DYFS faulted in death of NJ toddler
Trenton, NJ- DYFS’s child welfare officials did not connect concerns of child abuse and of domestic violence. This in the case of a 2 year old whose father has been accused to tossing her to death while she was still in her car seat.
DYFS failed to see red flags leading to death of toddler allegedly left to die in stream
Child protection workers did not see indications that to others would be seen as red flags of child abuse and violence. Unfortunately a 2 year old child was allegedly killed by her father a new state report concludes. Authorities have charged Arthur Morgan III with murder.
Gregory Elk and Susan Vasikonis both of Laurel Avenue, were charged Saturday with murder and desecration of human remains in the death of Ocean Grove resident Eric Pagan.
The Burlington County Medical Examiner determined pagan died of blunt force trauma to the head. His body was found after fire officials responded to a brush fire 30 yards off a local roadway in Woodland Township, Burlington County.
Story is here.
I’ve cross examined a sitting judge before but never a prosecutor. In Ocean County, Judge Daniels has ruled that a State gang expert and the prosecutor for the first barbershop murder case can testify at the second trial. Normally, I would love to cross examine a prosecutor but knowing this prosecutor personally, I doubt that the defense is going to trip him up at all. All I have to say to the defense attorneys in this case is good luck.
James Russell, Jamell Scott, Lee Reeves and Trishawn Cochran, all reputed members of the Bloods street gang, will be on trial for the alleged murder of Athelma Vazquez and the attempted murders of her teenage daughter and her daughter’s boyfriend, Christian Vivar Granados. Granados was the state’s only witness to implicate Russell, Scott and a third man, Tyleek Baker of Manchester, in the murder of Jose Francisco Olivares.
Olivares shot and killed at the Man, Woman and Child barbershop in Lakewood on Feb. 7, 2006. Russell, Scott and Baker have already been convicted of his murder.
Story is here.
David T. Granskie Jr of Oak Street in Bridgewater, first interviewed as a witness in connection with the murder of Carol Stone has now been arrested as a witness. Authorities now allege that this was a plot between Granskie and the other two defendants to rape and kill Stone. One of the defendants, Gary Wilson allegedly confessed to police and indicated that, as I suspected, was drinking and using drugs for many hours prior to the attack. Again, all attorneys here need to move quickly to further establish the level of intoxication and then to present statements to the Prosecutor before the case is presented to the grand jury. The Prosecutor should then present the defense of intoxication to the grand jury. If they don’t, the defense has a great motion to dismiss the indictment.
Story is here.
This is a great case that I was kind of involved in as I represented one of the witnesses. In addition, I watched part of the trial. This really shows the importance of asking for a mistrial in New Jersey and making sure the record is clear.
SUPERIOR COURT OF NEW JERSEY
provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2. We reverse and remand for a new trial.
We discern the following facts and procedural history from
On October 29, 2004, at approximately 7:30 p.m., Dale Foat
was shot twice; once in the head and once in the chest. As a
result of the shooting, a portion of his left lung was removed.
On October 30, 2004, Foat identified Davis as the shooter
and Albert Snell as being involved in the shooting. After Foat
was arrested on unrelated drug charges in November 2004 and
released on bail, he recanted his identification, denying that
Davis had any involvement in the shooting. He subsequently
identified Snell as the shooter.
Davis was indicted on December 14, 2005, and charged with:
first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A.
2C:11-3(a)(1),(2) (count one); third-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5(b) (count two); second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a) (count three); and third-degree witness tampering, N.J.S.A.
2C:28-5(a) (count four). The fourth count related to
allegations that Davis had caused Foat to recant his original
identification of Davis as the shooter.
The trial commenced on July 18, 2006. There was no
forensic evidence tying Davis to the shooting and, as noted,
Foat had recanted his statement that Davis shot him. The State
presented testimony, including Foat’s recorded statement under
oath, that Davis shot Foat and that, when Foat was subsequently
arrested on unrelated drug charges, Davis arranged for his bail
to be posted in exchange for Foat recanting his story and
implicating Snell in the shooting. The State called Foat and
his bail bondsmen, Robert Ellison, as witnesses at trial, but
neither witness implicated Davis in the shooting or supported
the State’s theory of his involvement in the posting of Foat’s
Foat had initially refused to appear as a witness at all,
and it was suggested by the State that it would seek to have his
sworn statement introduced pursuant to N.J.R.E. 804(a)(2) and
1 Ultimately, Foat did appear as a witness, repudiated
not supplied to us, known as a Gross hearing, see State v.
Gross, 121 N.J. 1, 17 (1990), to determine whether the prior
sworn statement was reliable and could be introduced
substantively into evidence if the witness later recanted the
There had been a prior proceeding, a transcript of which wasA-3799-06T4
his earlier statement to the effect that he was shot by Davis,
and testified that Snell shot him. The audiotape of the
statement implicating Davis was played for the jury pursuant to
N.J.R.E. 613 and 803(a).
Prior to the indictment against Davis, Ellison had given
the police a sworn statement to the effect that he was
approached by Davis, whom he knew as “Love,” and asked how much
cash would be required to obtain a $50,000 bail bond, but
without mentioning Foat. He told “Love” that it would cost
$2,500. Shortly thereafter, Foat’s relatives came to Ellison’s
office with $2,500 and arranged for the bail bond. Just before
the start of the trial, however, Ellison also recanted his
identification of Davis as the “Love” involved with Foat’s bail,
contending that it had been someone else whom he also knew as
During his direct examination, the prosecutor asked Ellison
if he was providing Davis with favorable testimony because he
feared Davis’s “reprisals.” Ellison responded, “I fear no man.”
The prosecutor then approached a muscular man wearing a tank top
in the audience and asked, “Even a guy with biceps this big?”
Defense counsel objected and requested a mistrial.
statement during his testimony. See also State v. Byrd
N.J. ____ (2009).
Counsel then went to sidebar, where the following
discussion took place:
[Defense Counsel]: Your Honor, this is
the second time that he insinuated that my
guy is behind — first, the first objection
I made was when Dale Foat was on the stand
and he said Dale Foat is getting pressured
by inmates in the jail so that he won’t
testify against Ronnel Davis.
He just, just so the record reflects,
he just walked over to a gentleman that’s in
the courtroom, has somewhat of a tank top
type of shirt or a shirt with the sleeves
cut off and just so happens to have big
arms. He walked, the prosecutor just walked
over to this individual, stood by this
individual while the witness Robert Ellison
is testifying and insinuated,  we cannot
sugar coat this, that my client has this
individual in the courtroom, in the
courtroom as a sign of force or some threat
to this particular witness.
The, the prosecutor has asked the
witness on the stand does he know any
individuals in the courtroom. Then he walks
over to an individual and says not even
this, not even an individual with arms this
I’m moving for a mistrial at this
particular point. I think the State has
clearly violated the rules of evidence, has
prejudiced my client, that none of it has
anything to do with the charges, what he’s
charged with in the indictment.
And, your Honor, furthermore, the State
is adding things that’s not even in evidence
into this case. And what I mean by not in
evidence, I mean he’s bringing in stuff that
there is no reports on, an individual
sitting in the courtroom. The courtroom is
open to everyone. It’s a public courtroom.
THE COURT: Let me ask, [prosecutor],
do you know who this person is?
[Prosecutor]: Judge, all I know is
your sheriff’s officer has gone to another
person who is currently in this courtroom to
tell him not to be staring at witnesses, and
we can lay a foundation if you want and put
that on the record. I know Officer Eckel
told you that happened earlier.
There are a lot of people in this
courtroom in the back staring at all the
witnesses as they come in, and this one
particular individual [has been] here since
the morning. He [stated he] was here under
oath for Ronnel Davis. Nobody understood
what he meant by that, but that’s what he
said. And he’s a big man. He seems to be a
weight lifter type because his arms are
large and he appears to have a negative
influence on all the witnesses here because
in my view from what I’m seeing, and I’m not
staring at these people because, of course,
they’re behind me and I’m focusing on the
witnesses, but it appears they’re trying to
intimidate the witnesses.
I’m not saying Mr. Davis is behind
that. It might very well be that Mr.
Ellison is afraid to be labeled a rat and
there are people on the street who are
coming in here to make sure he doesn’t
testify against one of their own so-tospeak.
[Defense Counsel]: Your Honor —
[Prosecutor]: And, also, one other
thing that I want to put on this record. I
didn’t ask the court to do this, but the
court sealed this courtroom this morning
when Mr. Foat was on the stand and the
windows were covered with paper so that no
one could look inside the courtroom and the
doors were locked.
Now, I discovered that well into Mr.
Foat’s testimony, and I assume the court did
that because of security problems that are
attending to this trial. And I’ll remind
your Honor what — the court what your Honor
said at the very beginning. There is
something very unusual and suspicious of how
people are changing their story and not
complying with subpoenas and making all
these la[st] minute provisions to —
revision to their previous statements prior
to trial. Your Honor did say something to
[Defense Counsel]: Your Honor, that
was at a hearing . . . that your Honor
conducted, and that is not a part of this
case. And there’s a serious miscarriage of
justice that’s being carried out through
this trial, your Honor.
Oh, my God, I mean I can’t believe it.
I mean the State has said that this witness
has been looking — we just opened the
courtroom back up just now. . . . This is
the only witness, and for him to say that
these people are looking at witnesses is
crazy, as if to give a sense of threat.
This man is entitled to a fair trial.
His family can, if he wants to put each one
of the family members on the stand, this is
his family, and they’re entitled to attend a
[Prosecutor]: Are you suggesting,
counsel, the person with the biceps is a
[Defense Counsel]: No, I’m not.
[Prosecutor]: Okay, so that’s clear.
[Defense Counsel]: No. And just so
you understand —
THE COURT: Look, let me get to the
heart of this. First of all, I don’t
remember whether it was that individual
because I just don’t remember the face, but
at nine o’clock this morning or shortly
thereafter, an individual came into the
courtroom whose name was mentioned by
Officer Eckel as Davila.
[Prosecutor]: Same person, your Honor.
THE COURT:  That individual was
making hand signals and said in open court
that he was here for Ronnell Davis. Officer
Eckel asked him to leave the courtroom and
directed him, at which point the man was
staring through the window. Officer Eckel
went out into the hall, asked the man to
step away from the window and stay away from
the back entrance to the courtroom. Officer
Eckel then placed white paper over the
I don’t know who that person is in the
back, but that individual that was in the
courtroom came back and sat on the other
side of the courtroom. Again, but I don’t
think that it’s reasonable to draw any
inferences regarding this particular
witness. I don’t know if he knows this
person. So I’m going to strike that
question, and I will direct the State not to
ask questions if that witness or any other
witness threatened him in open court in
front of the jury, and the motion for a
mistrial is denied.
[Defense Counsel]: Your Honor, just so
the damage is done, I just want the record
to reflect that, your Honor, my client and I
asked the court sheriff’s officers to keep
that individual out of the courtroom because
we thought that was quite bizarre this
morning the way that he walked in here. And
for the State to go and use him, your Honor,
I’m going to ask for a recess at this
particular point because I am baffled at the
approach that the prosecutor — the damage
is done, your Honor. I don’t think that
there [is a] curative instruction for what
the State has done in this case, and I’m
asking the court for a recess and that we
convene in a few minutes.
[Prosecutor]: Let me just be very
clear about this. There can be no basis for
a mistrial. All [I] asked [was] if the
witness is intimidated by a man with big
biceps sitting in the back. I never said
there was a connection to the defendant.
Counsel thought the spectator’s behavior was
bizarre this morning.
We heard from Detective Smith that
people are reluctant to testify in the city
of New Brunswick because of fear of
THE COURT: [Prosecutor], I don’t want
to bring up the fact that a person is in the
back of the room and clearly refer to him as
being a source of intimidation to a witness.
A lot of people could draw a lot of
conclusions which are not appropriate.
The trial judge denied the application for a mistrial and
instructed the jury to disregard the prosecutor’s question. He
further instructed them that:
There is no reason to believe that anyone in
this courtroom has done anything with regard
to this witness. This witness said he
doesn’t know who is the person in the
courtroom and, therefore, it is totally
outside the scope of this trial and it
should be disregarded by the jury.
During summation, despite the judge’s admonition during the
side-bar conference quoted above, the prosecutor again
referenced the muscular man in the audience in connection with
the possible intimidation of Ellison. Defense counsel objected
and again moved for a mistrial.
Here in this courtroom when I asked
Robert Ellison are you afraid of reprisal,
he said I’m not afraid of anyone. And then
that’s when I stood back here next to a guy
who came into this courtroom —
[Defense Counsel]: Objection, your
[Prosecutor]: –in a muscle tee shirt.
THE COURT: Excuse me, [Prosecutor],
I’ve excluded that.
[Prosecutor]: Judge, it’s part of the
[Defense Counsel]: No, and that was
stricken testimony, your Honor.
THE COURT: Side bar.
(The following is heard at side bar:)
[Defense Counsel]: Your Honor, I am
moving for a mistrial. Clearly we objected
to that when the State did it at the time.
The court instructed the jury to disregard
it. It wasn’t placed into evidence. The
State again has done that, your Honor, and
he’s making references to something that
your Honor specifically instructed the jury
I think that is highly prejudicial to
my client, your Honor, and I don’t think he
can get a fair trial at this time because,
you know, the State, what the State just
did, he has simply disregarded a ruling of
the court and he has made reference to —
strike that. But he has done this, your
Honor, and that, I have to submit to the
court, that is clearly prejudicial to my
client, and there’s no way my client can get
a fair trial.
THE COURT: I did exclude that.
[Prosecutor]: Judge, I didn’t recall
you excluded that.
THE COURT: And I instructed the jury
not to take that into account. I do know
that particular person was making signs when
the witness [Foat] was on the stand, and I
excused the jury and excluded him from the
courtroom. So perhaps there was a mix-up.
[Prosecutor]: Judge, I totally do not
recall the court excluding the exchange I
had with the witness, but I accept it and I
will stay away from it.
[Defense Counsel]: Well, your Honor.
[Prosecutor]: The subject with the man
with the biceps.
[Defense Counsel]: I’m going to ask
the court to instruct the jury to totally
disregard the comment by the prosecutor,
that, that at the time that that was done it
was stricken by the court and the jury was
instructed to disregard that.
Just so they understand that they can
in no way, and I know your Honor is going to
tell them that nothing we say is considered
to be evidence, but just so the record is
clear that they understand that they can in
no way consider that comment by the
[Prosecutor]: Judge, maybe you’re
going to want to think about that. I don’t
know if counsel wants you to highlight it.
I don’t know if you want the instruction
[Defense Counsel]: Certainly I want it
done right now. It was just done.
THE COURT: I will caution the jury.
The trial judge again instructed the jury to disregard what the
prosecutor had said.
On July 27, 2006, the jury returned a guilty verdict on the
first three counts, but found Davis not guilty as to count four,
the witness tampering charge.
On August 1, 2006, the assistant prosecutor who tried the
case wrote to the trial judge and defense counsel, outlining
potential misconduct by Juror #3 during Davis’s trial. During
voir dire, Juror #3 had remained silent when asked if she knew
any law enforcement personnel. The assistant prosecutor had
just learned that Juror #3 was a paralegal who had worked with
another assistant prosecutor when he was in private practice.
According to the August 1 letter, that assistant prosecutor
told the trial prosecutor that his relationship with the juror
was purely “professional” and they had no contact “outside the
office on either a social or personal basis.” However, during
Davis’s trial, on July 25, 2006, Juror #3 visited the
Prosecutor’s Office and asked to see her former co-worker. When
told he was not in the office at the time, she left him a note
which read: “I came to visit you. I thought you didn’t eat
lunch. I’m on jury duty across the street. Sorry I missed
The assistant prosecutor attempted to call Juror #3 at work
on July 26, 2006, but was advised that she was still on jury
duty. He called her again at work on July 28, 2006, and was
able to speak with her. She told him that “she had been a juror
on a criminal case, and that the case resulted in a guilty
verdict. [Juror #3] asked [the assistant prosecutor] what the
sentence was for attempted murder, and he replied that he would
have to check and would let her know.”
On July 31, 2006, the assistant prosecutor informed the
trial prosecutor that he knew one of the jurors at Davis’s
trial. The trial prosecutor “realized that [Juror #3] had not
disclosed during voir dire her former working relationship with
[his colleague]. [He] instructed [his colleague] to have no
further contact with [Juror #3].” He asserted in his August 1
letter that Juror #3’s conduct and acquaintance with the other
assistant prosecutor did not affect “her ability to function as
a fair and impartial juror.”
Davis moved for a new trial based on both juror and
prosecutorial misconduct. It appears from the record that the
juror in question was not questioned by the trial court as to
why she did not identify the assistant prosecutor as someone she
knew or why she tried to visit him during the trial. Oral
arguments were heard on the motion January 17, 2007. The trial
judge denied Davis’s motion and proceeded to sentencing.
The judge granted the State’s motion for an extended term
under N.J.S.A. 2C:44-3(a) and found aggravating factors three,
six, and nine and no mitigating factors. N.J.S.A. 2C:44-1.
Davis was sentenced to a term of twenty-five years of
imprisonment, subject to NERA for count one; a concurrent fouryear
term for count two; and a concurrent seven-year term for
count three, as well as applicable fines.
This appeal followed. Davis moved before this court on
March 12, 2009, to file a pro se supplemental brief. We denied
the motion on March 20, 2009.
drawn to our attention that the trial court should have merged
counts two and three into count one. See State v. Diaz, 144
N.J. 628, 636 (1996).
Although not raised by defense counsel on appeal, the State hasA-3799-06T4
The following issues were raised in Davis’s original brief
to this court:
THE DEFENDANT RONNELL DAVIS WAS DENIED A
FAIR TRIAL BECAUSE JUROR #3 DID NOT DISCLOSE
HER RELATIONSHIP WITH AN ASSISTANCE
THE PROSECUTOR’S COMMENTS WERE SO
PREJUDICIAL THAT THEY REQUIRE A REVERSAL.
In Point I, Davis argues that he was denied a fair trial
because Juror #3 failed to disclose her relationship with the
assistant prosecutor and then visited the Prosecutor’s Office
during his trial. We agree that the juror’s conduct raises
serious concerns as to the impartiality of the jury at Davis’s
Where a juror on voir dire fails to
disclose potentially prejudicial material,
such as that involved in this case, a party
may be regarded as having been denied [a]
fair trial. This is not necessarily because
of any actual or provable prejudice to his
case attributable to such juror, but rather
because of his loss, by reason of that
failure of disclosure, of the opportunity to
have excused the juror by appropriate
challenge, thus assuring with maximum
possible certainty that he be judged fairly
by an impartial jury.
[State v. Cooper, 151 N.J. 326, 349 (1997),
cert. denied, 528 U.S. 1084, 120 S. Ct. 809,
145 L. Ed. 2d 681 (2000) (quoting In re
Kozlov, 79 N.J. 232, 239 (1979)).]
However, “[a]bsent an affirmative showing that a litigant would
have exercised a peremptory challenge to exclude a juror, the
voir dire omission is harmless.” Id. at 350.
Davis argues that he “would have absolutely exercised one
of his peremptory challenges in removing Juror #3.” At the
motion hearing, the trial judge disagreed with that argument,
observing that Davis failed to exercise his peremptory
challenges with other jurors who had a connection to law
enforcement. The trial judge noted that Davis did not use
peremptory challenges against: (1) Juror #2, whose good friend
was a State Trooper; (2) Juror #6, who knew one police officer;
(3) Juror #9, whose cousin is a State Trooper; (4) Juror #11,
whose mother’s friend is a police officer; and (5) Juror #14,
whose sister-in-law’s brother is a police officer.
The trial judge did note, however, that Davis used a
peremptory challenge against Juror #10, who was the cousin of
the First Assistant Prosecutor. The trial judge dismissed the
importance of this challenge by noting that: “Anyone who’s a
relative of a high ranking Assistant Prosecutor would, I’m sure,
have been challenged by any qualified defense attorney.”
We recognize that Davis has not made a clear affirmative
showing that he would have used a peremptory challenge against
Juror #3. Nevertheless, while Davis did not use a peremptory
challenge against all potential jurors who had either tenuous or
more significant relationships with law enforcement, Davis did
use a peremptory challenge against the only individual who
identified herself as a relative or friend of an employee of the
In State v. Thompson, 142 N.J. Super. 274 (App. Div. 1976),
we reversed defendant’s conviction and remanded for a new trial
under similar circumstances, largely because there was no voir
dire of the juror so that the trial judge could assess the
situation with a full record. In Thompson, a juror failed to
disclose that he worked as a corrections officer when directly
asked if he was currently, or ever, employed in law enforcement.
Id. at 278-79. “The trial judge, in denying a new trial, based
his determination on a finding that the juror’s failure to
respond to the question in light of his employment and current
participation as a juvenile counselor was probably the result of
misunderstanding or inadvertence.” Id. at 279 (emphasis added).
The trial judge found that the lack of “deliberate deception”
eliminated any possibility of juror bias. Ibid.
In the present case, Juror #3’s omission was not as blatant
as that of the juror in Thompson, in that she herself had not
worked for law enforcement but was acquainted with someone who
did. However, the trial judge in this case reached factual
conclusions similar to those of the judge in Thompson, without a
voir dire of the juror. In denying the motion for a new trial,
the trial judge stated:
[U]nder the circumstances of this case I
don’t believe that [Juror #3]’s answer was
inaccurate in any way or misinformed the
Court or misled anyone in any way. I don’t
believe that either she considered herself a
friend of [the assistant prosecutor] or even
if she were a friend, that he was
encompassed in law enforcement. That’s
usually considered to be policemen or the
like, State Troopers.
We find it difficult to understand how the juror could have
considered the assistant prosecutor not to be a “friend” when
she made an effort to visit him during the trial. Because the
juror was never questioned, the record sheds no light on that
In both Thompson and the present case, these conclusions
were reached without questioning any member of the jury.
Manifestly, a finding either way on any
of these fact issues could only be made
after a full inquiry of not only the
affected juror but all the members of the
jury panel. . . . In any event, the judge
proceeded without an evidentiary hearing to
make the negative findings outlined above .
. . .
See also State v. Scherzer, 301 N.J. Super. 363, 488 (App.
Div.), certif. denied, 151 N.J. 466 (1997) (“Although the trial
judge has discretion in the way to investigate allegations of
jury misconduct, an adequate inquiry on the record is necessary
for the purposes of appellate review.”).
Compounding the potential prejudice resulting from the
omission during voir dire is Juror #3’s disregard for the trial
judge’s instructions. During his preliminary instructions to
the jury, the trial judge stated:
[D]uring the trial you’re not to speak or
associate with the attorneys, the witnesses
or the defendant, Mr. Davis, nor are they
permitted to speak or associate with you.
This should not be taken as rudeness but as
a way to ensure fairness to both sides. . .
I can’t monitor you about not speaking
to anyone about the case or reading any
reports. I leave it to your fairness, your
judgment and your faith to your oath as
Juror #3 disregarded this instruction and visited the
Prosecutor’s Office in an attempt to speak to the assistant
prosecutor who was her former co-worker. While he was not
assigned to Davis’s case and she was initially unsuccessful in
contacting him, her actions nonetheless create a strong
appearance of impropriety.
We will not overturn the discretionary decision of a trial
court unless a clear abuse of discretion is shown. State v.
Levitt, 36 N.J. 266, 272 (1961) (“Motions for a new trial are
addressed to the sound discretion of the court; and the exercise
of the discretion will not be interfered with on appeal unless
a clear abuse of it is shown.” (internal quotation marks and
citation omitted)). Because the trial judge failed to engage in
any type of fact-finding process as to the reasons, if any,
behind Juror #3’s initial failure to identify the assistant
prosecutor during voir dire, especially in light of her
subsequent decision to make a visit to him during the trial, and
any bias resulting from her connection with the Prosecutor’s
Office, we conclude that those unexplained events cast serious
doubt on whether Davis was afforded his “fundamental right of
trial by a fair and impartial jury.” Thompson, supra, 142 N.J.
at 281 (quoting Wright v. Bernstein, 23 N.J. 284, 294 (1957)).
We need not decide whether the issues related to Juror #3,
“standing alone,” would call for reversal because we consider it
along with Davis’s second argument discussed below. In the
“aggregate,” we conclude that the two together “clearly deprived
the defendant of the type of trial upon which our system of
criminal justice soundly insists
125, 134 (1954).
In Point II, Davis challenges the statements made by the
prosecutor, both during his questioning of Ellison and in his
summation, that someone in the courtroom was seeking to
intimidate Ellison. The State argues that no harm was done
because the jury was instructed to disregard the prosecutor’s
statements and that there was ample evidence, presented to the
trial judge at sidebar, that someone was attempting to
intimidate Ellison. We also note that Davis was, in fact,
acquitted of the tampering count.
During his direct examination of Ellison, the prosecutor
walked into the public seating area of the courtroom and clearly
implied that a muscular man wearing a tank top who was seated
there was intimidating Ellison. Upon Davis’s request for a
mistrial, the trial judge instructed the jury to disregard the
prosecutor’s statements. He also directed the prosecutor “not
to ask questions if that witness or any other witness threatened
him in open court in front of the jury.” During summation,
however, the prosecutor, who claimed not to have remembered that
the issue had been excluded, again suggested that Ellison was
being intimidated by the muscular man in the gallery. Davis
.” State v. Orecchio, 16 N.J.A-3799-06T4
again moved for a mistrial, which was denied. The trial judge
again instructed the jury to disregard the prosecutor’s
We find that the statements of the prosecutor were the
equivalent of testimony that the muscular man was, in fact,
intimidating Ellison. See State v. Farrell, 61 N.J. 99, 102-03
(1972) (“These comments were the equivalent of testimony by the
prosecutor that the defendant had procured the presence of these
men for the purpose of intimidating a State witness and
therefore was a party in an attempt to obstruct justice.”).
“[A] prosecutor’s closing argument must be limited to the
facts in evidence and inferences reasonably to be drawn
therefrom.” State v. Bey, 129 N.J. 557, 620 (1992). There was
nothing presented in the record to suggest that the muscular man
in the audience was in any way connected to Davis or
intimidating Ellison. At sidebar, it was revealed that, when
the man came into the courtroom earlier in the day, he stated to
procedure when individuals in the audience are suspected of
being in court for inappropriate reasons “would be to bring the
matter to the court’s attention.” 61 N.J. at 102 n.1. This
procedure was apparently followed when Foat was testifying
during the morning session on July 19, 2006, and the individual
was removed from the courtroom. However, he returned for the
afternoon session during which Ellison testified, but was not
removed at that time. He was never questioned under oath as to
the nature of his actions.
The Supreme Court recognized in Farrell, supra, that the properA-3799-06T4
a sheriff’s officer that he was there “under oath for Ronnell
Davis.” However, Ellison testified that he did not recognize
anyone in the courtroom and that he “fear[ed] no man.”
To determine whether prosecutorial misconduct in summation
warrants reversal, we must assess whether the misconduct “was so
egregious that it deprived the defendant of a fair trial.”
State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In
making this assessment, we must consider “the tenor of the trial
and the responsiveness of counsel and the court to the
improprieties when they occurred.” State v. Timmendequas, 161
N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S.
858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The prosecution’s
duty to achieve justice does not forbid a prosecutor from
presenting the State’s case in a “vigorous and forceful” manner.
State v. Ramseur, 106 N.J. 123, 320 (1987) (citation omitted).
Indeed, the Supreme Court has recognized that “criminal trials
create a ‘charged atmosphere . . . [that] frequently makes it
arduous for the prosecuting attorney to stay within the orbit of
strict propriety.'” Ibid. (quoting State v. Bucanis, 26 N.J.
45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d
In the present case, the prosecutor not only provided
inappropriate testimony during Ellison’s direct examination, but
again made similar statements during summation despite an
admonition from the trial judge following his initial
impropriety. While the trial judge did provide a curative
instruction following both missteps by the prosecutor,
considering the record as a whole, including the issues raised
with respect to Juror #3, this simply was not sufficient to
remedy the error.
There was no forensic evidence presented to incriminate
Davis. The State’s entire case rested on the prior statements
of Foat and Ellison, and the theory that neither of them would
testify truthfully because they feared reprisal by Davis or
someone else. Because the case depended almost entirely on
whether the jury believed the State’s intimidation theory, we
“conclude that the inappropriate comments made by the prosecutor
could have improperly swayed the jury and denied defendant a
fair trial.” State v. Smith, 167 N.J. 158, 188 (2001) (“Because
defendant’s guilt or innocence depended on whether the jury
believed the  witnesses, the prosecutor’s comments clearly
were capable of having an unfair impact on the jury’s
deliberations, thereby depriving defendant of a fair trial.”).
In conclusion, we find that, taken in the aggregate, the
errors discussed above deprived Davis of his fundamental right
to a fair trial. Orecchio, supra, 16 N.J. at 134.
Consequently, we reverse Davis’s conviction and remand the
matter for a new trial on counts one through three.
Reversed and remanded.
DOCKET NO. A-3799-06T4
STATE OF NEW JERSEY,
Submitted March 11, 2009 – Decided
Before Judges Rodríguez and Waugh.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
Defendant Ronnell Davis appeals his conviction for
attempted murder, unlawful possession of a weapon, and
possession of a weapon for an unlawful purpose. Davis was
sentenced to imprisonment for an aggregate of twenty-five years,
subject to the eight-five percent parole ineligibility
May 26, 2009
Two Bridgewater men, Gary W. Wilson and Rocky M. Ditaranto are both charged with first-degree murder in the alleged slaying of Carolyn M. Stone after a party at her house. Police allege that the men strangled Stone in the her yard early Sunday morning, striking her in the head with a cinder block before running for their respective, nearby homes.
There are no details yet as to how police were able to figure all of this out. So, there may have been witnesses or one of the men confessed or both. Regardless, self defense seems unlikely so the only defense that seems plausible here is intoxication. Of course, both men need good attorneys now to start trial prep today and not a year from now.
Story is here.
I always like these old cases from a defense stand point. Although there is no explanation as to why Phillip E. Wylie, 34, of Washington Avenue, Asbury Park; Cedric O. Smith, 37, of Jackson Street, Freehold; Sean D. Harris, 36, of Asbury Park Village, Asbury Park; Darren K. Sims, 32, of Boston Way Village, Asbury Park; Alphonso T. Edwards, 31, New Street, Asbury Park; Antonio E. Grant, 30, of Third Avenue, Asbury Park and a seventh defendant were charged 12 years after the death of Andre Williams of Asbury Park it certainly seems interesting. There are going to be many witnesses that forget what they saw and heard which is great from the defense side.
Whether or not this was a murder was unknown until 2006 when Monmouth County detectives developed some new information. The investigation picked up and something led authorities to charge seven people in the alleged slaying. As always, with seven people you have to be careful that someone is going flip if that hasn’t happened already. One person flipping is easy to deal with but three or four can be tough. Otherwise, the State will need some great evidence to put together a murder case that will be probably 15 years old by the time it actually gets to trial.
Story is here.
STATE OF NEW JERSEY,
SAMUEL SPARKS AKA “MOET,”
April 20, 2009
Argued March 10, 2009 – Decided
Before Judges Winkelstein, Fuentes and Chambers.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 04-02-0165-I.
Ronald C. Appleby, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Appleby, on the brief).
Christopher W. Hsieh, Senior Assistant Prosecutor, argued the cause for respondent (James F. Avigliano, Passaic County Prosecutor, attorney; Mr. Hsieh, of counsel and on the brief).
A jury convicted defendant, Samuel Sparks, of first-degree conspiracy to commit murder and second-degree aggravated assault. Following the verdict, the trial court set aside defendant’s conspiracy conviction. The court sentenced defendant to a twenty-year prison term, with an eighty-five percent period of parole ineligibility.
On appeal, defendant raises the following legal arguments:
POINT I: THE CONVICTIONS SHOULD BE REVERSED BECAUSE THE MOTION TO SEVER THE CRIMES REGARDING THE TWO INCIDENTS SHOULD HAVE BEEN GRANTED, AND FAILURE TO DO SO PREJUDICED DEFENDANT’S RIGHT TO A FAIR TRIAL.
POINT II: THE STATE SHOULD NOT HAVE BEEN PERMITTED TO MAKE GANG REFERENCES OVER DEFENSE OBJECTION, AND THESE REFERENCES PREJUDICED DEFENDANT.
POINT III: THE PHONE CONVERSATION BETWEEN DEFENDANT AND HECTOR ACEVEDO SHOULD NOT HAVE BEEN ADMITTED, AND PROSECUTOR SHOULD NEVER HAVE SUBSTANTIVELY USED  ACEVEDO’S STATEMENT IN THAT CONVERSATION.
POINT IV: THE PROSECUTOR’S DELIBERATE REFERENCE TO DEFENDANT’S ALLEGED DRUG POSSESSION DENIED HIM A FAIR TRIAL.
POINT V: REFERENCES TO DEFENDANT BEING AN INFORMANT AND BEING FAMILIAR WITH POLICE OFFICERS DEPRIVED HIM OF HIS RIGHT TO A FAIR TRIAL.
POINT VI: THE STATE IMPROPERLY NEUTRALIZED ITS OWN WITNESS ON DIRECT EXAMINATION, BRINGING IN A PRIOR STATEMENT BEFORE ALLOWING THE WITNESS TO TESTIFY TO HER RECOLLECTION.
POINT VII: REFERRENCE TO THE CO-CONSPIRATOR’S PRIOR ARRESTS PREJUDICED DEFENDANT.
POINT VIII: INSTANCES OF PROSECUTORIAL MISCONDUCT CUMULATIVELY DENIED DEFENDANT’S RIGHT TO A FAIR TRIAL.
POINT IX: DEFENDANT’S SENTENCE TO THE MAXIMUM TERM UNDER THE PERMISSIVE EXTENDED TERM WAS EXCESSIVE.
Primarily because we find merit to his argument that the State’s numerous gang references precluded him from receiving a fair trial, we reverse defendant’s conviction.
In the early morning hours of August 4, 2003, Darby Alston was asleep in bed with his fiancée, Kinusha Davis, in his apartment at 324 Market Street in Paterson. Davis woke up to the sound of gunshots around 2:30 a.m. and saw someone standing over her with a gun. Alston had been shot. Davis described the shooter as wearing black jeans, a long black coat and black hat, with a red bandana hanging from his waist. She estimated him to be approximately five-foot-six to five-foot-seven. She was unable to identify him because his face was covered.
Gregory Myers, who lived nearby, was home during those early morning hours and saw a man wearing a hoodie walk into 324 Market Street. About ten to fifteen seconds later, Myers heard three or four gunshots and then saw the man in the hoodie leave the building. He described the man as approximately five-foot-ten to five-foot-eleven, wearing a red bandana across his face.
Richard Edmonds was on Market Street selling drugs at the time of the shooting. He saw a black man with a stocky build and wearing a black hoodie and a red bandana across his face walking toward Alston’s building “like [he was] angry.” About two minutes after the man entered the building, Edmonds heard a bang, followed by three successive shots. Moments later, he saw the man leave. Edmonds described the man as five-foot-ten to five-foot-eleven. He stated that the man’s build, walk and dark skin tone resembled Gerald Johnson, also known as “Black.” He explained that Johnson has a distinctive walk, and the man in the black hoodie had the same walk, but faster and more aggressive.
Johnson and defendant were friends. There had been more than one altercation between them and Alston in the days preceding Alston’s murder.
Pamela Drakeford testified that in the summer of 2003, she accompanied defendant and his girlfriend, Jackie, to 324 Market Street to get tattoos, where an altercation broke out between defendant and Alston. Alston had told defendant that his friend Johnson was a “dead man walking,” at which point defendant ran out and “[got] some of his boys,” including Johnson. When they returned, Alston had a baseball bat and another man, identified as Richard Edmonds, had a handgun. A fight ensued, during which Alston swung a baseball bat at Johnson. According to a witness, Alston “knocked [defendant and Johnson] out, and it was over.” Although Drakeford could not remember the date of the incident, defendant later told the police that the fight occurred on July 31, 2003.
Kinusha Davis witnessed a fight over drug territory between Alston, defendant and Johnson several days before Alston’s murder. She stated that after defendant and Johnson told Alston to leave the area, Alston punched defendant.
Defendant’s conviction for second-degree aggravated assault arose out of a drive-by shooting that occurred shortly after the altercation on July 31, 2003, and several days before Alston’s murder. According to Richard Edmonds, about a half-hour after Alston’s altercation with defendant and Johnson, he and Alston were on Market Street when a car drove by and someone in the car fired shots. No one was hit. Edmonds saw an arm extended out of the passenger window and “black guys” in the car. After the shooting, Alston said: “that mother fucker Black [Johnson] almost shot me in the face.” Derrick Edmonds, Richard’s brother, was present and also saw two people in the car; he identified defendant as the shooter.
Myers was about a block away when he heard gunshots. He saw a green car coming from Market Street; a man who appeared to have a gun got out of the passenger side. He identified defendant as the man with the gun. Myers saw shell casings in the middle of Market Street, and saw an unidentified man later kick them into the sewer. The police subsequently recovered three nine millimeter shell casings from the sewer drain.
Defendant’s sister, Jada Rose, testified that she had loaned her green Mitsubishi Eclipse to defendant in the afternoon on July 31, 2003. Defendant returned the car at approximately 3:30 a.m. on August 1, 2003. Rose testified that during the summer of 2003, defendant was a member of the Bloods street gang.
The police believed that Alston’s murder may have been connected to the July 31, 2003, drive-by shooting. On August 4, 2003, the police asked defendant for help regarding Alston’s murder. The next day, defendant voluntarily went to police headquarters. Detective Donald Giaquinto interviewed defendant, who confirmed that he had an altercation with Alston on July 31, 2003, but told the police that he had no knowledge of a drive-by shooting. He told the police that he left for South Carolina soon after the altercation he and Johnson had with Alston on July 31. Witnesses confirmed that defendant was in South Carolina on the date of Alston’s murder. He also told the police that Johnson might be involved in Alston’s murder because they were arguing over drug territory, and he had seen Johnson with a gun.
The police arrested Johnson on August 12, 2003. According to Police Sergeant Steven Sela, that same day defendant told the police that Johnson said, “I shot Daz, and I’ll take the ride. Blood forever.” Defendant further told the police that, on another occasion, he overheard Johnson admit to killing Alston.
On February 25, 2004, a grand jury charged defendant with first-degree murder, N.J.S.A. 2C:11-3a and N.J.S.A. 2C:2-6b(4) (count one); first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (count two); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2a and N.J.S.A. 2C:11-3 (count three); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); second-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5b (count five); and second-degree possession of a firearm by a person not to have a weapon, N.J.S.A. 2C:39-7b (count six). Counts seven through ten of the indictment charged Johnson with murder and weapons offenses. The court severed defendant’s charges from Johnson’s.
Defendant moved to sever counts one and three, which were related to Alston’s murder, from the remaining counts against him, which were related to the drive-by shooting. The court denied the motion.
In another pretrial motion, defendant sought to preclude any reference to his being a member of a gang. The judge denied the motion, finding that the probative value of the evidence outweighed the prejudice to defendant. The judge also denied defendant’s challenge to the admissibility of an audio tape of a conversation between defendant and Hector Acevedo, a witness to the July 31, 2003, altercation between defendant and Alston.
Following a trial from May 25 to June 15, 2006, the jury convicted defendant of second-degree aggravated assault on count two and conspiracy under count three, and acquitted him on counts one, four and five. The court subsequently granted defendant’s motion for judgment notwithstanding the verdict on count three, the conspiracy conviction, and for acquittal on count six, possession of a firearm by a person not to have a weapon.
We begin our discussion of the substantive issues with defendant’s contention that the pretrial judge erred by denying his request to sever the counts of the indictment addressing the July 31, 2003, incident from the counts related to Alston’s murder. We reject those arguments.
“Joinder is permitted when two or more offenses ‘are of the same or similar character or are based on . . . 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.'” State v. Morton, 155 N.J. 383, 451 (1998) (quoting R. 3:7-6), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). The trial court has broad discretion to order separate trials of counts if it appears that a defendant will be prejudiced by the joinder of offenses. R. 3:15-2(b). A motion for severance should be “liberally granted” if joinder would likely prejudice the defendant. Pressler, Current New Jersey Court Rules, comment 1.1 on R. 3:7-6 (2009). Absent an abuse of discretion, this court will defer to the trial court’s decision on such a motion. State v. Chenique-Puey, 145 N.J. 334, 341 (1996).
When considering a motion for severance, the court may consider such factors as judicial economy and efficiency, State v. Moore, 113 N.J. 239, 276 (1988), but the “critical inquiry is whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under Evidence Rule 55 [now N.J.R.E. 404(b)] in the trial of the remaining charges.” State v. Pitts, 116 N.J. 580, 601-02 (1989). Other-crimes evidence is admissible “as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.” N.J.R.E. 404(b). “If the evidence would be admissible at both trials, then the trial court may consolidate the charges because a defendant will not suffer any more prejudice in a joint trial than he would in separate trials.” Chenique-Puey, supra, 145 N.J. at 341 (internal quotation omitted). The “plan” example set forth in N.J.R.E. 404(b), employed by the prosecution here, “refers to instances in which the other-crime evidence proves the existence of an integrated plan, of which the other crimes and the indicted offense are components.” State v. Stevens, 115 N.J. 289, 305-06 (1989).
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
N.J.R.E. 404(b) considerations are inapplicable, however, where the other-crime evidence may be considered part of the res gestae, or state of mind, behind the crime charged. State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). “Evidence of events that take place during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury.” Ibid.
Applying these standards, we conclude that the pretrial judge’s decision to permit joinder was not an abuse of discretion. The prosecutor presented the court with evidence that linked the July 31 and August 4 incidents, and linked defendant to both. The prosecutor represented to the court that defendant expressed surprise at missing Alston during the drive-by and swore, on his children, that he would “get” Alston.
The events of July 31, 2003, meet the test for admissibility set forth in Cofield, supra, as the altercations between defendant and Alston and the subsequent drive-by shooting at Alston, are relevant to the murder and conspiracy charges. 127 N.J. at 338. The events of July 31 are a basis for the State’s assertion that defendant played a role in Alston’s murder four days later. Both incidents involved shootings; they are similar in kind. Ibid. There is a close temporal connection; the murder occurred just four days after the drive-by shooting. Ibid. And, there was clear and convincing evidence that the drive-by shooting occurred. Ibid.
Moreover, there is no indication that the evidence related to Alston’s murder was unduly prejudicial to defendant with regard to the attempted murder charges. See State v. Scherzer, 301 N.J. Super. 363, 469 (App. Div.), certif. denied, 151 N.J. 466 (1997) (noting that “[a]ll damaging evidence is prejudicial; it is only when the probative value is substantially outweighed by the potential prejudice that the evidence should be excluded”). The absence of undue prejudice is evidenced by the jury’s verdict convicting defendant only on count two, related to the July 31 incident, and then, of the lesser-included charge of second-degree assault rather than first-degree attempted murder. The jury acquitted defendant of the murder and weapons charges.
The interests of judicial economy and efficiency also support the court’s decision to permit joinder. Severance would have resulted in two trials with much of the same testimony.
Finally, there was ample evidence of animosity between defendant and Alston. Defendant and Alston had been involved in a fight just prior to the drive-by shooting, and defendant admitted that he had physical altercations with Alston. Derrick Edmonds identified defendant as the drive-by shooter, and Myers stated that he saw defendant get out of a green car coming from Market Street with a gun shortly after hearing shots fired. Moreover, the car defendant borrowed from his sister on the afternoon of July 31, 2003, met the description of the vehicle that Derrick Edmonds and Myers provided to the police. In sum, there is no indication that defendant was unduly prejudiced by joinder of the charges.
We next turn to what we consider to be defendant’s dispositive argument on appeal. He asserts that the judge erred by permitting, without a limiting instruction, multiple references to defendant’s involvement with the Bloods street gang. The State responds that the trial judge properly determined that the references had sufficient probative value to outweigh any prejudice to defendant, and no limiting instruction was necessary because the jurors were initially screened for potential prejudice regarding gangs.
Prior to trial, defendant sought to exclude any reference to his involvement in the Bloods street gang. The prosecutor argued that gang affiliation was relevant because statements made by both defendant and Johnson indicated that the drive-by and murder were “gang retribution.” He asserted that “this case is about drugs, it’s about a dispute over drug turf and it’s about the fact that not only was Mr. Alston impeding on the drug turf of a Blood member but he also assaulted two Blood members and this is retaliation by Blood members that’s expressed in Blood [terms].” The prosecutor argued that the gang references were “directly tied to the case itself and particularly so in a case of a conspiracy because it establishes the basis of the relationship between the two defendants.”
Based on the State’s proffer, the trial judge determined that references to defendant’s and Johnson’s gang affiliations were relevant to a jury’s understanding of “their relationship and how that relationship relates to their dispute with [Alston] . . . . It certainly is probative of the . . . overall relationship between the two and the theory that the State is advancing that they were engaged in a conspiracy to . . . take [Alston’s] life.” The judge concluded that the probative value outweighed any prejudice to defendant.
Had the State followed through with its proffer and produced evidence to tie defendant’s gang affiliation to the charges, the evidence may have been admissible. But, the State failed to produce evidence of that linkage. Consequently, the gang references prejudiced defendant with no counterbalancing relevance to the State’s case.
Relevant evidence is “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E. 401. Here, the multiple references to defendant being a member of the Bloods street gang were neither relevant nor probative. The prosecutor failed to support his pretrial argument that defendant’s gang affiliation was “directly tied to the case itself.” The record contains no evidence that defendant’s gang affiliation played any part in either the drive-by shooting or Alston’s murder.
The State specifically argued during the pretrial motion that gang membership was pertinent to the conspiracy count. Yet, the State did not link defendant and Johnson together as Bloods or tie the alleged plan to kill Alston to their gang affiliation. Instead, the State theorized that defendant and Johnson conspired to murder Alston over drug territory. In support of that theory, the prosecutor elicited testimony regarding Johnson’s drug dealing and how Alston was moving into Johnson’s territory. The State did not, however, demonstrate any connection between defendant’s and Johnson’s affiliation with the Bloods and the drive-by shooting or murder.
Nevertheless, the record was replete with gang references without an instruction from the judge to the jury as to how that evidence could be used. In his opening statement, the prosecutor referenced Johnson’s affiliation with the Bloods, stating that when defendant was asked whether anyone involved in the July 31, 2003, altercation with Alston was a Blood member, he replied, “Yes, Supreme and Black [Johnson].” Also in his opening, the prosecutor noted that defendant told the police that Johnson told him, “I shot Daz [Alston], and I’ll take the ride. Blood forever.” During Jada Rose’s testimony, the prosecutor elicited that defendant was a member of the Bloods street gang during the summer of 2003.
Sergeant Sela read the following exchange between defendant and him into evidence: “Question: Are any of these people Blood members? Answer: Yes. Supreme and Black.” Sela testified that defendant told him that Johnson had admitted to the murder, stating: “I shot Daz, and I’ll take the ride. Blood forever.” Also, although not a direct reference to the Bloods, Sela said that the police had reached out to defendant following Alston’s murder “through . . . Detective Jose Furman, [who] was assigned to the [g]ang [u]nit of the Passaic County Prosecutor’s Office.” Finally, Detective Giaquinto testified that defendant also told the police that Johnson was a member of the Bloods. Although these statements show that defendant and Johnson were both members of the Bloods street gang, they do not, in any way, link defendant and Johnson together in a conspiracy to murder Alston.
The prosecutor also referenced defendant’s and Johnson’s alleged gang membership during summation when discussing the July 31 fight. The prosecutor said: “And that Hector, the tattoo guy, broke up this fight and that [defendant] then ran to the building . . . to get his boy, is how he put it to Lieutenant Gioquinto, to get his boy, Black, Supreme, who, like [defendant] at the time, were members of the Bloods.” Near the close of his summation, the prosecutor again addressed statements that Johnson allegedly made to defendant that he shot Daz and he would “take the ride. Bloods forever.” The evidence does not, however, support a reasonable inference that either shooting was gang-related.
Defendant moved for a mistrial, arguing that the references to the Bloods were unduly prejudicial to defendant in light of the evidence and arguments presented. The trial judge admitted that he “might not have let [the gang references] in” had he known that the evidence proffered at the motion hearing would not be presented at trial. However, he observed that each member of the jury had indicated that gang affiliation would not influence his or her judgment. The judge also found that the case has an “overlay of the gang issues,” and that the gang affiliation is part of the State’s conspiracy theory. He therefore denied the motion.
We disagree with the court’s rationale. Because the prosecution’s references to defendant’s gang affiliation, as presented, were not linked to any element of the crimes charged, those references served no other purpose than to unfairly prejudice defendant. Evidence that defendant and Johnson were members of the Bloods was not necessary to support the conspiracy charge. The conspiracy theory rested upon a dispute over drug territory and the evidence did not tie that dispute to a conflict between gangs about that subject. Defendant did not dispute his friendship with Johnson, which was also established by other, non-gang-related evidence in the record. Moreover, as previously noted, the prosecutor made no attempt to link defendant and Johnson together as Bloods, or to show that the crimes charged were gang-related.
On the record presented to the jury, even if the evidence had some minimal relevance, which it did not, the probative value of the references to defendant’s gang affiliation was substantially outweighed by the undue prejudice to defendant. See N.J.R.E. 403 (even if relevant, “evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury”). The screening of the jurors for potential prejudice against gangs during voir dire cannot overcome the multiple inflammatory gang references during trial. To the contrary, the pretrial inquiry had the capacity to implant in the jurors’ minds the notion that this case was gang-related, without evidence to support that belief.
Gang references are tantamount to other-crimes testimony, subject to admission only if N.J.R.E. 404(b) is satisfied. “Other crimes evidence is considered highly prejudicial.” State v. Vallejo, ___ N.J. ___, ___ (2009) (slip op. at 15) (citing Stevens, supra, 115 N.J. at 309). “The risk involved with such evidence is ‘that it will distract a jury from an independent consideration of the evidence that bears directly on guilt itself.'” Ibid. (quoting State v. G.S., 145 N.J. 460, 468 (1996)). “[T]he government may not convict an individual merely for belonging to an organization that advocates illegal activity.” United States v. Abel, 469 U.S. 45, 48, 105 S. Ct. 465, 476, 83 L. Ed. 2d 450, 455 (1984) (internal quotation omitted).
Here, the references to defendant’s gang membership were inherently prejudicial. Though N.J.R.E. 404(b) recognizes limited purposes for which that evidence may be used, none of those purposes, which could have outweighed the prejudicial impact of the evidence, were present.
Moreover, that the court admitted testimony without an instruction explaining to the jury the purpose for which the evidence was being offered weighs heavily in our determination. An immediate and specific curative instruction is necessary to “alleviate potential prejudice to a defendant from inadmissible evidence that has seeped into a trial.” Vallejo, supra, ___ N.J. at ___ (slip op. at 18). In the absence of any instruction here, we conclude that the “recurring admission of evidence of other crimes and wrongdoings by defendant” — the references to his gang membership — poisoned the trial. Id. at ___ (slip op. at 2); cf. State v. Echols, ___ N.J. ___, ___ (2009) (slip op. at 19) (court’s instruction that attorneys’ comments were not evidence cured potential prejudice resulting from prosecutor’s single statement at start of trial that defendant’s gang membership could endanger the jury). Thus, given the absence of a curative instruction, “defendant was denied the fair trial to which all defendants, regardless of the strength of the case against them, are entitled.” Vallejo, supra, ___ N.J. at ___ (slip op. at 18).
The State claims that the gang-related evidence was admissible pursuant to State v. Torres, 183 N.J. 554, 562-63 (2005), in which the Court permitted expert testimony explaining the role of the defendant’s gang affiliation and what role it played in the crime charged. Torres is distinguishable from the present case. There, the defendant was the leader of a gang who was alleged to have ordered two gang members to murder another gang member. Id. at 559-62. The Court found that the State could offer an investigator with a history of working with gangs and organized crime as an expert witness regarding the hierarchy of street gangs. Id. at 562, 579. In Torres, the defendant’s gang affiliation, and his position in the gang hierarchy, was directly related to the charges against him. Id. at 561-62. By contrast, here, no link exists between defendant’s alleged gang membership and the crimes charged.
The State also relies on State v. Conway, 193 N.J. Super. 133, 169 (App. Div.), certif. denied, 97 N.J. 650 (1984), in which we found that references to the defendant’s organized crime affiliation were not prejudicial error. There, however, the subject of organized crime was not raised by the State, but by the defendant. Id. at 165. And too, the court permitted the references to organized crime as relevant to motive. Id. at 165-66, 168. Here, defendant’s gang membership was unrelated to the motive for the shooting.
As the Court found in Vallejo, supra, where the trial court improperly permitted references to a domestic violence restraining order against the defendant, the “trial was poisoned by the recurring admission of evidence of other crimes and wrongdoings by [the] defendant.” (slip op. at 2). Here, as in Vallejo, we cannot be certain that the jury based defendant’s conviction on admissible evidence, as the prejudicial evidence of defendant’s alleged gang affiliation may have informed its decision. Consequently, the multiple gang references require a new trial.
We next address defendant’s argument that the judge erred in denying his request for a mistrial following a prosecution witness’s testimony that defendant was a police informant. Defendant further asserts that his sister’s testimony that she found drugs in a jacket after he wore it; and, a police officer’s testimony about Johnson’s arrest record, cumulatively, denied him a fair trial. Because we have already determined that a new trial is warranted, the mistrial issue is moot. Nevertheless, we conclude that all of this testimony, when considered with the gang references, had the cumulative effect of casting sufficient doubt on the verdict to warrant a new trial.
On direct examination, Sergeant Sela stated: “I had known [defendant] prior to that several years. . . . [F]or a long time.” Following defense counsel’s objection, Sela clarified that he knew defendant as a “purely personal” acquaintance, and their relationship was not on a “business level.” Later, Sela testified that the police asked defendant to help them “[b]ecause, at that time, we were working together. We had a relationship with . . . [defendant] as an informant.” Defense counsel moved to strike Sela’s response and for a mistrial.
The court acknowledged that Sela’s statement linked defendant with criminal activity, but nevertheless the court denied defendant’s motion for a mistrial. Instead, the court struck Sela’s statement and provided a curative instruction to the jury. We agree with the trial judge that the evidence was inadmissible and unduly prejudicial. We conclude, however, that despite the curative instruction, when that testimony is taken together with the gang references, as well as with other improper testimony that required curative instructions — the testimony of defendant’s sister, Jada Rose, about locating drugs in a jacket after defendant wore it; and the police officer’s references to Johnson’s arrest record — the cumulative effect of the testimony denied defendant a fair trial.
“Even when an individual error or series of errors does not rise to reversible error, when considered in combination, their cumulative effect can cast sufficient doubt on a verdict to require reversal.” State v. Jenewicz, 193 N.J. 440, 473 (2008); see also State v. Wakefield, 190 N.J. 397, 538 (2007) (“[T]he predicate for relief for cumulative error must be that the probable effect of the cumulative error was to render the underlying trial unfair.”), cert. denied, ___ U.S. ___, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Put simply, even aside from the improper gang testimony, other improper, unduly prejudicial testimony necessitated multiple curative instructions during the trial. These errors cumulatively rendered the trial unfair.
In light of our decision to reverse defendant’s conviction, we decline to address the remaining evidentiary issues defendant has raised. Should they arise in a retrial, they should be addressed by the trial judge in the context of the new record.
Reversed and remanded for a new trial.