State v. Cotto

• Decision Date: 01 February 2005
• Citation: 865 A.2d 660,182 N.J. 316
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Nathan COTTO, Defendant-Appellant.
• Court: New Jersey Supreme Court

865 A.2d 660

182 N.J. 316

STATE of New Jersey, Plaintiff-Respondent, v. Nathan COTTO, Defendant-Appellant.

Supreme Court of New Jersey.

Argued September 27, 2004.

Decided February 1, 2005.

Alan I. Smith, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Elizabeth M. Devine, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General of New Jersey, attorney).

Justice ZAZZALI delivered the opinion of the Court.

A jury convicted defendant of robbery, burglary, terroristic threats, and other charges after he and an accomplice burglarized his ex-girlfriend's apartment while she, her pregnant sister, and her young niece and nephew were present.

In this appeal, defendant claims, as reversible error, that the trial court incorrectly instructed the jury on the State's burden on the issue of identification; that the trial court improperly admitted certain statements as excited utterances; that the trial court erred when it precluded defendant's proffered evidence of third-party guilt; and that the trial court improperly allowed testimony, and the prosecutor's use of that testimony in summation, regarding certain out-of-court statements made by a non-testifying witness.

For the reasons discussed more fully below, we do not find reversible error in the trial court proceedings.

I.

On a February evening in 2000, Tina Mutcherson was staying at the apartment of her boyfriend in Vineland, New Jersey. At approximately 11:30 p.m., she saw a man trying to get into a neighboring apartment through a bedroom window. Tina's sister, Tiffany Mutcherson, lived in that apartment and was babysitting Tina's two children at the time. When Tina went next door to warn her sister of the intruder, another man standing in the hallway struck Tina in the back of the head with a gun. That man, later identified as defendant, was wearing blue jeans and a black ski mask. After he pushed Tina into Tiffany's apartment, the first man, wearing a black ski mask and gray sweatpants, followed Tina and defendant through the door. That assailant also brandished a handgun. When Tina's daughter, Shanequa, began to cry, the two men directed Tiffany, Tina, and Shanequa into Tiffany's bedroom where Tina's son, Allen, was sleeping. The man wearing gray sweatpants threatened to kill Allen after he began crying.

Once in the bedroom, the two men asked the sisters, "Where's the money at?" When Tiffany replied that she did not have any money, the assailant wearing gray sweatpants punched her. Defendant removed Tina's jewelry, took a couple of dollars from Shanequa, and pocketed forty-two dollars sitting on Tiffany's bureau. Defendant then led Tiffany, Shanequa, and Allen into the living room and ordered them to sit down.

When the robber wearing blue jeans returned to the bedroom, the mask had moved, and Tiffany saw his eyes and nose. Based on that observation and the sound of his voice, Tiffany recognized the robber as defendant, her ex-boyfriend. Tiffany had dated defendant for two to three months during the preceding summer. Tiffany testified that, from time to time, he had stayed at her apartment for more than one night while they maintained a dating relationship. Defendant also asked Tiffany, "Where's the can at, where's the tin can at?", in an apparent reference to a tin can in which Tiffany stored her waitress tips when she worked at a casino. Tiffany did not confront defendant because she feared that he would harm her if he knew that she recognized him.

The men refused to leave until they "got something." Defendant found Tiffany's pocketbook and a picture of Tiffany with her new boyfriend. Defendant showed the other man the picture and commented, "Look at this sh* *." The other assailant kicked Tiffany, who was pregnant, in the stomach. Tina begged him to stop and told him that Tiffany was pregnant. He responded by holding a gun to Tina's eye and asking, "Do it look like I give a f* *k?"

When the two men decided to leave, they wanted to take Allen with them. In this exchange, defendant referred to Allen by his first name, leading Tina to believe that the robber was familiar with her and her sister. Tiffany insisted that the assailants take her with them instead. They agreed and, after Tiffany put on shoes and a coat, the three left the apartment. Tiffany walked with the robbers for about one-half a mile before they released her. They threatened to kill her unless she walked back slowly and did not call the police.

Meanwhile, Tina's children locked themselves in her boyfriend's apartment. Tina called her boyfriend from his grandmother's apartment to tell him that she had been robbed. When Tiffany returned, she told Tina that the man wearing the blue jeans was defendant. Tiffany then called the police and a friend. Tina's boyfriend, Pete Thomas, arrived with Tiffany's and Tina's cousin, Terry Morgan. Tiffany told Thomas and Morgan that defendant and another man had robbed them. Thomas and Morgan left the scene to look for defendant at a nearby bar, the Citizen's Club.

Shortly thereafter, Officer Angel Minguela and Sergeant Harry Swain responded to the crime scene, arriving approximately fifteen to twenty minutes after the robbery ended. They reviewed the crime scene, and described Tiffany's apartment as "ransacked." Minguela interviewed Tina, whom he described as a "nervous [w]reck." Swain spoke with Tiffany, who appeared "very upset" and was "shaking uncontrollably." At that time, Tiffany told Swain that one of the robbers was defendant.

Thomas, Tina's boyfriend, returned to the scene and spoke to the police. Based on that conversation, the police and Tina then went to the Citizen's Club, approximately one-and-a-half miles from the crime scene, to look for defendant. The Club, however, had closed by the time they arrived. The police took the sisters to the police station where they gave statements. In her statement, given approximately forty-five minutes after the robbery, Tiffany again named defendant as one of the robbers.

Defendant was tried and convicted on two counts of first-degree robbery (N.J.S.A. 2C:15-1a(1)), three counts of second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4a), three counts of fourth-degree aggravated assault with a firearm (N.J.S.A. 2C:12-1b(4)), one count of third-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5b), one count of second-degree burglary (N.J.S.A. 2C:18-2), and three counts of third-degree terroristic threats (N.J.S.A. 2C:12-3a). The trial court sentenced defendant as a persistent offender. On the first robbery count, defendant received a fifty-year extended term, subject to a NERA parole disqualifier of forty-two and a half years. The sentences on the other convictions were either merged or made to run concurrently with that extended term.

The Appellate Division affirmed defendant's conviction in an unpublished opinion. The panel remanded for re-sentencing, however, ordering the trial court to compute the NERA disqualifier based not on the extended term, but on defendant's twenty-year base term for the supporting first-degree robbery conviction. The trial court re-sentenced defendant accordingly.

We granted defendant's petition for certification, State v. Cotto, 179 N.J. 309, 845 A.2d 134 (2004), on four issues: the failure to give an identification instruction, the admission of excited utterances, the preclusion of evidence of third-party guilt, and the admission of out-of-court statements. We now address each of those issues.

II.

A.

Although he did not object to the jury charge at trial, defendant argues that the trial court erred in not specifically instructing the jury on the issue of identification.

When identification is a "key issue," the trial court must instruct the jury on identification, even if a defendant does not make that request. State v. Green, 86 N.J. 281, 291, 430 A.2d 914 (1981); State v. Davis, 363 N.J.Super. 556, 561, 833 A.2d 1094 (App.Div.2003). Identification becomes a key issue when "[i]t [is] the major... thrust of the defense," Green, supra, 86 N.J. at 291, 430 A.2d 914, particularly in cases where the State relies on a single victim-eyewitness, see State v. Frey, 194 N.J.Super. 326, 329, 476 A.2d 884 (App.Div.1984) ("The absence of any eyewitness other than the victim and defendant's denial of guilt, made it essential for the court to instruct the jury on identification.").

Failure to issue the instruction may constitute plain error. Green, supra, 86 N.J. at 289,430 A.2d 914. The determination of plain error depends on the strength and quality of the State's corroborative evidence rather than on whether defendant's misidentification argument is convincing. Davis, supra, 363 N.J.Super. at 561, 833 A.2d 1094. Thus, the Appellate Division in Davis, supra, held that the State may sometimes present such overwhelming corroborative evidence that the "failure to give an identification instruction does not constitute error," but such cases are the exception. Ibid. (Internal citation omitted). Rather, the trial court is required to issue a "specific instruction" even when defendant's misidentification argument is "thin." Ibid.

B.

In this case, because defendant focused on undermining the credibility of the State's witnesses with prior inconsistent statements and offered an alibi defense, identification was a "key issue." See Green, supra, 86 N.J. at 291, 430 A.2d 914; Frey, supra, 194 N.J.Super. at 329, 476 A.2d 884.

However, despite the trial court's failure to provide a detailed identification instruction, the trial court did specifically explain to the jury that the State bears the burden of proving beyond a reasonable doubt "each and every element of the offense, including that of the defendant's presence at the scene of the crime and his participation in the crime." Unlike the trial court in Davis, supra, here, the trial court instructed the jury...