 relevant may be inadmissible if the risk of prejudice substantially outweighs its
probative value. Relevant evidence is any evidence that has "a tendency in
reason to prove or disprove any fact of consequence to the determination of the
action." State v. Darby, 174 N.J. 509, 519 (2002) (quoting N.J.R.E. 401). In
determining relevance, "the inquiry should focus on 'the logical connection
between the proffered evidence and a fact in issue.'" Ibid. (quoting State v.
Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). The required logical
connection has been satisfied "if the evidence makes a desired inference more
probable than it would be if the evidence were not admitted." State v. Garrison,
228 N.J. 182, 195 (2017) (quoting State v. Williams, 190 N.J. 114, 123 (2007)).
Furthermore, N.J.R.E. 608, which governs the admission of character
evidence for truthfulness or untruthfulness, provides:
(a) The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that the evidence relates only to the witness' character for truthfulness or untruthfulness, and provided further that evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Except as otherwise provided by [Rule] 609 and by paragraph (b) of this rule, a trait of character cannot be proved by specific instances of conduct.
A-0940-16T3 10 (b) The credibility of a witness in a criminal case may be attacked by evidence that the witness made a prior false accusation against any person of a crime similar to the crime with which defendant is charged if the judge preliminarily determines, by a hearing pursuant to [Rule] 104(a), that the witness knowingly made the prior false accusation.
Our evidence rules "bar 'the use of prior instances of conduct to attack the
credibility of a witness for two essential reasons: to prevent unfairness to the
witness and to avoid confusion of the issues before the jury.'" State v. Scott,
229 N.J. 469, 498 (2017) (quoting Guenther, 181 N.J. at 141) (Albin, J.,
concurring). N.J.R.E. 608 "was designed to prevent unfair foraging into the
witness's past" and to prevent "wide-ranging collateral attacks on the general
credibility of a witness [that] would cause confusion of the true issues in the
case." Guenther, 181 N.J. at 141-42.
Questioning Sgt. Ruane regarding the shooting incident was not probative
of any issue relevant in this case, which involved a weapon and CDS possession
charges against defendant. This case did not involve any allegations of resisting
arrest, obstruction, or excessive force, and the prior civil case did not involve
defendant or anyone he knew. We agree with the State that letting the jury know
that Sgt. Ruane had used excessive force in a shooting that killed someone would
only serve to besmirch Sgt. Ruane by attacking his character with a specific
A-0940-16T3 11 prior act of misconduct. Based upon the record before us, the sought after
testimony does not address Sgt. Ruane's character for truthfulness or
untruthfulness, by "revealing possible biases, prejudices, or ulterior motives" as
they relate to the issues in the case. State v. Harris, 316 N.J. Super. 384, 397
(App. Div. 1998). In addition, the application of our evidence rules did not
unfairly limit the defense from confronting Sgt. Ruane's credibility. Indeed, the
record shows that defendant's counsel questioned the sergeant extensively about
his observation of defendant's handgun possession and the lack of corroborating
evidence beyond the testimony of his partner Officer Costa. Thus, defendant's
constitutional right to confrontation was not denied.
Next, we address defendant's contention in Point I that he was denied a
fair trial due to the prosecutor's summation remark that Sgt. Ruane and Officer
Costa gave impartial testimony because of their "low interest in the outcome of
the case" and their jobs are unaffected by their testimony.
Because defendant did not raise this issue before the trial judge, we review
it for plain error. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971). We will
reverse on the basis of an unchallenged error only if it was "clearly capable of
producing an unjust result[.]" Macon, 57 N.J. at 337. To reverse for plain error,
we must determine that there is a real possibility that the error led to an unjust
A-0940-16T3 12 result, that is, "one sufficient to raise a reasonable doubt as to whether [it] led
the jury to a result it otherwise might not have reached." Id. at 336.
We agree with defendant that the prosecutor's remark was inappropriate
because it bolstered the credibility of the police officers. A prosecutor may not
vouch for a police officer's credibility by stating the officer would not lie
because of the magnitude of the charges, State v. Frost, 158 N.J. 76, 85 (1999),
or because the officer had no motive to lie, State v. R.B., 183 N.J. 308, 331-32
(2005), or because the officer would face severe consequences if not truthful,
State v. West, 145 N.J. Super. 226, 233-34 (App. Div. 1976). That said, to
reverse a conviction, "'the prosecutor's conduct must have . . . substantially
prejudiced defendant's fundamental right to have a jury fairly evaluate the merits
of his defense.'" State v. Wakefield, 190 N.J. 397, 438 (2007) (quoting State v.
Smith, 167 N.J. 158, 181-82 (2001)). One factor to consider is whether there
was a proper and timely objection to the comment, State v. Jackson, 211 N.J.
394, 409 (2012), because the lack of any objection "'deprive[d] the court of an
opportunity to take curative action[,]'" R.B., 183 N.J. at 333, (quoting Frost, 158
N.J. at 84), and indicates defense counsel "perceived no prejudice," State v.
Smith, 212 N.J. 365, 407 (2012).
A-0940-16T3 13 Despite the inappropriateness of the prosecutor's remark, we do not
conclude, as defendant claims, that he was deprived of a fair trial. Considering
the evidence presented at trial, defense counsel's challenge to the police officers'
testimony, the fact that defense counsel did not object, and the entirety of the
prosecutor's closing argument, the fleeting comment was clearly not capable of
producing an unjust result. R. 2:10-2. Moreover, had defendant objected, the
court could have easily cured any prejudice that might have occurred as the
result of the prosecutor's remark.
IV
In Point II, defendant argues that re-sentencing is required because, in
applying aggravating factors three and nine, the trial judge improperly
considered his arrests as a juvenile and adult that did not result in convictions
N.J.S.A. 2C:44-1(a)(3)(the risk of re-offense); -1(a)(9) (the need to deter). He
also argues the judge failed to apply mitigating factor eleven. N.J.S.A. 2C:44-
1(b)(11) (the imprisonment of the defendant would entail excessive hardship to
himself or his dependents).
Review of a criminal sentence is limited; a reviewing court must decide
"whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217
N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)).
A-0940-16T3 14 Under this standard, a criminal sentence must be affirmed unless "(1) the
sentencing guidelines were violated; (2) the findings of aggravating and
mitigating factors were not 'based upon competent credible evidence in the
record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s]
the judicial conscience.'" Ibid. (alteration in original) (quoting State v. Roth, 95
N.J. 334, 364-65 (1984)). If a sentencing court properly identifies and balances
the factors and their existence is supported by sufficient credible evidence in the
record, this court will affirm the sentence. See State v. Carey, 168 N.J. 413,
426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996).
We do not conclude the judge used defendant's juvenile and adult arrest
record solely to find that aggravating factors three and nine applied. See United
States v. Berry, 553 F.3d 273, 282-84 (3d Cir. 2009) (noting the majority view
of courts of appeal that sentencing courts may not base decisions "on a bare
arrest record" because, without more, it is not proof of wrongdoing); State v.
Tirone, 64 N.J. 222, 229 (1974) ("[A] defendant's arrest record is a factor which
may be considered in the determination of an appropriate sentence so long as
the sentencing judge does not infer guilt from charges which have not resulted
in convictions."); State v. Green, 62 N.J. 547, 571 (1973) (holding the court may
consider arrests but "shall not infer guilt as to any underlying charge with respect
A-0940-16T3 15 to which the defendant does not admit his guilt"); State v. Farrell, 61 N.J. 99,
107 (1972) ("[U]nproved allegations of criminal conduct should not be
considered by a sentencing judge."). In assessing the aggravating factors, the
judge did not assume defendant's guilt of unproven crimes. Indeed, the record
supports the judge's application of aggravating factors three and nine based upon
defendant's convictions of third-degree possession of CDS, N.J.S.A. 2C35-
10A(1), and two disorderly persons offenses: loitering for purposes of using,
possessing, or selling CDS, N.J.S.A. 2C:33-2.1; and possessing drug
paraphernalia, N.J.S.A. 2C:36-2.
In addition, we see no abuse of discretion where the judge chose not to
apply mitigating factor eleven. The judge recognized that defendant supported
his girlfriend and their child, as well as her older son from a prior relationship,
but determined that the hardship of imprisonment was not excessive.
Consequently, we are unpersuaded the judge erred in sentencing defendant, and
the sentence does not shock our judicial conscience.
Affirmed.
A-0940-16T3 16