STATE OF NEW JERSEY v. JAMES E. GRANTÂ (12-09-0849, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5023-13T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES E. GRANT, JR., a/k/a
BYRON BROWN,
Defendant-Appellant.
_________________________________
Submitted December 20, 2016 – Decided June 27, 2017
Before Judges Espinosa, Suter, and Guadagno.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County,
Indictment No. 12-09-0849.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alyssa Aiello, Assistant Deputy
Public Defender, of counsel and on the
briefs).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Michael D. Grillo,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant James E. Grant, Jr. appeals his convictions for the
attempted murder of two police officers sitting in their patrol
car and weapons charges following a jury trial. Among the evidence
presented at trial was a videotape that included significant
portions of inadmissible and prejudicial material, consisting of
a non-testifying witness's recital of damaging and inadmissible
hearsay statements she termed "gossip" and a detective's opinion
that defendant was guilty. Because the trial judge permitted the
videotape to be played without redaction, we are constrained to
reverse defendant's convictions.
I.
Defendant was indicted in September 2012 on two counts of
first-degree attempt to commit murder, N.J.S.A. 2C:11-3(a) and
2C:5-1; two counts of second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a); one count of second-degree
possession of an assault firearm, N.J.S.A. 2C:39-5(f) and 2C:39-
1(w); and one count of third-degree unlawful possession of a
weapon, N.J.S.A. 2C:58-3 and N.J.S.A. 2C:39-5(c)(1) (Indictment
No. 12-09-0849). He was convicted of all six charges following a
jury trial in 2014. Subsequently, his motion for a new trial was
denied.
Defendant was later indicted in 2013 for second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree
2 A-5023-13T2
aggravated assault, N.J.S.A. 2C:12-1(b)(2); second-degree
possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-
4(a); and second-degree unlawful possession of a handgun, N.J.S.A.
2C:39-5(b), arising from an unrelated incident on May 10, 2012.
Defendant pled guilty to second-degree aggravated assault on March
13, 2014, and the other charges in that indictment were dismissed.
Defendant was sentenced in April 2014 on his convictions
following trial and on his guilty plea to aggravated assault. For
the attempted murder and weapons charges, defendant was sentenced
to consecutive terms of fifteen years for each count of attempted
murder for an aggregate sentence of thirty years in prison with
an 85% period of parole ineligibility under the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2. He was sentenced on the weapons
counts to concurrent terms not exceeding seven years. On the
aggravated assault charge, defendant was sentenced to a concurrent
term of five years with an 85% period of parole ineligibility
under NERA.
II.
A.
On May 14, 2012, near midnight, Officers Runyon and Palumbo
were patrolling in their marked police vehicle on Stuyvesant Avenue
in Trenton, near the 400 block, when they heard sounds that caused
them to unroll their windows. Within seconds, their vehicle came
3 A-5023-13T2
under fire from what sounded like a high-powered weapon and they
sped away uninjured, radioing for back up. Subsequent
investigation revealed that five shots hit the vehicle, three of
which came very near to the officers, including one that dented
the seat back behind the officers. The police found seven .30
caliber shell casings in the vicinity of the shooting, but never
recovered the weapon.
D.C.,1 known colloquially as "Twin," and his brother were
picked up by the police for questioning. D.C., who was seventeen
at the time, was a friend of defendant. Both D.C. and defendant
resided in the same area as the shooting. D.C. testified at trial
that defendant was upset about the recent death of Orenthia
"Pookie" Upshur, the brother of defendant's girlfriend, who died
in an automobile accident while fleeing from the police. D.C.
testified that defendant had vowed revenge against the police.
D.C. testified that late on May 14, 2012, he stopped at
defendant's house to retrieve a pair of shoes, but defendant was
not at home. As D.C. was proceeding home, he had a chance encounter
with defendant, who he observed, despite the darkness, was kneeling
down in the yard of an abandoned house on Stuyvesant Avenue. D.C.
greeted defendant, who told him to "[s]hut the f*ck up." D.C.
1
We use initials because D.C. was a minor at the time of the
incident.
4 A-5023-13T2
testified defendant was holding a large rifle. When a police
vehicle came down Stuyvesant Avenue in their direction, D.C.
testified that defendant stood up, took a few steps forward, and
fired between four and eleven shots at the vehicle. D.C. followed
defendant, running from the scene, and stayed the night at
defendant's house.
D.C. and his brother were both brought in by the police for
questioning on May 18, 2012. In the presence of his mother, D.C.
gave a videotaped statement where he described what occurred. On
the tape, D.C. claimed he only heard the shots and saw defendant
running; he did not see the rifle or defendant shooting it.
D.C. was charged with attempted murder. He testified at
trial that after he was charged, he "ask[ed] for a lawyer and I
went to tell them the truth." D.C. gave a formal statement to the
police on June 5, 2012 in which he identified defendant as the
shooter. Defendant was arrested and charged with the shooting.2
In addition to D.C.'s testimony, the State presented evidence
of incriminating statements made by defendant to two fellow inmates
at the Mercer County Corrections Center (the Workhouse). Defendant
was incarcerated at the Workhouse in the same cellblock as Raheem
Hickmond, who knew defendant. Hickmond testified defendant told
2
D.C. later pled guilty to obstruction of administration of law
and received a thirty-day suspended sentence.
5 A-5023-13T2
him about his role in the shooting and specifically that he had
"let off a shot - - a couple of shots" at the police. Defendant
told him that "Twin" was with him that night, and that Twin "was
the only one who knew about the shooting and that's how the cops
found out." Hickmond testified "that [defendant] put a hit out
on Twin" through another inmate, Willie Yeager, but it was "messed
up" when Twin's grandmother instead of Twin was shot in the arm.
Hickmond gave a formal statement to the police in November 2012.
In exchange for his testimony, the prosecutor agreed to recommend
a lighter sentence on his then pending charges.
Terrell Black met and became friends with defendant at the
Workhouse. Black testified that defendant told him that he shot
six rounds at the police on Stuyvesant Avenue. Defendant also
told Black he was with a young boy who had braids and who apparently
had talked to the police about the shooting. Black gave a formal
statement to the police in July 2012. In exchange for his
testimony in this and other cases, the prosecutor recommended a
one-year sentence followed by probation.
B.
An issue arose at trial regarding the hour and one-half long
videotape of D.C.'s interrogation by the police on May 18, 2012.
Defense counsel wanted to play two excerpts from the tape, lasting
a total of five minutes, to impeach D.C.'s testimony that he had
6 A-5023-13T2
seen defendant shoot at the police. The prosecutor asserted the
tape was more of a discussion than an interrogation, because D.C.'s
mother made a number of comments on the tape. The prosecutor took
the position that the entire video had to be shown, citing to
N.J.R.E. 106. Without viewing the videotape, the judge said,
[COURT]: I would prefer the entire video be
shown because I would imagine that even if you
did show part of it, he is going to want to
go and bring the other part in . . . . [T]he
preference is always to play it in its
entirety.
After learning the video was long and there was no written
transcript of it, the court stated,
[COURT]: I'm not saying you can't — look, you
handle it how you want. If you want to play
certain portions of it, he is going to do the
other parts; okay?
Defense counsel expressed concern because D.C.'s mother could be
heard on the tape but was not going to be called as a witness at
trial.
[DEFENSE]: She . . . says things that are
detrimental to my client on there. I think
that should never be allowed because she's not
a witness.
Defense counsel wanted to impeach D.C. with his prior
inconsistent statements and acknowledged she could use the tape
or "just ask him these questions, if he denied them, then play
it." But the prosecutor reiterated that,
7 A-5023-13T2
[STATE]: [T]he problem for the State is now,
Judge, how do I go about and now parcel out
with the video what statement — exclude the
[illegible] of the mother or whatever that she
claims is prejudicial to her client? I can't
do that now in the middle of a trial.
Defense counsel told the judge she had taken out the comments
by D.C.'s mother, but the State continued to assert its position
of playing the entire tape and the court vacillated.
[DEFENSE]: I went through and . . . every time
the mom interrupted I took her part out. She
is not relevant to this case. She is not a
part of this case. She is not a witness to
anything so whatever she says or doesn't say
should not be put in front of the jury.
. . . .
[STATE]: All I am saying, Judge, is, is that
I don't know what she is talking about in
regards to, I don't know what the State is
going to play or the State is going to show.
. . . .
[COURT]: Here is what we're stuck doing. What
we're stuck doing . . . is you playing the
excerpts; okay? I am going to assume, based
on your representation, that the excerpts that
you're going to play deal specifically with
the testimony provided by [D.C.] either in
court under examination by [the prosecutor]
or with regards to the statements that were
addressed in court.
. . . .
[STATE]: [T]he State is going to intend on
playing the rest of this video, Judge, and I
don’t know how we're going to get around it.
8 A-5023-13T2
[COURT]: All right.
. . . .
[DEFENSE]: I just want to reiterate my
objection to the mother's voice — I know there
is nothing Your Honor can do, but I just want
to put the objection on the record; that's
all.
[COURT]: All I want to know is what are we
doing with this tape; are we playing it in
full, in half, in part? Just tell me.
[STATE]: You can't have your cake and eat it,
too. If you're going to put portions in, then
the State is going to put the rest of the
portions in so do you want the full tape in
or do you not want it in?
[COURT]: How do you want to handle it?
[DEFENSE]: I mean, I would rather put in my
parts. I put in 15:08 to 16:12. I am talking
about a time. And then I restart at 16:12:20
to 16:12:47 and then stop.3
[COURT]: Sure. Look, if that's how you want
to proceed, I have no problem with that. I
want you to handle your case the same way I
want you to handle your case, the way you want
it. It is not an issue with me.
Defense counsel pressed the court for clarification.
[DEFENSE]: My question, I guess, going forward
is, if I make this effort, going through it
like this, is the State then going to be
allowed to play the entire missing parts? If
3
The tape started at 15:56 and ended at 17:50, referencing
military time. Defense counsel wanted to play the tape starting
at 16:08 to 16:12, which is where D.C. describes the events after
he encountered defendant on Stuyvesant Avenue.
9 A-5023-13T2
they are, then let's just play the whole
thing.
[COURT]: Well, for completeness, they are
going to, but any statements that — any
outbursts that the mother may make are going
to have to be excised.
The State reiterated that D.C.'s mother was "an integral part of
the conversation" and that she could not be taken out "and get a
full completeness of what is being said in that room." The court
responded,
[COURT]: Look, the best that the Court can do
is just hear the evidence, respond to the
objections and you're in control of the — of
your own respective evidence. And if it blows
up on you, I will try to clean up the mess,
but that is not my job.
The State then suggested that the situation could be addressed
by a curative instruction regarding any statements on the tape by
D.C.'s mother saying that "it is not evidence in the case, the
jury should not consider it in any way whatever[.]" Defense
counsel seemed persuaded.
[DEFENSE]: We're making almost a joint
decision to play the whole tape anyway. Since
it is going to be played anyway, it doesn't
make sense –
[COURT]: I'm fine - if you want to play the
whole thing and if you want to play the whole
thing, I am fine with it, you know.
[DEFENSE]: I am not going to object to
anything in the tape, but I would like that
curative instruction at the end and I would
10 A-5023-13T2
like it to be a Court exhibit, not a Defense
exhibit, as well.
When the court would not agree to mark the tape as a court
exhibit, it was marked as a joint exhibit by the parties. The
court then advised counsel:
[COURT]: I am sure nobody has anything to
hide, but if you, if you're coming up on a
part that you know that [D.C.'s mother] is
going to say something really inflammatory,
just skip it.
[DEFENSE]: There are so many parts where she
says things, it's hard to — literally, every
stop and start is because mom is interrupting,
mom is interrupting, mom is interrupting, so
I think it is going to be difficult to pinpoint
one thing and if we have a curative
instruction, I think that is the best.
Before playing the entire tape, the judge gave the following
instruction to the jury.
[COURT]: Folks, we have — what is being
presented to you at this point is a CD or DVD
of a recording of a statement provided by
[D.C.] subsequent to when he first came down
to talk to the police, but prior to his being
charged; okay? . . . [T]here are going to be
some remarks or responses or some verbiage
that you're going to hear from [D.C.]'s
mother. And at the consent of the attorneys
in this case, I need to advise you, first,
that anything you hear that the mother may say
has to be disregarded by you as hearsay, as
being unreliable, not subject to cross-
examination and cannot be considered by you
in any way, shape or form in your decision-
making process as to whether or not the State
has met its burden in proving the charges
against Mr. Grant so to the extent that you
11 A-5023-13T2
can, disregard, but note that you can't use
anything that she said.
For the most part, the dialogue you should
focus . . . on is between the officer doing
the questioning and [D.C.] in giving the
responses.
[(Emphasis added).]
C.
Three people could be seen and heard on the videotape: D.C.,
his mother and Detective Britton, who later testified at trial.
On the tape, D.C. acknowledged his chance encounter with defendant,
but stated that as he was walking away toward his own home, he
heard shots ring out close by, turned toward defendant, and saw
him running. D.C. then turned and ran in the opposite direction
from defendant, toward his own home. When he arrived, the house
was locked. He spent the night at his girlfriend's house nearby.
The detective questioned D.C. about his sequencing of events
and how D.C.'s timeframes presented problems with his story. He
told D.C. that the shooting was being attributed to him.
The detective told D.C. repeatedly that "the streets were
talking" and those "streets" were saying that D.C was involved.
[DETECTIVE]: We've brought in enough people.
We've come to sort of an idea about what
happened out there. . . . The streets put the
right people in the right spot. . . . People
know you were there. . . . People have put you
guys together out there.
12 A-5023-13T2
And then:
[DETECTIVE]: Everybody on the street isn't
saying Ski,4 they saying Twin.
[MOTHER]: They scared of Ski or something that
they don't tell the truth. . . . I heard some
gossip . . . . I heard something else about
Ski. . . . There's a rumor saying, I don't put
nobody's name on it, that [defendant] did it.
This is between me and you [indicating the
detective] . . . that he did it.
. . . .
[DETECTIVE]: This is what I'm trying to get
to. Your mom knows the streets. . . . You're
the only ones around. By the next morning,
when this happens everyone thinks it's the
craziest, baddest dude on the block
[indicating defendant]. Then as the day goes
on, it becomes [you].
The interview continues:
[MOTHER]: What I heard today, three people
came up to me and told me . . . that
[defendant] was bragging about what he did.
And that he's never going to be caught. . . .
And all he was bragging about it, bragging
about it, bragging about it. . . . Let me tell
you what I heard about Ski today. . . . I
thought he was a nice guy. . . . But what I
heard today, you gotta watch it with him. . .
. And I know he did it. . . . He say that he
did it. He told three people. . . . And they
said there's a lot of people out there that's
scared, that Ski got a lot of people wrapped
around his finger.
[(Emphasis added).]
4
Defendant is known by the street name "J-Ski."
13 A-5023-13T2
The detective said "somebody is talking correctly. The people
that were in that deli were taking correctly. Whatever they were
saying, we followed it up and they were correct." At another
point the detective said: "Somebody says that they heard you say
you were out there and that you talked. This is some of the
evidence." "I have somebody that is going to stand up and say I
heard [D.C.] say this." At the end of the video, D.C. stated,
"I'm sure he did it; sure he did it." The detective replied, "I'm
sure he did it, you're sure he did it, we're all sure he did it.
I wasn't there and she wasn't there," and stated further,
"[u]nfortunately we have witnesses that put you there and put him
there."
D.
Defendant appeals his convictions raising the following
issues on appeal:
POINT I. IN LIGHT OF THE GRAVE DANGER OF
WRONGFUL CONVICTION POSED BY INHERENTLY
UNRELIABLE JAILHOUSE SNITCH TESTIMONY, ITS
INTRODUCTION AT TRIAL IS INCOMPATIBLE WITH THE
DUE PROCESS RIGHTS GUARANTEED UNDER THE NEW
JERSEY CONSTITUTION, AND THUS, THE STATE'S
HEAVY RELIANCE ON SUCH TESTIMONY IN THIS CASE
REQUIRES REVERSAL OF GRANT'S CONVICTIONS. IN
THE ALTERNATIVE, REVERSAL IS REQUIRED BECAUSE
THE COURT FAILED TO HOLD A PRETRIAL HEARING
ON THE RELIABILITY OF THE JAILHOUSE SNITCH
TESTIMONY AND FAILED TO PROPERLY INSTRUCT THE
JURY ON HOW TO EVALUATE SUCH TESTIMONY. (Not
Raised Below)
14 A-5023-13T2
POINT TWO. THERE WAS NO EVIDENTIARY BASIS FOR
THE INTRODUCTION OF [D.C.]'S TWO-HOUR
VIDEOTAPED INTERVIEW DURING WHICH DETECTIVE
BRITTON AND [D.C.]'S MOTHER, WHO WAS NOT A
WITNESS AT TRIAL, MADE NUMEROUS STATEMENTS,
BASED ENTIRELY ON INFORMATION RECEIVED FROM
NON-TESTIFYING WITNESSES, ABOUT GRANT'S
GUILT. THE INTRODUCTION OF THIS PREJUDICAL
[sic] VIDEOTAPE VIOLATED THE PROHIBITION
AGAINST HEARSAY AND GRANT'S RIGHT TO
CONFRONTATION, AND REQUIRES REVERSAL OF
GRANT'S CONVICTIONS.
A. The Doctrine of Completeness Did not
Apply.
B. The Inadmissible Hearsay Statements
Contained In the Videotape Violated Grant's
Right to Confrontation.
C. Reversal is Required.
POINT III. REPEATED INSTANCES OF
PROSECUTORIAL MISCONDUCT DENIED GRANT DUE
PROCESS AND A FAIR TRIAL (Partially Raised
Below)
A. The Prosecutor Improperly Bolstered
The Credibility Of The State's Witnesses.
B. The Prosecutor Improperly Shifted The
Burden Of Proof To The Defense.
C. The Prosecutor Improperly Suggested
That Grant Was A Gang Member.
POINT IV. IN THE EVENT OF REVERSAL, GRANT
SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY
PLEA UNDER INDICTMENT NO. 13-02-0248.5
5
Defendant did not make a motion to withdraw his guilty plea in
the trial court pursuant to Rule 3:9-3(e). As a result there is
no order that is subject to review on appeal, R. 2:2-3. This
issue is not, therefore, properly before us.
15 A-5023-13T2
III.
The argument defendant raises in Point II requires us to
review the trial court's evidentiary ruling to permit the
unredacted videotape to be introduced into evidence. We grant
substantial deference to the trial judge's discretion on
evidentiary rulings unless it is a clear error of judgment or so
wide of the mark that a manifest denial of justice results. See,
e.g., State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied,
488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); State v.
Carter, 91 N.J. 86, 106 (1982); State v. Swint, 328 N.J. Super.
236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000).
A.
Defendant contends that playing the entire videotaped
interview of D.C. violated his Sixth Amendment right to
confrontation and the prohibition against hearsay. D.C.'s mother
was never called as a witness at trial. Defendant had no ability
to cross-examine her about her statements that indicated defendant
was guilty. Moreover, although the judge gave a curative
instruction prior to playing the videotape, defendant contends it
was inadequate to address his inability to confront the witness
on cross-examination.
The State does not dispute that defendant's right of
confrontation was implicated by showing the entire tape to the
16 A-5023-13T2
jury. The State contends that the doctrine of invited error bars
defendant from contending it was error to play the full videotape
to the jury, because defendant chose to play the entire tape to
the jury, even though the court had not definitively ruled on the
issue. Additionally, the State contends the curative instruction
was sufficient to blunt any Confrontation Clause violation. We
disagree with both contentions.
Both the Sixth Amendment of the United States Constitution
and Article I, Paragraph 10 of the New Jersey Constitution provide
that the accused in a criminal prosecution has the right "to be
confronted with the witnesses against him." U.S. Const. amend.
VI; N.J. Const. art. I, ¶ 10. "These constitutional provisions
express a clear preference for the taking of testimony subject to
cross-examination." State v. Cabbell, 207 N.J. 311, 328 (2011)
(citing State ex rel. J.A., 195 N.J. 324, 342-43 (2008)).
"Because '[t]he right of confrontation is an essential attribute
of the right to a fair trial,' a defendant must be given 'a fair
opportunity to defend against the State[']s accusations.'" State
v. Basil, 202 N.J. 570, 590-591 (2010) (alterations in original)
(quoting State v. Branch, 182 N.J. 338, 348 (2005)).
"The opportunity to cross-examine a witness is at the very
core of the right of confrontation." Cabbell, supra, 207 N.J. at
328 (citing California v. Green, 399 U.S. 149, 158, 90 S. Ct.
17 A-5023-13T2
1930, 1935, 26 L. Ed. 2d 489, 497 (1970)). The Confrontation
Clause prohibits the use of a witness's out-of-court testimonial
hearsay statement when a defendant has not had the opportunity to
cross-examine the witness. J.A., supra, 195 N.J. at 342. "[A]
statement made to the police is testimonial when it is given in
'circumstances objectively indicat[ing] that . . . the primary
purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.'" Cabbell,
supra, 207 N.J. at 329 (alterations in original) (quoting Davis
v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165
L. Ed. 2d 224, 237 (2006)).
If the witness is absent from trial, a testimonial statement
is admissible only where that witness "is unavailable, and . . .
the defendant has had a prior opportunity to cross-examine."
Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369,
158 L. Ed. 2d 177, 197 (2004). "The [Confrontation] Clause does
not bar admission of a statement so long as the [witness] is
present at trial to defend or explain it." Cabbell, supra, 207
N.J. at 329 (alterations in original) (quoting Crawford, supra,
541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9, 158 L. Ed. 2d at 197
n.9).
"The government bears the burden of proving the
constitutional admissibility of a statement in response to a
18 A-5023-13T2
Confrontation Clause challenge." Basil, supra, 202 N.J. at 596.
The violation of a defendant's Sixth Amendment right to
confrontation "is a fatal error, mandating a new trial, unless we
are 'able to declare a belief that it was harmless beyond a
reasonable doubt.'" Cabbell, supra, 207 N.J. at 338 (quoting
Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L.
Ed. 2d 705, 710-11 (1967)).
Here, the Confrontation Clause was clearly violated when the
court permitted the entire videotape to be played to the jury,
because it included statements by D.C.'s mother. She was not
called as a witness. There was no indication that she was
unavailable for trial. Defendant had no prior ability to cross-
examine her. Because this violation, admitted by the State,
constitutes a "fatal error," a new trial is mandated unless we
determine the error was "harmless beyond a reasonable doubt."
Ibid.
B.
In making this determination, we first examine the statements
made by D.C.'s mother that defendant sought to redact.
Specifically, D.C.'s mother said she had heard certain things
about the defendant. She related that defendant "told three
people" that he "did it"; he "was bragging about what he did[,]
and that he's never gonna get caught"; and he had someone "talk
19 A-5023-13T2
[to one of the detectives], [and say] it was the twins . . . [a]nd
that way the person can get the [reward] money and give it to
[defendant]." D.C.'s mother also said that "there's a lot of
people out there that's scared" of [defendant]. She also expressed
to the detective "then, you know, my house start getting shot up."
We agree with defendant that these statements all were
inadmissible hearsay. D.C.'s mother was not called as a witness
at trial; she was testifying about what others said, who also were
not called as witnesses at trial. This testimony clearly was
prejudicial. The statements by D.C.'s mother indicated that
defendant had confessed, was to be feared, and was violent.
The error in failing to redact the inadmissible statements
by D.C.'s mother was compounded, rather than cured, by the
instruction the judge gave to the jury. Although telling the jury
that D.C.'s mother's testimony should be ignored entirely, this
direction at the same time was qualified. The jury was instructed
to disregard what the mother said "to the extent that you can,
disregard," and that they should focus on the dialogue between
D.C. and the officer "for the most part." Moreover, there was no
additional mention of the curative instruction in the judge's
charge to the jury following summations.
The error in the court's evidentiary ruling was further
exacerbated by an incorrect ruling on a defense objection during
20 A-5023-13T2
the State's closing statement. The prosecutor referenced the
mother's statement in the videotape by saying, "[a]nd what is
interesting is his mother during the interview says, I'm afraid
they are going to shoot up my . . . ." Defense counsel objected,
reminding the judge that the jury had been "told to disregard her
testimony, her statements," but defense counsel was overruled.
This ruling effectively negated what was already a token effort
to ameliorate the prejudice from D.C.'s mother's statements.
C.
At trial, defendant did not ask the court to redact the
statements made by Detective Britton from the videotape. We
consider them here, however, as essential pieces of the context
for our review of the evidentiary ruling.
In the unredacted videotape, the detective made numerous
statements in which he vouched for the correctness of the
statements made by people on the streets and expressed his own
belief in defendant's guilt. Responding to D.C.'s mother's
statements about what was being said on the street, the detective
confirmed that people thought defendant did the shooting, that he
was "the craziest, baddest dude on the block," and that their
beliefs were correct. Those statements included "The streets put
the right people in the right spot" and "somebody is talking
correctly. The people that were in that deli were taking
21 A-5023-13T2
correctly. Whatever they were saying, we followed it up and they
were correct." And, most damaging, the detective expressed his
personal conviction that defendant was guilty: "I'm sure he did
it, you're sure he did it, we're all sure he did it."
The admission of these statements was wholly improper. The
detective's references to defendant's reputation as "the craziest,
baddest dude on the block" constituted evidence of other bad
conduct that was presented to the jury without any assessment of
its admissibility pursuant to N.J.R.E. 404(b) and the factors set
forth in State v. Cofield, 127 N.J. 328, 338 (1992). "Other-
crimes evidence is considered highly prejudicial," State v.
Vallejo, 198 N.J. 122, 133 (2009), having "a unique tendency to
turn a jury against the defendant[,]" State v. Hernandez, 334 N.J.
Super. 264, 269-70 (App. Div. 2000), aff'd as mod., 170 N.J. 106
(2001), quoting State v. Stevens, 115 N.J. 289, 305-06 (1989).
That effect was undoubtedly exacerbated by the detective's
expression of his personal opinion that defendant was guilty. See
State v. Landeros, 20 N.J. 69, 74-75 (1955) (testimony at trial
by Police Captain that defendant was "as guilty as Mrs. Murphy's
pet pig" was so prejudicial that "fundamental fairness" required
reversal of defendant's conviction.) Even without any objection
or request from the defendant, the highly prejudicial nature of
these comments required action by the trial judge.
22 A-5023-13T2
D.
For the first time on appeal, defendant contends that
Detective Britton's testimony at trial also violated the
Confrontation Clause by referring to an out-of-court witness. At
trial, Britton was asked:
[STATE]: Based on information received in
that conversation, did you develop a potential
suspect in this case?
[DETECTIVE]: In part and parcel to the other
information, yes.
[STATE]: Who was that?
[DETECTIVE]: [D.C.]
[STATE]: Later that day at 8:30 p.m. did you
develop additional information related to your
investigation?
[DETECTIVE]: Yes.
[STATE]: Based on that information, did you
develop another suspect in your investigation?
[DETECTIVE]: Yes.
[STATE]: Who was that?
[DETECTIVE]: James Grant.
"[B]oth the Confrontation Clause and the hearsay rule are
violated when, at trial, a police officer conveys, directly or by
inference, information from a non-testifying declarant to
incriminate the defendant in the crime charged." Branch, supra,
23 A-5023-13T2
182 N.J. at 350. The right is also violated where an officer
"impl[ies] to the jury that he possesses superior knowledge,
outside the record, that incriminates the defendant." Id. at 351.
However, "[i]t is well settled that the hearsay rule is not
violated when a police officer explains the reason he approached
a suspect or went to the scene of the crime by stating that he did
so 'upon information received.'" State v. Bankston, 63 N.J. 262,
268 (1973) (citation omitted). However,
[i]n contexts other than a photographic
identification, the phrase "based on
information received" may be used by police
officers to explain their actions, but only
if necessary to rebut a suggestion that they
acted arbitrarily and only if the use of that
phrase does not create an inference that the
defendant has been implicated in a crime by
some unknown person.
[Branch, supra, 182 N.J. at 352.]
There was no suggestion that Detective Britton had acted
arbitrarily or with ill motive. At trial, the detective indicated
he "developed information," and he did not indicate that
information came from an unidentified informant or witness.
However, on the videotape, Detective Britton specifically said
that he had someone who could put both D.C. and defendant at the
location. He also said that he knew defendant was guilty. He
referenced multiple times that the "streets were talking" and the
"people in the deli" were talking. These statements implied that
24 A-5023-13T2
the detective had one or more out-of-court witnesses that put
defendant at the scene, and that the detective believed defendant
was guilty based on that knowledge. This is the type of inference
of superior knowledge that is not permitted under Branch or
Bankston.
E.
Having reviewed the video statement within the context of
trial as a whole, we cannot say that the introduction of the video
statement was "harmless beyond a reasonable doubt." Chapman,
supra, 386 U.S. at 24, 87 S. Ct. at 828, 17 L. Ed. 2d at 710-11;
see also State v. Taffaro, 195 N.J. 442, 454 (2008) (noting that
the standard for plain error is whether the error was "sufficient
to raise a reasonable doubt as to whether the error led the jury
to a result it otherwise might not have reached" (quoting State
v. Macon, 57 N.J. 325, 336 (1971))). All the witnesses were
cooperating with the State for more favorable sentences. There
was no physical evidence that tied defendant to the crimes. There
was testimony that "[m]any, many [witnesses] fear retaliation. It
is a big problem[,]" and that defendant in fact had retaliated by
arranging to have someone shoot D.C., but that his grandmother was
shot instead. The detective indicated he had superior knowledge
from out-of-court witnesses, but the implication was that those
25 A-5023-13T2
witnesses may be afraid to come forward. Defendant had no ability
to confront this implication.
On this record, "the possibility of injustice" by playing the
tape was "sufficient to raise a reasonable doubt as to whether the
error led the jury to a result it otherwise might not have
reached[.]" Taffaro, supra, 195 N.J. at 454 (quoting Macon, supra,
57 N.J. at 336. Thus, we are constrained to conclude that the
Confrontation Clause was violated by playing the entire tape,
which had the clear capacity to cause an unjust result by
corroborating through out-of-court witnesses the testimony of
those who did testify. We are therefore compelled to overturn
defendant's convictions and remand for a new trial.
F.
We also reject the State's argument that defendant's
contention is barred as invited error. The defense sought to play
very limited excerpts of the tape for the specific purpose of
impeaching D.C.'s testimony with his prior inconsistent statement
pursuant to N.J.R.E. 607. It was the State that objected to that,
indicating that the whole tape had to be played because the taped
interview was more in the nature of a discussion rather than an
interrogation. Although contending the whole videotape had to be
played, the State failed to articulate how any additional portion
26 A-5023-13T2
of the videotape was required to be admitted "in fairness" as
permitted by N.J.R.E. 106.
The doctrine of invited error operates to bar a "disappointed
litigant" from arguing on appeal that an adverse decision below
was the product of error, "when that party urged the lower court
to adopt the proposition now alleged to be error." State v.
Munafo, 222 N.J. 480, 487 (2015) (quoting State v. A.R., 213 N.J.
542, 561 (2013)). The doctrine "is implicated only when a
defendant in some way has led the court into error," State v.
Jenkins, 178 N.J. 347, 359 (2004), "while pursuing a tactical
advantage that does not work as planned." State v. Williams, 219
N.J. 89, 100 (2014) (citation omitted). "The doctrine of invited
error 'is based on considerations of fairness and preservation of
the integrity of the litigation process.'" N.J. Div. of Youth &
Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010) (quoting Brett
v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996)). "Some
measure of reliance by the court is necessary for the invited-
error doctrine to come into play." Jenkins, supra, 178 N.J. at
359.
Although it was error to play the entire tape, it was not
invited error by defense counsel. The State asked for the entire
tape to be played to the jury, not the defense. We disagree that
defense counsel's eventual capitulation, given the State's
27 A-5023-13T2
position and indecision by the court, is the type of error
contemplated by the invited error doctrine. There was no apparent
tactical advantage to the defense given the comments by D.C.'s
mother that incriminated defendant. Playing the whole tape was
prompted by the State, which at the end asked for a curative
instruction. Although the State contends the court did not
indicate any preliminary ruling, the court stated repeatedly it
was inclined to play the whole tape given the State's assertion
this was the only way the tape could be handled. In a situation
such as this, the court should have taken the time to listen to
the tape in order to make a proper ruling. It was not sufficient
for the court to simply allow the parties to do what they wanted
and then "clean up" afterwards.
IV.
We comment briefly on the other issues raised on appeal.
Defendant contends that his right to due process was violated by
the "inherent unreliability" of "jailhouse snitch testimony"
offered by the testimony of Hickmond and Black. However, the
Supreme Court has considered this question and determined that the
federal constitution does not bar the introduction of such
evidence. See Kansas v. Ventris, 556 U.S. 586, 594, 129 S. Ct.
1841, 1847, 173 L. Ed. 2d 801, 809 (2009). Defendant offers no
support for the proposition that such testimony should be barred
28 A-5023-13T2
under our Constitution. Moreover, there was evidence here that
the testimony of Hickmond and Black was corroborated by extrinsic
details and by the timing of their statements.
The court provided the jury with the cooperating witness
charge. See Model Jury Charge (Criminal), "Testimony of a
Cooperating Co-Defendant or Witness" (2006). Additionally, it
instructed the jury on credibility. These instructions were more
than adequate to address the potential credibility issues raised
by the testimony of a cooperating witness. Thus, there was no
error in permitting the testimony of cooperating witnesses, nor
in the charge that was given to the jury about those cooperating
witnesses.
Defendant contends that the prosecutor bolstered the
credibility of the witnesses through testimony and in summation
that described the process for evaluating whether to use
cooperating witness testimony. "It is within the sole and
exclusive province of the jury to determine the credibility of the
testimony of a witness." State v. Vandeweaghe, 351 N.J. Super.
467, 481 (App. Div. 2002), aff’d, 177 N.J. 229 (2003). "A
prosecutor may argue that a witness [should be found] credible,
so long as the prosecutor does not personally vouch for the
witness's credibility or refer to matters outside the record as
support for the witness's credibility." State v. Walden, 370 N.J.
29 A-5023-13T2
Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004);
State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div.), certif.
denied, 151 N.J. 466 (1997).
Because defense counsel did not timely object, this weighs
against a finding of prosecutorial misconduct. State v. Echols,
199 N.J. 344, 360 (2009) ("Failure to make a timely objection
indicates that defense counsel did not believe the remarks were
prejudicial at the time they were made." (quoting State v.
Timmendequas, 161 N.J. 515, 576 (1999))). The criticized line of
questioning did not constitute a personal voucher for the jailhouse
witnesses but related to the process used for verification.
Moreover, another comment made in closing about the detective's
fairness did not vouch for his truthfulness.
There was no improper shifting of the burden of proof as
alleged by defendant when the prosecutor commented, without
objection, about a newspaper article that was referenced by the
defense. The State did not suggest defendant had an obligation
to produce the newspaper, but merely "revealed [a] gap[] in the
defense's case." Timmendequas, supra, 161 N.J. at 593.
Similarly, there was no improper reference to gang
membership. The court was careful to avoid all reference to this
and cautioned counsel to avoid that issue. We are not persuaded
that the one isolated reference in the State's summation to a
30 A-5023-13T2
"professional shooter" over the course of a multiday trial was
error.6 None of these statements were "of such a nature as to
have been clearly capable of producing an unjust result[.]" R.
2:10-2.
Defendant's convictions under Indictment No. 12-09-0849 are
reversed and remanded for a new trial.
6
Although defense counsel objected to a power point presentation,
which was playing simultaneously, because it used the word
"associate," there was no actual objection to the phrase
"professional shooter."
31 A-5023-13T2