NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0864-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STANLEY WALKER, JR., a/k/a
SELF STANLEY WALKER, JR.,
and QUENTIN WALKER,
Defendant-Appellant.
_________________________________
Submitted March 6, 2017 – Decided March 21, 2017
Before Judges Sabatino and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
12-01-0019.
Joseph E. Krakora, Public Defender, attorney
for appellant (Margaret R. McLane, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Marc A. Festa, Senior
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
On January 9, 2012, a Passaic County grand jury returned a
fifteen-count indictment, charging defendant Stanley Walker, Jr.
in nine of those counts1 with first-degree murder, N.J.S.A. 2C:11-
3(a) (count one); two counts of second-degree unlawful possession
of a handgun, N.J.S.A. 2C:39-5(b) (counts two and eight); two
counts of second-degree possession of a firearm for an unlawful
purpose, N.J.S.A. 2C:39-4(a) (counts three and seven); two counts
of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A.
2C:11-3(a) (counts four and five); fourth-degree aggravated
assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4) (count six);
and certain persons not to possess a handgun, N.J.S.A. 2C:39-7(b)
(count nine).
Prior to defendant's trial, the trial judge denied his motion
to suppress an oral statement he gave to the police and an
1
Defendant's girlfriend, Elisa Quiles, was charged in the
indictment with third-degree hindering apprehension, N.J.S.A.
2C:29-3(a)(2) (count thirteen); fourth-degree obstruction,
N.J.S.A. 2C:29-1 (count fourteen); and second-degree endangering
the welfare of a child, N.J.S.A. 2C:24-4(a) (count fifteen).
Pursuant to a plea agreement, Quiles pled guilty to count thirteen
and was sentenced to one year of probation "with up to 364 days
in the" county jail. Counts fourteen and fifteen were dismissed.
As required by the plea agreement, Quiles testified at defendant's
trial as a witness for the State. A second co-defendant, Andre
Morales, was charged in counts ten, eleven, and twelve with weapon
and drug offenses, but he did not testify at trial and the
disposition of these charges is not relevant to the present appeal.
2 A-0864-14T3
eyewitness identification. Defendant does not challenge these
rulings on appeal.
At the conclusion of the trial, the jury found defendant
guilty of the lesser-included offenses of second-degree
passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2) (count
one), and second-degree aggravated assault, serious bodily injury,
N.J.S.A. 2C:1-b(1) (counts four and five). The jury also found
defendant guilty of counts three and eight. The jury acquitted
defendant of counts two, six, and seven, and the State dismissed
count nine on its own motion. The trial judge subsequently denied
defendant's motion for a new trial.
At sentencing, the trial judge granted the State's motion for
an extended sentence. The judge merged count three into count one
and sentenced defendant to eighteen years in prison on count one,
subject to the 85% parole ineligibility provisions of the No Early
Release Act ("NERA"), and three years of parole supervision upon
his release. The judge imposed seven-year terms, subject to NERA,
with three years of parole supervision on counts four and five.
The judge ruled that these terms would run concurrent to each
other, but consecutive to the sentence imposed under count one.
Finally, the judge sentenced defendant to a concurrent seven-year
term on count eight, with a three-year period of parole
3 A-0864-14T3
ineligibility. Thus, defendant's aggregate sentence was twenty-
five years, subject to NERA. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
THE PROSECUTOR'S IMPROPER BURDEN-SHIFTING IN
SUMMATION VIOLATED DEFENDANT'S RIGHT TO A FAIR
TRIAL AND REQUIRES REVERSAL OF HIS
CONVICTIONS, U.S. Const. Amend. V, XIV; N.J.
Const. art I, ¶¶ 1, 10.
POINT II
THE DEFENDANT WAS DENIED A FAIR TRIAL DUE TO
THE ABSENCE OF JURY CHARGES ON THE PRIOR
CONVICTION OF A WITNESS AND HOW TO EVALUATE
THE TESTIMONY OF A COOPERATING-WITNESS. (Not
Raised Below).
POINT III
THE COURT ERRED IN ADMITT[ING] OTHER-CRIMES
EVIDENCE WITHOUT FIRST CONDUCTING A 404(b)
ANALYSIS AND WITHOUT ANY LIMITING INSTRUCTION.
(Partially Raised Below).
POINT IV
THE DEFENDANT'S SENTENCE IS EXCESSIVE BECAUSE
THE COURT IMPROPERLY IMPOSED AN EXTENDED TERM
AND FAILED TO CONDUCT A THOROUGH YARBOUGH[2]
ANALYSIS, IMPROPERLY GIVING CONSECUTIVE
RATHER THAN CONCURRENT SENTENCES.
A. The court improperly imposed an extended
term sentence because it engaged in
impermissible double-counting and failed
to give adequate weight relevant
mitigating factors.
2
State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 474 U.S.
1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
4 A-0864-14T3
B. Consecutive sentences were improper
because Wade, Uddin, and Moore were
acting in concert as the initial
aggressors against [defendant].
Because we agree with defendant's contention in Point I that
the prosecutor, in his summation, improperly commented to the jury
on defendant's failure to testify, we reverse defendant's
conviction.
I.
We derive the following facts from the evidence produced at
trial. As noted above, Quiles was defendant's girlfriend. She
had a child with her former boyfriend, Philip Ramos. On July 13,
2011, Quiles and Ramos had a heated argument about Ramos's child
support payments while they were both at a house on Van Houten
Street in Patterson.
While Quiles and Ramos were arguing, defendant drove up in a
car. He asked Quiles if she was "okay," and she "said yes."
Defendant then drove to the back of the house. However, Ramos
testified that he and defendant argued and that defendant "just
got angry and started acting crazy with me." Ramos then left and
went to a location on Slater Street, where he met with some
friends.
5 A-0864-14T3
After the argument, Quiles told defendant about her argument
with Ramos. Defendant told Quiles that he was "tired of [her]
baby father."
Later that day, defendant went to the Slater Street location
and challenged Ramos to a fight over how he had treated Quiles.
Ramos did not want to fight. Ramos testified that defendant
started screaming and then pointed a gun at him. Defendant then
"jumped in [his] car and left."
Ramos's friend, Syed Uddin, was present when this incident
occurred. Uddin testified that defendant and Ramos got in a verbal
dispute and then defendant left the scene. Uddin testified that
he "never saw [defendant] with a gun" and that "[n]obody was waving
a gun around."3
Ramos testified that six of his Slater Street friends, Uddin,
Dennis Wade, Lanier Moore, Andre Morales, Itavious Reid, and Miguel
Chica, became angry at defendant over this incident and went to
confront defendant at the house on Van Houten Street. Ramos stated
that he was unable to go with his friends because he had to attend
a program as part of the conditions of his parole. Uddin testified
3
Based on his alleged actions in this incident, defendant was
charged in counts two, six, and seven of the indictment. At the
conclusion of the trial, the jury acquitted defendant of each of
these charges.
6 A-0864-14T3
that "[e]verbody in the group . . . wanted to fight" with
defendant.
The six men drove to Van Houten Street in two cars. Wade
drove one car and Moore drove the other. When they got to their
destination, the men parked the cars in the street in front of the
house. When they arrived, defendant, Quiles, and her child were
sitting on the back porch. They heard the men out front, and
Quiles told defendant to stay inside the house while she went out
front to try to diffuse the situation. Quiles took her child with
her. Moore testified that the men "were really mad" and yelled
at Quiles, "where the fuck is he."
Quiles testified that she started talking to Morales, who was
her son's godfather. She told the men to go away or she would
call the police. Quiles stated that one of the men then saw
defendant "through the back through the alleyway." Quiles
testified that Wade then pulled "a big machete out of his pants."
Quiles asserted that she told Wade to stop, but Chica said, "fuck
that, and he pulled out a gun and pointed it directly at"
defendant. Quiles testified that Chica pulled the trigger twice,
but the gun jammed both times. The police later found a live
bullet in the alleyway.
Each of the four witnesses who testified as to what happened
next, Reid, Uddin, Moore, and Quiles, gave different accounts.
7 A-0864-14T3
Reid stated that he "heard gunshots" and "just started running"
until he was shot in the leg. He saw Wade driving his car away
from the scene, but Wade's car then hit the sidewalk and the car
flipped over. Reid did not know who shot him.
Uddin claimed he saw that defendant "had, like, something—it
looked, like black or something, like—it looked like it was black,
and then [Uddin] ran to the front car to get cover . . . because
all [he] heard was boom, boom." Once he was by one of the car's
tires, Uddin testified that he "felt something go through [his]
feet" and believed he had been struck by a "ricochet." Uddin
stated he was "not sure" that defendant fired any of the shots,
but he opined that it "was probably him."
Moore testified that he was sitting in the driver's seat of
his car and watching the argument. He then heard Wade yell at him
to start the car. Moore alleged that as he started the car, he
saw "a hand and a gun come out the alleyway, but that's all" he
saw. Moore testified that he never saw who was shooting.
Prior to the trial, Quiles told the police that defendant did
not have a gun. However, after she was arrested, she gave another
statement in which she asserted that defendant did have a gun.
Quiles later testified at trial that after Chica tried to shoot
defendant, he pulled out a gun and started shooting at the men.
She and her child then ran inside the house.
8 A-0864-14T3
In his oral statement to the police, defendant asserted that
when he walked out of the house to the alleyway, one of the men
pulled out a gun. Defendant stated that the man with the gun
tried to shoot him, but the gun "didn't go off." Defendant then
saw another man take out a machete and defendant took off running.
Defendant told the police, "I just kept going. Like I ain't never
looked back until this day, know what I’m saying? Like I ain't
never looked back at all. Kept going. That’s that."
Moore drove Uddin and Reid to the hospital. Uddin was treated
for a gunshot wound to his foot and Reid was treated for a wound
to his leg. Uddin was released that night, but Reid required
surgery and he remained in the hospital for almost three weeks.
The police who responded to the scene found Wade dead in the
driver's seat of his car. The autopsy revealed that Wade died
from a gunshot wound to his back which severed his aorta. The
police did not find any bullet holes in the car, but the driver's
side and rear passenger side windows were open. The police found
a machete "[b]etween the driver's seat and the door molding."
Quiles testified that she did not see defendant again until
around midnight. A few days later, defendant, Quiles, and Quiles's
child went to upstate New York, where they stayed one night in a
hotel. Quiles and her child returned to Patterson the next day.
On July 16, 2011, an arrest warrant was issued for defendant, but
9 A-0864-14T3
he could not be located. On July 28, 2011, defendant was arrested
in North Carolina.4
Defendant did not testify at trial and did not call any
witnesses on his behalf.
II.
Defendant's defense at trial was that although he was present
at the scene when the shooting started, he ran away as soon as he
heard the shots fired. Obviously, defendant had no obligation to
testify at trial or to tell the jury who shot Wade, Uddin, and
Reid. State v. Jones, 364 N.J. Super. 376, 382 (2003) ("It is,
of course, a basic tenet of our criminal jurisprudence that a
defendant has no obligation to establish his innocence.").
However, during his summation, the prosecutor told the jury:
Ladies and gentlemen, when the witnesses
told you that he [sic] saw the individual
shooting from the alley, I don't expect you
to believe it just because they came in here
and said it. But the physical evidence
doesn't lie. Use your common sense. Say does
what the physical evidence tell us match what
they said.
I don't expect you to believe them just
'cause they walked in here. Does Ramos have
a criminal record? Sure, he does. Does Syed
Uddin have a criminal record? Sure, he does.
I'm not asking you to believe them because
4
As noted above, Quiles was later indicted for hindering
apprehension, obstruction, and endangering the welfare of her
child because she brought the child outside the house with her
when the six men arrived looking for defendant.
10 A-0864-14T3
they're Boy Scouts. I'm asking you to believe
them because what they said matches the
evidence.
Ladies and gentlemen, did six guys go
down there looking for defendant? Yeah, they
did. Was Dennis Wade one of them? Yeah, he
was. Defendant himself says he went outside
to the front to confront them. Who shot those
men? Who else was in the alley? If anybody
else was in the alley, defendant would have
told you that.
[(emphasis added).]
At the end of the prosecutor's summation, defense counsel
objected to these comments and moved for a mistrial, based upon
the prosecutor's statement that "[i]f anybody else was in the
alley, defendant would have told you that." The trial judge
dismissed the jury for the day and reserved decision on defendant's
motion.
The next day, the trial judge denied the motion. The judge
acknowledged that the prosecutor specifically told the jury that
if anyone else was in the alley, defendant would have told "you,"
meaning the jury, who that person was. However, the judge found
that the prosecutor really meant to say that if anybody else was
in the alley, defendant would have told the police that in the
statement he gave to the police. The judge noted that a court
should consider whether a curative instruction should be given
when a prosecutor comments "on the accused's silence," but the
11 A-0864-14T3
judge denied defendant's motion without giving such an instruction
to the jury.
In our judgment, the trial judge's characterization of the
prosecutor's comment was overly generous. In addition, it
overlooked the fact that the remarks, coming right after the
prosecutor reminded the jury that the State's four witnesses had
come to court and "told" them what happened, went right to the
crux of the defense.
We have repeatedly commented on the impropriety of remarks
by the prosecutor implying to a jury that a defendant has an
obligation to present any evidence at all. In Jones, the defendant
was charged with aggravated assault, possession of a weapon for
an unlawful purpose, and unlawful possession of a weapon. Jones,
supra, 364 N.J. Super. at 378. He was found not guilty of
aggravated assault and convicted of the two weapons offenses.
Ibid. During the course of the case, defense counsel cross-
examined various witnesses to elicit testimony that no fingerprint
tests had been performed on the weapon, and he commented on that
omission in his summation. Id. at 381-82.
In response, the prosecutor noted that while the defendant
had no burden of proof, the jury should ask itself why defendant
had not dusted the gun for fingerprints. Id. at 382. We noted
the Supreme Court's statement in State v. Frost, that "[t]he impact
12 A-0864-14T3
of violating a defendant's right to a fair trial cannot be measured
by, or weighed against, the quantum of evidence bearing upon his
innocence or guilt." State v. Frost, 158 N.J. 76, 87 (1999).
We further noted that the Court in Frost directed a tripartite
test to measure the impact of improper remarks in a prosecutor's
summation and determine a proper remedy:
(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.
[Id. at 83.]
Here, defendant's attorney did make a timely objection, the remarks
were not withdrawn, they were not stricken from the record, and a
corrective instruction was not given.
State v. Cooke is also instructive. 345 N.J. Super. 480
(App. Div. 2001), certif. denied, 171 N.J. 340 (2002). In that
case, the defendant was charged with two counts of burglary, two
counts of aggravated sexual assault, and two counts of sexual
assault. Id. at 483. The jury found him guilty of one count of
sexual assault. Ibid. The victim testified that on two occasions,
he awoke on the living room couch of his home to find a man
13 A-0864-14T3
performing oral sex on him. Id. at 484. The police responded to
the second incident and arrested the defendant. Ibid.
Although the defendant did not testify or present any
witnesses, the defense at trial was consent. Id. at 485. In the
course of his summation, the prosecutor remarked:
Now, let's look back at the defense
theory. Consent again.
Now, the Judge instructed you [on] the
evidence in this case, where does it come
from? From the stand when the witness takes
it.
You have zero in this case about consent.
The only evidence you heard over there was the
victim say that there was no consent.
[Ibid.]
The defendant's attorney did not move for a mistrial, but did
object, and the trial court gave a clear and strong curative
instruction. Ibid. The judge directed the jury as follows:
Ladies and Gentlemen of the jury. I am
instructing you to totally disregard anything
you might have heard referring to the only
evidence you heard over there. Okay. You
must totally disregard this statement. Do not
consider it. Wipe it from your mind, and
certainly you're not to use it during any of
your deliberations. Everybody understand
that?
[Id. at 486.]
We noted that the prosecutor's remarks were clearly improper
because "a prosecutor should not in either obvious or subtle
14 A-0864-14T3
fashion draw attention to a defendant's decision not to testify."
Ibid. (citing State v. Engel, 249 N.J. Super. 336, 382 (App.
Div.), certif. denied, 130 N.J. 393 (1991)). However, we declined
to reverse the defendant's convictions in light of the strong and
immediate curative instruction provided by the trial judge. Ibid.
Here, this defendant did not receive this relief.
Our Supreme Court recently held that it is permissible for
the State to comment on a testifying defendant's post-arrest
omissions and inconsistencies in a statement he gave to the police
after waiving his or her Miranda5 warnings. State v. Kucinski,
___ N.J. ___ (2017) (slip op. at 36). Moreover, "[i]t is not an
infringement of a defendant's right to remain silent for the State
to point out differences in the defendant's testimony at trial and
his or her statements that were freely given." Id. at 37 (quoting
State v. Tucker, 190 N.J. 183, 189 (2007) (emphasis in original).
As stated above, however, the prosecutor did not tell the
jury that if anybody else was in the alley, defendant would have
told the police that in his oral statement to them. Instead, the
prosecutor clearly stated that if someone other than defendant was
in the alley, defendant would have told the jury that was what
happened. The prosecutor's remarks were clearly improper because
5
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
15 A-0864-14T3
they drew the jury's attention to the fact that, unlike the State's
four eyewitnesses, defendant did not take the witness stand. The
statement also impermissibly shifted the burden to defendant to
disprove his guilt. Thus, we conclude that the judge should have
excluded this portion of the prosecutor's summation and given a
strong curative instruction. That did not occur.
This error was clearly not harmless. Here, the State's proofs
were not overwhelming. Defendant was acquitted of all of the
charges pertaining to the earlier incident with Ramos. Of the
four witnesses to the shooting that followed, only Quiles
specifically testified that defendant had a gun. However, Quiles
had previously given a contradictory statement to the police,
which she changed only after she was arrested and charged. In
addition, there was testimony that one of the men who went to
confront defendant had a gun and had attempted to shoot it.
Moreover, even if the State's evidence was strong, this would
not give the prosecution license to present improper arguments to
the jury, and it would not authorize us to disregard that
impropriety when a defendant has properly sought relief but to no
avail. Under these circumstances, we are constrained to reverse
defendant's convictions and remand for further proceedings.
III.
16 A-0864-14T3
Our conclusion that defendant's convictions must be reversed
makes it unnecessary to address defendant's contention in Point
IV of his brief that the sentence the trial judge imposed was
excessive. We add the following brief comments concerning
defendant's remaining arguments.
As part of her plea agreement, Quiles agreed to testify
honestly at defendant's trial. Quiles had also pled guilty to the
hindering charge in count thirteen of the indictment, although she
had not yet been sentenced. Defense counsel did not ask the trial
judge to include Model Jury Charges (Criminal), "Testimony of a
Cooperating Co-defendant or Witness" (2006) or Model Jury Charges
(Criminal), "Credibility—Prior Conviction of a Witness" (2003) in
the final charge to the jury. In Point II of his brief, defendant
argues that the judge erred by not giving sua sponte instructions
on these two topics. We disagree.
Because defendant did not object to the final charge the
judge gave to the jury, we review the claimed error under the
plain error standard. R. 2:10-2.
In the context of a jury charge, plain error
requires demonstration of "[l]egal
impropriety . . . prejudicially affecting the
substantial rights of the defendant
sufficiently grievous to justify notice by the
reviewing court and to convince the court that
of itself the error possessed a clear capacity
to bring about an unjust result."
17 A-0864-14T3
[State v. Burns, 192 N.J. 312, 341 (2007)
(quoting State v. Jordan, 147 N.J. 409, 422
(1997)).]
A "[d]efendant is required to challenge instructions at the time
of trial." State v. Morais, 359 N.J. Super. 123, 134 (App. Div.)
(citing R. 1:7–2), certif. denied, 177 N.J. 572 (2003). Failure
to do so creates a "presum[ption] that the instructions were
adequate." Id. at 134-35.
Reviewed under that standard, we discern no error, let alone
plain error. Generally, a defendant has a right, upon request,
to a specific cautionary instruction that a witness' testimony
must "be carefully scrutinized and assessed in the context of his
specific interest in the proceeding." State v. Begyn, 34 N.J. 35,
54 (1961) (quoting State v. Spruill, 16 N.J. 73, 80 (1954)).
However, the charge carries "risks for the defendant because
phrasing is difficult to avoid conveying to the jury an impression
that the court is suggesting his guilt solely because the witnesses
have admitted theirs and implicated him." Id. at 55. We have
held that a judge may instruct jurors about a co-defendant "sua
sponte if he or she thinks it is advisable under the
circumstances." State v. Shelton, 344 N.J. Super. 505, 520 (App.
Div. 2001), certif. denied, 171 N.J. 43 (2002). However, the
Supreme Court has held that it is "[c]ertainly . . . not error,
let alone plain error, for a trial judge to fail to give this
18 A-0864-14T3
cautionary comment where it has not been requested." State v.
Artis, 57 N.J. 24, 33 (1970).
Here, defense counsel did not request a cooperating witness
instruction and, therefore, the judge did not err in failing to
provide such an instruction to the jury. Moreover, a judgment of
conviction had not yet been issued concerning Quiles's plea, which
was contingent on her testimony at the trial. Therefore, an
additional charge on the prior "conviction" of a witness would not
have been appropriate.
In addition, defendant's attorney cross-examined Quiles
extensively concerning the terms of her plea agreement and
addressed this issue again in his summation. The trial judge's
general charge on credibility provided the jury with factors upon
which to assess Quiles's credibility. The judge instructed the
jury that it could look to a witness's interest in the outcome of
the trial, possible bias, and any other matters in evidence which
would serve to support or discredit testimony. That charge
adequately informed the jury as to the appropriate factors that
it could look to in assessing Quiles's testimony.
Therefore, we reject defendant's contention on this point.
We also note that because we have reversed defendant's convictions,
he may ask for these specific jury charges on the remand should a
trial be necessary to complete this case.
19 A-0864-14T3
Turning to Point III of defendant's brief, defendant admitted
to the police in his oral statement that he "was high" on the date
of the incident because he "was smoking" a "little weed" earlier
that day. Prior to trial, defense counsel asked that the
references to marijuana use be redacted from the statement when
the State presented it to the jury. The trial judge denied
defendant's motion, finding that under N.J.R.E. 404(b), the
evidence was relevant to defendant's "ability to perceive events
as they're unfolding and react to events at least as the way he
portrays these events." The judge did not conduct an analysis on
the record of the four factors set forth in State v. Cofield, 127
N.J. 328 (1992) before rendering his oral decision. He also did
not give a limiting instruction to the jury when defendant's
statement was presented. Defendant contends that the judge erred
by admitting the unredacted statement without a limiting
instruction.
In response, the State argues that defendant's marijuana use
was part of the "intrinsic evidence" of the commission of the
crime. "[E]vidence that is intrinsic to the charged crime is
exempt from the strictures of Rule 404(b) even if it constitutes
evidence of uncharged misconduct that would normally fall under
Rule 404(b)" because it is not "evidence of other crimes, wrongs,
20 A-0864-14T3
or acts." State v. Rose, 206 N.J. 141, 177 (2001) (citation
omitted).
In Rose, the Supreme Court approved of the Third Circuit's
"workable, narrow description of what makes uncharged acts
intrinsic evidence of the charged crime, and therefore not subject
to Rule 404's directed purpose requirements." Id. at 180 (citing
United States v. Green, 617 F.3d 233 (3d Cir. 2010)). In Green,
the Third Circuit stated that "evidence is intrinsic if it
'directly proves' the charged offense" or if the "uncharged acts
[are] performed contemporaneously with the charged crime [and]
. . . facilitate the commission of the charged crime." Supra, 617
F.3d at 248-49.
Here, it is by no means clear that defendant's marijuana use
prior to the incident was "intrinsic evidence" that he committed
the offense that followed. Defendant's use of marijuana did not
"directly prove" that he was the shooter. Defendant did not smoke
marijuana "contemporaneously" with the charged crime and the State
did not argue that defendant's actions "facilitate[d] the
commission" of the shooting.
In any event, the trial judge did not conduct a full analysis
of the issue under either Cofield or Rose. Just as significantly,
the judge did not give the jury a limiting instruction on how it
was to consider defendant's use of marijuana earlier in the day
21 A-0864-14T3
of the shooting. It is well-established that if evidence of other
crimes under Rule 404(b) is admitted, the judge must instruct the
jury as to the limited purpose of the evidence and the restricted
significance that the jury can attach to it. State v. Marrero,
148 N.J. 469, 495 (1997). The trial judge's limiting instruction
"should be formulated carefully to explain precisely the permitted
and prohibited purposes of the evidence." Cofield, supra, 127
N.J. at 341 (quoting State v. Stevens, 115 N.J. 289, 304 (1989)).
Moreover, even if defendant's marijuana use could be
considered "intrinsic" to the shooting, a limiting instruction was
still required. As we explained almost forty years ago in State
v. Ciuffini, a defendant's "contemporaneous use of illegal and
potentially dangerous drugs, insofar as it may relate to a witness'
ability to perceive and recall, is highly relevant to credibility."
164 N.J. Super. 145, 154 (1978) (citing State v. Franklin, 52 N.J.
386, 398-400 (1968). However, although "this line of examination
is proper . . . , the jury should be carefully instructed that any
testimony about drug use is admitted solely for the purpose of
evaluating credibility, and no other." Ibid.
Therefore, assuming for purposes of this opinion that the
evidence of defendant's marijuana use was admissible under either
Cofield or Rose, the judge erred by failing to properly instruct
the jury on how to consider this evidence. Should there be a new
22 A-0864-14T3
trial on remand, the parties may address this issue anew. However,
we note that the cumulative effect of the judge's mistake on this
point, when added to the prosecutor's improper statements during
summation, provide further support for our conclusion that
defendant's convictions must be reversed. State v. Simms, 224
N.J. 393, 407 (2016) (citing State v. Weaver, 219 N.J. 131, 155
(2014) (noting the duty of an appellate court to reverse a
defendant's conviction "[w]hen legal errors cumulatively render a
trial unfair").
Reversed and remanded. We do not retain jurisdiction.
23 A-0864-14T3