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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4940-06T44940-06T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALLEN MCGEE, Defendant-Appellant. ___________________________________

Submitted August 13, 2008 - Decided Before Judges R. B. Coleman and Sabatino. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-02-0280. Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Gina Giordano, Assistant Prosecutor, on the brief). PER CURIAM During his opening in defendant Allen McGee's robbery trial, the assistant prosecutor told the jury that defendant had made certain statements to store personnel at the crime scene. Neither of those alleged statements, which defendant denies making, were disclosed by the State during pre-trial discovery. Despite finding that one of the statements was "very prejudicial" to defendant and inadmissible, the trial court denied defense counsel's prompt motion for a mistrial. The court instead instructed the jury to disregard the prosecutor's comments. Given the court's finding of substantial prejudice, our lack of confidence that the court's limiting instruction sufficed here to

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ameliorate potential juror taint, and the fact that the trial had hardly begun when this problem arose, we are persuaded that the mistrial request should have been granted. Consequently, we vacate defendant's conviction and remand for a new trial. I. The following chronology is relevant to our consideration of the issues raised on appeal. The case arises out of a failed attempt by defendant to shoplift two pairs of sneakers from a sporting goods store in West New York. At about 2:15 p.m. on November 22, 2004, defendant was observed by Jorge Regal, an undercover security guard, entering the store. Defendant carried a knapsack that appeared to Regal to be empty. Regal followed defendant, and saw him break off the security tag from a pair of sneakers. Defendant put the sneakers in his knapsack. He then went to the children's department, where Regal saw him detach the security tag from another pair of sneakers and likewise place them in the knapsack. Defendant then took a third pair of sneakers downstairs and placed them on the counter by the cashier. He then attempted to leave the store, clutching his knapsack. Regal stopped defendant at the store's exit door after defendant had passed all points of sale. He showed defendant his identification as a store detective and asked to look inside the knapsack. At that point defendant, trying to get past, according to Regal, pushed him and struck him in the face. Regal called for help. The store manager, Daniel Semple, ran over and tried to restrain defendant. As the three men struggled, they passed into the store vestibule, where two other store employees, Daniel Campos and Lazaro Pena, joined in the fray. Campos and Pena grabbed defendant and pulled him back towards the store interior. This maneuver caused Semple to crash into a glass window display. Campos, meanwhile, collided with another window. Eventually, the store personnel were able to overcome defendant on the floor. Regal held both of his arms, pinning him to the floor with a knee. At that point, police officers arrived and placed defendant in handcuffs. His knapsack was opened, revealing the two pairs of sneakers without security tags. Defendant was arrested and charged with robbery, N.J.S.A. 2C:15-1, criminal mischief, Fifth Amendment. Nevertheless, the judge denied defendant's renewed mistrial request, again without elaboration. When the jury returned to the courtroom the judge advised them, in pertinent part, as follows: [W]hen we last had you in the courtroom we had just finished the opening statement of the Prosecutor for the State and then an objection was made.

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In the Prosecutor's opening statement, he made reference to two separate alleged statements made by [defendant] in this matter. Preliminarily, the opening statements of counsel are not evidence as I've told you before. And are not to be considered by you as evidence. I sustained the objection of the defense counsel and ordered that the [A]ssistant Prosecutor's comments about alleged statements are to be stricken. I direct you not to consider any of the alleged statements for any purpose during the presentation of the evidence in this case, and those statements must have no bearing or play any part in your deliberations in this matter. In plain language, I order you to continue this trial as if the Prosecutor had never said anything in relation to any alleged statements by [defendant]. And we'll now continue with the opening statement of [defense counsel]. After defense counsel gave his opening statement, the jury then heard the proofs in the case, specifically the testimony of Regal, Semple, Pena and Campos for the State. Defendant did not testify and did not present any witnesses. Prior to submitting the case to the jury, the judge granted defendant's motion to dismiss the count for criminal mischief. After deliberating, the jury found defendant guilty of second-degree robbery and third-degree aggravated assault upon Regal. The jury also found defendant guilty of a lesser charge, simple assault, with respect to Semple. At sentencing, the judge merged the aggravated assault conviction into the robbery. The judge sentenced defendant to a ten-year term on the robbery, subject to an 85% period of parole ineligibility under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. He also imposed a concurrent six-month sentence on the simple assault count. On appeal, defendant principally argues that the judge erred in denying his mistrial motion arising out of the State's discovery violations. He also maintains that certain comments by the assistant prosecutor in his summation were overly prejudicial and denied him a fair trial; that the jury charge was inadequate because it failed to tailor the law sufficiently to the facts of the case; and that his sentence was excessive. II. Rule 3:13-3(b) requires a prosecutor to turn over a discovery packet within fourteen days of the return or unsealing of an indictment. Additionally, Rule 3:13-3(c)(2) specifically requires the prosecutor to furnish a defendant, if it is contained within the State's initial discovery packet, with: records of statements or confessions, signed or unsigned, by the defendant or copies thereof, and a summary of any admissions or declarations against penal interest made by the defendant that are known to the prosecution but not recorded[.]

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[R. 3:13-3(c).] The prosecutor's duty to disclose such information in discovery is continuing. R. 3:13-3(g). The defendant is not obligated to "badger compliance." State v. Hunt, 184 N.J. Super. 304, 310 (Law Div. 1981). The objective of our reciprocal discovery rules in criminal cases is "to prevent surprise, eliminate gamesmanship, and afford a party an opportunity to obtain evidence and research law in anticipation of evidence and testimony which an adversary will produce at trial." State v. DiTolvo, 273 N.J. Super. 111, 115 (Law Div. 1994). From the defense perspective, the discovery rules enable a defendant to learn "the extent of the State's case against him." State v. Kearny, 109 N.J. Super. 502, 506 (Law. Div. 1970); see also State v. Tate, 47 N.J. 352, 354-57 (1966). Such discovery, whether inculpatory or exculpatory in nature, should be turned over by the State so that defense counsel "may intelligently advise as to the defense and properly prepare for trial." State v. Cook, 43 N.J. 560, 569 (1965). Hence, a "defendant's right to discovery is not dependent upon an appraisal of the beneficial value of the material sought to be discovered." State v. Polito, 146 N.J. Super. 552, 556 (App. Div. 1977), certif. denied, 76 N.J. 243 (1978); see also State v. Braeunig, 122 N.J. Super. 319, 332 (App. Div. 1973). The Rules authorize the court to impose sanctions for a failure to provide discovery, including a trial continuance, an order prohibiting the admission of the withheld evidence at trial, or "such other order as it deems appropriate." R. 3:13-3(g). See also State v. Clark, 347 N.J. Super. 497, 509 (App. Div. 2002) (outlining various remedies for discovery violations). Here, we are concerned with a discovery violation that was accentuated by the prosecutor's opening statement to the jury. This is not a situation in which the State withheld information and defense counsel became aware of that withholding before the information was divulged to a jury. In such an alternative scenario, a short adjournment might have given defense counsel a chance to investigate the alleged statements by his client, conduct legal research about their admissibility, and possibly obtain an order in limine precluding the prosecutor from disclosing the alleged statements to the jury. See, e.g., State v. Bellamy, 329 N.J. Super. 371, 376-78 (App. Div. 2000) (noting that a short adjournment would have been appropriate where an additional person's involvement in the crime was not revealed until the day before trial). Instead, in the present case, the jury was already exposed to the information before the defense had a chance to do anything about it. Defense counsel was not dilatory in seeking a mistrial, but moved promptly for that remedy right after the assistant prosecutor completed his opening. We recognize that the remedy of a mistrial is ordinarily not necessary to ameliorate a jury's inadvertent exposure to inadmissible matters. State v. Winter, 96 N.J. 640, 646 (1984) (noting that

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inadmissible evidence often "creeps in" during a trial, and that curative instructions to the jury will usually suffice to vitiate the harm (quotations omitted)); see also State v. Wakefield, 190 N.J. 397, 439 (2007), cert. denied, 128 S. Ct. 1074, 169 L. Ed.2d 817 (2008). We are also mindful that we generally accord deference to trial judges in weighing the effectiveness of a limiting instruction. Winter, supra, 96 N.J. at 647. In this particular case, we cannot discern exactly why the trial judge chose to deny defendant's mistrial motion and only issue a limiting instruction to the jury. When defense counsel twice attempted to move for a mistrial, the judge denied the application both times without elaboration. Absent the requisite statement of reasons from the judge, see Rule 1:7-4, we can only surmise that he felt that, with a limiting instruction, the jury could be entrusted to disregard the two improper statements made during the prosecutor's opening. We are not confident that the defendant's mistrial application was appropriately denied in this setting. The prosecutor's opening not only alluded to inadmissible material, it also put words in the mouth of defendant himself at the scene of the crime. In addition, defendant denied, under oath, that he had said those things. To rebut the prosecutor's contentions effectively, defendant would have had to at least consider taking the witness stand himself, thereby implicating, if not transgressing, his constitutional right to remain silent. Moreover, the trial judge specifically found that the "I've had enough" statement was "very prejudicial" to the defendant. Although we recognize that the statement could also be reasonably construed as a non-inculpatory response to the security guard's physical force in pinning defendant to the floor, we nonetheless accept the trial judge's characterization of the statement as a "very prejudicial" admission of wrongdoing. Given that finding, the trial judge should have given fuller consideration to defendant's repeated entreaty that a mistrial be declared and a new jury be selected. As a practical matter, the case had only begun, and we suspect that it would not have been a great inconvenience to anyone to dismiss the seated jurors and start fresh with a new venire panel. We also share defense counsel's concern that the limiting instruction, despite the best efforts of counsel and the court in formulating it, could have underscored to the jurors the offending remarks and not removed the persisting remnants of taint. For all of these reasons, we conclude that the trial court misapplied its discretion in denying the mistrial motion following the assistant prosecutor's improper disclosures in his opening statement. Consequently, we vacate defendant's conviction and remand for a new trial. The proofs of the wrongful use of force by defendant, who admittedly was shoplifting, are not sufficiently overwhelming to make the errors harmless beyond a reasonable doubt and permit us to sustain his convictions on the present trial record.

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In light of our disposition of defendant's primary argument, we need not dwell upon the remaining points he has raised on appeal concerning the prosecutor's summation, the adequacy of the tailoring of the jury charge, and his sentence. That being so, we do note that all of these arguments, which we have fully considered in our review, lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). Briefly stated, we are satisfied that the prosecutor's remarks in summation -- about the dearth of competing proofs to corroborate defendant's self-defense claim -- fairly responded to the summation of defense counsel. Moreover, the court's charge on the substantive law, including self-defense, was sufficiently tailored to the evidence and was not overly general. Finally, the sentence imposed was manifestly reasonable, in light of defendant's three prior adult convictions, including a first-degree robbery. Defendant's conviction is vacated and the matter is remanded for a new trial.

The knapsack is also described in the record as a "bookbag." There was no security videotape of the incident, as the store's VCR equipment was apparently broken. We need not calibrate what, if any, prejudice derived from the first statement ("I'll be back for these"), although it arguably could have had inculpatory value in showing that defendant had concocted a ruse to get the merchandise out of the store and therefore was more prone to use violence to accomplish his goal. We stress that defendant does not argue, and we by no means insinuate, that the prosecutor's discovery violation was intentional. Even so, the violation, despite its inadvertent nature, warranted a more effective remedy in the specific context presented here. (continued) (continued) 15 A-4940-06T4 August 21, 2008 0x01 graphic

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