Legal landscape note: This article was originally published in 2015 and describes the law as it stood at that time. New Jersey law changes frequently.
You are on trial for shoplifting, your defense is that it was all a mistake, and the prosecutor wants the jury to see a video from a different store on a different day -- an incident for which you were never found guilty. Whether and when that prior-acts evidence comes in can decide whether you dare to take the stand at all. That was the dilemma in a New Jersey appeal where the trial court announced it would not rule on the video's admissibility until after the defendant testified, and the appeals court held that this did not violate her right to testify.
The prosecutor had sought to enter a video of a previous alleged shoplifting incident involving the defendant in order to rebut her defense that she took the Apple items by mistake. The judge said he would postpone ruling on admissibility until after the defendant testified, according to the appeals court’s opinion.
The judge did, however, share his tentative view that the video would be allowed in, leading the defendant, Maytee Cordero, not to take the stand at trial, the opinion said.
The appeals panel in State v. Cordero saw no error in either delaying a decision until after the defendant testified or in indicating beforehand that the video would likely be allowed in.
“We conclude that a trial court, in its discretion, may await the close of a defendant’s case before determining the admissibility of 404(b) evidence that the state seeks to introduce to rebut the defendant’s claim of lack of intent or mistake,” said Appellate Division Judge Mitchel Ostrer in a precedential opinion joined by Judges Carmen Messano and Margaret Hayden.
“We also discern no error in the court’s decision to offer a tentative view of the issue,” the opinion said.
Frank Gennaro, the Roseland, N.J., lawyer who represented Cordero on appeal as designated counsel for the Office of the Public Defender, said he planned to seek Supreme Court review.
“What we take issue with,” he said, is that although the trial judge said he wasn’t making a decision until later, “for all intents and purposes, he told the defendant what was going to happen should she testify.” That “put an undue burden on her right to testify.” First Assistant Public Defender Susan Green said the problem was that the client had to “make a very serious decision about whether to testify” in the face of indications that the video would be admitted but with no definitive ruling on the issue.
Plainclothes security personnel at the Apple Store in Edison, N.J.’s Menlo Park Mall claimed that in July 2011, they observed Cordero holding two Abercrombie & Fitch shopping bags into which a co-defendant, Chris Perez, loaded various Apple accessories valued at more than $1,700, according to the opinion. When the pair was confronted after walking out of the store without paying, Cordero dropped the bags and began to move away from them, according to the guards.
Both Cordero and Perez were charged with third-degree shoplifting, which can carry a sentence of up to five years. Perez, who had several prior shoplifting convictions, pleaded guilty and got a three-year prison term, while Cordero opted to go to trial, the opinion said.
Before the trial began, Cordero’s lawyer advised the prosecution that his client intended to assert a defense of mistake or lack of intent based on lack of knowledge that Perez had placed stolen items in the bags, according to the opinion. Perez was expected to testify that he stole the items without her knowledge -- specifically, that he ran into Cordero in the store and she asked him to take her phone number, so he handed the bags to her while he did so.
The prosecution responded with a motion in limine seeking permission to introduce the video, which allegedly showed Cordero, Perez and a third person shoplifting from a Target store a few months earlier, along with a statement given by Cordero shortly afterward, the opinion said. Cordero pleaded not guilty to the Target incident and was admitted to the pretrial intervention program.
There was no video evidence from the Apple store and security personnel claimed that they had inadvertently allowed the recording to be overwritten, according to the opinion. The Target video fell under Rule of Evidence 404(b), which prohibits use of other crimes evidence to show propensity but allows it for limited purposes that include showing lack of mistake.
After jury selection, Cordero’s lawyer said she would not call Perez as a witness, but the prosecutor pushed for a decision on the motion because Cordero might testify, according to the opinion. Judge Joseph Paone of Middlesex County Superior Court held that prosecutors could not use the Target evidence in their case in chief, but he withheld decision on its use for the purpose of rebuttal.
Asked if that was all right, Cordero’s trial counsel answered, “‘OK,’” according to the opinion. After the state put on its case, Paone reiterated that he could not make a final decision until he heard the defendant’s testimony. But based on the prosecutor’s description of the Target video, Paone said his tentative view was that it would be admissible.
When Cordero’s lawyer asked if his view would remain the same if Cordero simply gave a general denial on the stand, rather than claiming mistake, Paone said he was unsure and gave Cordero until the next day to decide whether she intended to testify, the opinion said. The following morning, Paone watched the video in open court, allowing Cordero to see it for the first time.
Cordero opted not to testify and was convicted, for which she was sentenced to three years’ probation, with community service, according to the opinion.
In affirming, the appeals court said that waiting to decide the admissibility of prior crimes evidence enables the court to confirm that the mistake or lack-of-intent defense will actually be offered and to assess the contours of the defense, informing its decision regarding the relevance of the evidence.
While there is a due process right to testify in one’s own defense, the decision whether or not to do so is a “strategic or tactical decision” made with the advice of counsel and the defendant “must bear the consequences of her decision in this case,” Ostrer said.
The panel also rejected Cordero’s argument that prosecutorial misconduct occurred because during summation the prosecutor discussed the significance of the crime of shoplifting, calling it a “plague in our society” and telling jurors it might seem minor but results in higher prices for consumers.
“To counter the possibility that some jurors might feel that a shoplifting case was not serious enough to warrant their time and effort, the prosecutor briefly, and without emotion, discussed the societal impact of the crime,” Ostrer said.
Those comments did not warrant reversal because they were a minor part of the summation, to which defense counsel did not object, and, given the substantial evidence of guilt, were not capable of producing an unjust result, Ostrer concluded.