State v. Marshall

• Decision Date: 14 December 1992
• Citation: 617 A.2d 302,260 N.J.Super. 591
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Shelton MARSHALL, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 591

260 N.J.Super. 591

617 A.2d 302

STATE of New Jersey, Plaintiff-Respondent, v. Shelton MARSHALL, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Oct. 28, 1992.

Decided Dec. 14, 1992.

Zulima V. Farber, Public Defender, for defendant-appellant (Diane Toscano, Asst. Deputy Public Defender, of counsel, and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, for plaintiff-respondent (James F. Smith, Asst. County Prosecutor, of counsel, and on the letter brief).

Before Judges KING, BRODY and LANDAU.

The opinion of the court was delivered by

BRODY, J.A.D.

Following a jury trial defendant was convicted of second-degree conspiracy to rob, a violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1. The issue at trial was whether defendant, who was present at the scene of the robbery, participated in it with two other men who committed the crime. Although finding him guilty of conspiracy, the jury acquitted defendant of the robbery and of the lesser included offense of theft from the person. The trial judge imposed a seven-year prison sentence. We reverse the conviction because in his summation the assistant prosecutor improperly argued to the jury that defendant, who did not testify, demonstrated his guilt by failing to report the robbery.

The State's evidence was presented primarily through the victim's testimony. He testified that he was employed as a cook for the same Atlantic City hotel and casino that employed defendant as a security officer. The two men did not know each other, however, until they met on the night of the robbery. The victim finished work that night at 11:15 p.m. and walked toward a bus terminal to take the 12:40 a.m. bus home. Along the way he purchased a six-pack of beer, which he began to drink while seated on a park bench across from the terminal. Defendant happened by and the two struck up a conversation. The victim offered defendant some beer and they spent about an hour talking and drinking. During the conversation, defendant told the victim where he worked, showing him his employee identification badge.

When the beer ran out, the men walked to the tavern where the victim had bought the six-pack. They had another beer at the tavern, which the victim paid for. After they finished drinking at the tavern, the victim bought a twelve-pack of beer and the two returned to the park for more conversation and drinking. While they were "shooting the breeze," defendant asked for some money and the victim gave him eight dollars and change so as "not to be bothered with [him] any more." A while later, two men approached the bench. They talked with defendant out of the victim's hearing for about twenty to thirty minutes while standing eight to ten feet away from the bench. The victim was later unable to give the police any description of the two men and they were never identified.

Defendant's request for money and the presence of the other two men made the victim apprehensive so he decided to leave. He testified that by then he had drunk "about a six pack." As he was leaving, one of the three men, the victim did not know who, grabbed him from behind and knocked him to the ground. One of the three men, the victim did not know who, then removed his wallet from his back pocket. The victim testified that he saw defendant holding the wallet as he and the other two men ran toward Pitney Village, a nearby housing complex. The victim got up and chased them, but as he caught up with defendant at the complex the other two men beat him into unconsciousness. The victim was treated at a hospital and then released.

On redirect examination, the victim added that when he reached the housing complex, he saw defendant take money out of the wallet and count it. When he asked defendant to return the money, defendant said, "[I]f you don't shut up, I'm gonna hit you and that's it."

Defendant and the victim missed work later that day. The hotel and casino's records show that defendant called in sick. Both men returned to work the following day.

During his summation the assistant prosecutor argued:

[Defendant's attorney] talked about--a lot about what makes sense, what doesn't make sense. Well, he conceded to you, in his summation, that [defendant] was there; that [defendant] saw this robbery happen. Doesn't dispute that. [Defendant's attorney] says his client, the Defendant, was not involved. Well, if [defendant] is any kind of a security guard, any kind of friend, when he goes to work the next day, isn't he going to tell somebody in the Security Department what happened? If [the victim] wasn't able to give a description of those two people, [defendant], who spends more time with them, up close and personally chatting with them and talking to him, if you accept [the victim's] testimony as the truth, in Pitney Village, wouldn't he provide the Security Department with some sort of description of those two males, but he didn't do it. He didn't do it....

Although he couched his argument in terms of failing to report the robbery to defendant's employer, realistically the assistant prosecutor was arguing that if he were innocent defendant ultimately would have reported the robbery to the police who were investigating the crime.

Defendant's attorney began to object to the argument at the close of the summation, but the trial judge ruled that he would not hear objections until after he charged the jury. ¹ While the jury was deliberating, defendant's attorney moved for a mistrial, arguing that the assistant prosecutor's comment impinged on defendant's right to remain silent. The judge reserved decision. On the day of sentencing he denied the motion for the following reasons, which we quote in full:

The comments made by the Prosecutor in his summation, in the context of the trial, the testimony, the comments of the defense attorney, generally were fair comments and I don't think that there was anything said by the Prosecutor to justify the granting of a new trial or an acquittal, notwithstanding the verdict.

State v. Brown, 118 N.J. 595, 613, 573 A.2d 886 (1990), holds that "evidence of pre-arrest silence, particularly in the absence of official interrogation, does not violate any right of the defendant involving self-incrimination." The Court recognized, however, that the pre-arrest failure of a witness to a crime to report the crime is not substantively relevant to the witness's guilt because it raises inferences that are equally consistent with guilt and with innocence. The witness's pre-arrest silence could mean that he was afraid to report his own involvement because he was guilty, or it could mean that, though innocent, he was afraid to report "his own involvement ... because it had incriminatory potential." Id. at 614, 573 A.2d 886. Thus the question is no longer whether the constitution gives a defendant the right not to report a crime he had witnessed--Brown makes it clear that a defendant does not have that right. Rather, the question is whether the defendant's failure to report the crime is relevant to his guilt.

In answering that question the Court distinguished between whether a defendant's pre-arrest silence is used solely to impeach his credibility, as was done in the Brown trial, or is offered as substantive evidence of his guilt.

The Court held that evidence of a...