State v. Murphy, A-3693-08T4

• Decision Date: 22 April 2010
• Docket Number: No. A-3693-08T4,A-3693-08T4
• Citation: 412 N.J. Super. 553,991 A.2d 872
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Karl Lester MURPHY, Defendant-Appellant.
• Court: New Jersey Superior Court

991 A.2d 872

412 N.J. Super. 553

STATE of New Jersey, Plaintiff-Respondent, v. Karl Lester MURPHY, Defendant-Appellant.

No. A-3693-08T4

Superior Court of New Jersey, Appellate Division.

Submitted March 22, 2010.

Decided April 22, 2010.

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Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen A. Caruso, Assistant Deputy Public Defender, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief; Ian D. Brater, on the brief).

Before Judges LISA, BAXTER and ALVAREZ.

The opinion of the court was delivered by

BAXTER, J.A.D.

This appeal requires us to decide whether the trial judge's rulings, authorizing the State to use a seventeen-year-old prior conviction to impeach defendant's credibility and permitting the prosecutor to argue that a testifying police officer had no incentive to lie, deprived defendant of his right to a fair trial. We agree with defendant's contention that the prosecutor's summation exceeded the boundaries of legitimate advocacy when she vouched for the credibility of her witness. We likewise agree with defendant's claim that because he had no intervening convictions, this seventeen-year-old conviction was so stale that its probative value was vastly outweighed by its prejudicial effect, and the judge therefore erred by permitting the State to use it to impeach his credibility. In this trial, where the State's proofs were far from overwhelming, we decline to consider these errors harmless. Consequently, we reverse defendant's conviction for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10, and remand for a new trial.

I.

On the afternoon of August 1, 2007, Asbury Park police officers Gabriel Carrasquillo and Stephen Love were conducting a surveillance operation near the Asbury Park train station in response to citizen complaints of narcotics activity at that location. Both were dressed in black pants and in black shirts with the word "Police" emblazoned in large yellow letters on the front and back. Both wore police badges hanging from their necks.

While conducting their surveillance at the train station, Carrasquillo and Love observed a man, later identified as Douglas Crimi, flag down a man who was riding a bicycle. The man on the bicycle, later identified as defendant, stopped just long enough for Crimi to hand him some currency, after which defendant immediately rode away. Police did not observe defendant hand anything to Crimi in exchange for the currency.

Carrasquillo and Love continued to observe Crimi for another twenty minutes, while he continually looked left and right on the train platform as though waiting for someone to return. Believing such conduct to be suspicious in light of what they had already observed, the two officers approached Crimi.

While Love was speaking to Crimi, Carrasquillo observed defendant pedaling toward them. Carrasquillo testified that as defendant got closer, he approached defendant and identified himself as a police officer. As he did so, based upon his experience and training, Carrasquillo specifically focused his attention on defendant's hands. While only three to four feet away from defendant, Carrasquillo observed defendant open his right hand and drop an item to the ground. Carrasquillo retrieved the item, which was later analyzed and found to be cocaine.

Defendant testified and gave a vastly different account of what had transpired. Defendant explained that he knew Crimi and the two had combined their money so that defendant could ride over to a nearby liquor store and purchase some beer for the two to share. After purchasing two cans of beer, defendant rode back to the train station; however, before he reached the spot where Crimi had been standing, he saw that Crimi was surrounded by two police officers. Fearing that he would be arrested for being in possession of an open container of beer, defendant hid the beer on the side of the train station and then resumed pedaling toward Crimi and the two officers because he "just was trying to see what was going on."

Defendant denied being in possession of cocaine. Indeed, defendant testified that he was already 100 feet past the point where the officers were speaking with Crimi when Carrasquillo yelled "hey you" and instructed defendant to come back. Defendant complied, at which time Love began to search him. According to defendant, while he was being searched by Love, Carrasquillo was pacing back and forth over a twenty-foot area looking on the ground. Defendant maintained that after ten to fifteen minutes, Carrasquillo showed defendant crack cocaine and told defendant that it was his.

In his summation, defense counsel argued to the jury that Carrasquillo's testimony was "totally incredible" because no person who had cocaine in his possession would ride his bicycle toward two men with badges around their necks and the word "Police" written in large yellow letters on the front and back of their shirts. Defense counsel also forcefully argued to the jury that nobody would do what Carrasquillo described: within four feet of a police officer, stare him in the eye and then drop cocaine to the ground. He argued:

I'm sorry, it doesn't make sense. I think the officer's credibility is seriously in question. His actions belie some of the words that came out of his mouth during his testimony yesterday.

In her summation, the prosecutor responded to those arguments by stating:

I would submit all of defendant's discussion about the beer just goes to show how unbelievable anything he had to say was. He was saying whatever he needed to do to justify the reason why he got money from Mr. Crimi. And it doesn't make any sense. And I would submit to you, when you have to judge the credibility of the people involved here, use that to discount everything that defendant said. Officer Carrasquillo is an Asbury Park police officer who has no outcome—or no stake in the outcome of this proceeding, whereas the defendant clearly does.

Emphasis added.

Defendant objected to the prosecutor's comment that Carrasquillo had "no stake in the outcome of this proceeding." The judge overruled defendant's objection, explaining in open court, "that's fair comment in summation. When we talk about credibility, we talk about motivations, bias.... I think it's fair comment, I'll permit it."

On appeal, defendant raises the following claims:

I. THE PROSECUTOR'S IMPROPER CONDUCT AND REMARKS DENIED THE DEFENDANT A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 10.

II. THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE INTRODUCTION OF THE DEFENDANT'S REMOTE CONVICTION.

II.

In Point I, defendant maintains that the prosecutor's remarks in summation were improper and denied him a fair trial. Relying on the Court's opinion in State v. R.B., 183 N.J. 308, 331-32, 873 A.2d 511 (2005), he maintains that the prosecutor's argument that Carrasquillo had "no stake in the outcome of the proceedings" is an instance of prosecutorial misconduct entitling him to a new trial.

In R.B., the prosecutor argued that "'Detective Hadfield has no reason to lie.... He was only assigned to that unit for two months. He's not going to, two months into the job, fabricate a partial confession from somebody. I guess the implication is he's going to score points by falsely accusing somebody.'" Id. at 331, 873 A.2d 511. The Court held that it is improper for a prosecutor to "contend in summation that the police had no motive to lie." Id. at 332, 873 A.2d 511.

Although the Court concluded that the prosecutor's remarks in R.B. exceeded the acceptable limits of advocacy by a prosecutor, ibid., the Court did not reverse the defendant's conviction. Id. at 333-34, 873 A.2d 511. The Court reasoned that because the judge had directed the jury to disregard the offending remark, and the record demonstrated that, "on the whole," the defendant's trial and conviction were fair, a new trial was not required. Id. at 334, 873 A.2d 511.

The prosecutor's remark here is of the same nature as the remarks the Court deemed improper in R.B. As in R.B., the prosecutor argued that the police officer had nothing to gain by being untruthful. However, as R.B. teaches, a conviction will not be reversed solely because the prosecutor's remarks in summation were improper. Ibid. Instead, we must evaluate the prosecutor's comments in the context of the overall "`tenor of the trial'" and "`degree of responsiveness of both counsel and the court to improprieties when they occurred'" in determining whether an improper comment denied defendant a fair trial and warrants reversal. Id. at 332-33, 873 A.2d 511 (quoting State v. Frost, 158 N.J. 76, 83, 727 A.2d 1 (1999)). The Court devised a three-part test:

Specifically, an appellate court must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action. Id. at 333, 873 A.2d 511. (quoting Frost, supra, 158 N.J. at 83-84, 727 A.2d 1).

Here, defense counsel did object, but the judge overruled the objection by saying in open court, in full hearing of the jury, that the prosecutor's remark was a "fair comment" on the evidence. Thus, not only did the judge err by failing to strike the offending remark, he compounded the harmful effect of the remark by essentially signaling to the jury his agreement with the prosecutor's argument. The...