A prosecutor’s references to a “gangs, guns and narcotics” police initiative, when the defendant faced only drug-sale charges, warrant reversal of conviction, a state appeals court says.
Those statements, and supporting police testimony, “diverted the jurors’ attention from the facts of the case,” the Appellate Division said Thursday in State v. Hazelton, A-0023-11.
Samuel Hazelton Jr. was tried on charges he sold crack cocaine to an undercover officer in Salem. In her opening statement, Assistant Salem County Prosecutor Lisa Riether referred to the law enforcement initiative as an effort “to curb the amount of gangs, guns and narcotics-related offenses that were taking — allegedly taking place in the City of Salem.”
She asked the jurors to direct their attention to the narcotics aspect of the initiative.
Riether then elicited testimony from the two arresting officers.
Bridgeton police officer Angel Santiago said he was working on the “Governor’s Violent Crime and Drug and Gang Initiative, where the various counties were assigned to conduct narcotic investigations on violent crimes and high-trafficking narcotic areas.”
Salem police officer Walter Christy said that on the day of the arrest, he was “assigned to the Salem County Prosecutor’s Office doing a gangs, guns and narcotics Task Force.”
During the closing, Riether vouched for Santiago’s credibility, asked Hazelton whether “everybody’s lying except for you” and inquired four times about his lack of income.
Hazelton was convicted of third-degree conspiracy to distribute cocaine; third-degree possession and third-degree distribution of cocaine; and second-degree distribution of cocaine within 500 feet of public housing.
Judge Timothy Farrell sentenced Hazelton to eight years in prison.
On appeal, Hazelton claimed he was prejudiced by Riether’s statements.
Judges Paulette Sapp-Peterson and Michael Haas agreed, noting that there were never any allegations that Hazelton was involved in a gang, trafficked in guns or was a violent-crime suspect.
The appeals court said Riether’s statement to the jury to focus on the “narcotics” part of the initiative failed to provide mitigation and that the “damage had already been done.”
The impact of the reference to gangs and guns was amplified by the prosecutor’s questions to the arresting officers, the judges said.
The references to gangs and guns “clearly damaged defendant’s right to a fair trial,” they continued.
They said Riether did further damage when, in closing, she said Santiago, as a police officer, “was obligated to tell the truth,” given that the jury was being asked to decide the relative credibility of the witnesses.
The state claimed the statement was a technical mistake, but the judges disagreed, calling a prosecutor’s vouching for credibility of a police witness “wholly inappropriate.”
The appeals panel also pointed to Riether’s response when Hazelton denied he was selling drugs on the date of his arrest.
Riether asked him, “so, everybody’s lying except for you, correct?” — to which the defendant responded, “I’m not saying that.”
But a prosecutor may not ask a defendant to assess the credibility of another witness, because to do so invades the province of the jury, the panel said.
The state argued that Riether only asked that question once, making the error harmless. But the appeals court noted that credibility was a central issue in the trial.
Riether also asked the defendant four times about his income and employment on the day of the arrest. Hazelton testified that he was not working at that time and that he and his wife were living off her Social Security checks.
The appeals court noted that, where a defendant’s employment is not an issue, a prosecutor may not ask about it, because lack of income cannot be used to establish a criminal motive.
The state argued that Riether’s repetition was prompted by Hazelton’s lack of responsiveness, but the appeals court said that assertion was not supported by the record.
The errors’ cumulative effect disproportionately harmed Hazelton, Sapp-Peterson and Haas wrote, finding, “we have no choice but to reverse.”
Assistant Deputy Public Defender Marcia Blum, who represented Hazelton on appeal, says law enforcement task forces with prejudicial names are not uncommon.
“[B]y tying him in to guns, gangs and violence where there wasn’t a whit of evidence that this fellow had any involvement with those things, it becomes prejudicial and there’s no basis for it,” Blum says.
Assistant Salem County Prosecutor Gregory Waterson, who represented the state on appeal, did not return a call. Neither did Riether.