State v. Hutchins

575 A.2d 35, 241 N.J. Super. 353
CourtNew Jersey Superior Court Appellate Division
DecidedMay 24, 1990
StatusPublished
Cited by100 cases

This text of 575 A.2d 35 (State v. Hutchins) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hutchins, 575 A.2d 35, 241 N.J. Super. 353 (N.J. Ct. App. 1990).

Opinion

241 N.J. Super. 353 (1990)
575 A.2d 35

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BERNARD HUTCHINS, DEFENDANT-APPELLANT.

Superior Court of New Jersey, Appellate Division.

Submitted March 6, 1990.
Decided May 24, 1990.

*354 Before Judges MICHELS, DEIGHAN and R.S. COHEN.

Thomas S. Smith, Jr., Acting Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of Counsel, on the letter brief).

Robert J. Del Tufo, Attorney General, attorney for respondent (Catherine Michael, Deputy Attorney General, of Counsel, on the letter brief).

The opinion of the court was delivered by DEIGHAN, J.A.D.

*355 Defendant was convicted by a jury of first-degree armed robbery, contrary to N.J.S.A. 2C:15-1 (Count One); third-degree possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5b (Count Two), and second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (Count Three). The trial judge merged Count Two into Count Three and sentenced defendant on the first count to a term of 15 years with five years parole ineligibility and to a concurrent seven-year term with three years parole ineligibility on Count Three. A $60 Violent Crimes Compensation Board penalty was also imposed.

The following facts were developed at trial. On May 1, 1986, at approximately 2:45 p.m., Camille Williams and her sister Denise Shannon were walking down Seventeenth Street by West Side Park in Newark. Williams and Shannon were returning to Williams' home from a check-cashing establishment located on Springfield Avenue. Having cashed a Social Security check and obtaining her mother's food stamps, Williams was carrying approximately $271 in cash and $250 worth of food stamps. Additionally, Ms. Williams was also carrying over $100 in cash from her work as a hair stylist.

As the sisters were walking along Seventeenth Street, a man, later identified as defendant, wearing a black jogging suit with "turbo boost" on one shoulder of the top, approached them and asked Williams if she had a cigarette. After Williams replied "no," defendant continued walking. Defendant then pushed Shannon away and shoved Williams up against a chain link fence. He took from his waist a silver handgun with black taping around the handle, aimed it at Williams' neck and told her to "give it up." Ms. Williams put her hands in the air. Defendant searched her clothing, and removed her identification, all of the cash, and her mother's food stamps. He told Williams to run but when she refused, defendant ran away. Williams then telephoned police.

*356 The next day, Williams and her sister went to the police station to look at an array of photographs of possible perpetrators. After looking through approximately ten books of mug shots, Williams identified defendant as the robber. After Williams had picked out defendant's photo, she showed that page of photos to her sister who also picked out defendant's photo.

Defendant then testified on his own behalf. He denied any knowledge of the robbery in question. He claimed that he did not rob Williams and that he never saw her before. During defendant's cross-examination, the trial judge allowed, over objection, questioning regarding defendant's 1986 arrest for possession of a handgun and permitted a rebuttal witness to testify concerning the prior arrest for purposes of affecting Hutchins' credibility.

While cross-examining defendant, after inquiring about both the defendant's prior CDS conviction and the date of the arrest in the instant case, the assistant prosecutor asked defendant,

Q. Tell me, do you know anything about guns?
A. No, never had one, no.
Q. You never had a gun?
A. No.

The assistant prosecutor then asked:

Q. February 1986, you weren't arrested with a .38 caliber gun?

Defense counsel immediately objected to this question.

At a sidebar conference with the trial judge, the State represented that it was prepared to call one of the detectives involved in arresting defendant in February 1986 to show under Evid.R. 55 defendant's knowledge of handguns to counter defendant's denial of knowledge or prior possession. The trial judge rejected the offer under that rule and commented, "I don't think it has relevance to his knowledge and intent."

The trial judge denied defendant's motion for a mistrial and held that both the prosecutor's questions were proper and that the arresting officer could testify as a rebuttal witness for *357 "credibility purposes only."[1] Later, the trial judge clarified his ruling:

So my ruling is clear, the State has a rebuttal witness to affect the credibility of the witness only, [sic] only the credibility of the witness will be allowed to offer [sic] testimony that you were in possession of a gun on February 8, 1988, to the limited testimony of Detective Gold.

The next day, at the conclusion of the defendant's case, the State called Detective James Gold as a rebuttal witness over defendant's continuing objection. Gold testified to the details of the February 1986 arrest, specifically that, while attempting to locate and arrest defendant's brother, Gold and other officers encountered defendant whom they mistook for his brother. Gold stated that defendant began to pull a .38 caliber handgun out of his coat pocket when confronted, whereupon defendant was knocked down, beaten and subdued.

Between direct and cross-examination of Gold, the trial judge instructed the jury:

[T]his evidence is rebuttal evidence and it's being offered in rebuttal to the defendant's testimony about not having a gun on a date some three months prior to this incident. This evidence is not to be used by you in any way whatsoever as substantive proof of the commission of the offense in this crime. It's merely offered for a very limited purpose as to whether or not it effects (sic) the credibility of the defendant's testimony. [Emphasis added]

Also, in his final charge to the jury he stated,

[T]he State has offered rebuttal testimony as to a prior arrest dealing with a gun. This also may only be used to effect (sic) a defendant's credibility. The defendant stated during his testimony that he was not aware of a gun and in fact he did not have a gun on a prior occasion. So the State in its rebuttal testimony offered this prior arrest some three months prior. But I specifically instruct you that this is not proof, substantive proof of the crime charged here. It's only allowed to be considered by you as to whether or not it effects (sic) the defendant's credibility as to his testimony. [Emphasis added]

On appeal defendant raises the following issue:

I The State made an irrelevant unduly prejudicial inquiry into defendant's familiarity with guns (not raised below), and the court erred in allowing the *358 State to ask defendant about his arrest for possession of a handgun and, to introduce extrinsic evidence regarding that arrest to affect defendant's credibility in direct violation of Evidence Rules 22(d) and 47.

Essentially, defendant asserts that there were three separate errors committed by the trial judge with regard to this line of evidence and questioning.

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Cite This Page — Counsel Stack

Bluebook (online)
575 A.2d 35, 241 N.J. Super. 353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hutchins-njsuperctappdiv-1990.