SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1829-97T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY NELSON,
Defendant-Appellant.
Submitted January 26, 1999 - Decided February 11, 1999
Before Judges Muir, Jr., Keefe, and Coburn.
On appeal from Superior Court of New Jersey,
Law Division, Camden County.
Ivelisse Torres, Public Defender, attorney for
appellant (Abby Schwartz, Assistant Deputy
Public Defender, of counsel and on the brief).
Peter Verniero, Attorney General, attorney for
respondent (Linda A. Rinaldi, Deputy Attorney
General, of counsel and on the brief).
The opinion of the court was delivered by
COBURN, J.A.D.
Defendant Anthony Nelson appeals from a judgment of
conviction, following a jury verdict, for second-degree robbery,
N.J.S.A. 2C:15-1, and third-degree conspiracy to commit theft from
the person, N.J.S.A. 2C:5-2; 2C:20-2b(2)(d); and 2C:20-3a. Based
on defendant's status as a persistent offender, the judge sentenced
him to an aggregate term of sixteen years imprisonment, five years
to be served without parole, consecutive to a 1995, fifteen-year
sentence defendant was then serving in the State of Georgia.
Although the crime occurred in 1990, for reasons unexplained in the
record the trial of Nelson did not occur until 1997. We affirm.
Defendant's primary point concerns the admission of a prior
inconsistent statement made by his accomplice, William Stallworth,
a witness called by the State. The unrecorded statement was given
orally to a prosecutor's investigator, in the prosecutor's
presence, in 1997 on the day before the witness testified. It was
offered by the prosecutor when Stallworth recanted before the jury,
claiming that he could not remember whether anyone, including the
defendant, participated with him in the robbery. This oral
statement, implicating defendant, was essentially the same as a
recorded statement, which also came before the jury, made by
Stallworth under oath when he pled guilty to the crime in 1991.
Although defendant contends that the admission of the 1997
unrecorded oral statement violated N.J.R.E. 803(a)(1) and denied
him a fair trial, he does not question the admission in evidence,
of Stallworth's 1991 sworn statement.
Defendant also argues that he is entitled to a new trial for
the following reasons: the judge wrongly admitted into evidence, as
bearing on defendant's credibility, an out-of-state conviction
then, but no longer, pending appeal; and the judge erred in denying
a mistrial based on a claim of jury misconduct. Last, defendant
argues that his sentence was excessive. The sentencing argument is
without merit and does not warrant discussion in a written opinion.
R. 2:11-3(e)(2).
At approximately 9:45 a.m., on September 14, 1990, Robert
Ferretti, a Teamsters Union member, was in the parking lot of Local
676 walking toward the union hall, which is located at the Route
130 Collingswood Circle in Collingswood. He had just returned from
the bank, where he had cashed paychecks for co-workers, and was
carrying a leather bank bag containing $8,000. Standing near the
door was another union member, Marian Harris.
As Ferretti approached the union hall's door, a person, later
identified as William Stallworth, the defendant's cousin and
accomplice, approached and began to wrestle with Ferretti for
possession of the bank bag. They fell to the ground during the
struggle and Ferretti suffered cuts, bruises, and a concussion.
Another union member came out of the union hall and separated the
men. Stallworth, having failed to get control of the bank bag,
walked toward the side of the union hall, where he stopped to speak
briefly to another man, later identified as defendant Anthony
Nelson. They got into a black, four-door Volvo and drove out of
the parking lot toward Camden with Nelson in the driver's seat.
Marian Harris, who had observed the struggle and the discussion
between Stallworth and Nelson from a distance of approximately four
feet, noted the first three letters of the license plate tag:
"GBU." The police were called immediately.
At 9:51 a.m., Sergeant Robert Rideski received a dispatch
reporting the robbery. Within thirty seconds, he arrived at the
union hall parking lot and interviewed Harris, obtaining within
about a minute her description of the defendants and their car.
He immediately broadcast this information over the police radio.
About a minute later, Rideski received a radio call from Lieutenant
Spoulick, who had spotted the vehicle and was following it in an
unmarked car. The defendants were stopped less than a mile from
the union hall in the black Volvo, bearing license tag "GBU-98S."
Stallworth was in the driver's seat and Nelson was beside him. By
10 a.m., the defendants were under arrest.
About an hour later at police headquarters, Harris positively
and unequivocally identified both Stallworth and Nelson. Ferretti
was only able to identify Stallworth.
On August 15, 1991, Stallworth entered a guilty plea to the
robbery in return for a sentence limitation of imprisonment for
five years. He implicated Nelson under oath, and his statement,
concededly admissible in this trial, included the following
pertinent remarks:
Me and my cousin [Anthony Nelson] were
riding past the Teamsters Union and we noticed
a truck with a bank bag and that's when my
cousin was saying, "Come out." "Let's try to
get it." And then we parked. We tried to get
it. It was, first he walked over there,
trying to get it. He couldn't, so I walked
over there to help him and then there was a
struggle and the man had fell down. He hit
his head on his truck and that's when we left.
We had left the scene and we was picked up a
few minutes later.
By the time of trial, Harris was no longer able to identify
Nelson in court, but she was still positive about her out-of-court
identification of him. In addition to Harris, the State's primary
witnesses, other than Stallworth, were Ferretti and Sergeant
Rideski.
Stallworth admitted his guilt before the jury. His
description of his role in the robbery was consistent with the
accounts given by Harris and Ferretti, except for his refusal to
implicate the defendant. He did not testify that the defendant was
not involved. Instead, he claimed he could not recall whether
anyone was with him. He also said he could not recall who drove
the car away from the robbery. He did say that within a brief time
he somehow arrived home. Then, after spending between ten and
fifteen minutes inside with Nelson, the two left in the Volvo to
visit Stallworth's mother. He acknowledged being followed by the
police for "some distance," and he admitted that Nelson was in the
car when they were arrested at the Collingswood Circle.
The prosecutor initially responded to Stallworth's claimed
memory loss by asking him to refresh his memory by reviewing the
1991 sworn statement. After reading the statement to himself,
Stallworth said, "I don't remember saying all that." He indicated
that his lack of memory was due to the passage of almost seven
years since the robbery occurred. At that point, the prosecutor
began to question Stallworth about the 1997 interview. He admitted
that the interview occurred but claimed that the statements he made
during the interview were the same as his testimony before the
jury.
The prosecutor finally reacted to Stallworth's testimony by
asking to approach the bench and saying, "Judge, we have an
investigator in the office who sat in on the interview who's
prepared -- even though I haven't spoken to him, he's prepared to
testify." (Emphasis added.)
The judge responded by ordering a hearing outside the jury's
presence regarding the admissibility of the 1991 and 1997
statements.
Investigator Schuan Ngo testified that he interviewed
Stallworth in the presence of another investigator and the trial
prosecutor the day before the trial started. He showed Stallworth
a copy of his 1991 statement and Stallworth said it was accurate.
Ngo described the balance of Stallworth's remarks in the following
manner:
A. Okay. He described they were driving,
Anthony Nelson was driving the car, and he was
in the passenger seat and they saw coming out
of the Teamster Union hall, a man carrying a
bag and it looked like a money bag and they
decided, they talked amongst each other, that
they wanted to go get it and they pulled over
and they both went over and basically they
both leaped -- jumped on him and he fell down
and they ran away. Mr. Nelson drove away from
the scene. Mr. Anthony Nelson drove away from
the scene while William Stallworth was in the
passenger seat and they drove back to Mr.
Stallworth's apartment in -- the Ferry Station
apartment, where he changed clothes and he had
got something to eat quickly, and then he
drove that car to his mom's house. That's
where Collingswood P.D. picked him up.
Defendant testified that on the morning of the robbery he was
asleep in Stallworth's house. At 10 a.m., he was awakened by
Stallworth. They left in the Volvo about forty-five minutes later.
Within moments, the police stopped the car and placed them under
arrest.
We will address first the issues arising from the admission of
Ngo's testimony. However, before considering the substantive
arguments, it is appropriate to note that they must be evaluated
under the plain error standard. R. 2:10-2.
When Stallworth recanted, the trial judge, acting without a
request from either counsel, ordered a hearing out of the presence
of the jury, pursuant to N.J.R.E. 104, on the admissibility of both
the 1991 and 1997 statements. He referenced State v. Gross
(Anthony),
121 N.J. 1 (1990), as providing the governing
principles. At the conclusion of the hearing, he offered counsel
an opportunity to argue.
Neither attorney mentioned that the statement given to Ngo was
oral and unrecorded. Nor did they separately analyze the
admissibility of each statement. The prosecutor limited his
argument to the assertion that Stallworth's claimed lack of memory
was feigned. Defense counsel responded in the following manner:
Well, Your Honor, the only thing that I
would add in saying that the statement should
not be allowed in, is that the answers to the
questions given by Mr. Stallworth appear to be
consistent with him not really wishing to be
here to testify and because he -- his
responses appear to be those of a refusal to
testify, I think that his refusal to testify
should be looked into as his position that you
know, had it not been for a fact that he was,
you know, court ordered to be here and
required to be here and went and picked up by
the Prosecutor's Office and brought to be
here, that he himself, who was in Pennsylvania
at the time, would not have voluntarily come
in, had he been a resident of Pennsylvania and
given a subpoena by a New Jersey court to
appear. So, he's here because -- . . . not of
his own volition.
R. 1:7-2 provides in pertinent part:
For the purpose of reserving questions
for review or appeal relating to rulings . . .
of the court . . . , a party, at the time the
ruling . . . is made or sought, shall make
known to the court specifically the action
which the party desires the court to take or
the party's objection to the action taken and
the grounds therefor.
An objection to testimony must be supported by the
articulation of specific reasons. State v. Melton,
136 N.J. Super. 378, 381 (App. Div.1975). Moreover, an objection expressed in
terms that make no legal sense is unacceptable. Kurak v. A.P.
Green Refractories Co.,
298 N.J. Super. 304, 328 (App. Div.),
certif. denied,
152 N.J. 10 (1997). Defense counsel's objection
was not stated in understandable legal terms and it has been
abandoned on appeal. Now, for the first time, defendant argues
that admission of the 1997 statement denied him a fair trial
because it was unreliable and inadmissible under N.J.R.E.
803(a)(1). Since the claimed point of error was not articulated to
the trial judge, reversal would be appropriate only if the plain
error standard has been satisfied.
N.J.R.E. 803 provides in pertinent part:
(a) Prior statements of witnesses. A
statement previously made by a person who is a
witness at a trial or hearing, provided it
would have been admissible if made by the
declarant while testifying and the statement:
(1) is inconsistent with the witness'
testimony at the trial or hearing and is
offered in compliance with Rule 613. However,
when the statement is offered by the party
calling the witness, it is admissible only if,
in addition to the foregoing requirements, it
(A) is contained in a sound recording or in a
writing made or signed by the witness in
circumstances establishing its reliability or
(B) was given under oath subject to the
penalty of perjury at a trial or other
judicial, quasi-judicial, legislative,
administrative or grand jury proceeding, or in
a deposition.
The State concedes, as it must, that Ngo's testimony was
inadmissible under that rule since the statements he described as
coming from Stallworth were not in the prescribed form. But on the
ground that the trial prosecutor was surprised by Stallworth's
recantation, the State now argues that Ngo's testimony was
admissible under another rule of evidence, N.J.R.E. 607, which
reads as follows:
Except as otherwise provided by Rules 405
and 608, for the purpose of impairing or
supporting the credibility of a witness, any
party including the party calling the witness
may examine the witness and introduce
extrinsic evidence relevant to the issue of
credibility, except that the party calling a
witness may not neutralize the witness'
testimony by a prior contradictory statement
unless the statement is in a form admissible
under Rule 803(a)(1) or the judge finds that
the party calling the witness was surprised.
A prior consistent statement shall not be
admitted to support the credibility of a
witness except to rebut an express or implied
charge against the witness of recent
fabrication or of improper influence or motive
and except as otherwise provided by the law of
evidence.
In State v. Johnson,
216 N.J. Super. 588, 608-609 (App. Div.
(1987), we held that if the prior inconsistent statement of a
witness does not meet the reliability requirements of N.J.R.E.
803(a)(1), then N.J. Evid. R. 63 (1)(a), it may still be used by
the proponent of the witness to "neutralize" his testimony at trial
if the trial judge finds that the proponent was surprised.
However, as conceded by the State, there are two difficulties with
its argument: the judge was not asked to rule on the question of
surprise, and the judge failed to instruct the jury that it could
only consider the 1997 statement as impairing the credibility of
Stallworth's claimed loss of memory.
Our review of the record demonstrates beyond question that the
trial prosecutor was surprised when Stallworth recanted. In
determining that the prosecutor was surprised, we have chosen to
exercise our original jurisdiction under R. 2:10-5, a course we
have followed in similar circumstances. State v. Johnson, supra,
216 N.J. Super. at 609. The day before, Stallworth had expressed
his willingness to testify in accordance with his 1991 statement.
When called to the stand, Stallworth at first testified without
problem. Then, he indicated on a number of occasions that he did
not want to testify based on the Fifth Amendment. However, on each
occasion, the judge told him he had to testify and Stallworth
complied. The idea of memory loss was introduced into the record
by the judge on the seventh page of the transcript of Stallworth's
testimony when he said:
If you recall the answers, please answer them
as truthfully as you can. If you don't recall
it, you can tell us you don't recall it if you
don't recall it, sir, but you must answer it
truthfully.
Shortly after receiving that instruction, Stallworth adopted
the tactic of answering the prosecutor's questions by saying that
he could not recall. As noted above, when the prosecutor indicated
a desire to have Ngo testify, he told the court that he had not yet
discussed that possibility with the investigator.
Given the prosecutor's surprise, Ngo's testimony was
admissible under N.J.R.E. 607 to neutralize Stallworth's claim that
he could not recall who, if anyone, abetted the robbery. We note
that under that rule the judge may not be required to determine, as
he is under N.J.R.E. 803(a)(1), that the prior inconsistent
statement is reliable. See, State v. Caccavale,
58 N.J. Super. 560, 571-72 (App. Div. 1959). Nonetheless, the judge did find both
statements reliable, applying the factors dictated by the Court in
Gross (Anthony), supra, 121 N.J. at 10. He also found that
Stallworth's claimed memory loss was feigned. Those determinations
were amply supported by the record and are entitled to respect on
appeal. State v. Gross (Frank L.),
121 N.J. 18, 31 (1990).
Since a feigned loss of memory is a sufficient foundation for
introduction of a prior inconsistent statement under N.J.R.E.
803(a)(1), State v. Brown,
138 N.J. 481, 544 (1994), overruled on
other grounds by, State v. Cooper,
151 N.J. 326, 377 (1997)
(overruling Brown only to the extent it could "be understood to
require the jury to be instructed during the guilt phase what the
potential sentence is for each noncapital offense"), there is no
reason why it should be treated differently under N.J.R.E. 607.
Recognition of the admissibility of the 1997 statement puts the
issue of prejudice in a different light. The only error was the
failure of the judge to provide the appropriate limiting
instruction.
Reversal for that reason would only be justified if we were
satisfied that the error "was clearly capable of producing an
unjust result." State v. Spruell,
121 N.J. 32, 42 (1990). Unless
we have a reasonable doubt as to whether "the error led the jury to
a result it otherwise might not have reached," affirmance is
required. State v. Macon,
57 N.J. 325, 336 (1971). We harbor no
such doubt for the following reasons.
Stallworth's 1997 statement, as related by Investigator Ngo,
essentially tracked Stallworth's 1991 statement. Generally,
"[e]vidence that is merely cumulative does not create a reasonable
possibility that the verdict would have been affected." State v.
Carter,
91 N.J. 86, 114 (1982). Furthermore, the evidence of guilt
was substantial, if not overwhelming, and the defense was
incredible.
The defendant's story was that he did not awaken that morning
until 10 a.m. and that he and Stallworth did not leave the latter's
house for about forty-five minutes. But the robbery began at
approximately 9:45 a.m. An eye witness, standing within four feet
of the crime, observed and, about an hour later, identified
defendant and his cousin. A police officer arrived within a minute
or so of the crime's completion. He immediately received the eye
witness's description of the suspects and their car, including the
first three letters of the license plate. Within a minute, another
officer, alerted by the first officer's radio transmission, saw the
car, followed it briefly, and stopped it less than a mile from the
crime scene. With the assistance of other officers, he placed
Stallworth and Nelson under arrest. Stallworth's 1991 statement
fully corroborated the timing of the events and defendant's
participation in the crime. His trial testimony also corroborated
the testimony that a police officer followed them in the car for a
short distance before the stop.
Considering the time of the criminal event, the time of
arrest, and the extremely brief interlude between those
occurrences, coupled with Stallworth's 1991 statement, no
reasonable jury would have credited defendant's testimony.
Moreover, the timing and nature of Stallworth's feigned lack of
memory, coming as it did, only after the judge mentioned that
subject, was utterly unbelievable. Nor should we lose sight of
this fact: the jury was entitled to consider the 1997 statement on
the question whether Stallworth was telling the truth when he
claimed a memory loss. We do not believe that the lack of an
appropriate limiting instruction could have prejudiced defendant
since the contents of the statement tracked the earlier statement,
which was properly in evidence. See id.
Moreover, when evidence is admitted for one purpose but is not
admissible for another purpose, the burden rests on the opposing
party to request the limiting instruction. N.J.R.E. 105. Indeed,
we have observed that a criminal defendant was in a poor position
to argue on appeal about the failure of the trial judge to give a
curative instruction when he had not requested one when the error
occurred. State v. Childs,
204 N.J. Super. 639, 651 (App. Div.
1985). When, as here, a limiting instruction should have been
given, even though it was not requested, the "failure to do so is
not per se plain error . . . ." State v. Allison,
208 N.J. Super. 9, 18 (App. Div.) (citing State v. Lair,
62 N.J. 388, 391-92
(1973)), certif. denied,
102 N.J. 370 (1985). As noted above, we
are satisfied that it was not plain error at all.
Defendant had three prior convictions admitted into evidence to undercut his credibility. One of them, a 1995 conviction from the State of Georgia, was still on appeal at the time of trial. Defendant contends, and the State concedes, the conviction was inadmissible. State v. Biegenwald, 96 N.J. 630, 638-39 (1984). But the State has submitted, without objection from defendant, documentation from Georgia establishing that defendant's direct appeals have since been concluded against him. Consequently, although there was error, it did not prejudice defendant's right to a fair trial. State v. Talbot, 135 N.J. Super. 500, 511-12 (App. Div. 1975), aff'd, 71 N.J. 160 (1976) (reviewing only defendant's entrapment argument).
We next turn to defendant's claim that the judge erred in failing to declare a mistrial based on alleged jury misconduct involving one of the jurors who was an attorney.
When the State rested its case, a juror informed the judge that she had heard the attorney speculating in the jury room about events that had occurred in court and that she did not want to listen to him.
The judge then interviewed the attorney, who indicated that the jurors had been asking questions of him "regularly." He acknowledged speculating about whether Stallworth's plea-agreement statement would be received in evidence and whether it would include facts implicating defendant. He also explained to one or more jurors the legal distinctions between robbery and theft.
The judge dismissed the attorney and then conducted a voir dire of the remaining jurors about their exposure to the attorney's remarks. Each juror was questioned individually while the rest of the panel remained in the jury room. Their responses ranged from indicating they had heard some of the attorney's remarks to indicating that they had heard none. All of the jurors assured the judge that they could forget the attorney's comments and decide the case on the evidence and in accordance with the judge's instructions on the law.
The defendant moved for a mistrial on the ground that the attorney's explanation of the law had tainted the jury. The judge found that the jurors had not been prematurely discussing the facts of the case and that they would be able to disregard the attorney's remarks about the law and decide the case in accordance with the charge. He also found that the attorney's speculation about whether Stallworth's plea-statement would be admitted caused no harm since it was in fact admitted.
The judge's procedural approach to this instance of juror misconduct was correct. State v. McLaughlin, 310 N.J. Super. 242, 257 (App. Div.), certif. denied, 156 N.J. 381 (1998). When a problem of this nature arises
the trial court [must] first determine whether the alleged improper conduct has the capacity to prejudice the defendant. If it does, the court should conduct voir dire, preferably individually and in camera, to determine the extent of juror exposure to the impropriety and whether the affected jurors are capable of deciding the case impartially.
The questioning of the jurors was adequate and produced credible assurances from each juror that nothing said by the attorney would adversely affect their ability and willingness to decide the case fairly and in accordance with the law as explained by the judge in his charge. The judge made an objective evaluation
of the jurors' abilities to carry out their responsibilities, as required by State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div), certif. denied, 151 N.J. 466 (1997). Consequently, defendant's motion for a mistrial was properly denied.
Affirmed.