NOT FOR PUBLICATION WITHOUT THE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-0434-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DESHAUN J. WILLIAMS,
Defendant-Appellant.
____________________________
Submitted April 25, 2017 – Decided June 8, 2017
Before Judges Reisner, Koblitz and Mayer.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 14-09-2178.
Joseph E. Krakora, Public Defender, attorney
for appellant (Daniel S. Rockoff, Assistant
Deputy Public Defender, of counsel and on the
brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (LeeAnn
Cunningham, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant DeShaun Williams appeals from his conviction for
first-degree robbery, N.J.S.A. 2C:15-1, disorderly persons simple
assault, N.J.S.A. 2C:12-1(a), fourth-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5(d), third-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and third-
degree witness tampering, N.J.S.A. 2C:28-5(a)(1).1
On this appeal, defendant presents the following arguments:
POINT I
THE PROSECUTOR'S IMPROPER TACTICS UNFAIRLY
BOLSTERED THE CREDIBILITY OF THE SOLE
EYEWITNESS IDENTIFICATION OF THE PERPETRATOR.
(Not Raised Below)
In Summation, The Prosecution Improperly
Directed Jurors To Stare At Each Other While
Imagining Themselves Being Robbed, Then Urged
Them To Use Their Experiences From This
Emotionally-Charged, Non-Record, Flawed
Simulation To Assess The Credibility Of The
Real Victim's Identification Of The
Perpetrator
The Prosecution Improperly Bolstered The
Victim's Identification When He Argued That
Time Slowed Down For Her, She Experienced
Elevated Awareness, And She Constantly Relived
The Attack
1
Defendant was sentenced to an aggregate term of twelve years,
subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 for the
robbery conviction, with a consecutive term of three years for
witness tampering. The other sentences were imposed concurrent.
2 A-0434-15T4
The Prosecution Improperly Emphasized The
Impact Of The Robbery On The Victim’s Life,
Despite Its Utter Irrelevance
The Prosecution Unnecessarily Denigrated
Defense Counsel’s Attempts to Cross-Examine
The Victim On Her Identification
POINT II
THE COURT ERRED BY NOT OFFERING ANY GUIDANCE
TO THE JURY ON THE MEANING OF THE PHRASE "TO
TESTIFY FALSELY" AFTER THE JURY SENT A NOTE
TO THE COURT EXPRESSING ITS CONFUSION ABOUT
THIS ESSENTIAL ELEMENT OF THE TAMPERING CHARGE
POINT III
COUNSEL FOR WILLIAMS, WHO IS AT LEAST SIX FEET
TALL, REPEATEDLY TRIED TO SHARE WITH THE JURY
AN INCONSONANT STATEMENT THAT THE PERPETRATOR
WAS FIVE FEET, FOUR INCHES TALL. THE COURT
ACCEDED TO THE PROSECUTOR’S HEARSAY
OBJECTIONS, AND BARRED DEFENSE COUNSEL FROM
SHARING THIS STATEMENT WITH THE JURY. BUT THE
STATEMENT SHOULD HAVE BEEN ADMITTED AS
NONHEARSAY, BECAUSE IT WAS NOT BEING OFFERED
FOR THE TRUTH. IN ADDITION, THE DOCTRINE OF
COMPLETENESS COMPELLED THE STATEMENT’S
ADMISSION, EVEN IF IT WOULD HAVE OTHERWISE
BEEN INADMISSIBLE. N.J.R.E. 106
We agree with defendant that the trial was infected with
prejudicial errors, requiring that we reverse the conviction and
remand for a retrial.
I
The essential facts concerning the crime were largely
undisputed. We will summarize them briefly here, and discuss
3 A-0434-15T4
additional pertinent trial developments when we address the legal
issues.
The victim, a home health aide, testified that she was robbed
right after leaving a client's home at about 11:00 a.m. on the
morning of March 24, 2014. According to the victim, the client's
son accompanied her as she left the house but left quickly
thereafter. As the son departed, a slender young black man
approached the victim, nicked her hand with a knife, and then
robbed her while holding the knife to her chest. The robber was
wearing a black hat that covered his hair, leaving only his face
visible. The victim testified that the robbery lasted perhaps
five minutes and that she spent two minutes looking at the robber's
face. She spent the rest of the time struggling unsuccessfully
to comply with his demand that she remove her wedding ring. She
testified that the robber fled after a bus pulled up nearby.
Within two hours after the robbery, the police showed the
victim two books of photographs. In the second book, she picked
out defendant's photo and identified him as the robber. She also
identified defendant in court as being the robber. There were no
other witnesses to the robbery. Defendant was arrested several
weeks after the crime occurred. He insisted he was innocent, and
there was no evidence connecting him to the robbery, other than
the victim's identification.
4 A-0434-15T4
II
In addressing defendant's appellate arguments, we conclude
that the trial court erred in excluding evidence that the victim
initially described the robber as five feet, four inches tall.
The victim's statement, contained in a police incident report, was
not admissible for its truth as to the robber's actual height.
See N.J.R.E. 801(c); N.J.R.E. 802. However, it was admissible for
other purposes. Because defendant was at least six feet tall2,
the victim's description, which was documented in the incident
report, was relevant to the thoroughness of the police
investigation and to the victim's credibility.3 See State v.
James, 144 N.J. 538, 561-62 (1996) (recognizing that problems with
a victim's identification can be critical to the defense). It was
also relevant to the credibility of defendant's testimony about
the witness tampering charge. Because the victim's statement
about the robber's height was contained in a public record,
2
The booking report lists his height as six feet, while the arrest
report lists his height as six feet, one inch.
3
In the final charge to the jury, the judge gave the identification
instructions mandated in State v. Henderson, 208 N.J. 208 (2011),
including an instruction to consider the accuracy of the witness's
description of the perpetrator before she identified the
defendant, and whether that description matched the person she
later identified. Absent the inconsistent information on the
police report, however, the jury had no context in which to
consider those factors.
5 A-0434-15T4
N.J.R.E. 803(c)(8), and because the fact that she made the
statement was relevant, it was admissible for the three purposes
we have just described. See N.J.R.E. 805 (addressing the
admissibility of included hearsay).
We turn to defendant's arguments concerning witness
tampering. Defendant was charged with third-degree witness
tampering, which does not require proof of force or threats against
the witness. Rather it only requires proof that defendant knew
that an "official proceeding or investigation" was pending, and
"knowingly engage[d] in conduct which a reasonable person would
believe would cause a witness or informant to . . . [t]estify or
inform falsely." N.J.S.A. 2C:28-5(a)(1).
The tampering charge was based on a letter defendant, who was
not yet represented by counsel, sent to the victim. Along with
the letter, defendant enclosed a copy of the police incident report
listing the robber's height as five feet four inches, and the
arrest report documenting that defendant was six feet, one inch
tall. In the letter, defendant sought to portray himself as a
hard-working, good person who was the victim of misidentification,
and he asked the victim to look at the incident report and the
arrest report attached to his letter and consider whether she had
correctly identified him. The charge was also based on phone
calls that defendant's relatives made to the victim, begging her
6 A-0434-15T4
to meet with them because, as they expressed it, they believed
defendant was a victim of misidentification. However, the jury
only saw defendant's letter to the victim, and did not see the
incident report or hear a description of its relevant content,
which would have put defendant's letter to the victim in context.
We agree with defendant that the additional information was not
excludable hearsay and should also have been admitted under the
doctrine of completeness. See N.J.R.E. 106; Alves v. Rosenberg,
400 N.J. Super. 553, 562 (App. Div. 2008); State v. Underwood, 286
N.J. Super. 129, 140 (App. Div. 1995).
Due to the judge's strong admonition to defense counsel
precluding her from eliciting information about the police report,
defense counsel could not have her client explain why he believed
the victim had made a mistaken identification of him.4 The police
report, with its description of the robber as five feet four inches
tall, when defendant was at least six feet tall, was central to
the defense against witness tampering - i.e., that defendant had
a good faith reason to contact the victim, even if he should not
4
The first time this issue arose, it would have been the better
practice for the judge to allow the attorneys to come to sidebar
to argue the prosecutor's objection, instead of immediately
sustaining the objection. That would have given defense counsel
an opportunity to explain why the information was admissible and
for what purposes.
7 A-0434-15T4
have done so, and was only trying to get her to truthfully
acknowledge a mistake.
Further compounding the prejudice to the defense, during his
summation the prosecutor exploited the lack of that evidence,
criticizing defendant for sending the letter to the victim without
proof that he had been misidentified. He argued: "Why would you
need to play on [the victim's] emotions if you weren't the person
who did it? Why wouldn't you show them that you're not the person
who did it?" The prosecutor also told the jury that if defendant
really wanted to convince the victim he was innocent, "[h]e could
have pulled out a thousand documents to corroborate anything he's
saying." That was fundamentally unfair because, as the prosecutor
well knew, the defense had been precluded from presenting the
evidence of misidentification.5
Because the excluded information bore on defendant's
credibility as well as his substantive defense, its improper
exclusion was harmful error and warrants reversal of the witness
tampering conviction. See State v. Garron, 177 N.J. 147, 168-69
(2003), cert. denied, N.J. v. Garron, 540 U.S. 1160, 124 S. Ct.
1169, 157 L. Ed. 2d 1204 (2004). Additionally, because a jury may
5
During deliberations, the jury asked a question about the witness
tampering charge, which suggested that they were having some
difficulty reaching a verdict on that issue. This further leads
us to conclude that this trial error was prejudicial.
8 A-0434-15T4
fairly view witness tampering as evidence of a defendant's guilt
on the underlying offenses, we conclude that this trial error,
together with the additional errors discussed below, warrants
reversal of defendant's conviction for robbery and the other
associated offenses.
We next address defendant's argument that the prosecutor
improperly caused the jurors to engage in a misleading
demonstration during summation. This was the context. The
prosecutor argued to the jurors that the victim must have been
able to identify defendant accurately because she was looking at
him for two minutes during the robbery. In order to demonstrate
that point, during his summation, the prosecutor directed the
jurors to form pairs, in which each pair of two jurors would stare
at each other for two minutes while the prosecutor made summation
remarks. He then asked them to conclude that, after staring at
each other for two minutes, they would recall each other's faces,
and asked them to apply that conclusion to the victim's
identification as well.
We agree with defendant, that this demonstration was
misleading. There is no fair analogy between staring at a person
with whom one has become familiar over several days of jury
service, and staring at a complete stranger holding a knife.
Where, as here, the victim's identification of defendant was a
9 A-0434-15T4
crucial issue, it was plain error to allow the prosecutor to have
the jurors engage in this misleading exercise. See State v.
Rivera, 437 N.J. Super. 434, 455-56 (App. Div. 2014). The error
was compounded by the prosecutor's statement to the jury,
unsupported by any testimony, that while the victim was looking
at the robber, time "slowed down." See State v. Bradshaw, 195
N.J. 493, 510 (2008).
For completeness and for the guidance of the trial court and
counsel, we also note additional errors which should not be
repeated at the retrial. Defendant had no prior convictions and
therefore was able to testify without concern that the jury would
hear highly prejudicial information about any prior brushes with
the law. See N.J.R.E. 404(b); State v. Cofield, 127 N.J. 328,
340-41 (1992). However, for reasons we cannot comprehend, defense
counsel unnecessarily mentioned in front of the jury the fact that
her client's photo, which was in a photo book shown to the victim,
came from a group of prior "offenders."
And, although her client freely admitted that he was in New
Jersey on March 24, 2014, the date the robbery was committed,
counsel elicited from defendant the fact that he was arrested and
"incarcerated" in New Jersey in 2013. She presented this testimony
ostensibly for the purpose of impeaching a prosecution witness's
marginally relevant testimony concerning defendant's whereabouts
10 A-0434-15T4
in 2013. Moreover, counsel did not even attempt to mitigate the
prejudice from that information by eliciting from her client the
fact that his 2013 arrest did not result in a conviction. The
judge gave the jury an instruction in the final charge, concerning
the limited purpose for which they could consider defendant's
prior arrest and incarceration. However, there did not appear to
be any rational strategic basis to place this highly prejudicial
information before the jury in the first place.
Finally, in his testimony, the officer who showed the victim
the books of photos testified to his opinion that an identification
made within two hours of a crime was more likely to be reliable.
The officer was not qualified as an expert witness, and that
improper testimony should not be repeated at the retrial.
In conclusion, based on our careful consideration of the
trial record, we are persuaded that due to cumulative error,
defendant did not receive a fair trial. R. 2:10-2; State v.
Weaver, 219 N.J. 131, 155 (2014); Rivera, supra, 437 N.J. Super.
at 444-45. Because the case hinged on a contested eyewitness
identification and on witness credibility, we cannot conclude that
the errors were harmless. See State v. J.R., 227 N.J. 393, 417
11 A-0434-15T4
(2017). Accordingly, we reverse defendant's conviction, vacate
the sentence, and remand for a new trial.6
Reversed and remanded.
6
In light of our disposition of this appeal, we do not address
defendant's additional appellate arguments.
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