STATE OF NEW JERSEY VS. ANGEL CARLO (15-02-0342, ESSEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-4076-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANGEL CARLO,
Defendant-Appellant.
_______________________________
Argued October 24, 2017 – Decided August 1, 2018
Before Judges Leone and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 15-
02-0342.
Margaret R. McLane, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Margaret R. McLane, of counsel and on the
briefs).
Tiffany M. Russo, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Robert D. Laurino,
Acting Essex County Prosecutor, attorney;
Tiffany M. Russo, of counsel and on the
brief).
PER CURIAM
Defendant Angel Carlo appeals from his April 25, 2016 judgment
of conviction. We affirm.
I.
At trial, the victim T.A. testified as follows. On October
29, 2014, he encountered a man he frequently saw around his North
Newark neighborhood over the past six or seven years. He did not
know the man's first or last name, but knew the man as "Rage."
Rage called out to him, and T.A. approached and greeted Rage.
Rage responded in a hostile, intimidating, and offensive manner,
with a raised voice and threatening body language. That angered
T.A. and the two began to fight. After two to three minutes, he
knocked Rage to the ground, and walked to his nearby home.
A few hours later, at around 8:45 p.m., T.A. left his house
to go to a nearby fast-food restaurant. One block from the
restaurant, he again encountered Rage, who was standing near
Broadway and Delevan, an area known as "D Block." Rage acted calm
and friendly towards T.A., but T.A. was scared Rage might have a
gun because Rage had his hands in his pockets during the encounter.
T.A. spoke for a few minutes to resolve their earlier conflict,
and initiated a handshake.
T.A. started walking away. When he was approximately twenty
paces away, he heard a gunshot behind him. He turned around and
saw Rage was pointing a handgun at him. T.A. started to run away.
2 A-4076-15T3
He heard three more gunshots behind him. Two of the bullets hit
him in the back of his right thigh and exited through the front
of his leg, and the other grazed his calf.
T.A. made it to the restaurant and told a police officer he
had been shot. T.A. was rushed to the hospital, bloody but alert.
Newark Detective Feliberto Padilla went to the scene, where
four .380 caliber shell casings were found. A nearby restauranteur
had heard four shots. No gun was recovered.
Detective Padilla went to the hospital and spoke to T.A., who
said he was shot by Rage. T.A. described Rage as a short man with
a pony tail wearing a gray hoodie with black markings who was from
"D Block."
Detective Padilla testified that he used the information
provided by T.A. to search social media using the word "Rage."
Padilla found a video on YouTube that had been filmed in "D Block"
and that featured a man who fit T.A.'s description of Rage and who
was wearing a gray hoodie with black markings. From the video
Padilla took a still, cropped photo showing that man.
A few hours later, when T.A. was released from the hospital,
Detective Padilla took him to the police department and showed him
the photo. T.A. identified the man in the photo as Rage and as
the man who shot him.
3 A-4076-15T3
Detective Padilla discovered the name of the man T.A.
identified as Rage in the photo was Angel Carlo. Padilla obtained
a clearer photo of defendant, drove to T.A.'s house, and showed
that second photo to T.A. before dawn. T.A. identified defendant,
the man in the second photo, as Rage and as the man who shot him.
On October 31, the police located and arrested defendant. He
was wearing the same gray hoodie with the same black markings.
At trial, T.A. testified to these two identifications. He
also made an in-court identification of defendant as Rage, saying
he had no doubt defendant was the man who shot him.
Defendant testified he had seen T.A. in his neighborhood
around Broadway and Delevan during the spring and summer of 2014,
but did not know him. Defendant testified T.A. could not have
seen him in earlier years because defendant was in prison.
Defendant told the jury that he was convicted of a second-degree
offense and a third-degree drug offense and sentenced to six years
and three years respectively in State prison, and was incarcerated
from July 18, 2005, to October 25, 2010. Defendant added that on
May 9, 2011, he was imprisoned for three years and six months for
a parole violation, and was not released until April 24, 2014.
Defendant denied encountering T.A., talking to him, fighting
with him, shooting him, having a gun, or shooting a gun on October
29. Defendant also denied being at the scene when the shooting
4 A-4076-15T3
occurred on October 29, even though he could not remember where
he was. Defendant reasoned on cross-examination:
Q. How do you know that you weren't on
Broadway and Delevan on October 29, 2014?
A. 'Cause I know I ain't shoot 'em.
Q. I didn't ask that.
A. You asked me how I know if I wasn't there.
I can't be – if I didn't shoot him, I can't
be there. So, I know I ain't do it, so I
wasn't there.
Q. Can you explain to me how the fact that
you didn't shoot him means you couldn't have
been in the area?
A. I wasn't. Easy. I didn't shoot him.
Q. All right. Do you know where you were
on the evening of October 29th, 2014?
A. No, I can't – can't recall.
Q. So, you can't say where you were.
Correct?
A. No.
Q. So the only place you can say something
about is that you weren't on Broadway.
That's –
A. Yes, because I know I ain't shoot him.
So, I can say that I wasn't in the area.
The jury convicted defendant of first-degree attempted
murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1); second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree unlawful
5 A-4076-15T3
possession of a handgun, N.J.S.A. 2C:39-5(b); and second-degree
possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-
4(a). The trial court sentenced him to eighteen years in prison
with an 85% period of parole ineligibility under the No Early
Release Act, N.J.S.A. 2C:43-7.2.
Defendant appeals, arguing:
POINT I - THE PROSECUTION'S HIGHLY IMPROPER
COMMENTS ON DEFENDANT'S POST-ARREST SILENCE,
CROSS-EXAMINATION OF DEFENDANT ABOUT HIS
NICKNAME, AND DEMANDS THAT DEFENDANT PRESENT
AN ALIBI REQUIRE REVERSAL OF DEFENDANT'S
CONVICTIONS. (Not Raised Below).
A. Introduction.
B. Right to Silence.
C. Flipping the Burden of Proof.
D. Improper Questions About Defendant's
Nickname.
E. This Egregious Misconduct Requires
Reversal of Defendant's Convictions.
POINT II - WHEN THE DEFENSE WAS
MISIDENTIFICATION, THE FAILURE TO INSTRUCT THE
JURY ON HOW TO EVALUATE THE RELIABILITY OF THE
PHOTO SHOW-UP IDENTIFICATIONS REQUIRES
REVERSAL OF DEFENDANT'S CONVICTIONS. (Not
Raised Below).
II.
On appeal, defendant challenges for the first time some
prosecutorial questioning and argument. "Because he failed to
object at trial, we review the challenged comments for plain
6 A-4076-15T3
error." State v. Pressley, 232 N.J. 587, 593 (2018). We must hew
to that standard of review.
Under the plain error standard, "defendant has the burden to
show that there is an error, that the error is 'clear' or
'obvious,' and that the error has affected 'substantial rights.'"
State v. Chew, 150 N.J. 30, 82 (1997) (quoting, and ruling "[o]ur
law is the same" as, United States v. Olano, 507 U.S. 725, 734
(1993)). An error is not clear or obvious "unless the error is
clear under current law" at the time of appellate consideration.
Olano, 507 U.S. at 734; see Henderson v. United States, 568 U.S.
266, 279 (2013); Johnson v. United States, 520 U.S. 461, 468
(1997). To show an effect on substantial rights, defendant has
the burden of proving the error was "clearly capable of producing
an unjust result." R. 2:10-2. "To warrant reversal on appeal,
the prosecutor's misconduct must be 'clearly and unmistakably
improper' and 'so egregious' that it deprived defendant of the
'right to have a jury fairly evaluate the merits of his defense.'"
Pressley, 232 N.J. at 593-94 (citation omitted).
"'Generally, if no objection was made to the improper remarks,
the remarks will not be deemed prejudicial.'" State v. R.B., 183
N.J. 308, 333 (2005) (citation omitted). "[W]hen counsel does not
make a timely objection at trial, it is a sign 'that defense
counsel did not believe the remarks were prejudicial.'" Pressley,
7 A-4076-15T3
232 N.J. at 593-94 (citation omitted). "Defendant's lack of
objections . . . weighs against defendant's claim that errors were
'clear' or 'obvious.' Indeed, '[i]t [is] fair to infer from the
failure to object below that in the context of the trial the error
was actually of no moment.'" State v. Nelson, 173 N.J. 417, 471
(2002) (alterations in original) (citation omitted).
A.
Defendant now claims that the prosecutor commented on post-
arrest silence. The now-challenged comments addressed defendant's
claim that he was not at the scene of the crime but was unable to
remember where he was.
On direct examination, defendant denied being at Broadway and
Delevan at around 8:45 p.m. on October 29, 2014. He testified he
did not "have any idea where [he was]," "I don't remember. . . .
I don't remember where I was."1 He testified he did not learn he
was charged with shooting T.A. until he was arraigned in March
2015.2 Defendant implied, and later testified, that in March 2015
1
Defendant added that he "was in the vicinity of North Newark,"
but clarified he said that just "[b]ecause [he] lived in North
Newark."
2
This was inconsistent with defendant's other testimony that he
first heard T.A.'s name when he got arrested on October 31, 2014,
and that his arrest was "the first time [he] even heard that there
was a shooting on Broadway." It was also inconsistent with Officer
Luis Santiago's testimony that defendant was aware he was being
8 A-4076-15T3
it was "tough for [him] to remember where [he was] on October 29,
2014."
The prosecutor opened his cross-examination by asking:
Q. Mr. Carlo, how would you characterize
your memory?
A. It's okay.
Q. When was the first date you learned of
the name [T.A.]?
A. In March, when I got indicted.
Q. Okay. And what happened on October 31st,
2014?
A. I was arrested.
Q. And what were you arrested for?
A. Shooting [T.A.].
Q. Did they tell you what you were arrested
for?
A. No.
Q. So they refused to tell you any charges?
A. Yes.
Q. And they refused to tell you a victim?
A. Yes.
Defendant then testified that he "asked the [two] officers"
who "took [him] to the precinct," but they said: "You'll find out
"arrested for his involvement in a shooting" that occurred two
days earlier.
9 A-4076-15T3
when you get to the precinct." Defendant testified he "ask[ed]
again" at the precinct, but no one would tell him. He testified
that on November 1, 2014, he "kept asking, at the [county jail],"
when he "ask[ed] the [corrections officer]," who told him "what
the charges are." Defendant testified "they did not" tell him
"where the incident allegedly occurred," or "what time it allegedly
occurred."
Defendant's testimony prompted this exchange:
Q. Did you ask?
A. No.
Q. You didn't want to know?
A. No. I know I ain't do it.
Q. But wouldn't it be important for you to
know where you were allegedly at?
A. If I asked a question, it's me – giving
a reason. I'll ask my charge. Okay, now I
know my charges. I got to go through a
process. I still got to come to court.
Defendant now claims that exchange was a comment on silence.
New Jersey "has a strong tradition of protecting the right to
remain silent." State v. Kucinski, 227 N.J. 603, 622 (2017).
However, defendant did not remain silent. He admittedly
asked the police officers, and "kept asking, at the County" jail.
"If a defendant elects to speak to the police . . . , then he has
not remained silent — he has spoken." Id. at 624 (citing State
10 A-4076-15T3
v. Tucker, 190 N.J. 183, 189 (2007)). "As to the subject matter
of his statements, the defendant has not remained silent at all."
Tucker, 190 N.J. at 189 (quoting Anderson v. Charles, 447 U.S.
404, 408 (1980)). Regarding the subject of what he was being
accused of doing, defendant was asking questions and thus was not
silent.
Given defendant's testimony that he could not remember where
he was when the crime occurred because the police officers he
asked would not tell him when or where the crime was committed,
the prosecutor could legitimately inquire if he asked for that
information on November 1 from the helpful corrections officer who
told defendant other information about the crime. Defendant
admitted that he had not, and that on November 1, he would "have
known where he was two days prior." The prosecutor could point
out this inconsistency in defendant's questioning, which cast
doubt on his claim that his alleged inability to remember where
he was when the crime occurred was due to the refusal of
authorities to tell him when and where the crime occurred.
"This inconsistency [wa]s a permissible area for cross-
examination." Kucinski, 227 N.J. at 624; see Charles, 447 U.S.
at 408-09. If a defendant is not silent but rather talks to
police, the prosecutor can cross-examine about "inconsistencies
in [his] several statements" to police. Tucker, 190 N.J. at 190.
11 A-4076-15T3
"[W]hether the asserted inconsistencies by a defendant are between
two or more statements or between a statement and testimony at
trial, the State may seek to impeach the validity of those
statements. In both instances, the defendant has not remained
silent and therefore, any inconsistency may be challenged." Ibid.The prosecutor could likewise point out the inconsistencies in
defendant's questioning of the officers.
Defendant cannot testify that officers would not tell him
when or where the crime occurred, and then keep from the jury that
he only asked the helpful corrections officer about the charges
and not about where or when the crime occurred. "'A defendant
cannot have it both ways. If he talks, what he says or omits is
to be judged on its merits or demerits, and not on some artificial
standard that only the part that helps him can be later referred
to.'" United States v. Fambro, 526 F.3d 836, 842 (5th Cir. 2008)
(citation omitted); see Kucinski, 227 N.J. at 623.
Defendant also now complains about this exchange:
Q. And after November 1st, you stopped
asking about where the alleged incident
happened and things of that nature?
A. Once I knew my charges, it was over. Now,
I wait for court.
This exchange is problematic, because there was no evidence
defendant spoke to any officer after November 1. However,
12 A-4076-15T3
defendant opened the door to this exchange when he claimed no one
told him when and where the crime occurred until his arraignment
in March 2015. The "opening the door" doctrine "permits 'a party
to elicit otherwise inadmissible evidence when the opposing party
has made unfair prejudicial use of related evidence.'" State v.
Prall, 231 N.J. 567, 582-83 (2018) (citation omitted). In State
v. Jenkins, 299 N.J. Super. 61 (App. Div. 1997), the defendant
claimed "he tried to explain to the police what happened but that
they ignored him" on the day of arrest, and he was never given the
opportunity to provide a statement later. Id. at 68. The
prosecutor argued in closing that the defendant "never once
talk[ed] to the Prosecutor's Office." Id. at 66. We held that
"the prosecutor's comments in the present matter concerning
defendant's post-arrest silence ordinarily would be improper," but
the "defendant 'opened the door' to this otherwise protected area,
justifying the prosecutor's comments on defendant's post-arrest
silence." Id. at 68-69 (citing McGautha v. California, 402 U.S.
183, 213 (1971)); see State v. Morton, 155 N.J. 383, 418 (1998)
(citing Jenkins).
In any event, this exchange was not prejudicial. It merely
elicited what was implicit in the earlier exchange, namely that
defendant stopped asking once he got the corrections officer to
tell him his charges.
13 A-4076-15T3
The prosecutor also questioned whether defendant would have
had to wait for his arraignment in court to find out where and
when the crime occurred "if you simply asked," whether there was
"a down side from asking," and whether defendant saw "any purpose
in asking." Those questions did not ask whether defendant had
remained silent. Rather, they asked why, a valid area of inquiry
concerning his November 1 questioning of the corrections officer.
Moreover, neither the questions nor the answers were prejudicial.
Defendant merely reiterated that once "I know my charges," "I
didn't see no point in asking" because "they're not gonna let me
go" and "I still have to come to court."
Furthermore, the prosecutor's questions were not "'clearly
and unmistakably improper.'" Pressley, 232 N.J. at 593-94
(citation omitted). Defendant cites cases where prosecutors
commented on defendants' failure to tell the police exculpatory
information, but this case involves defendant asking questions.
Defendant cites State v. Deatore, 70 N.J. 100 (1976), State
v. Lyle, 73 N.J. 403 (1977), State v. Muhammad, 182 N.J. 551(2005), and State v. Tilghman, 345 N.J. Super. 571 (App. Div.
2001). In Deatore, the prosecution on cross-examination asked
defendant, "over objection, a series of questions bearing on his
failure to make any exculpatory statement to the police after he
was arrested." 70 N.J. at 104, 107, 115. In Lyle, the prosecution
14 A-4076-15T3
on cross-examination and extensively in closing questioned why the
defendant did not tell the police the exculpatory story he
testified to at trial, namely that the victim had lunged at him
with a screwdriver. 73 N.J. at 408-10. In Muhammad, the
prosecution in opening, questioning, and over objection at closing
questioned why the "defendant did not give to the police the
exculpatory account that his counsel provided to the jury." 182
N.J. at 562-63, 566, 572-73. Tilghman likewise relied on the
principle that "a defendant is under no obligation to volunteer
to the authorities at the first opportunity the exculpatory story
he later tells at his trial." 345 N.J. Super. at 574, 576 (quoting
Deatore, 70 N.J. at 115).3
Those cases are plainly distinguishable, because here
"defendant did not remain silent." Tucker, 190 N.J. at 186, 190(distinguishing Muhammad); see Kucinski, 227 N.J. at 618-21; State
v. Marks, 201 N.J. Super. 514, 532 (App. Div. 1985). Moreover,
those cases prohibited prosecutors from commenting on the failure
of the defendant to tell police an exculpatory story. Defendant
cites no cases making clear it is error to comment on defendant's
3
Similarly, the seminal case about comment on silence, Doyle v.
Ohio, 426 U.S. 610 (1976), involved a prosecutor trying "to impeach
a defendant's exculpatory story, told for the first time at trial,
by cross-examining the defendant about his failure to have told
the story . . . at the time of his arrest." Id. at 611.
15 A-4076-15T3
questions to the police. We have found no such case.4 Thus,
defendant has failed to show any "error was clear under current
law." Henderson, 568 U.S. at 270.
Defendant also now claims the prosecutor's closing argument
commented on his silence. However, the prosecutor's argument was
that defendant's story "[d]oesn't make any sense" because of what
he said to the officers:
First, he says to you that he asked two
officers what was the basis of what he is being
charged for. And then, all of a sudden, washed
his hands of it. Didn't ask another one. Let
me ask you a question: What is the first
thing that anyone does when they're accused
of doing something? All right, what are you
saying I did – what are you saying I did? What
are the charges that you're leveling at me?
Because I want to know so that I can defend
myself.
Mr. Carlo says, yeah, I asked the two officers
who drove me in the car, . . . and they said
we'll tell you down at the station. And I
asked them again but when they didn't tell me,
that was it. I was done asking.
He asked the CO later when he gets to [the
county jail] and the [corrections officer]
actually does look it up for him and tells him
his charges. Then Mr. Carlo doesn't ask him
either. He's got someone who's amenable to
helping him out and he doesn't ask him, hey,
where did they say that I had this gun?
4
The only published case we found citing Doyle and involving a
defendant asking a question found error because the prosecutor
"comment[ed] on defendant's failure to offer his exculpatory
explanation at the time of his arrest." People v. Beller, 386
N.E.2d 857, 858-62 (Ill. 1979).
16 A-4076-15T3
The prosecutor's argument commented on the questions
defendant asked, not on silence. As set forth above, the
prosecutor was entitled to point out the inconsistency in
defendant's pretrial questions to attack the credibility of his
claim he could not remember where he was during the crime because
the officers would not tell him where or when the crime occurred.
The part of the prosecutor's first paragraph beginning "Let
me ask you a question" might have been improper if defendant had
not spoken to the officers. However, it was not impermissible
because defendant admittedly questioned the police officers and
the corrections officer, and because the prosecutor was arguing
the inconsistency in defendant's questions.
Moreover, the prosecutor's closing did not discuss the
problematic issue of defendant's failure to ask questions after
November 1. At the conclusion of the quoted argument, defense
counsel objected on other grounds, but did not claim the prosecutor
was commenting on silence. The trial court overruled those
objections, but warned the prosecutor that he was "treading close
to post [arrest] silence" if he commented on defendant's failure
to ask subsequent questions: "You can't talk about his silence.
You can talk about the conversation he had[.]" The prosecutor
said "Okay" and turned to other topics in his closing.
17 A-4076-15T3
Defendant has not shown that any error was "'so egregious'
that it deprived defendant of the 'right to have a jury fairly
evaluate the merits of his defense.'" Pressley, 232 N.J. at 593-
94 (citations omitted).
B.
Defendant also argues that in the comments above and other
comments, the prosecutor flipped the burden of proof, by implying
defendant had the burden to present evidence. However, nothing
in the comments discussed above said anything about defendant
having to produce evidence at trial. The same is true about the
other comments defendant cites.
Defendant cites this exchange during his cross-examination,
which the prosecutor essentially quoted in his closing:
Q. Did you ever ask your grandfather if he
remembered where you were on October 29th,
2014?
A. No, I haven't spoken to my grandfather
since I been incarcerated.
Q. Did you ever speak to your girlfriend
about if she knew where you were on October
29th, 2014?
A. I haven't spoke to her neither.
. . . .
Q. But you didn't reach out for your
girlfriend at all?
A. No.
18 A-4076-15T3
Q. Wasn't worth it?
A. No.
. . . .
Q. . . . And if you knew where you were and
were able to present an alibi, that would
increase your chances of not being convicted?
A. Yes.
Q. And let's clarify. I'm not asking you
to tell them where you were. I'm asking you
to ask them where you were. Wouldn't that be
useful for you to know?
A. Yes. . . .
After quoting that exchange in his closing, the prosecutor
argued: "He didn't call his girlfriend. He didn't call his
grandfather. In fact, he said he did not even think about the
incident." The prosecutor then quoted a later exchange in
defendant's cross-examination, after defendant agreed that "being
charged with something I didn't do" and "sitting in the county
[jail] for 17 months" had "been a nightmare."5
Q. Did you spend time trying to remember
where you were on the night of the charges?
A. No.
Q. You didn't give it any thought?
A. Umm, no.
5
Defense counsel had argued in opening that the period between
defendant's arrest and trial had been "a 467 day nightmare."
19 A-4076-15T3
Q. You didn't want to put an end to your
nightmare?
The prosecutor then argued in closing to the jurors:
You guys are human beings. You guys have life
experience, common sense. Does that make
sense to you? Is that how you know human
beings to act? . . . [W]hy wouldn't you take
even the most elementary of efforts to see if
you could put an end to that nightmare? Is
that consistent with how human beings act? Or
is that irrational? And unbelievable?
Implausible?
Defendant did not object to the quoted portions of either the
cross-examination or the closing. Thus, he must show plain error,
and overcome the presumption he did not think the comments were
prejudicial. Pressley, 232 N.J. at 593; R.B., 183 N.J. at 333.
The challenged statements were another effort by the
prosecutor to counter defendant's testimony that he was not present
at Broadway and Delevan when the crime occurred but could not
remember where he was. The prosecutor's questions and arguments
suggested that defendant could have jogged his memory of where he
was by speaking with his grandfather with whom he was living, by
speaking to his girlfriend, or by trying to remember where he was
when the crime occurred. The prosecutor was contending defendant's
admitted failure to do so showed his testimony that he was
elsewhere when the crime occurred was "unbelievable" and
"implausible."
20 A-4076-15T3
Nothing in the prosecutor's questions or arguments suggested
that defendant had a burden of proof, or that he had to call either
his grandfather or girlfriend as witnesses. Rather, they were
aimed at what the prosecutor told the jury the case was all about:
"Credibility. One of the two people who took the stand lied to
you. It's as plain as that. Your job is to figure out who was
the person who lied to you?"
Defendant claims the prosecutor shifted the burden by later
arguing to the jurors: "Have any of you ever been caught in a
complete nightmare and taken no efforts whatsoever to put an end
to that nightmare, despite it costing you nothing to do so?"
However, the prosecutor then stated: "I suspect it hasn't because
it doesn't happen in the real world. It doesn't happen in the
real world because it's not truth and what that means is that you
know who was lying." Again, the prosecutor made clear that he was
challenging the credibility of defendant's testimony. Defendant
cannot claim "the State impermissibly shifted the burden of proof
to the defense" when the prosecutor was making a different point.
See State v. Loftin, 146 N.J. 295, 389 (1996); State v. Zola, 112
N.J. 384, 427 (1988).
"Prosecutors can sum up cases with force and vigor, and are
afforded considerable leeway so long as their comments are
'reasonably related to the scope of the evidence presented.'"
21 A-4076-15T3
Pressley, 232 N.J. at 593 (quoting State v. Timmendequas, 161 N.J.
515, 587 (1999)). "A prosecutor may respond to defense claims,
even if the response tends to undermine the defense case." Nelson,
173 N.J. at 473. It is "not improper for a prosecutor to comment
on the credibility of a defendant's testimony." State v. Darrian,
255 N.J. Super. 435, 458 (App. Div. 1992); see State v. Lazo, 209
N.J. 9, 29 (2012). Also, "[i]t is not improper for the prosecution
to suggest that the defense's presentation was imbalanced and
incomplete." Timmendequas, 161 N.J. at 593.
Defendant argues this case resembles State v. Jones, 364 N.J.
Super. 376 (App. Div. 2003). In Jones, the prosecutor asked the
jury why the defense had not "dusted the gun for prints to disprove
that his fingerprints were on there? Maybe the defendant knows
something we don't, that it is his gun." Id. at 382. Defense
counsel objected, the court refused to give a curative instruction,
and we agreed that comment "unfairly suggested to the jury that
he had a burden to introduce evidence." Id. at 381. Here, by
contrast, the prosecutor did not suggest defendant had to perform
tests or call witnesses, or "the possible results" if he had. Cf.
id. at 383. Moreover, defendant did not object, making it "'fair
to infer from the failure to object below that in the context of
the trial the error was actually of no moment.'" State v. Ingram,
196 N.J. 23, 42 (2008) (quoting Nelson, 173 N.J. at 471).
22 A-4076-15T3
In any event, any error in the prosecutor's statements was
cured by the trial court's instructions. Loftin, 146 N.J. at 389.
In its opening instructions, and in its final charge immediately
after the prosecutor's summation, the trial court instructed the
jury in essentially the same language: "The burden of proving each
element of a charge beyond a reasonable doubt rests upon the State
and that burden never shifts to the defendant. The defendant in
a criminal case has no obligation or duty to prove his innocence,
or offer any proof relating to his innocence." The court
repeatedly reiterated that "[t]he State has the burden of proving
the defendant guilty beyond a reasonable doubt."
"We presume the jury followed the court's instructions."
State v. Smith, 212 N.J. 365, 409 (2012). Such instructions can
be sufficient to cure even direct references to a defendant's
failure to introduce evidence. State v. Patterson, 435 N.J. Super.
498, 505-06, 513-14 (App. Div. 2014) (ruling the instructions
cured the prosecutor's comments that the defendant "could have
produced some testimony" to support the defense position "but we
don't have any"); State v. Munoz, 340 N.J. Super. 204, 215-17
(App. Div. 2001) (ruling the instructions cure a prosecutor's
argument that the defense "haven't brought [the defendant] up" to
the jurors so they could observe him closely); see also State v.
Hill, 199 N.J. 545, 564-65, 569 n.9 (2009). Thus, defendant cannot
23 A-4076-15T3
show the prosecutor's comments were "clearly capable of producing
an unjust result[.]" R. 2:10-2.
C.
Defendant concedes that his nickname "Rage" was properly
admitted, but now contends the prosecutor improperly questioned
him about it. Defense counsel first questioned him about it on
direct examination. Defendant testified that almost "everybody"
calls him Rage, and that Rage was his nickname in the neighborhood
since he was fourteen when friends jokingly called him Rage as the
opposite of Angel, his given name.
On cross-examination, the following exchange occurred:
Q. Is the opposite of angel rage?
A. Yes and no.
. . . .
Q. Is it just you who has this opposite
nickname?
A. No.
Q. There's others who are nicknamed opposite
for what their name is?
A. No.
Q. So it's just you?
A. No. I'm saying -- I ain't gonna say they
names is opposite of they names. I can't say
that. A nickname is a nickname. People give
you nicknames.
24 A-4076-15T3
Q. Sure. But yours is the one that's
opposite?
A. That's what I was given to me, yes.
Q. Quasi opposite, because it's yes and no
opposite of angel?
A. It was given to me because it's opposite
of my name when I was young.
Defendant now complains the prosecutor "tried to show through
cross-examination that Mr. Carlo must be lying about his nickname"
by "pointing out that his nickname was not the exact opposite of
his given name." We discern no clear purpose for this exchange.
Nonetheless, defendant cannot show plain error. The absence
of an objection "'suggests that defense counsel did not believe
the remarks were prejudicial.'" R.B., 183 N.J. at 333 (citation
omitted). Nothing in the exchange was inflammatory. Most
importantly, both before and after the exchange, the trial court
instructed the jury it could not draw any adverse inference from
defendant's nickname.
When defendant was first identified as Rage at trial, the
trial court on its own initiative instructed the jury:
Please keep in mind that a nickname alone does
not constitute evidence of guilt or a
propensity to commit crime. Many times, a
nickname, in and of itself, may be interpreted
to have different meanings. Regardless of the
nickname associated to the defendant by this
witness, you must disregard any inference as
to the meaning behind the nickname. It may
25 A-4076-15T3
only . . . be considered by you as a means of
identifying an actual person, and for no other
purpose, either during the trial or during
your deliberations in this case.
Therefore, I instruct you that you must not
use this evidence to decide that the defendant
is a bad person, or has a tendency to commit
crimes, simply because this may or may not be
his nickname. That is, just because this
witness may have known this defendant by a
certain nickname cannot, and must not, lead
you to conclude that the defendant must be
guilty of the offenses charged here. You must
not consider this evidence for that purpose.
Understand, also, as I have previously
instructed you, a defendant is presumed
innocent and that presumption stays with him
until the State has proven guilt beyond a
reasonable doubt, if that is the conclusion
that you come to at the end of the case. You
cannot utilize the fact that an individual is
known by a certain nickname [t]o infer his
guilt. Understood? Thank you.
The trial court essentially repeated the first and third
paragraphs of that instruction in its final charge, and added:
Whether the defendant and that particular
nickname are associated is for you to decide.
The use of a nickname cannot, and should not,
be considered by you for any other purpose,
other than for possible identification of an
individual mentioned during this trial. You
cannot infer that based upon someone's
nickname that he has any predisposition to
commit a crime or otherwise perform any bad
act.
"[T]he court's limiting instruction[s] to the jury regarding
the use of [defendant's nickname] prevented any prejudice to the
26 A-4076-15T3
defendant." State v. Paduani, 307 N.J. Super. 134, 146-47 (App.
Div. 1998); see State v. Parker, 216 N.J. 408, 420 (2014)
(requiring "'some tangible form of prejudice'" where the defendant
objects to use of a false name). This exchange was innocuous,
particularly in comparison to defendant's description of his
criminal history to the jury. It was not "clearly capable of
producing an unjust result." R. 2:10-2.
III.
Lastly, defendant on appeal challenges for the first time
the identification section of the trial court's final charge.
However, when the court gave the parties opportunities to comment
on the draft charge, defense counsel made only two comments
unrelated to identification, and said she did not have anything
else to add. Courts "review for plain error the trial court's
obligation to sua sponte deliver a jury instruction when a
defendant does not request it and fails to object at trial to its
omission." State v. Alexander, 233 N.J. 132, 141-42 (2018).
Moreover, "[d]efendant's failure to 'interpose a timely objection
constitutes strong evidence that the error belatedly raised here
was actually of no moment.'" State v. Tierney, 356 N.J. Super.
468, 481 (App. Div. 2003) (citation omitted). "[T]here is a
presumption that the charge . . . was unlikely to prejudice the
defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012).
27 A-4076-15T3
Defendant complains that in giving the pertinent portions of
the Model Jury Charge (Criminal), "Identification: In-Court and
Out-of-Court Identifications" (rev. July 19, 2012) [Model Charge],
the trial court did not give the part addressing "a showup
procedure." The State argues the showing of a single photo to a
witness is not a showup.
"Showups are essentially single-person lineups: a single
suspect is presented to a witness to make an identification.
Showups often occur at the scene of a crime soon after its
commission." State v. Henderson, 208 N.J. 208, 259 (2011). As
that language suggests, showups have traditionally involved the
witness seeing a single suspect live and in person. See id. at
261 (ruling officers "should instruct witnesses that the person
they are about to view may or may not be the culprit"); State v.
Herrera, 187 N.J. 493, 504 (2006) ("showups by definition are
suggestive because the victim can only choose from one person,
and, generally, that person is in police custody").
However, a decision issued after trial may suggest that
showing a single photo to the witness is a showup. In Pressley,
the defendant contended that showing a witness a single photograph
"was essentially a showup." 232 N.J. at 590. The concurring
justice agreed it was a "photographic showup." Id. at 595-98
(Albin, J., concurring). The Court found no basis for suppression:
28 A-4076-15T3
"Although showups are inherently suggestive, 'the risk of
misidentification is not heightened if a showup is conducted'
within two hours of an event. Here, the identification took place
within an hour." Id. at 592 (quoting Henderson, 208 N.J. at 259).
We assume without deciding that just as there are "live and
photo lineups," that there can be live and "photo showup[s]."
Henderson, 208 N.J. at 222, 251, 260, 277. We also assume the
trial court should have given the portion of the Model Charge for
"a showup procedure":
In this case, the witness identified the
defendant during a "showup," that is, the
defendant was the only person shown to the
witness at that time. Even though such a
procedure is suggestive in nature, it is
sometimes necessary for the police to conduct
a "showup" or one-on-one identification
procedure. Although the benefits of a fresh
memory may balance the risk of undue
suggestion, showups conducted more than two
hours after an event present a heightened risk
of misidentification. Also, police officers
must instruct witnesses that the person they
are about to view may or may not be the person
who committed the crime and that they should
not feel compelled to make an identification.
In determining whether the identification is
reliable or the result of an unduly suggestive
procedure, you should consider how much time
elapsed after the witness last saw the
perpetrator, whether the appropriate
instructions were given to the witness, and
all other circumstances surrounding the
showup.
[Model Charge at 6-7.]
29 A-4076-15T3
Defendant claims that had the jury been properly instructed,
it would have been able to consider the length of time between
T.A.'s viewing of the shooter and the two photo show-ups, and the
suggestive nature of showups. However, the trial court's
identification instruction was broad enough to allow the jury to
consider both factors.
The trial court instructed the jury to consider "the
circumstances under which the identification was made." "In
evaluating the reliability of the witness's identification, you
should also consider the circumstances under which any out-of-
court identification was made, and whether it was the result of a
suggestive procedure. In that regard, you may consider everything
that was done . . . by law enforcement . . . during the
identification process." Finally, the court instructed the jurors
that they were "also free to consider any other factor, based on
the evidence . . . , that you consider relevant to your
determination whether the identifications were reliable."
Thus, under the trial court's identification instruction, the
jury was able to consider whether showing the witness a single
photo was "a suggestive procedure." It is a "commonsense notion
that one-on-one showups are inherently suggestive" and "by
definition are suggestive because the victim can only choose from
one person." Herrera, 187 N.J. at 504. The jury could draw that
30 A-4076-15T3
commonsense conclusion from the obvious fact that the photos only
displayed one person, defendant.
Moreover, the other factor making in-person showups
suggestive was not present here. Defendant was not "in police
custody" having just been arrested for the crime, but was a free
man depicted in a still photo. Ibid. Further, the Model Charge's
comment that a showup "is suggestive in nature" would have been
offset by its comment that "the benefits of a fresh memory may
balance the risk of undue suggestion." Model Charge at 7.
The trial court's instruction also allowed the jury to
consider how much time elapsed after the witness last saw the
perpetrator. Further, the court specifically instructed the jury:
"Memories fade with time. As a result, delays between the
commission of the crime and the time an identification is made can
affect the reliability of the identification. In other words, the
more time that passes, the greater the possibility that a witness's
memory of a perpetrator will weaken."
Moreover, T.A. saw the still photo only about five hours
after he last saw defendant. While "more than two hours after the
event," Model Charge at 7, "an approximate five-hour period between
the incident and the [showup] identification does not subvert the
reliability of the identification procedure." Herrera, 187 N.J.
at 509. T.A. saw the second, clearer photo only a few hours later.
31 A-4076-15T3
Thus, "the times between the initial encounters and the later
photo identifications were relatively short." State v. Adams, 194
N.J. 186, 205-06 (2008) (finding no "substantial likelihood of
misidentification" where "the [photo showup] identifications were
made within two days of the incident"); see id. at 192-93; id. at
210 (Albin, J., concurring).
Defendant also complains the trial court's identification
instruction did not include the part of the Model Charge discussing
multiple viewings. Id. at 6. However, that part is primarily
intended to address the "risk of 'mugshot exposure' and 'mugshot
commitment.'" Henderson, 208 N.J. at 255. "Mugshot exposure is
when a witness initially views a set of photos and makes no
identification, but then selects someone — who had been depicted
in the earlier photos — at a later identification procedure."
Ibid. "Mugshot commitment occurs when a witness identifies a
photo that is then included in a later lineup procedure." Id. at
256. Neither risk was present here, as T.A. identified defendant's
photo the first time he saw it, and the second procedure involved
a different photo of defendant.
In any event, it is "significant" that T.A. was not
identifying "'a stranger'" he had never seen before the incident.
Herrera, 187 N.J. at 507. Rather, this resembled "a 'confirmatory'
identification, which is not considered suggestive. A
32 A-4076-15T3
confirmatory identification occurs when a witness identifies
someone he or she knows from before but cannot identify by name.
For example, the person may be a neighbor or someone known only
by a street name." Pressley, 232 N.J. at 592-93 (citation
omitted). T.A. knew defendant by sight for a substantial period,
frequently saw him in their neighborhood, knew his street name,
had talked and fought with him earlier that day, and had just
spoken to him and shaken hands with him, but just did not know his
birth name.
In addition, before seeing any photo, T.A. was able to
accurately describe defendant and his gray hoodie with black
markings. Defendant was still wearing it at the time of arrest,
and was wearing it in the video. Finally, T.A.'s identification
was unequivocal.
Under these circumstances, defendant cannot show prejudice
from the omission of the showup and multiple-viewing parts in the
trial court's identification instruction. See State v. Robinson,
165 N.J. 32, 46-47 (2000). The court's identification instruction
otherwise contained all the pertinent portions of the Model Charge,
including that "[t]he burden of proving the identity of the person
who committed the crime is upon the State," and that "the State
must prove beyond a reasonable doubt that this defendant is the
person who committed the crime." Model Charge, at 1; see State
33 A-4076-15T3
v. Cotto, 182 N.J. 316, 326-27 (2005); cf. State v. Sanchez-Medina,
231 N.J. 452, 468-49 (2018) (reversing where the court failed to
give any instructions on identification). Defendant has failed
to show the omission was "clearly capable of producing an unjust
result." Alexander, 233 N.J. at 142 (quoting R. 2:10-2).
Defendant's remaining arguments lack sufficient merit to
warrant discussion. R. 2:11-3(e)(2).
Affirmed.
34 A-4076-15T3