Opinion
DOCKET NO. A-3992-12T1
05-15-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FARAD GREEN, Defendant-Appellant.
The Anthony Pope Law Firm, P.C., attorneys for appellant (Annette Verdesco, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 11-02-247 and 11-02-250. The Anthony Pope Law Firm, P.C., attorneys for appellant (Annette Verdesco, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Farad Green and two others fled as police approached to speak to them. A foot chase ensued and the three were captured and arrested. Police recovered two handguns in the vicinity of a dumpster, passed by the suspects as they ran. Prior to his apprehension, defendant was viewed throwing objects and police recovered two additional handguns from the area. The search incident to defendant's arrest recovered 250 envelopes of heroin and more than $2,000.
Defendant was charged in Essex County Indictment No. 11-02-247, with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count two); third-degree possession of heroin with the intent to distribute within 1000 feet of a school or school property, N.J.S.A. 2C:35-7 (count three); second-degree possession of heroin with the intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (count four); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count five); two counts of second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (counts six and eight); and two counts of second-degree possession of a handgun while in the course of committing or conspiring to commit a violation of N.J.S.A. 2C:35-5 and/or-7, N.J.S.A. 2C:39-4.1(a) (counts seven and nine). In the same indictment, the other two men, whom we refer to as co-defendants in our opinion, were charged in counts ten through twelve with unlawful possession of certain firearms, N.J.S.A. 2C:39-5(b) and ammunition, N.J.S.A. 2C:39-3(f). Defendant was separately charged in Indictment No. 11-02-250, with second-degree possession of a weapon by certain persons not to possess weapons, N.J.S.A. 2C:39-7(b).
Following a jury trial on Indictment No. 11-02-247, defendant was convicted of counts one, two, three, four, seven and nine and acquitted on counts five, six and eight. Co-defendants were acquitted of the weapons charges. Defendant was also convicted on Indictment No. 11-02-250.
On appeal, defendant identifies evidentiary errors which he maintains warrant a new trial. Specifically, he argues:
POINT ONEFollowing our review, we are constrained to reverse, because of prejudicial trial errors.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT'S MOTION FOR A NEW TRIAL.
POINT TWO
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.
I.
On the afternoon of August 25, 2010, uniformed Newark police officers David J. Fortenberry and Basem Zaghloul were dispatched to patrol a multi-building, public housing complex, an area known for its high crime and narcotic sales. They saw defendant and co-defendants exit a vehicle and stand on the sidewalk. As Officer Fortenberry drove the police vehicle toward the group, he clearly saw the faces of the three men, who he stated "appeared to be nervous" as they watched the squad car. The officers drove the car onto the sidewalk, adjacent to group, and exited; the three men took off. Officer Fortenberry ran directly behind the suspects and Officer Zaghloul radioed for back-up.
Each suspect fled with either "their hands in their waistband" or "their hands tucked in their pockets." Specifically, one "had his hands down in his pants like he was clutching something"; another was running with "his hands tucked into his pants, but he had his pants pulled up higher like he was holding something as he ran"; and the third "had something clutched in his pants, he was holding onto as [he] ran."
Officer Fortenberry saw defendant drop a set of keys, which he retrieved. As the three suspects rounded a corner out of sight, Officer Fortenberry heard "a large thud," which he described as "something metal hitting something metal." He saw defendant run into the housing complex, followed by one co-defendant; the other co-defendant ran in the opposite direction. At that point Officer Fortenberry lost sight of the suspects and returned to the area where he heard the thud. He saw the door of a garbage chute, leading to a dumpster, swinging "back and forth." No other persons were in the area. Inspecting further, Officer Fortenberry observed a large handgun lying on the ground. Checking the dumpster, he saw a second "black, metallic automatic handgun." He did not move the weapons, but photographed the guns with his cell phone, then secured the crime scene for the police Crime Scene Unit, which collected the evidence.
The two handguns were identified as a .45 caliber Taurus PT145 and a .40 caliber Smith and Wesson.
Ultimately, the three suspects were apprehended by responding back-up officers. When arrested, co-defendants neither possessed drugs nor weapons. On cross-examination, Officer Fortenberry testified he did not see either of the two co-defendants "hold a gun," "toss a gun," "drop a gun," or "place a gun on the ground." Other police witnesses were asked similar questions regarding co-defendants, to which they gave similar negative answers.
Officer Timothy Hart arrived at the complex courtyard and saw defendant, approximately 50 to 100 feet away, running toward him. He testified he observed defendant running to the right of a stairway, and, as he ran, saw defendant's "left arm in a tossing motion. And then he came directly toward me." Officer Hart recognized defendant had thrown an object. He drew his weapon and ordered defendant to stop, which he did, and instructed him to place his hands on his head. While patting down defendant for weapons, Officer Hart retrieved 250 white glassine envelopes of suspected narcotics "stamped in red with a lottery ticket" and $2,327 in smaller bills.
Officer Hart handcuffed defendant, left the drugs on the ground and began checking the area where he saw defendant make the tossing motion. "[I]n plain view," Officer Hart found two Ruger handguns under an apartment stairwell. He did not move the guns. Using his cell phone, Officer Hart made a video of the scene showing defendant handcuffed with the drugs next to him and the guns in view. Without objection, the video was admitted and played for the jury.
Defendant's counsel requested a Rule 104 hearing on the video's admissibility. See N.J.R.E. 104. After viewing the video and considering Officer Hart's testimony during this preliminary hearing, counsel did not object to the admission of the cell phone video.
Officer Zaghloul also described events unfolding after arriving at the housing complex and provided an in-court identification of defendant and co-defendants. The identification colloquy on cross-examination is discussed in detail below.
Officer Amir Shabazz, a crime scene technician, was dispatched to the housing complex to secure the weapons. He photographed and processed the handguns recovered by police. No fingerprints were lifted from any weapon; however, the weapons were loaded and ballistics experts later confirmed all four weapons were operable.
The parties stipulated the substance recovered by Officer Hart was heroin, as confirmed by a Senior Forensic Analyst of the New Jersey Police Office of Forensic Laboratories. No additional testimony regarding the individual weight of one or the total weight of all glassine envelopes was introduced.
Defendant moved to dismiss his drug and weapons charges. He argued the State failed to proffer testimony regarding the specific weight of the drugs seized from his person. Also, he maintained insufficient evidence showed he possessed any of the four firearms recovered prior to his arrest, arguing mere presence in the vicinity of the weapons could not support his conviction. Both motions were denied.
The State presented certificates showing defendant and co-defendants were not issued permits to own a handgun. However, during closing, the State conceded and so advised the jury, the certificates presented were limited solely to Essex County.
Defendant moved to dismiss the unlawful possession of weapons charges, arguing that the State could not prove an essential element of the crime. The judge denied this motion, but agreed to instruct the jury the State's search certificate was limited to Essex County and was not statewide.
Prior to defendant's summation, he renewed his motions to dismiss, citing the previously argued deficiencies in the State's case-in-chief and its inability to prove essential elements for the drug and weapons possession charges. The motions were denied.
Defendant was convicted of third-degree possession of heroin, second-degree possession with intent to distribute heroin, third-degree possession with intent to distribute heroin within 1000 feet of a school, second-degree possession with intent to distribute heroin within 500 feet of public housing, and two counts of second-degree possession of a weapon to commit certain drug offenses. Defendant was acquitted of receiving stolen property and possession of a handgun without a permit. Co-defendants were acquitted of possession of weapons without a permit.
The jury was re-sworn to consider evidence regarding the separate indictment. Defendant objected, arguing the jury's underlying verdict was inconsistent because it acquitted him of the two counts of unlawful possession of a weapon, but convicted him of two counts of possession of a weapon to commit certain drug offenses. Defendant also moved to set aside the verdict. Both motions were denied. The jury convicted defendant of second-degree possession of a weapon by a person not to possess weapons. Defendant's post-judgment application for a new trial was denied.
At sentencing, the trial judge granted the State's motion to impose an extended term and sentenced defendant as a repeat Graves Act and a persistent offender. After merging counts one, two, and four with count three, the judge imposed an eight-year prison term for count three with a mandatory minimum parole ineligibility period of four years. Counts seven and nine were ordered to run consecutive to count three, but concurrent to each other, for which the judge imposed an extended sixteen-year term with an eight-year period of parole ineligibility. On the separate indictment, the judge imposed a concurrent twelve-year sentence, six years to be served prior to parole eligibility. This appeal followed.
II.
Defendant first argues the judge erroneously denied his motion for new trial. To support this argument, he identifies the denial of his motion for a mistrial when Officer Zaghloul uttered prejudicial testimony; the denial of his request to set aside the verdict as against the weight of the evidence; and the inconsistency of the verdict.
It is important to underscore that "[f]aith in the ability of a jury to examine evidence critically and to apply the law impartially serves as a cornerstone of our system of criminal justice." State v. Afanador, 134 N.J. 162, 178 (1993). Therefore, when examining the denial of a motion for a new trial, this court may not reverse the trial ruling "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. See also State v. Jackson, 211 N.J. 394, 413-14 (2012).
Defendant maintains a mistrial should have been granted because prejudicial, inadmissible evidence was admitted during the cross-examination of Officer Zaghloul. We recite additional facts to provide the necessary context.
During his direct examination, Officer Zaghloul described the foot chase he and Officer Fortenberry undertook when the three suspects took off. He also provided in-court identifications of defendant and co-defendants, as follows:
[Q] And you saw three people running. Were you able to see the three people who were running?
[A] Yes. We were able to distinctly see them.
[Q] And do you see those three people today?Officer Zaghloul then described the clothing worn in court by each defendant and described the clothing worn by the three on the day of the incident, which he related in his radio call seeking backup.
[A] Yes, I do.
On cross-examination, counsel for defendant asked Officer Zaghloul what he did in preparation for his court testimony:
[Q] . . . [W]ere you shown photographs as well?
[A] Yes.
[Q] Were you shown a video?
[A]: No, I wasn't.
. . . .
[Q] Okay. Did you look at [defendant's] photographs before you came to court today?
[A] Yes, I did.
[Q] The prosecutor showed you those photographs?
[A] Yes.
[Q] So you're basing your identification then, are you not, on the prosecutor showing you the photographs that you were told were these gentlemen — —
[A]: No.
[Q] I have another question.The judge ordered the last statement stricken. Defendant's counsel finished a few cross-examination questions then asked for a sidebar. The sidebar conference was not recorded. Thereafter, the judge issued this limiting instruction:
[A] No.
[Q] The prosecutor could ask you some more questions. I have some more yet.
[A] Okay. Well, let me - - let me answer your question.
[Q] Oh, okay. Go ahead. I'm sorry, I thought you did.
[A] Fared Green's photo hung at the precinct for a long time.
[Q] Objection.
Okay. Ladies and gentlemen, if you recall during the testimony of the officer, [defense counsel] made an objection. I said that the testimony — that testimony of the officer with respect to [defendant] should be stricken. Let me explain to you what that means.
Because you ask the obvious question how can you forget something that you've already heard, I direct that you not use the stricken testimony in your deliberations. By my striking the answer and directing that
you disregard it, you're not going to be able to forget it. To the contrary, you can remember that it was stricken and understand if during your deliberations you realize the information is necessary to make or somehow impacts your decision you should not use it. It's not appropriate[ ] in the case. So I'm directing you to strike it.
The trial transcript reflects technical difficulties precluded recording of the sidebar conference. However, there is no dispute defendant moved for a mistrial after Officer Zaghloul uttered this statement.
Defendant did not object to this instruction. When the trial resumed the following day, outside the presence of the jury, defendant requested the prosecutor verify the accuracy of the officer's statement, inferring Officer Zaghloul harbored personal animosity toward him. It was also mentioned that defendant had previously painted the precinct. The judge granted defendant's request, noting the information might be used to possibly craft a more detailed curative instruction, if sought.
Defendant renewed his request for a mistrial, which the judge again denied, stating: "I don't think it's prejudicial to the point where a fair trial is not going to be presented to the defendants. The mistake was rectified."
In his final charge to the jury the trial judge included these statements:
During the course of the trial, as you recall, I was required to make rulings on the admissibility of certain evidence, either in your presence or outside of your presence.
. . . .
Any testimony that I had an occasion to strike is not evidence and should not enter in your final deliberations. It must be disregarded by you. This means that even though you may remember that testimony, you are not to use it in your deliberations or discussions.
Further, if I gave you a limiting and as to how to use certain evidence, the evidence will be considered by you for that purpose only. Don't use it any other purpose.
As jurors, it is your duty to weigh the evidence calmly, without passion, prejudice, or sympathy. . . .
Defendant's argument on appeal suggests Officer Zaghloul's statement prejudicially implied he had prior criminal contact with police. See State v. Branch, 182 N.J. 338, 351 (2005) ("[A] police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant."). See also State v. Kemp, 195 N.J. 136, 154-55 (2008).
The cited statement made in response to cross-examination was prejudicial and should never have been uttered. See State v. Yough, 208 N.J. 385, 397 (2011); State v. Tilghman, 345 N.J. Super. 571, 578-79 (App. Div. 2001); State v. Cribb, 281 N.J. Super. 156, 161-62 (App. Div. 1995).
We recognize that evidence suggesting that defendant was previously involved in criminal activity is fraught with danger and
creates an unfair risk that defendant might be convicted, not by the evidence in the case for which he is on trial, but by virtue of his prior criminal conduct.
[State v. Mays, 321 N.J. Super. 619, 631 (App. Div.), certif. denied, 162 N.J. 132 (1999).]
Clearly, a mistrial is an extraordinary remedy, which should be used only to prevent manifest injustice. Yough, supra, 208 N.J. at 397; State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). Granting or denying a motion for a mistrial rests within the sound discretion of the trial court. State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, sub nom., Harvey v. N.J., 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). "For that reason, an appellate court should not reverse a trial court's denial of a mistrial motion absent a 'clear showing' that 'the defendant suffered actual harm' or that the court otherwise 'abused its discretion.'" Yough, supra, 208 N.J. at 397 (quoting State v. Labrutto, 114 N.J. 187, 207 (1989)).
"[N]ot every admission of inadmissible hearsay or other evidence can be considered to be reversible error." State v. Winter, 96 N.J. 640, 646 (1984) (citation and internal quotation marks omitted).
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.See also State v. Taplin, 230 N.J. Super. 95, 98 (App. Div. 1988) ("Our courts have always recognized the inordinate capacity for prejudice to a defendant which inheres in the jury's knowledge that he has already been convicted of a criminal charge.").
[Id. at 646-47.]
Because the statement was inadmissible, our examination is two-fold. We consider whether the statement caused prejudice and, if so, whether it contributed to defendant's conviction, notwithstanding the trial judge's curative instruction telling the jury to disregard the improper statement. State v. Bankston, 63 N.J. 263, 272-73 (1973).
The State had ample identification evidence. Officer Zaghloul himself had unequivocally identified defendant as one of the three men he chased through the housing complex and responded "no," when asked whether his identification was based on reviewing photographs shown to him by the prosecutor. He was not asked a follow-up question, but nevertheless prompted defense counsel to allow him to "finish" his response. It was at that point he interjected what can only be viewed as an unnecessary, prejudicial comment, informing the jury defendant's picture "hung at the precinct for a long time." In our view, this comment was absolutely gratuitous and not necessary to respond to defense counsel's discrete inquiry. Moreover, Officer Zaghloul's testimony conjures up images of posters hanging in the police station, implicating defendant was a wanted criminal. See Taplin, supra, 230 N.J. Super. at 99 ("The photograph of [the] defendant objected to was and could reasonably be inferred by a jury to be a mug shot suggestive of a prior criminal record, and we perceive no purpose for its admission other than unfairly to permit the jury to draw the inference that defendant had a prior criminal record.").
Generally, prompt and effective instructions neutralize the prejudice engendered by an inappropriate comment or piece of evidence. State v Wakefield, 190 N.J. 397, 440 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). However, in this matter, although timely, the judge's instruction was neither firm nor clear. See State v. Vallejo, 198 N.J. 122, 133-34 (2009). Following our review, we conclude the curative instruction was insufficient to cure the prejudice resulting from Officer Zaghloul's troublesome remark.
Upon defense counsel's objection, a brief side bar was held. The trial judge then instructed jurors not to consider the remark. His charge, however, did nothing to neutralize the resultant prejudice, such as including specific instructions found in our model jury charges, which explain photographs gathered by police may emanate from various innocent sources. See id. at 135 ("This 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." (emphasis added)).
Specifically, the Model Jury Charges (Criminal) Identity - Police Photos (2015), addressing police possession of a defendant's photograph, provides:
You are not to consider the fact that the agency obtained a photograph of the defendant as prejudicing him in any way. The photographs are not evidence that the defendant has ever been arrested or convicted of any crime. Such photographs come into the hands of law enforcement from a variety of sources, including but not limited to driver's license applications, passports, ABC identification cards, various forms of government employment, private employment requiring state regulation, including but not limited to casino license applications, security guard applications, etc., or from a variety of other sources totally unconnected with criminal activity.
[Ibid.]
Previously revised in 1992, the current model jury charge is the same as the applicable one during defendant's trial.
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Had the judge's curative instruction, or possibly his final charge to the jury, included such language pinpointing the manner in which photographs find their way into the hands of the police, the likelihood of possible prejudice resulting from an inference of criminal activity from police possession of defendant's picture would have been placated. However, we conclude the instruction as given "was simply not clear enough or sharp enough to achieve its goal," Vallejo, supra, 198 N.J. at 137, because it did not adequately address the problem posed by the inadmissible statement about defendant's photograph. The failure to neutralize the likely prejudice created by the untoward remark denied defendant a fair trial and constituted reversible error. Wakefield, supra, 190 N.J. at 440.
We clearly understand the strength of the State's evidence supporting many of the charges against defendant. However, much of the identification evidence actually exacerbates the prejudice caused by the unquestionably inadmissible and highly improper testimony. As noted, the statement was neither accidental nor spontaneous, added by Officer Zaghloul after he had answered the question posed, and seriously incriminated defendant by inferring he engaged in prior criminal conduct and was "wanted" by police. Unfortunately, the curative instruction was muddled and failed to specifically suggest other benign reasons for defendant's picture to be hanging in police headquarters. For example, it was revealed defendant had provided painting services to the precinct and perhaps the photograph related to his work access.
Under these circumstances, because the statement was likely to incorrectly influence the jury's decision and cast doubt upon the notion defendant's conviction resulted from admissible evidence, rather than because he was a wanted criminal, we conclude the denial of the motion for mistrial was an injustice that requires reversal.
III.
In light of our decision granting defendant a new trial, we need not examine many of his remaining arguments. We do, however, address his challenge to the order denying his motions for acquittal.
When reviewing the denial of a motion for judgment of acquittal, we apply the same standard as the trial court. State v. Pickett, 241 N.J. Super. 259, 264 (App. Div. 1990). "'We must determine whether, based on the entirety of the evidence and after giving the State the benefit of all its favorable testimony and all of the favorable inferences drawn from that testimony, a reasonable jury could find guilt beyond a reasonable doubt.'" State v. Dekowski, 218 N.J. 596, 608 (2014) (quoting State v. Williams, 218 N.J. 576, 594 (2014)). See State v. Reyes, 50 N.J. 454, 458-59 (1967) (same). See also R. 3:18-1 (discussing a motion for acquittal at the close of State's case).
Defendant first maintains he should have been acquitted of the drug distribution offenses. We agree in part. Although the evidence supported the distribution offenses charged in counts three and four, the State failed to prove the weight of the heroin found in defendant's possession, omitting a necessary element for conviction of the crime charged in count two.
Count two of the indictment charged defendant with second-degree possession "with intent to distribute . . . [h]eroin, in a quantity of one-half (1/2) ounce or more[,] but less than five (5) ounces." It is clear the charge makes the quantity of the drugs a specific element of the offense. See State v. Florez, 134 N.J. 570, 595 (1994) (holding a judge's failure to charge jury properly on weight of controlled substance, as an element of the crime charged, must result in reversal).
The jury instruction given by the judge merely addressed possession with intent to distribute. He did not ask the jury to find the amount of heroin possessed, thus limiting his instructions to an offense under N.J.S.A. 2C:35-5(a)(1) and never charged an offense under N.J.S.A. 2C:35-5(b)(2). Even though defendant was ultimately found guilty of the distribution offense, the lack of proof satisfying the required amount of heroin, "in a quantity of one-half ounce or more but less than five ounces," N.J.S.A. 2C:35-5(b)(2), precludes defendant's conviction under count two.
Further, we find legally unsupportable the State's argument that the failure to ask the jury to find the weight of the heroin was a harmless error. The trial court believed the amount of heroin related to the grading of the offense. Based on the express language of the statute, this was erroneous. Defendant's motion for acquittal should have been granted and defendant's conviction on count two of the indictment must be vacated.
We have considered defendant's arguments that the trial judge erred in denying his motion for acquittal of the counts seven and nine. We conclude the arguments lack sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(2).
IV.
In summary, we reverse the denial of defendant's motion for acquittal on count two of the indictment and vacate that conviction. We also conclude defendant's motion for a new trial should have been granted on all other charges because of the uncured prejudice created by the arresting officer's inadmissible testimony.
Reversed and remanded for a new trial. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION