SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5173-94T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHESTER LEE BOWSER,
Defendant-Appellant.
Submitted December 17, 1996 - Decided
January 31, 1997
Before Judges Michels, Kleiner and Coburn.
On appeal from the Superior Court of
New Jersey, Law Division, Mercer County.
Susan L. Reisner, Public Defender, attorney
for appellant (Jean M. Hartmann, Designated
Counsel, of counsel and on the brief).
Maryann K. Bielamowicz, Mercer County
Prosecutor, attorney for respondent (Thomas
F. Fichter, Assistant Prosecutor, of counsel
and on the brief).
The opinion of the court was delivered by
KLEINER, J.A.D.
Tried before a jury, defendant, Chester Lee Bowser, was
convicted of first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A.
2C:2-6 (count one); third-degree theft by unlawful taking,
N.J.S.A. 2C:20-3a and N.J.S.A. 2C:2-6 (count two); fourth-degree
aggravated assault, N.J.S.A. 2C:12-1b(4) and N.J.S.A. 2C:2-6
(count three); second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4a and N.J.S.A. 2C:2-6 (count
four); and third-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5b and N.J.S.A. 2C:2-6 (count five).
Defendant was sentenced to a custodial term of sixteen years
with a six-year period of parole ineligibility pursuant to the
Graves Act, N.J.S.A. 2C:43-6, on count one. Defendant's
convictions on counts two through five were merged into his
conviction on count one.See footnote 1 Defendant was also ordered to pay
$1,000 as restitution to the victim and $30 to the Violent Crimes
Compensation Board.
After defendant's trial, he entered into a plea agreement on
an unrelated indictment charging third-degree receipt of stolen
property, N.J.S.A. 2C:20-7a. Defendant was sentenced to a
custodial term of five years for this offense to be served
concurrent to his sentence for first-degree robbery. Appropriate
statutory penalties were imposed, and defendant was also ordered
to pay $200 as restitution to his victim.
On appeal, defendant raises nine points of error:
THE PROSECUTION'S INTRODUCTION INTO EVIDENCE OF INCRIMINATING PORTIONS OF CO-DEFENDANT'S STATEMENT, CONSISTING OF PREJUDICIAL HEARSAY, DENIED THE DEFENDANT HIS RIGHT TO CONFRONTATION AND ITS ADMISSION CONSTITUTED REVERSIBLE ERROR (Not Raised Below).
INTRODUCTION OF OTHER UNCHARGED CRIMINAL
ACTIVITY BY THE DEFENDANT WAS ERROR.
THE FAILURE OF THE TRIAL COURT TO INSTRUCT
THE JURY OF THE LIMITED RELEVANCE OF OTHER
CRIMES EVIDENCE CONSTITUTED REVERSIBLE ERROR
(Not Raised Below).
THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN IT FAILED TO INSTRUCT THE JURY ON THE
LESSER INCLUDED OFFENSE OF SECOND DEGREE
ROBBERY AND WHEN IT GAVE INSUFFICIENT
INSTRUCTIONS ON FIRST DEGREE ROBBERY,
AGGRAVATED ASSAULT, UNLAWFUL POSSESSION OF A
WEAPON AND POSSESSION OF A FIREARM FOR AN
UNLAWFUL PURPOSE (Not Raised Below).
IMPROPER IMPEACHMENT OF THE DEFENDANT ON AN
IRRELEVANT MATTER BY INADMISSIBLE EXTRINSIC
EVIDENCE WAS ERROR (Not Raised Below).
PROSECUTORIAL MISCONDUCT, CONSISTING OF:
PRESENTING INADMISSIBLE OTHER CRIMES
EVIDENCE; IMPEACHING THE DEFENDANT ON A
COLLATERAL MATTER; IMPEACHING THE DEFENDANT
WITH INADMISSIBLE EXTRINSIC EVIDENCE;
VOUCHING FOR A WITNESS DURING SUMMATION;
ADVANCING THEORY THAT DEFENDANT NEEDED MONEY
FOR DRUGS AND HAD NO OTHER SOURCE OF INCOME;
AND, ELICITING INADMISSIBLE HEARSAY
INFORMATION FROM WITNESSES IN ORDER TO
BUTTRESS OTHER WITNESSES TESTIMONY AS WELL AS
THE PROSECUTION CASE, DEPRIVED THE DEFENDANT
OF A FAIR TRIAL (Not Raised Below).
DEFENSE COUNSEL'S NUMEROUS FAILURES TO
PROTECT THE DEFENDANT'S RIGHT TO A FAIR TRIAL
DEPRIVED HIM OF EFFECTIVE ASSISTANCE OF
COUNSEL. U.S. CONST. AMEND. VI; N.J. CONST.
ART. I, PAR. 10 (Not raised below).
THE SENTENCE IMPOSED BY THE LOWER COURT WAS
INAPPROPRIATE BECAUSE IT FAILED TO HOLD A
SEPARATE HEARING TO ESTABLISH THAT THE
DEFENDANT POSSESSED THE WEAPON FOR PURPOSES
OF THE GRAVES ACT AND THIS ISSUE WAS NEVER
SUBMITTED BY WAY OF INSTRUCTION TO THE JURY
(Not Raised Below).
THE TRIAL COURT ERRED IN IMPOSING A SENTENCE
IN EXCESS OF THE PRESUMPTIVE TERM (Not Raised
Below).
On November 13, 1991, defendant visited the home of his co-defendant, Jason Ash. During the visit, either defendant or
Ash's wife telephoned a nearby convenience store to find out what
time it closed. Defendant and Ash then left the Ash residence
and proceeded to the convenience store. According to the
proprietor, Ash stood near the register while defendant walked
around the store selecting items to purchase. When defendant
walked over to the cash register, Ash pulled a handgun and
demanded money from the proprietor. Ash grabbed a blue money bag
and defendant, allegedly, reached his hand into the cash register
and removed money. Both men then fled the market.See footnote 2
The proprietor was able to identify Ash. He was unable to
identify defendant but did describe defendant to the police.
Ultimately, Ash's wife turned Ash in to the police. Ash
confessed to the crime, led the police to the money bag, and
showed them to a nearby river into which he had thrown the
weapon. Both the money bag and the weapon were recovered. Ash
provided the police with defendant's name and told them that
defendant had given him the gun shortly before they entered the
convenience store. Ash also told the police that it was
defendant's idea to commit the robbery.
At trial, the State called the following witnesses: the
proprietor; Ash's wife; a baby-sitter, who Ash employed after the
robbery; Ash's brother, who observed defendant and Ash using
crack cocaine the evening of the armed robbery; and Sergeant
Ashbock to whom Ash had given his written confession. The baby-sitter indicated that, after he returned home from the
convenience store, Ash gave her $40 to watch his child and that
he had a large sum of money. Ash's brother testified that he saw
Ash and defendant smoking crack cocaine outside of his own
residence that night and that defendant admitted that he and Ash
had committed a robbery. Ash, who pled guilty to armed robbery
and was sentenced prior to defendant's trial, did not testify for
the State.
During the cross-examination of Sergeant Ashbock, defense
counsel elicited information that Ashbock had learned during
Ash's confession. The elicited testimony was exculpatory towards
defendant. During the redirect of Sergeant Ashbock, the
prosecutor elicited, without objection of defense counsel, that,
according to Ash's confession, defendant had supplied the gun
that was used in the robbery and that defendant planned the
robbery while Ash and defendant were en route to the convenience
store.
On appeal, defendant contends that the admission of
testimony about Ash's confession was reversible error. Defendant
also contends that the failure to object on this point
illustrates the ineffective assistance rendered by his counsel.
In response, the State contends that the redirect examination of
Sergeant Ashbock was permitted because defendant's cross-examination about Ash's statement "opened the door" to the entire
content of the confession, thus rendering the redirect
examination a "tag along." Additionally, the State contends that
defendant's conviction should be affirmed and that any analysis
of defense counsel's ineffectiveness should be decided later in
for a future proceeding seeking post-conviction relief.
The Confrontation Clause of the Sixth Amendment "guarantees the right of a criminal defendant 'to be confronted with the witnesses against him.' The right of confrontation includes the right to cross-examine witnesses." Richardson v. Marsh, 481 U.S. 200, 206, 107 S. Ct. 1702, 1706-07, 95 L. Ed.2d 176, 185 (1987). This right also extends to criminal defendants facing state prosecution. Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed.2d 923 (1965). Admission of a pre-trial confession by a co-defendant violates the accused's right of cross-examination under the confrontation clause of the Sixth
Amendment. See, e.g., Bruton v. United States,
391 U.S. 123,
126,
88 S. Ct. 1620, 1622,
20 L. Ed.2d 476, 479 (1968).
In State v. Laboy,
270 N.J. Super. 296, 302-305 (App. Div.
1994), this court discussed in detail the interests protected by
the Confrontation Clause and particularly noted that:
Our Supreme Court has taken a parallel
course in protecting the defendant's right to
confrontation under New Jersey's common law.
See State v. Maristany,
133 N.J. 299 (1993);
State v. Manning,
82 N.J. 417, 421-22 (1980);
State v. Young,
46 N.J. 152, 156-57 (1965);
State v. Colon,
246 N.J. Super. 608, 612
(App. Div. 1991), cf. State v. Gross,
121 N.J. 1, 11 (1990). Indeed, it can fairly be
said that the Court has been more protective
of the defendant's right to cross-examine
than its federal counterpart. Several years
before the United States Supreme Court's
pronouncement in Bruton, our Court held that
an out-of-court confession of one defendant
could not be used against the other and that
a limiting instruction would not suffice to
eradicate the potential for prejudice as to
the non-confessing defendant. State v.
Young, 46 N.J. at 157.
[Laboy, supra, 270 N.J. Super. at 304-05.]
We concluded that the admission of an officer's testimony
regarding an out-of-court statement by a co-defendant that
incriminated the defendant, "clearly violated [the defendant's]
right of confrontation under the Federal Constitution and New
Jersey's common law." Id. at 305.
The State argues that State v. Powers,
72 N.J. 346 (1977),
and State v. Abrams,
140 N.J. Super. 232 (App. Div. 1976), aff'd
o.b.,
72 N.J. 342 (1977), permit the use of inculpatory
statements against defendant because they are intrinsically
intertwined with Ash's statements against his penal interest.
The State's argument ignores other decisions of this court and
the Supreme Court and must be rejected.
In State v. Colon,
246 N.J. Super. 608 (App. Div. 1991), the
defendant was driving co-defendant's car at a high rate of speed
on the Turnpike when he was pulled over. A state trooper
discovered three vials of crack cocaine on the console and then
searched the car, finding a bag containing over five pounds of
crack cocaine in front of the driver's seat. Defendant admitted
that the three vials of cocaine were his but maintained that he
was unaware of the bag of cocaine and had merely agreed to drive
the car in exchange for the three vials of crack. At trial, the
defendant called a police officer who testified that the co-defendant had told him that she, the co-defendant, had purchased
the cocaine in the Bronx. The police officer also testified that
he discovered that the co-defendant was extensively involved in
drug trafficking. Defendant was apparently attempting to
demonstrate that he had fallen into the situation innocently.
While the co-defendant did not testify, the court admitted these
statements as declarations against interest.
On cross-examination, the officer was asked what the co-defendant had said regarding the defendant's knowledge of the
cocaine, and the officer replied, "[s]he advised me that he knew
the cocaine was in the car. He knew the amount of the cocaine
and he knew where it was going." Id. at 611. The State
contended that the inculpatory portions of the statement were
admissible under the doctrine of continuing trustworthiness as
"tag along" pursuant to Abrams, supra, and Powers, supra. We
noted that in those cases it was the exculpatory material that
was admitted by the trial court. Colon, supra, 246 N.J. Super.
at 611-12. The court stated:
The facts, however, were the converse of
those here, where the question addresses the
admissibility against defendant of the part
of a codefendant's confession that is
inculpatory as to the defendant where
defendant had introduced the portion of
codefendant's confession that may exculpate
him.
The rationale underlying Powers and
Abrams does not lie in the mere fact that the
self-incriminatory and the exculpatory
statements were made side-by-side. It lies
in the fact that the latter was intrinsic to
the former. In Abrams, the declarant
codefendant, Smith, admitted selling cocaine
to an undercover detective but denied that
she had obtained the contraband from
defendant Abrams. As the Appellate Division
said, that exculpatory declaration formed
part of the declaration against interest
because "it intensifies her personal criminal
responsibility for the transaction."
[Id. at 612 (quoting Abrams, supra, 140 N.J.
Super. at 235).]
We later concluded:
We do not overlook the State's argument that fairness to the prosecution requires that since defendant was permitted to introduce that part of [the co-defendant's] statement which favored the defense, the incriminating portion should also be received in order to convey the complete meaning of what the declarant was saying. The argument, while superficially attractive, misses the evidential principle that marks the distinction between the two facets of what [co-defendant] said. On the one hand, we have a statement admitted under an exception to the hearsay rule because of its guarantee of testimonial trustworthiness as a
declaration against interest. The theory of
trustworthiness which supports the exception
is that the statement so far subjects the
declarant to criminal liability "that a
reasonable man [woman] in his [her] position
would not have made the statement unless he
[she] believed it to be true. . . ." [Former]
N.J.R. Evid. 63(10). The statement
inculpating defendant, on the other hand,
carries no such guarantee and, in fact,
because of its self-serving nature, is
presumed to be unreliable, something which is
aggravated by the absence of any opportunity
for cross-examination. We therefore see no
lack of fairness to the State in precluding
it from countering a presumably trustworthy
statement with one that is presumably
untrustworthy.
[Colon, 246 N.J. Super. at 613 (alterations
in original).]
We also noted that former N.J.R.E. 63(10) barred the
introduction of a declaration against interest "against a
defendant other than the declarant in a criminal prosecution."
Id. at 614 (quoting N.J.R.E. 63(10)). We concluded that the
defendant's conviction must be reversed on these bases. Ibid.
Current N.J.R.E. 803(c)(25) contains the hearsay exception
for a statement against interest and allows for the admission of:
A statement which was at the time of its
making so far contrary to the declarant's
pecuniary, proprietary, or social interest,
or so far tended to subject declarant to
civil or criminal liability, or to render
invalid declarant's claim against another,
that a reasonable person in declarant's
position would not have made the statement
unless the person believed it to be true.
Such a statement is admissible against an
accused in a criminal action only if the
accused was the declarant.
[Ibid. (emphasis added).]
In State v. Maristany, supra, 133 N.J. at 308, a trooper
testified at trial that the co-defendant had stated out of court
that the defendant had placed a blue bag containing cocaine in
the trunk of the car and that the co-defendant was unaware of
what was in it. The Supreme Court agreed with the Appellate
Division that these statements were "rank hearsay" and stated
that the "statement possesses all of the invidious attributes of
hearsay. Made after cocaine had been discovered, [co-defendant's] self-serving, exculpatory statement lacks
reliability. Further, the statement serves to incriminate
defendant without affording him the opportunity to cross-examine
[the co-defendant]." Id. at 309. The Court concluded that the
admission of this evidence violated former N.J.R.E. 63 and
violated the defendant's fundamental right to confront witnesses.
Id. at 310.
The facts of this case are identical to those in Colon and
similar to those in Maristany and Laboy. In each case, a police
officer testified regarding a statement made by a co-defendant
that tended to inculpate the defendant. In each case, the co-defendant did not testify. In Colon and in this case, the
defendant first obtained testimony from the officer regarding
statements by the co-defendant which tended to exculpate the
defendant. The court in Maristany, Colon, and Laboy all
concluded that the admission of the co-defendant's statements
inculpating the defendant was prejudicial error requiring
reversal.
The rationale employed in those cases requires the reversal
of defendant's conviction. Although defense counsel failed to
object, we cannot conclude that the error was harmless. The
issue is whether the error is plain error. See R. 2:10-2. Plain
error is reversible if it is "clearly capable of producing an
unjust result." Ibid.; see also R. 1:7-2. The test is whether
the possibility of injustice is "sufficient to raise a reasonable
doubt as to whether the error led the jury to a result that it
otherwise might not have reached." State v. Mason,
57 N.J. 325,
336 (1971). Since Ash's confession, which was not subject to
cross-examination, completely undermined the defense offered by
defendant, its admission raises a reasonable doubt as to whether
the error led the jury to a result that it otherwise might not
have reached.
We conclude that admitting Ashbock's testimony regarding
Ash's out-of-court confession clearly violated defendant's right
of confrontation under the federal Constitution and New Jersey's
common law, thus warranting reversal of defendant's conviction.
Even if the error discussed in Part I of this opinion were harmless, it is clear that other judicial error in this trial warrants reversal of defendant's conviction. The trial judge's failure to give a cautionary instruction on the admission of evidence about defendant's use of crack cocaine on the evening of the armed robbery and the failure of the trial judge to instruct
the jury properly on accomplice liability and the gradations of
robbery are of such magnitude that defendant's conviction must be
reversed.
On a motion in limine, defendant's counsel sought to prevent the introduction of any evidence that defendant and Ash were observed smoking crack cocaine on the evening of the robbery after they arrived home from the convenience store. The State contended that the use of drugs was evidence of motive to commit the crime, i.e., defendant and Ash needed money to purchase drugs. Although on appeal defendant contends that the judge erred in permitting the State to introduce this evidence, the correctness of that contention need not be addressed. The more significant error was the failure of the trial judge, once he decided to admit the evidence, to give the jury any cautionary instruction limiting the use of that testimony as required by State v. G.S., 145 N.J. 460 (1996).
In G.S., the Supreme Court noted:
There is an unavoidable tension inherent in other-crime evidence. The evidence of other crimes invariably is both probative and prejudicial. The prejudice of other-crime evidence is its tendency to demonstrate a criminal predisposition; therefore, it poses a distinct risk that it will distract a jury from an independent consideration of the evidence that bears directly on guilt itself.
[Id. at 468 (citations omitted).]
The Court additionally stressed:
The narrow issue, which divided the
Appellate Division, is whether, as a result
of the trial court's instructions, the use of
that evidence by the jury was improper and
prejudicial. Recognizing the special dangers
posed by the conflicting impacts of other-crime evidence, this Court has required that
when a trial court admits such evidence, the
court must specifically instruct the jury
about that evidence's limited relevance.
[Id. at 469 (emphasis added).]
G.S. instructs that a reversal is mandated when a limited
instruction is not given unless the absence of a limiting
instruction is deemed harmless. Id. at 474. The courts of this
State have often enunciated this principle. See, e.g., State v.
Oliver,
133 N.J. 141 (1993); State v. Cofield,
127 N.J. 328
(1992); State v. Stevens,
115 N.J. 289, 304 (1989); State v.
Cusick,
219 N.J. Super. 452, 467 (App. Div.), certif. denied,
109 N.J. 54 (1987). We hold that the failure to give a limiting
instruction in this instance was not harmless error. This
conclusion becomes clearer when we consider the testimony of
defendant.
Defendant readily admitted that he was with Ash in the
convenience store during the armed robbery. Defendant, however,
denied any involvement in the armed robbery and specifically
denied having any knowledge that Ash possessed a weapon or
intended to use the weapon to rob the convenience store.
Defendant's testimony contradicted the testimony of the victim in
some key respects. The victim indicated that defendant did not
seem surprised when Ash withdrew the gun, that defendant grabbed
money from the cash register, and that defendant fled the store
before Ash. Without a limiting instruction, the jury might make
the impermissible inference that, as a crack cocaine user,
defendant was a "bad person" and not one who should be believed.
See Cofield, supra, 127 N.J. at 328.
Defendant claims that it was plain error for the trial court to fail to instruct the jury on second-degree robbery and to instruct them that defendant must have shared the co-defendant's specific purpose to use the weapon in order for defendant to be convicted of first-degree robbery. We agree.
The trial judge instructed the jury that:
In order to convict the defendant of the charge of robbery in the first degree, the state must prove beyond a reasonable doubt the following: One, that the defendant was in the course of committing a theft; two, that while in the course of committing a theft, Jason Ash threatened [the victim] with bodily injury or inflicted bodily injury upon him, three, that Jason Ash was armed with a deadly weapon; four, that the defendant was an accomplice of Jason Ash; and five, that the defendant acted purposely.
In State v. White, 98 N.J. 122 (1984), the Court was faced with the question of whether an accomplice, not holding a weapon, can be found guilty of an armed Graves Act offense. The Court noted that "[b]y definition an accomplice must be a person who acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice." Id. at 129. The Court pointed out that "[f]or both the accomplice and his partner to be guilty, 'it is essential
that they shared in the intent which is the crime's basic element
. . . .'" Ibid. (quoting State v. Fair,
45 N.J. 77, 95 (1965)).
The Court further stated:
An accomplice may be guilty of armed
robbery even though he did not personally
possess or use the firearm in the course of
the commission of the robbery. The
accomplice has committed the same crime as
the individual who possessed or used the gun
if the accomplice had the purpose to promote
or facilitate that crime, namely, robbery
with the use of a firearm. . . . One is the
alter ego of the other.
[Id. at 130.]
The Court also noted that "[i]t is possible for an
accomplice to be guilty of robbery and for his compatriot to be
guilty of armed robbery." Id. at 131. In that respect, the
Court stated:
[I]f the accomplice, though found guilty only
of robbery, knew or had reason to know before
the crime was committed that his partner
would possess or use a firearm while the
crime was being committed, or during the
immediate flight thereafter, the trial court
should apply the Graves Act. If the
accomplice did not know or have reason to
know beforehand that his partner would
possess or use a firearm during those
periods, then the Graves Act would be
inapplicable. The deterrent effect--the
raison d'etre--of the Graves Act is
preserved.
[Ibid.]
These principles were thereafter applied in State v. Weeks,
107 N.J. 396 (1987). In Weeks, there was abundant evidence that
the defendant was guilty of robbery based on the defendant's
serving as a "wheel man" in an armed robbery of a bakery. The
Court stated that "what we find troubling is the fact that the
jury may not have known that an essential element of the
accomplice liability charged is that the accomplice share the
purpose to commit an armed robbery." Id. at 405. The Court
noted that the trial court's instruction "did not clearly require
the jury to find that defendant had shared the purpose to commit
a robbery with a weapon." Ibid. The Court concluded that the
erroneous instruction, along with other trial court errors,
required reversal of defendant's conviction. Id. at 409. Accord
State v. Bielkiewicz,
267 N.J. Super. 520, 527 (App. Div. 1993);
State v. Hammock,
214 N.J. Super. 320, 322 (App. Div. 1986).
Here, each impropriety in the jury charge constitutes plain
error, and each omission, independent of the other, requires a
reversal of defendant's conviction because each omission was
plain error. See R. 2:10-2; see also State v. Martin,
119 N.J. 2, 15 (1990).
Because of the series of errors we have discussed, we do not find it necessary to consider points five through nine, raised in defendant's brief on appeal.
We do note, however, as to point five, that N.J.R.E. 607 states that:
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 . . . .
[Ibid.]
In State v. Martini,
131 N.J. 176, 255 (1993), cert.
denied. U.S. ,
116 S. Ct. 203,
133 L. Ed.2d 137 (1993),
the Supreme Court stated:
That the credibility of a witness may be
impeached on cross-examination is well
settled. The scope of cross-examination is a
matter resting in the broad discretion of the
trial court.
Cross-examination relating to a
witness's credibility need not be based on
evidence adduced at trial.
[Ibid. (citations omitted).]
"A party may introduce extrinsic evidence relevant to
credibility, whether or not that extrinsic evidence bears upon
the subject matter of the action." State v. Johnson,
216 N.J.
Super. 588, 603 (App. Div. 1987).
In this case, it was the defendant's counsel who raised the
employment issue on direct examination and elicited the testimony
that defendant earned between $500 and $600 a week in an apparent
effort to demonstrate that the defendant did not have a financial
motive for the crime. The State's cross-examination rebutted
this point and was designed to affect the credibility of the
defendant. It was not designed to prove that the defendant was
indigent and more likely to commit the crime.See footnote 3
Point six addresses allegations of prosecutorial misconduct. We see no useful purpose to parse the record and discuss each particular claim of prosecutorial misconduct. We are satisfied that, prior to the retrial of this matter, the prosecutor will read both the entire record of this trial and defendant's brief as filed with this court and will thus be made aware of defendant's particular criticisms. We presume that the prosecutor assigned to the State's case will adhere to the principles enunciated in State v. Ramseur, 106 N.J. 123 (1987),
cert. denied,
508 U.S. 947,
113 S. Ct. 2433,
124 L. Ed.2d 653
(1993), the cases cited therein, and Canon 5 of the Canons of
Professional Ethics which provides that "[t]he primary duty of a
lawyer engaged in public prosecution is not to convict, but to
see that justice is done." See also State v. Farrell,
61 N.J. 99, 104-05 (1972) (citing Berger v. United States,
295 U.S. 78,
88,
55 S. Ct. 629, 633,
79 L. Ed. 1314, 1321 (1935)).
Additionally, defendant's contention that he was provided
ineffective assistance of counsel (point seven), that the trial
judge erred when he imposed sentence without first conducting a
separate hearing as to the applicability of the Graves Act (point
eight), and that the sentence actually imposed was excessive
(point nine), are rendered moot by our decision.
Reversed and remanded for a new trial.
Footnote: 1 It was error to merge count five into count one. A
conviction for unlawful possession of a handgun should not merge
with robbery while armed with the same gun. See, e.g., State v.
Cooper,
211 N.J. Super. 1, 22 (App. Div. 1986); State v.
Anderson,
198 N.J. Super. 340, 359 (App. Div.), certif. denied,
101 N.J. 285 (1985).
Footnote: 2 The victim contended that defendant fled the market
first. Defendant testified that Ash fled the market and that he
followed Ash.
Footnote: 3 Although the cross-examination was designed to affect
defendant's credibility, we do not wish to imply that the actual
questions asked were proper. They were not.
In defendant's case, defendant testified on direct
examination that at the time of the robbery he was employed and
earning approximately $500 to $600 per week. On cross-examination, the prosecutor introduced into evidence a report
prepared by the detective who interviewed defendant. The
prosecutor asked defendant to read the report. The following
colloquy ensued:
Q. Okay, so you would agree that you
told the police that you are unemployed at
that time, would you not?
A. No, I wouldn't.
Q. So when this document that was a
docket report written by a detective in this
case indicates that you are were unemployed
at that time, that's inaccurate?
A. Are you asking me a question?
Q. I'm asking if this is inaccurate
information.
A. Yes, it is.
Defendant's counsel failed to object. This error should not
recur at defendant's retrial. We also note, that defendant has
not raised this point on appeal.