STATE OF NEW JERSEY VS. REMARNO CHAMBERS (12-09-0951, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-1144-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
REMARNO CHAMBERS,
Defendant-Appellant.
_____________________________
Submit December 18, 2017 – Decided July 6, 2018
Before Judges Messano and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 12-09-0951.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele A. Adubato, Designated
Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Kim L.
Barfield, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Remarno Chambers appeals from his conviction by a
jury of fourth-degree possession of marijuana with intent to
distribute, N.J.S.A. 2C:35-5(b)(12). Because the court erred by
admitting evidence of other crimes and wrongs in violation of
N.J.R.E. 404(b), and by allowing witnesses to testify concerning
the veracity of other witnesses, and those errors were clearly
capable of producing an unjust result, we reverse and remand for
a new trial.
I.
In December 2010, defendant was a substitute teacher at
Vineland High School. Defendant permitted his eighteen-year-old
cousin, Lenmarve McIntosh, and McIntosh's friends from Vineland
High School and another local high school, to "hang out" at
defendant's apartment, where they played games, drank beer and
used marijuana.
On the evening of December 25, 2010 and in the early morning
hours of December 26, McIntosh's friend I.S. and others went to
defendant's apartment. I.S. saw marijuana that defendant kept in
a closet safe, and observed others present at the apartment smoking
marijuana. After I.S. took a blue pill that defendant gave him,
he blacked out, and the following morning woke up naked in
defendant's bed. As the result of a police investigation, I.S.
reported what occurred and alleged defendant sexually assaulted
him.
2 A-1144-15T3
During a January 7, 2011 interrogation by Vineland Police
detectives, defendant admitted having marijuana at his apartment,
smoking marijuana with McIntosh at his apartment, and permitting
McIntosh and I.S. to sleep overnight with him in his bedroom on
an evening during the 2010 "Christmas weekend." Following the
interrogation, Vineland Police executed a search warrant at
defendant's apartment and found a bottle containing alprazolam
pills in a drawer, and two bags of marijuana, two digital scales
and $1595 in a closet safe.
Defendant was charged in an indictment with committing the
following offenses "[o]n or about" December 26, 2010: second-
degree attempted aggravated sexual assault upon I.S., N.J.S.A.
2C:14-2(a)(7) and N.J.S.A. 2C:5-1(a)(1) (count one), third-degree
aggravated criminal sexual contact with I.S., N.J.S.A. 2C:14-3(a)
(count two), fourth-degree possession with intent to distribute
marijuana, N.J.S.A. 2C:35-5(b)(12) (count three), third-degree
distribution of a controlled dangerous substance, alprazolam,
N.J.S.A. 2C:35-5(b)(3) (count four), and third-degree reckless
endangering, N.J.S.A. 2C:12-2(b)(2)1 (count five). Count five was
dismissed before trial.
1
N.J.S.A. 2C:12-2(b)(2) was repealed effective January 11, 2016.
L. 2015, c. 186, § 2.
3 A-1144-15T3
Defendant was tried before a jury, which returned a guilty
verdict on count three, fourth-degree possession of marijuana with
intent to distribute, and not guilty on count four. The jury
could not reach a verdict on the sex offenses alleged in counts
one and two. Defendant was retried on counts one and two, but the
jury could not reach a verdict and the court granted defendant's
motion to dismiss those counts. The court imposed a three-year
probationary sentence on count four, and defendant appealed.
Defendant presents the following arguments for our
consideration:
POINT I
THE DEFENDANT'S JANUARY 7, 2011 STATEMENT TO
POLICE SHOULD NOT HAVE BEEN ADMITTED INTO
EVIDENCE BECAUSE HIS FIFTH AMENDMENT RIGHT
AGAINST SELF-INCRIMINATION WAS VIOLATED.
POINT II
EVIDENCE DEFENDANT DISTRIBUTED [MARIJUANA]
AND POSSESSED IT ON DATES NOT CHARGED IN THE
INDICTMENT WAS IMPROPER N.J.R.E. 404(b)
EVIDENCE THAT SHOULD HAVE BEEN EXCLUDED FROM
EVIDENCE.
POINT III
THE STATE'S CROSS-EXAMINATION OF DEFENSE
WITNESSES WAS IMPROPER, PREJUDICIAL AND
DEPRIVED DEFENDANT OF A FAIR TRIAL.
4 A-1144-15T3
II.
Our review of a court's determination concerning the
suppression of statements made during a custodial interrogation
is narrow. Where factual findings are "supported by sufficient
credible evidence in the record," deference is required. State
v. S.S., 229 N.J. 360, 374 (2017) (quoting State v. Gamble, 218
N.J. 412, 424 (2014)). "Corrective action" is appropriate only
"when factual findings are so clearly mistaken — so wide of the
mark — that the interests of justice demand intervention." Id.
at 381. Our review of legal issues is de novo. Id. at 380.
As he did before the trial court, defendant contends on appeal
that during the January 7, 2011 interrogation, the officers
violated his rights by questioning him after he invoked his right
to counsel. He argues the court erred by denying his motion to
suppress statements he made during what he claims was his initial
invocation of his right to counsel.2 We are not persuaded.
2
Defendant argued he invoked his right to counsel on two occasions
during the interrogation. The State did not dispute defendant
invoked his right to counsel during the latter part of the
interrogation when he stated, "I need my lawyer to be here with
me . . . ." The court agreed defendant's declaration constituted
an invocation of his right to counsel and suppressed all of his
statements following the invocation. We therefore address only
defendant's contention that the court erred by finding he did not
invoke his right to counsel earlier in the interrogation.
5 A-1144-15T3
A defendant's "right against self-incrimination is guaranteed
by the Fifth Amendment to the United States Constitution and this
state's common law, now embodied in statute, N.J.S.A. 2A:84A-19,
and evidence rule, N.J.R.E. 503." Id. at 381 (quoting State v.
Nyhammer, 197 N.J. 383, 399 (2009)). If a suspect "indicates in
any manner and at any stage of the process that he wishes to
consult with an attorney before speaking there can be no
questioning[,]" State v. Alston, 204 N.J. 614, 620 (2011) (quoting
Miranda v. Arizona, 384 U.S. 436, 444-45 (1966)), and the
"interrogation may not continue until either counsel is made
available or the suspect initiates further communication
sufficient to waive the right to counsel," ibid."[A] suspect need not be articulate, clear, or explicit in
requesting counsel; any indication of a desire for counsel, however
ambiguous, will trigger entitlement to counsel." Id. at 622
(quoting State v. Reed, 133 N.J. 237, 253 (1993)). Thus, "if the
words amount to even an ambiguous request for counsel, the
questioning must cease, although clarification is permitted; if
the statements are so ambiguous that they cannot be understood to
be the assertion of a right, clarification is not only permitted
but needed." Id. at 624.
In State v. Chew, 150 N.J. 30, 63 (1997), the Court held that
a suspect who asked his mother to call his lawyer in the presence
6 A-1144-15T3
of police officers made "an equivocal invocation of the right to
counsel that had to be clarified before questioning could take
place." Similarly, in State v. Elmore, 205 N.J. Super. 373, 380
(App. Div. 1985), we concluded that a suspect's statement to her
mother "that she was not allowed to have a lawyer" was an equivocal
request for counsel.
In Alston, 204 N.J. at 625-27, the Court found the defendant's
statement, "'should I not have a lawyer?' was, in actuality, not
an assertion of a right, ambiguous or otherwise" because it was a
"question . . . that amounted to defendant's request for advice
about what the detective thought that defendant should do." Id.
at 626. The officer responded appropriately by asking, "[do y]ou
want a lawyer?" Ibid. (alteration in original). The defendant
then made it clear that he did not want a lawyer, stating, "No, I
am asking you guys, man." Ibid.In State v. Messino, 378 N.J. Super. 559, 578 (App. Div.
2005), we found the defendant's statement, "Do you think I need a
lawyer?" was not an ambiguous invocation of the right to counsel.
We concluded defendant did not request an attorney, but rather
asked only if the officer "whether he thought defendant needed a
lawyer." Id. at 578. We distinguished cases where it was
determined a defendant made an ambiguous invocation of the right
to counsel, including Maglio v. Jago, 580 F.2d 202, 203 (6th Cir.
7 A-1144-15T3
1978), where the suspect stated, "Maybe I should have an attorney,"
and United States v. Clark, 499 F.2d 802, 805 (4th Cir. 1974),
where the suspect stated, "I had better talk to a lawyer."
Messino, 378 N.J. Super. at 578.
Here, defendant argues that after the detectives informed him
of his Miranda rights, he invoked his right to counsel during the
following exchange:
[Detective]: Do you understand each of your
rights?
[Defendant]: From everything you just read to
me?
[Detective]: Yes.
[Defendant]: Yes.
[Detective]: Okay. What you can do is you can
look this over. I just need you to initial
with your initials numbers one through five
and then sign here that you understand. This
is just what I read to you. It's in English
as well as Spanish.
[Defendant]: Now because I don't understand
why here and I'm still signing this without
(indiscernible).
[Detective]: Well this is, this is you signing
that you understand what your rights are prior
to us talking about the reasons why you're
here.
[Defendant]: Okay. So this isn't, once again
. . .
[Detective]: That . . .
8 A-1144-15T3
[Defendant]: This isn't . . .
[Detective]: That is your rights. We're just
advising you of what your rights are. Do you
understand what your rights are?
[Defendant]: Yeah but I do have my own
personal attorney. So I don't know if, I don't
know what you need to ask me. So I don't know
if I need my attorney.
[Detective]: Okay. Well after you were to sign
this indicating that you do understand your
rights . . .
[Defendant]: Uh huh.
[Detective]: Then we are going to advise you
of what the allegations are.
[Defendant]: Uh huh.
[Detective]: Then that's when you would make
a determination whether you would want to
speak with us or not speak with us.
[Defendant]: Okay.
[Detective]: This is simply just a form
indicating that we advised you of what your
rights are and that you understand that you
have the right either to talk to us . . .
[Defendant]: Uh huh.
[Detective]: To not talk to us, to start
talking to us, stop talking. These are, these
are what your rights are. This is what we've
just read to you.
[Defendant]: Okay.
[Detective]: Do you have any questions at all
about your rights?
9 A-1144-15T3
[Defendant]: No. Based off what you read to
me, no.
[(Emphasis added).]3
When reviewing a trial court's denial of a motion to suppress
a defendant's statements, we must "engage in a 'searching and
critical' review of the record[.]" State v. Maltese, 222 N.J.
525, 543 (2015) (quoting State v. Hreha, 217 N.J. 368, 381-82
(2014)). We have considered defendant's statements to the
detectives in the context of the dialogue between them and are
convinced defendant's declaration that he had a personal attorney,
and his statement "I don't know if I need my attorney," did not
constitute an invocation of his right to counsel.
In Alston and Messino, it was determined the defendants'
inquiries to the interrogating officers about whether they needed
an attorney did not constitute invocations of the right to counsel.
Alston, 204 N.J. at 626-27; Messino, 378 N.J. Super. at 578. Here,
defendant expressed the identical uncertainty about his need for
an attorney as the defendants in Alston and Messino – by stating
he did not know if he needed an attorney – but did not direct an
inquiry to the detectives. Defendant did not request an attorney,
3
We rely on a transcript of the interrogation which was not
admitted in evidence, but was supplied to the trial court when it
ruled on defendant's suppression motion, and which the parties
agree is accurate. The parties supplied the transcript at our
request.
10 A-1144-15T3
or suggest he wished to have an attorney present before any further
questioning. His statements conveyed only that he had an attorney
and had not yet decided whether the attorney's presence was
necessary. Like the defendants in Alston and Messino, defendant's
expression of uncertainty was "not an assertion of a right,
ambiguous or otherwise," Alston, 204 N.J. at 626, but instead was
a declaration only that he "[did not] know" whether he needed his
lawyer at that time. As we observed in Messino, "[t]here is no
dispute that defendant was told that he had a right to a lawyer.
Defendant could have requested an attorney. His statement . . .
was not such a request." 378 N.J. Super. at 578. Thus, the motion
court correctly determined defendant did not invoke his right to
counsel, and properly denied defendant's motion to suppress his
statements.
III.
Defendant next argues the court admitted testimony showing
he possessed and distributed marijuana on dates not charged in the
indictment that should have been excluded under N.J.R.E. 404(b)
as inadmissible evidence of other crimes or wrongs. More
particularly, defendant argues the court erred by admitting the
following testimony: (a) Jose Muniz's testimony that in December
2010 he saw defendant bring marijuana from defendant's bedroom and
give it to individuals to "roll up"; (b) Cheyanne Cuevas's
11 A-1144-15T3
testimony that in December 20104 he saw defendant possess, smoke
and share marijuana with others, and purchased marijuana from
defendant on more than one occasion; (c) McIntosh's testimony he
saw people smoking marijuana at the 2010 Christmas party at
defendant's apartment, but the guests brought their own marijuana;
and (d) Cheyanne Cuevas's testimony he smoked marijuana at
defendant's apartment on December 28, 2010, but did not recall who
supplied the marijuana. Defendant contends the indictment charged
only possession of marijuana with intent to distribute on or about
December 26, 2010, and the testimony showing defendant committed
crimes or wrongs at other times should have been excluded under
N.J.R.E. 404(b) and N.J.R.E. 403.
"A trial court's ruling on the admissibility of evidence is
reviewed on appeal for abuse of discretion." State v. Rose, 206
N.J. 141, 157 (2011). Under this standard, the trial court's
decision to allow evidence should not be overturned "unless it can
be shown that the trial court palpably abused its discretion, that
is, that its finding was so wide [of] the mark that a manifest
denial of justice resulted." State v. Lykes, 192 N.J. 519, 534
4
Defendant argues Cuevas testified that "On December 10, he saw
defendant in possession of [marijuana]." The State repeats this
statement in its brief. The record, however, shows Cuevas actually
testified that he observed defendant in possession of marijuana
in December 2010.
12 A-1144-15T3
(2007) (quoting Verdicchio v. Ricca, 179 N.J. 1, 34 (2004)). For
admission of N.J.R.E. 404(b) evidence in cases where a trial court
did not apply a balancing test, an appellate court conducts "its
own 'plenary review' to determine its admissibility." Rose, 206
N.J. at 158. In addition, if the trial court does not determine
the admissibility of evidence under the correct legal standard,
its decision is not afforded any deference and the court reviews
the issue de novo. State v. Reddish, 181 N.J. 553, 609 (2004).
"[N.J.R.E.] 404(b) serves as a safeguard against propensity
evidence that may poison the jury against a defendant." State v.
Skinner, 218 N.J. 496, 517 (2014). "[T]he underlying danger of
admitting other-crime [or bad-act] evidence is that the jury may
convict the defendant because he is 'a bad person in general.'"
Id. at 514 (second alteration in original) (quoting State v.
Cofield, 127 N.J. 328, 336 (1992)). "For that reason, any evidence
that is in the nature of prior bad acts, wrongs, or, worse, crimes
by a defendant is examined cautiously because it 'has a unique
tendency' to prejudice a jury." Ibid. (quoting Reddish, 181 N.J.
at 608). "Put simply, a defendant must be convicted on the basis
of his acts in connection with the offense for which he is charged.
A defendant may not be convicted simply because the jury believes
that he is a bad person." Ibid.13 A-1144-15T3
The initial determination required under N.J.R.E. 404(b) is
whether the evidence is "intrinsic to the charged crime, and thus
need only satisfy the evidence rules relating to relevancy, most
importantly [N.J.R.E.] 403" or whether it "relates to 'other
crimes,' and thus is subject to continued analysis under [N.J.R.E.]
404(b)." Rose, 206 N.J. at 179. If the evidence falls within
N.J.R.E. 404(b)'s requirements, its admissibility is determined
under the four-part test established in Cofield:
1. The evidence of the other crime must be
admissible as relevant to a material issue;
2. It must be similar in kind and reasonably
close in time to the offense charged;
3. The evidence of the other crime must be
clear and convincing; and
4. The probative value of the evidence must
not be outweighed by its apparent prejudice.
[127 N.J. at 338.]
"[E]vidence that is intrinsic to the charged crime is exempt
from the strictures of [N.J.R.E.] 404(b) even if it constitutes
evidence of uncharged misconduct that would normally fall
under [N.J.R.E.] 404(b) because it is not 'evidence of other
crimes, wrongs, or acts.'" Rose, 206 N.J. at 177 (quoting 22
Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and
Procedure § 5239, at 445 (1978)). For that reason, "evidence that
is intrinsic to a charged crime need only satisfy the evidence
14 A-1144-15T3
rules relating to relevancy, most importantly the [N.J.R.E.] 403
balancing test." Id. at 177-78. Under N.J.R.E. 403, relevant
evidence may be excluded if its "probative value is substantially
outweighed by the risk . . . of undue prejudice . . . ."
In Rose, the Court limited the scope of intrinsic evidence
to the two categories established in United States v. Green, 617
F.3d 233, 248-49 (3d Cir. 2010). See id. at 181 (first, second,
and third alterations in original) (emphasis added) (observing
"Green's tight description of intrinsic evidence narrows the field
of uncharged misconduct that is excluded from [N.J.R.E.] 404(b)'s
channeled analysis"). Ibid. "First, evidence is intrinsic if it
'directly proves' the charged offense." Id. at 180 (quoting Green,
617 F.3d at 248). "Second, 'uncharged acts performed
contemporaneously with the charged crime may be termed intrinsic
if they facilitate the commission of the charged crime.'" Ibid.(quoting Green, 617 F.3d at 249).
Here, the court overruled defendant's objections to the
disputed testimony concerning his involvement in the distribution
of marijuana at times other than on the December 26, 2010 date
charged in the indictment. The court rejected defendant's
contention the evidence constituted inadmissible N.J.R.E. 404(b)
evidence, did not conduct a Cofield analysis concerning its
admissibility, and essentially determined the evidence constituted
15 A-1144-15T3
intrinsic evidence that was admissible without regard to the
requirements of N.J.R.E. 404(b).
We first consider whether the challenged testimony "is
intrinsic to the charged crime," or "relates to 'other crimes,'
and thus is subject to continued analysis under [N.J.R.E.] 404(b)."
Id. at 179. Count three charged defendant with possession with
intent to distribute marijuana N.J.S.A. 2C:35-5(b)(12). To
establish defendant's guilt of the offense, the State was required
to prove beyond a reasonable doubt that on or about December 26,
2010: (a) defendant possessed or controlled the marijuana
recovered by the police and introduced into evidence; (b) defendant
had the intent to distribute the marijuana when he possessed or
had it under his control; and (c) defendant acted knowingly and
purposely in possessing or having the marijuana under his control.
See N.J.S.A. 35-5(b)(12); Model Jury Charges (Criminal),
"Possession Of A Controlled Dangerous Substance With Intent To
Distribute (N.J.S.A. 2C:35-5)" (rev. June 8, 2015).
In our view, Muniz's testimony that he saw defendant bring
marijuana from his bedroom and give it to individuals to "roll up"
during December 2010, and Cuevas's testimony that in December 2010
he saw defendant possess, smoke and share marijuana with others,
and purchased marijuana on more than one occasion from defendant,
was not intrinsic to the charge that on or about December 26,
16 A-1144-15T3
2010, defendant possessed marijuana with intent to distribute.
The testimony does not describe "uncharged acts performed
contemporaneously" with or that "facilitate[ed] the commission
of[,] the" December 26, 2010 offense charged in the indictment.
See Rose, 206 N.J. at 180 (quoting Green, 617 F.3d at 249). To
the contrary, the testimony described conduct occurring at times
separate from the crime charged in count three, and the alleged
conduct occurring at those times did not in any manner facilitate
defendant's alleged commission of the crime of possession with
intent to distribute marijuana on December 26, 2010. Thus, the
testimony did not fall within the second category of intrinsic
evidence recognized by the Court in Rose. Ibid.The State contends the testimony constituted evidence within
the first category of intrinsic evidence because it directly proved
defendant possessed marijuana with intent to distribute on
December 26, 2010. See ibid. "If uncharged misconduct directly
proves the charged offense, it is not evidence of some 'other'
crime." Green, 617 F.3d at 249. Where the evidence does not
directly prove the charged offense, it constitutes evidence of
"other crimes, wrongs, or acts," and is subject to the requirements
of N.J.R.E. 404(b). See ibid.The testimony of Muniz and Cuevas showing defendant
distributed marijuana at times other than that charged in the
17 A-1144-15T3
indictment does not "directly prove" that defendant possessed
marijuana with intent to distribute on December 26, 2010. See
Rose, 206 N.J. at 180; Green, 617 F.3d at 248-49. Contrary to the
State's assertions, we are not convinced our decision in State v.
Brockington, 439 N.J. Super. 311 (App. Div. 2015), requires a
different conclusion.
In Brockington, we considered the admissibility of a
detective's testimony about the defendant and another individual
"engag[ing] in a series of six encounters with persons whom" the
detective believed were purchasers of illicit drugs that occurred
immediately preceding a drug transaction for which defendant was
charged. Id. at 316-18. We determined the testimony was
admissible as intrinsic evidence because it "directly prove[d]"
the charged crimes: conspiracy to possess controlled dangerous
substance (CDS) and to possess CDS with intent to distribute, and
possession with intent to distribute. Id. at 328. Our
determination, however, was based on facts not present here. As
we noted, the testimony directly proved the offenses because it
showed "defendant and [the other individual] engage[d] in a pattern
of behavior that was repeated several times within a relatively
short period on the day" the defendant committed the charged
offenses. Id. at 332.
18 A-1144-15T3
Here, the testimony showing defendant used and distributed
marijuana on uncharged occasions in December 2010 is wholly
dissimilar to the evidence we found was intrinsic in Brockington.
In fact, in Brockington, we noted that the trial court excluded
evidence of the detective's observations of defendant's
participation in drug transactions prior to the date of the charged
crime under N.J.R.E. 404(b). Id. at 315. Muniz and Cuevas's
testimony does not show defendant distributed marijuana
immediately preceding the alleged commission of the charged
offense or directly prove he intended to distribute the marijuana
he possessed at the time of the charged offense. The alleged
uncharged distribution of marijuana does not fall within either
category of intrinsic evidence defined in Rose. See Rose 206 N.J.
at 180.
The court therefore erred by admitting the testimony
concerning defendant's uncharged distribution of marijuana without
determining its admissibility under N.J.R.E. 404(b) and Cofield.
See id. at 179 (explaining that where evidence of uncharged crimes
or wrongs is not intrinsic, its admissibility must be determined
under N.J.R.E. 404(b)). We are convinced the erroneous admission
of the testimony as intrinsic evidence was "clearly capable of
producing an unjust result," R. 2:10-2, because it constituted
highly prejudicial evidence that defendant committed other
19 A-1144-15T3
uncharged drug-related offenses and created a realistic danger the
"jury may [have] convict[ed] . . . defendant because he is a bad
person in general." Cofield, 127 N.J. at 336 (citation omitted).
We are also convinced the court erred by allowing McIntosh's
testimony he saw people smoking marijuana they brought to the 2010
Christmas party at defendant's apartment, and Cuevas's testimony
he smoked marijuana at defendant's apartment on December 28, 2010,
but did not recall who supplied it. The testimony is not intrinsic
evidence under the Rose standard because it does not directly
prove defendant committed the crime of possession with intent to
distribute marijuana on or about December 26, 2010, or prove acts
by defendant that facilitated that crime. See Rose, 206 N.J. at
180. In fact, the testimony does not describe any conduct or
actions of defendant related to his alleged possession with intent
to distribute marijuana.
Although the relevancy of the testimony is unclear, its
admission permitted the inference that defendant engaged in
uncharged crimes or wrongs by participating in the consumption of
controlled dangerous substances brought by others in his home.
The testimony constituted highly prejudicial evidence that
defendant was engaged in uncharged criminal conduct and its
admission was clearly capable of producing an unjust result. R.
2:10-2; State v. Randolph, 228 N.J. 566, 592 (2017).
20 A-1144-15T3
In sum, we are convinced that admission of the challenged
testimony of Muniz, McIntosh and Cuevas as intrinsic evidence was
plain error. R. 2:10-2. We are therefore constrained to reverse
defendant's conviction and remand for a new trial.
However, the court's determination the testimony of Muniz,
McIntosh and Cuevas constituted admissible intrinsic evidence
rendered it unnecessary for the State to argue the testimony was
otherwise admissible under N.J.R.E. 404(b), or create a complete
record in support of such a contention. Lacking such a record,
we choose not to make a de novo determination on the admissibility
of the testimony under N.J.R.E. 404(b). Cf. State v. Lykes, 192
N.J. 519, 534 (2007) (finding that where a trial court fails to
conduct a required N.J.R.E. 404(b) analysis concerning the
admissibility of evidence, a reviewing court may conduct the
analysis de novo). The State may request leave to introduce all
or portions of the testimony at the retrial, and the court shall
determine the admissibility of any proffered testimony under
N.J.R.E. 404(b) and the Cofield standard based on the record and
arguments presented at that time.
IV.
Defendant next argues the court erred by permitting the State
to elicit testimony from three defense witnesses, Weyldon Lindsey,
Lorenzo Cordero and Tinniel Brown, commenting on the veracity of
21 A-1144-15T3
the testimony of other witnesses and defendant's statement to the
police. Defendant cites generally to the State's cross-
examination of the witnesses, but argues the error of "greatest
significance" occurred when Cordero was asked "whether he was
wrong or was the defendant."
"[O]rdinarily, the scope of cross-examination of a witness
rests in the discretion of the trial judge. An appellate court
will not interfere with the exercise of such discretion unless
clear error and prejudice are shown." State v. Adames, 409 N.J.
Super. 40, 61 (App. Div. 2009) (quoting Glenpointe Assocs. v. Twp.
of Teaneck, 241 N.J. Super. 37, 54 (App. Div. 1990)).
"[I]t [is] the jury's province to assess the credibility of
all of the evidence." State v. Cole, 229 N.J. 430, 450 (2017).
"[C]redibility is an issue which is peculiarly within the jury's
ken[.]" State v. Frisby, 174 N.J. 583, 595 (2002) (quoting State
v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991)). The Court
explained:
The question of whether a particular witness
is testifying in a truthful manner is one that
must be answered in reliance upon inferences
drawn from the ordinary experiences of life
and common knowledge as to the natural
tendencies of human nature, as well as upon
observations of the demeanor and character of
the witness. The phenomenon of lying, and
situations in which prevarications might be
expected to occur, have traditionally been
regarded as within the ordinary facility of
22 A-1144-15T3
jurors to assess. For this reason, the
question of a witness' credibility has
routinely been regarded as a decision reserved
exclusively for the jury.
[Id. at 594 (quoting J.Q., 252 N.J. at 39).]
Thus, "the mere assessment of another witness's credibility
is prohibited." Ibid.; see also Kansas v. Ventris, 556 U.S. 586,
594 n.*, (2009) ("Our legal system . . . is built on the premise
that it is the province of the jury to weigh the credibility of
competing witnesses . . . ."). "The State may not attack one
witness's credibility through another witness's assessment of
that credibility." State v. R.K., 220 N.J. 444, 458 (2015); see
also State v. Bunch, 180 N.J. 534, 549 (2004) (finding the
prosecutor's question, "So basically you want this jury to believe
that everything that the officers came in here and testified to
is untrue?" improper); Frisby, 174 N.J. at 593-94 (finding
officer's testimony was improper because it constituted a
credibility evaluation in favor of one witness and against the
defendant).
The record shows that during the State's cross-examination,
Lindsey testified he did not see anyone smoking marijuana during
the evening of December 25, and early morning hours of December
26, 2010. The prosecutor then asked, "What if I were to tell you
that [McIntosh], himself, testified in that very seat that you're
23 A-1144-15T3
sitting in that he smoked marijuana that night?" Defendant
objected and the court determined the prosecutor could ask, "Would
it surprise you if [McIntosh] testified X, Y, and Z?" The
prosecutor then rephrased the question, and asked, "Would it
surprise you, to learn that the defendant himself told the police
that he personally smoked marijuana every day?" Defendant objected
again, but the court allowed the prosecutor to ask if it would
surprise the witness to learn that defendant said that he smokes
marijuana on a regular basis. Lindsey stated that he did not
know.
The prosecutor later asked Cordero, "Would you be surprised
to hear that the defendant gave a statement to the police a few
days after this incident occurred, about two weeks, ten days after
this incident occurred, would you be surprised if I told you that
he told the police that [I.S.] slept over and that [McIntosh]
slept over?" Defendant objected, and the court overruled the
objection. Cordero responded by stating that he "wouldn't be
surprised."
The prosecutor then pointed out that Cordero had testified
McIntosh did not sleep over at defendant's home and asked, "So is
the defendant a liar or are you a liar?" and then, "So it's the
defendant would have [sic] a liar?" The prosecutor continued to
ask the witness about defendant's statement, and then asked, "So,
24 A-1144-15T3
again, who is wrong here? Are you wrong or is the defendant wrong?"
and then, "So, again, I ask you, who is the liar, you or the
defendant?" In response, Cordero said "No one."
In our view, the prosecutor's questions requesting the
witnesses' opinions about the veracity of the other witnesses'
statements and defendant's statements were clearly improper. See
R.K., 220 N.J. at 458; Bunch, 180 N.J. at 549; Frisby, 174 N.J.
at 593-94. The court erred by overruling counsel's objections to
the questions and, at the retrial, the State shall not pose such
questions to any of the witnesses.
Reversed and remand for a new trial. We do not retain
jurisdiction.
25 A-1144-15T3