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Protective Sweep exception used to uphold denial of motion to suppress
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHNNIE DAVILA aka JOHNNY CHRISTOPHER
aka JOHNNIE CROSBY,
Defendant-Appellant.
_________________________________________________
Submitted November 6, 2008 – Decided
Before Judges Payne and Waugh.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 04-03-1040.
Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).
Paula T. Dow, Essex County Prosecutor,
attorney for respondent (Luanh L. Lloyd,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Following the denial by Judge Ravin of his motions to suppress evidence and bar the use of his confession, defendant Johnnie Davila entered a conditional plea of guilty to two counts of felony murder and one count of conspiracy to commit robbery in return for an offer of thirty years in custody with a thirty-year parole disqualifier.1 On appeal, defendant challenges the judge’s evidentiary rulings. He argues:
POINT I
THE RULING THAT POLICE ENTRY INTO THE APARTMENT AT 730 M.L.K. BOULEVARD WAS LAWFUL MUST BE REVERSED, AND THE PHYSICAL EVIDENCE SEIZED MUST BE SUPPRESSED.
POINT II
BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAIVED HIS RIGHT TO SPEAK WITH AN ATTORNEY PRIOR TO GIVING HIS STATEMENT, THE COURT’S RULING FINDING THE STATEMENT ADMISSIBLE WAS ERRONEOUS AND MUST BE REVERSED.
Judge Ravin found, for purposes of the motion, the following background facts:
[O]n November 13th, 2003, witnesses reported that white Jeep Cherokee with the letter “G” on the driver’s side, occupied by several young African-American males, approached 30 Lenox Avenue in the city of East Orange. The masked front passenger of the Jeep Cherokee approached victim [Shanfidine] Sutton and shot him. The . . . occupants of the Jeep Cherokee then fled the scene in that car. Sutton was taken to the hospital and pronounced dead.
A short time later, victim Alonzo Brown, age 15, was also shot and killed in an attempted robbery. Witnesses at the scene described the same car[] [being] used in the Sutton murder also occupied by several young African males. Witnesses claimed that the front seat passenger exited, demanded Alonzo Brown’s black leather jacket, and shot him. Alonzo Brown was pronounced dead at the scene.
Law enforcement located and recovered .40 caliber shell casings at both scenes. And a ballistics examiner later determined that both casings were fired from the same firearm, which was not recovered. Also, witnesses at the scene of the second shooting memorized a portion of the license plate number of the car.
Further investigation revealed that David Cataneo, the owner of the Jeep Cherokee, had reported it stolen a few hours prior to the first shooting. He also reported that he had left his Nextel cellular phone inside the Jeep. At 8:00 P.M. on November 13th, 2003, law enforcement recovered the car in front of 93 Alexander Street in Newark. The cellular phone, however, was not recovered.
On November 14, law enforcement obtained a communications data warrant for records of calls made to and from the Nextel phone. On November 15, investigators determined that, among other calls, eight calls had been made from the phone to 730 Dr. Martin Luther King Boulevard, apartment 1-G, in Newark during the period from November 13 to 15, the last having been made at 1:01 a.m.
Lieutenant John Melody, an employee of the Essex County Prosecutor’s Office assigned to the Homicide Division, testified at the suppression hearing regarding what then occurred. At approximately 11:20 a.m. on November 15, he and six representatives of the Newark and East Orange Police Departments traveled to the apartment to which the telephone calls had been directed. Melody knocked on the door, which was opened by a person named Jayaad Brown. Melody testified that he then told Brown that he was from the Prosecutor’s Office and asked, “can we come in?”
At that point [Brown] opened up the door for us. We stepped in. I believe at that point Investigator Sarabando along with Mike Chirico, the next two officers advised him that we were her[e] to investigate a homicide.
Melody stated that the officers were all dressed in plain clothes with their badges exposed. Melody had his hand on his weapon, but it was not drawn. He was unsure of the status of the other officers’ weapons.
Once Melody had entered, he “swung the doorway open” and surveyed the apartment, determining that no one else was visible, but noting that open doorways led to additional rooms on the right side of the apartment. Melody immediately proceeded to determine whether the other rooms were occupied, so that he could “secure” any persons found there and determine if any were armed. In the meantime, two other officers had secured Brown. Melody confirmed that, at the time, as the result of the recent murders, he was concerned for his own safety and that of the other officers.
As the result of his inspection, Melody discovered a black male named Shawn Upshaw in the rear bedroom and a substantial quantity of crack cocaine in a bag on a dresser in that room. Upshaw was taken into custody. Upon proceeding to the apartment’s second bedroom, Melody discovered defendant and a female in bed, and a cell phone on the mattress. Both were placed under arrest as the result of the discovery of narcotics in the other bedroom. By calling the number of the Nextel phone taken from the Jeep, Melody identified the phone on the bed as the one the officers had been tracing.
Once the narcotics had been seized, the apartment’s occupants had been arrested, and the telephone identified, Melody proceeded to obtain a warrant to permit a further search of the apartment. Various gang-related materials and other evidence were then seized. Thereafter, defendant gave a statement to the police in which he implicated himself and his co-defendants.
On cross-examination, Melody agreed that he had not obtained a warrant to search the apartment prior to going there because he didn’t think probable cause could be established. He denied that the officers had conducted a raid, maintaining his position that the entry into the apartment had been consensual.
In contrast to Melody’s testimony, Jayaad Brown testified that he had been in the apartment’s back bedroom when the police started banging on the door, announcing their presence, and demanding entry. Upon unlocking and opening the door, according to Brown, the officers “rushed the door” with guns drawn, causing Brown to jump back. Brown denied that the officers asked whether they could come in. Brown testified additionally that, upon entering the apartment, one or more of the officers made him “get down on the ground,” face down. Although Brown had been in the back bedroom with Upshaw, Brown maintained, after considerable equivocation, that he had no knowledge that drugs were in the apartment.
Following the hearing, written briefs were submitted by the parties. After considering them, the judge placed on the record his oral opinion denying the motions for suppression of evidence. In that connection, the judge found that Jihad Brown lacked credibility.
While testifying, he displayed a laissez-faire and jovial attitude that appeared designed to and, in fact, did elicit laughs from people in the courtroom with whom he appeared to be friends.
Also, Brown’s admitted friendship with defendants and familial relationship with defendant Johnnie Davila demonstrated to the court his interest and bias. Finally, Brown’s hesitation to answer questions concerning the narcotics found and seized by the officers and Shawn Upshaw’s connection to those narcotics further demonstrated his bias.
In contrast, the judge found Lieutenant Melody to be “absolutely and completely honest in terms of his tone, his demeanor and the content of what he said.” Accordingly, the judge accepted Melody’s testimony while rejecting that of Brown.
Addressing the substantive issues raised, the judge found that, although the officers did not have a warrant or probable cause to enter the apartment, their entry for investigatory purposes was consensual and properly conducted pursuant to State v. Padilla, 321 N.J. Super. 96, 108 (App. Div. 1999), aff’d, 163 N.J. 3 (2000). Further, the judge found the officers’ brief warrantless survey of the premises was justified as a protective sweep under decisions such as Maryland v. Buie, 494 U.S. 325, 335-36, 110 S. Ct. 1093, 1099, 108 L. Ed. 2d 276, 287 (1990) and State v. Smith, 140 N.J. Super. 368, 372 (App. Div. 1976), aff’d, o.b., 75 N.J. 81 (1977). The judge held:
In this case, upon entering the apartment at 730 Martin Luther King Boulevard, officers conducted a brief survey of the premises to ensure that the occupants of the dwelling were not armed. The police did not extend the survey beyond the scope necessary to secure their own safety. The totality of the circumstances presents an articulable reason for believing that there might be persons unseen in the apartment that posed a threat to the safety of the police.
Thos circumstances were:
1.) The police were investigating a ruthless double murder which occurred, in part, in Newark.
2.) The murders were committed with a gun.
3.) The murders occurred within the preceding 48 hours.
4.) The murders were committed by several African-American males.
5.) The gun used in the commission of the murders was missing.
6.) The apartment in question was in Newark.
7.) A cellular telephone connected to the murders was being used to call the apartment in Newark where the police were present investigating the double murder.
. . . In light of these facts, Lieutenant Melody’s concern for the safety of the officers and the action taken to ameliorate that threat were clearly reasonabl[e].
The judge acknowledged the defense argument that what had actually occurred constituted a raid. However, he rejected that argument, noting that it was well established that the subjective intent of the police officers has no significance in evaluating alleged violations of the Fourth Amendment, so long as the officers’ conduct is reasonable. In support of this conclusion, the judge cited to State v. Bruzzese, 94 N.J. 210, 219 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). “The proper inquiry for determining the constitutionality of a search and seizure is whether the conduct of the law enforcement officer who undertook the search was objectively reasonable without regard to his or her underlying motives or intent.” Ibid. The judge found the officers’ conduct to have been objectively reasonable.
The judge also rejected the defense argument that exigent circumstances alleged as a justification for the warrantless entry were impermissibly self-created, noting that the entry was not justified by exigency, but occurred as the result of Brown’s permission and that the police’s action was not tantamount to a search for evidence, but was instead a superficial check to dismiss a reasonable suspicion of danger and secure safety.
As a final matter, the judge upheld the seizure of the phone and drugs, which he found to have been in plain view and thus excepted from the warrant requirement by Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S. Ct. 2022, 2037-39, 29 L. Ed. 2d 564, 582-84 (1971).
On appeal from this decision, we affirm substantially on the basis of the well-reasoned opinion of Judge Ravin. We add only that the protective sweep exception to the Fourth Amendment’s warrant requirement was extensively analyzed by a panel of this court in a decision issued after Judge Ravin’s opinion was placed on the record. See State v. Lane, 393 N.J. Super. 132 (App. Div.) certif. denied, 192 N.J. 600 (2007).
In that case, following an armed robbery of a Strauss Auto store by multiple black individuals and the identification of two cars in the vicinity of the robbery at the time that the robbery occurred, the police located one of the vehicles, parked in a residential driveway. Defendant, who was working under the hood of the car when the police arrived, was taken to headquarters for questioning. However, one officer remained at the premises. After looking through a gate into the yard of the house and discovering a headband similar to that described as having been worn by one of the robbers, the officer entered the yard and conducted a protective sweep of the area, which disclosed an automatic rifle under a couch in a shed.
In considering whether the protective sweep in Lane was valid, we noted that in Buie the Supreme Court had defined a protective sweep as “a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers and others.” Lane, supra, 393 N.J. Super. at 151 (quoting Buie, supra, 494 U.S. at 327, 110 S. Ct. at 1094, 108 L. Ed. 2d at 281). Although Lane was not arrested, we determined that:
an arrest should not be the sine qua non of a legitimate protective sweep and that to hold otherwise would place undue importance on the particular facts in Maryland v. Buie and show too little regard for the important public policy of insuring police safety. As the Supreme Court has observed, it is “dubious logic” to conclude that “an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search that is not like it.” United States v. Knights, 534 U.S. 112, 117, 122 S. Ct. 587, 590, 151 L. Ed. 2d 497, 504 (2001). Adhering to this approach, we agree with the logic of those federal decisions that have determined that the validity of the warrantless sweep does not turn on the officer’s possession of an arrest warrant or the right to arrest, but turns instead on the officer’s right to be in a location that generates a reasonable articulable suspicion that the area to be swept “harbors an individual posing a danger” to those on the scene. Maryland v. Buie, supra, 494 U.S. at 337, 110 S. Ct. at 1100, 108 L. Ed. 2d at 288.
[Lane, supra, 393 N.J. Super. at 153.]
We further found that a determination of the legality of a protective sweep required consideration of whether the sweep occurred in a home, the lawfulness of the police’s presence, and whether the police had a reasonable articulable suspicion that the area to be swept harbored individuals posing a danger to them. Id. at 154. In this regard, we noted the Court’s observation in Buie that:
[U]nlike an encounter on the street or along a highway, an inhome arrest puts the officer at the disadvantage of being on his adversary’s “turf.” An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.
[Lane, supra, 393 N.J. Super. at 154 (quoting Buie, supra, 494 U.S. at 333, 110 S. Ct. at 1098, 108 L. Ed. 2d at 285).]
In Lane, we determined that additional factfinding by the motion judge was required in order to resolve whether the seizure of the gun by the police officer had violated the Fourth Amendment. Id. at 156-58. We reach a different conclusion here. In the present case, we are satisfied that the police’s determination to go to the apartment to investigate the connection between its occupants and the murderers was both legal and reasonable, id. at 147, and that the judge’s conclusion that the police lawfully entered the apartment with Brown’s consent was based upon substantial evidence in the record, State v. Locurto, 157 N.J. 463, 470-71 (1999). We are further satisfied that the police acted in an objectively reasonable manner in determining to conduct a protective sweep of the premises. As Judge Ravin noted, a number of black males had recently performed two callously-inflicted felony murders, utilizing a gun. The murderers remained at large, and their weapon or weapons had not been recovered. And, as the result of the cell phone traces, there was a substantial reason to believe that the occupants of the apartment were somehow connected with the murderers. Further, upon entry into the apartment, it was clear that it was comprised of multiple rooms, the occupants of which could not be seen from the door. And finally, the sweep was limited in its scope and duration to a determination of whether additional persons were present on the premises. As Judge Ravin found, the drugs and phone seized during the course of the sweep were both in plain view.
Defendant additionally challenges the judge’s determination, following an additional hearing, to deny his motion to suppress the confession given to the police by defendant, in the presence of his mother,2 following the administration of Miranda3 warnings. In support of his position, defendant notes that there was no specific written indication on the Miranda warning form utilized by the police that he had knowingly waived his right to speak with an attorney before submitting to police questioning. Our review of the form, however, indicates that defendant initialed each of the individual rights accorded to him, and that both he and his mother signed the Miranda form. Moreover, defendant confirmed that he had been properly advised of his rights at the commencement of his confession, wrote on the form that the Miranda warnings had been “read out loud” to him, and placed his initials next to statements confirming that his mother was present when the warnings had been given and that he understood his rights. Under these circumstances, we decline to further address defendant’s argument, finding it to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
1 Defendant was charged along with co-defendants Wali Williams, Michael Whitfield and Laquan Dwight. All moved for suppression of evidence and participated in the hearing on that issue, as did Shawn Upshaw, who was charged with first-degree drug offenses in a separate indictment.
2 Defendant was sixteen years old at the time of the crimes.
3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
April 16, 2009
Eluding conviction upheld
STATE OF NEW JERSEY,
Plaintiff -Respondent,
V.
JESUS ATURO COLON,
Defendant-Appellant.
____________________________
Submitted January 27, 2009 – Decided
Before Judges Parker and LeWinn.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-11-01099-I.
Robert J. De Groot, attorney for appellant.
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Peter DeRose, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Tried to a jury on April 10, 2007, defendant was convicted of second-degree eluding a law enforcement officer, N.J.S.A. 2C:29-2(b); and second-degree aggravated assault, causing serious bodily injury while fleeing, N.J.S.A. 2C:12-1(b)(6). On July 13, 2007, defendant was sentenced to two concurrent ten-year terms with an eighty-five percent parole ineligibility period on the second count.
On appeal, defendant raises the following issues for our consideration:
1. Defendant’s Right to Due Process of Law as Guaranteed by the Fourteenth Amendment to the United States Constitution and Art. 1 Par. 1 of the New Jersey Constitution was violated by the Prosecutor’s Misconduct. [Not Raised Below]
a. The Prosecutor’s summation expressing his belief that [Officer] Fidalgo testified credibly substantially prejudiced Defendant’s fundamental right to have the jury fairly evaluate the merits of his defense.
b. The Prosecutor’s summation implicitly expressing his belief that Defendant’s Witness was not credible substantially prejudiced [D]efendant’s fundamental right to have the jury fairly evaluate the merits of his defense.
2. Because The Jury Was Permitted To Infer That Defendant’s Conduct Created A “Risk Of Death Or Injury” If It Determined That His Conduct Violated Any of The Motor Vehicle Offenses Set Forth In Chapter 4 of Title 39, And Such Risk Is An Element Of The Second Degree Crime of Eluding, The Trial Court Committed Reversible Error When It Failed To Define And Delimit The Underlying Motor Vehicle Offenses. [Not Raised Below]
Having considered defendant’s contentions in light of the record and the applicable law, we affirm.
The trial evidence may be summarized as follows. Officer Paulo Fidalgo, of the Elizabeth Police Department, testified that on September 1, 2006, just after midnight, he and his partner, Officer Jean-Marie, were patrolling downtown Elizabeth in a marked police vehicle. While stopped at an intersection, Fidalgo “observed a vehicle cross [their] intersection at a high rate of speed.” Fidalgo was able to see the driver whom he described as a “[p]ossible Hispanic male with facial hair.”
Fidalgo and his partner pursued the vehicle and activated their lights after the vehicle “gained speed.” The vehicle “proceeded to pick up speed,” and “ran a red light on Elizabeth Avenue . . . .” Fidalgo estimated the vehicle’s speed to be “[r]oughly[] 50 miles [per] hour,” in a thirty-five mile speed zone.
After running the red light at Elizabeth Avenue, the vehicle “veered left . . . and appeared to have lost control and . . . then went into a ditch next to a utility pole right after the drawbridge on South First Street.”
Fidalgo and his partner exited their police car and “noticed that there was [a] smoke or fire condition coming from underneath the [disabled] vehicle.” There were three occupants in the vehicle, including the driver, and the officers “drew all the passengers to safety away from the vehicle.”
The individual in the driver’s seat was identified as defendant Jesus Colon. Fidalgo testified that defendant was the only occupant of the vehicle who had facial hair. When the officers first saw him, defendant was “[l]unged over the middle area between the driver’s seat and passenger’s seat[,]” with his legs “in the driver’s seat.”
Defendant’s vehicle sustained “[h]eavy front end damage and had fire damage done to it.” The fire department had to be called “to gain[] entry into the front door.”
Luis Benitez, who had been a passenger in defendant’s vehicle on the night in question, testified on behalf of defendant. Benitez has known defendant “since [they] were kids[,]” and described their relationship as being “like family . . . .”
On that night, Benitez was “walking down the block . . . a little intoxicated, because it was [his] birthday,” when he saw defendant “on the street and flagged him down.” Benitez asked defendant for a ride to a club. Benitez testified that defendant was not driving the vehicle; rather, a juvenile whose name he did not know was driving. Benitez stated that defendant “came out [of] the passenger’s side . . . .” Benitez entered the rear seat behind the driver and defendant re-entered the car on the passenger’s side.
As they drove on, Benitez stated that “the juvenile ate the light and the cops jumped on us.” The police chased the vehicle for “less than 15 minutes,” and then the car “crashed into a bridge and a light pole . . . .” Benitez testified that he injured his leg as a result of the crash.
During its deliberations, the jury asked for a readback of Officer Fidalgo’s testimony “with regard to the positioning of the three people.” The jury further requested a re-instruction on the definition of aggravated assault. Shortly after receiving that re-instruction, the jury rendered its verdict.
In his first argument on appeal, defendant contends that the prosecutor improperly vouched for the credibility of the State’s witness and implied to the jury that defendant’s witness, Benitez, had lied. Defendant refers us to the following statement in the prosecutor’s summation:
Think about this. Officer Fidalgo just doing his job. That is what he gets paid to do. No vested interest in this, not a family member, none of his family members were injured, none of his family members were charged with this.
Then you look at the witness, Mr. Benitez. He’s not really a disinterested third party. Oh, yeah, he’s close, extremely close to the defendant. I wonder.
At any rate, as I said earlier, I believe that Officer Fidalgo testified credibly and that each and every element of the two crimes charged, that you will hear from Judge Wertheimer, w[as] satisfied, and I ask that you, after hearing the charge, that you go back into the jury room and you find Jesus Colon guilty of the two charges.
At the outset, we note that this issue is raised as plain error as defense counsel raised no objection to the prosecutor’s summation. Therefore, we must determine whether these comments were “of such a nature as to have been clearly capable of producing an unjust result . . . .” R. 2:10-2. Based upon our review of the prosecutor’s entire summation, we discern neither of the improprieties claimed by defendant.
In the first two paragraphs quoted above, the prosecutor drew a distinction between Officer Fidalgo as a disinterested witness, as contrasted with Luis Benitez, who described his relationship with defendant as “like family.” In the third paragraph, the prosecutor briefly alluded to his belief “that Officer Fidalgo testified credibly[,]” and immediately proceeded to advise the jury that, in his view, “each and every element of the two crimes charged . . . w[as] satisfied . . . .”
Under these circumstance, we find defendant’s argument to be without merit. R. 2:11-3(e)(2).
Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made. Failure to object also deprives the court of the opportunity to take curative action.
[State v. Timmendequas, 161 N.J. 515, 576 (1999) (citations omitted).]
We acknowledge the “long-standing rule” that it is improper for the prosecutor to inform the jury of his personal opinion of a witness’s credibility. State v. Wakefield, 190 N.J. 397, 440 (2007). In evaluating “‘the severity of the misconduct and its prejudicial effect on the defendant’s right to a fair trial[,]'” we will not deem such prosecutorial misconduct to be grounds for reversal of a criminal conviction “‘unless the conduct was so egregious as to deprive the defendant of a fair trial.'” Id. at 437 (citations omitted).
The trial judge charged the jury immediately following the prosecutor’s summation. Very early in that charge, the judge instructed the jury:
You, and you alone, are the exclusive judges of the evidence, of the weight of the evidence and . . . what the facts are in this case. Regardless of what [c]ounsel said . . . recalling the facts, it’s your recollection of the facts that must guide you in the final analysis as . . . the judges of the facts.
Under the circumstance, we conclude that the prosecutor’s brief statements that he “believed[d] Officer Fidalgo testified credibly[,]” and that he “wonder[ed]” about Benitez being “extremely close to the defendant[,]” did not rise to the level of “egregious” conduct sufficient to warrant reversal.
We next consider defendant’s contention that the trial court erred in its charge to the jury on second-degree eluding. Because defendant did not object to this jury instruction at trial, we once again consider his claim under the plain error standard. R. 2:10-2. Under that standard, “[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.” State v. Afanador, 151 N.J. 41, 54 (1997).
Pursuant to N.J.S.A. 2C:29-2(b):
Any person, while operating a motor vehicle on any street or highway in this State . . ., who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury of any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person’s conduct involves a violation of chapter 4 of Title 39 . . . .
The trial judge essentially followed the model jury charge for second-degree eluding. Model Jury Charge (Criminal), “Eluding an Officer” (2004). In his initial jury instruction, the judge charged the jury in accordance with the statutory language elevating the offense to second degree if “the flight or attempt to elude created a risk of death or injury to a person.” The judge made no mention of motor vehicle violations at this point.
Following a side bar discussion at the conclusion of the jury charge, the judge delivered the following additional instruction:
I, apparently, omitted a part of the charge on eluding. I want to read it to you now.
You may infer a risk of death or injury to any person if a defendant’s conduct in fleeing or attempting to elude the officer involved a violation of motor vehicle laws of the State, and it’s alleged this defendant’s conduct involved speeding, running a red light, etc., etc.
Defense counsel accepted this supplemental instruction as “[f]ine.”
We concur with defendant that the trial judge’s failure to charge the elements of the applicable motor vehicle statutes was in error. Under the circumstances of this case, however, we deem such error to be harmless. The evidence clearly established that defendant “created a risk of death or injury” by crashing his vehicle into a utility pole with such force that it sustained “[h]eavy front end damage and . . . fire damage . . . .” The fire department had to be called to open the front door. Officer Fidalgo observed defendant “[l]unged over the middle area between the driver’s seat and passenger’s seat[,]” with his legs “in the driver’s seat.” In addition, Benitez testified that he suffered a leg injury as a result of the crash.
On this record, we consider defendant’s reliance upon State v. Dorko, 298 N.J. Super. 54 (App. Div.), certif. denied, 150 N.J. 28 (1997), to be misplaced. In that case, the defendant’s act of eluding consisted solely of motor vehicle violations such as speeding and running through stop signs and a red light; in addition to eluding, the defendant was charged with reckless driving. Id. at 56.
By contrast here, defendant engaged not only in speeding and running a red light, but in much more serious conduct that caused his vehicle to crash, with resultant injuries to at least one passenger. It is significant that these same facts gave rise to a related charge of second-degree aggravated assault in count two of the indictment, as contrasted with the related reckless driving charge in Dorko.
Applying, as we must, the plain error standard to this argument, we conclude that defendant has failed to demonstrate that the claimed error was “sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.” State v. Macon, 57 N.J. 325, 336 (1971).
Affirmed.
April 14, 2009
Defendant stuck with his plea; Slater factors not in his favor
STATE OF NEW JERSEY,
Plaintiff-Appellant/
Cross-Respondent,
v.
T.J.,
Defendant-Respondent/
Cross-Appellant.
____________________________________________________
Submitted March 17, 2009 – Decided
Before Judges Skillman and Graves.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 97-04-0613.
Luis A. Valentin, Monmouth County Prosecutor, attorney for appellant/cross-respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).
Yvonne Smith Segars, Public Defender, attorney for respondent/cross-appellant (Michael C. Wroblewski, Designated Counsel, on the brief).
PER CURIAM
On April 4, 1997, defendant was indicted for second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(c)(5)1; third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a); and fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b). On September 2, 1997, defendant pled guilty to third-degree endangering the welfare of a child pursuant to a plea bargain under which the State agreed to dismiss the other charges and recommend a non-custodial probationary sentence “with lifetime ‘Megan’s Law’ Registration.”
The second question on the special plea form for sex offenders signed by defendant at the time of his plea asked:
Do you understand that if you are pleading guilty to a crime of Aggravated Sexual Assault, Sexual Assault, Aggravated Criminal Sexual Contact, Kidnapping pursuant to 2C:13-1, Endangering the Welfare of a Child by engaging in sexual conduct which would impair or debauch the morals or a child pursuant to 2C:24-4, Luring or an attempt to commit any such offense. The Court in addition to any sentence authorized by the code will impose a special sentence of community supervision for life?
“Yes” is circled in response. The question continued:
And, that any person who violates a condition of special sentence of community supervision is guilty of a crime of the fourth degree?
“Yes” is circled in response. Defendant signed this form on September 2, 1997.
In taking defendant’s plea on September 2, 1997, the court had the following colloquy with him:
THE COURT: You’ve signed the form regarding the Megan’s Law requirements including the fact that you must register and continue to register should you move.
Do you understand that?
THE DEFENDANT: Yes, Your Honor.
The court did not provide defendant with any additional explanation of the requirements of Megan’s Law.
On October 31, 1997, the trial court sentenced defendant in conformity with the plea bargain to a one-year probationary term. The judgment of conviction also required defendant “to register for Megan’s Law within ten days.” However, the judgment omitted the statutory requirement that defendant was subject to community supervision for life.
On May 27, 1999, defendant was charged with failure to register as a convicted sex offender, contrary to N.J.S.A. 2C:7-2(a). Defendant pled guilty to this charge on October 4, 1999, and was sentenced to two years probation on November 19, 1999.
In a letter dated February 19, 2003, the State Parole Board advised the trial court that defendant’s sentence did not provide for community supervision for life, as mandated by N.J.S.A. 2C:43-6.4. The Monmouth County Prosecutor submitted a similar letter on February 26, 2003, which asked the court to amend defendant’s judgment of conviction “to include a special sentence of community supervision for life.”
On September 19, 2003, the trial court amended the judgment of conviction to include the requirement of “a special sentence of community supervision for life, pursuant to N.J.S.A. 2C:43-6.4.” On October 24, 2003, a parole officer presented defendant with a form entitled “Community Supervision For Life” that explained the requirements of such supervision, and defendant signed the form. Defendant did not appeal from the amended judgment of conviction that added the requirement of community supervision for life.
On October 4, 2006, defendant filed a pro se petition for post-conviction relief, which was based on the amendment of the judgment of conviction to include the requirement of community supervision for life. Defendant alleged that he was unaware of the requirements of community supervision for life until the amended judgment was entered. He further alleged that he was “facing numerous ‘community supervision for life’ violations” and that his parole officer had advised him he could not be around his children.
On October 22, 2007, defendant filed a motion to withdraw his 1997 and 1999 guilty pleas on the ground that he had not been advised by either defense counsel or the trial court of the requirement of community supervision for life “and what this meant” when he pled guilty. In his certification in support of the motion, defendant stated:
Had I known about the community supervision for life requirement, I would not have pled guilty to the third degree endangering the welfare of a child charge in Indictment No. 97-04-0613 or the subsequent failure to register charge.
The trial court conducted a hearing on defendant’s petition for post-conviction relief and motion to withdraw his guilty plea at which both defendant and his counsel testified that they had not discussed the requirements of community supervision for life at the time of the plea. Defendant argued that the amendment of his judgment of conviction to include the requirement of community supervision for life violated his right to Due Process and therefore should be stricken from the judgment. Alternatively, defendant argued that he should be allowed to withdraw his guilty plea on the ground that he had not been informed of the consequences of community supervision for life.
The trial court concluded in an oral opinion that the amendment of defendant’s judgment of conviction to include the statutorily mandated supervision for life did not violate Due Process. However, the court granted defendant’s motion to withdraw his guilty plea on the ground that he was not informed by his attorney or the court of the consequences of community supervision for life. The court entered an order on April 7, 2008, memorializing these rulings. The court subsequently denied the State’s motion for reconsideration.
Both the State and defendant filed motions for leave to appeal from the April 7, 2008 order, which we granted.
I.
We reject the arguments presented on defendant’s appeal and affirm the part of the April 7, 2008 order that upheld the amendment of the judgment of conviction to include the provision for community supervision for life substantially for the reasons set forth in the trial court’s April 4, 2008 oral opinion. The trial court’s decision regarding this issue is directly supported by State v. Horton, 331 N.J. Super. 92, 97-102 (App. Div. 2000), which held that the requirement of community supervision for life is a mandatory component of a sentence for any of the offenses enumerated in N.J.S.A. 2C:43-6.4 and therefore the omission of this requirement constitutes an illegal sentence, which may be corrected at any time. The only distinction between Horton and this case is that the judgment of conviction in Horton was corrected to add the requirement of community supervision for life eighteen months after sentencing while defendant’s judgment of conviction was not amended until six years after sentencing. However, a court’s obligation to correct an illegal sentence continues even though a substantial period of time has elapsed. See, e.g., State v. Baker, 270 N.J. Super. 55, 61-63, 71-77 (App. Div.), aff’d o.b., 138 N.J. 89 (1994) (more than four years); see also State v. Williams, 342 N.J. Super. 83, 92-93 (App. Div.), certif. denied, 70 N.J. 207 (2001). We also agree with the trial court’s conclusion that even though defendant should have been given notice and an opportunity to be heard before the judgment of conviction was amended to add the requirement of community supervision for life, this procedural defect does not affect the validity of the amended judgment because community supervision for life was a statutorily mandated component of defendant’s sentence, which the judgment could be amended to reflect at any time.
II.
During the pendency of this appeal, our Supreme Court decided State v. Slater, ___ N.J. ___ (2009), which set forth standards for a trial court to apply in considering a motion to withdraw a guilty plea: “(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant’s reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.” Id. at ___ (slip op. at 13). All four of these factors must be considered in ruling upon a motion to withdraw a plea. Ibid. “No factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief.” Id. at ___ (slip op. at 20).
Based on the four factors set forth in Slater, we conclude that the trial court erred in granting defendant’s motion to withdraw his guilty plea.
Defendant does not claim that he is innocent of the charge to which he pled guilty. In fact, defendant gave a written statement to the police before his plea in which he admitted having sexual intercourse with the victim ten times over a period of a year-and-a-half knowing that she was underage. Thus, the first Slater factor weighs against allowing defendant to withdraw his guilty plea.
Defendant pled guilty pursuant to a highly favorable plea bargain under which the State agreed to dismiss the charge of second-degree sexual assault and recommend a probationary sentence that would not require defendant to serve any period of incarceration. Thus, the third Slater factor also weighs against allowing defendant to withdraw his guilty plea.
Defendant did not file a motion to withdraw his guilty plea until approximately ten years after entry of the judgment of conviction. Moreover, defense counsel indicated at argument on the motion that he had spoken with the victim and that she indicated she would not be a cooperative witness if the case were now tried. Therefore, it appears the State would be unfairly prejudiced if it were required to prosecute the charges against defendant more than ten years after occurrence of the acts upon which they were based and that the fourth Slater factor also weighs against allowing defendant to withdraw his guilty plea.
The only one of the Slater factors that provides any support for defendant’s motion is the second factor — “the nature and strength of defendant’s reasons for plea withdrawal” — specifically, the failure of defense counsel and the trial court to explain the consequences of community supervision for life. As to this factor, defendant was required to show that his “lack of knowledge of” the community supervision for life component of his sentence mandated by N.J.S.A. 2C:43-6.4 “was material to [his] decision to plead guilty and prejudiced defendant.” State v. Johnson, 182 N.J. 232, 241 (2005). A guilty plea “will not be vacated if knowledge of the consequences [that were not explained to the defendant] would not have made any difference in the defendant’s decision to plead.” Id. at 242 (quoting State v. Howard, 110 N.J. 113, 123 (1988)).
Defendant’s testimony as to whether he would have pled guilty if he had been aware of the requirement of community supervision for life was equivocal:
Q. [T.J.], you indicated that if you had gone to jail it all would have been over for you. Are you aware that even if you went to jail you’d still be on community supervision for life? You can’t get rid of the community supervision for life with a sex offense?
A. Technically if you say it like that, yeah. When I say that I mean that all this time later for me to still be doing this, I wouldn’t even have opened a can of worms at all if they wouldn’t have changed my life. That parole thing was totally changed me to a knock on the door and all of a sudden now you have to report to us. You can’t live with your children. I had to pay $250 for an evaluation. That was supposed to be for Avenel. I don’t know how they even found the —
Q. So, are you saying you would have chosen going to trial, potentially going to jail at that time?
A. Of course, I’d never want to go to jail. But there may have been another option. Okay, if you’re doing this, Mr. Jenkins, you’re going to be Megan’s Law. You’re going to have parole and you may not be with your children. Okay, well what other options do we have?
Is there a lesser charge maybe I can maybe try to go for? It was never offered. But is it possible?
Q. [T.J.], if there was no other options. You either went to trial or you took a plea. Are you saying you would not have taken this plea? You would have gone to trial and risk going to jail for five to ten years? If that’s what you’re saying.
. . . .
A. It’s a yes.
THE COURT: All right. Okay and he has difficulty answering that question. The record should reflect that.
The trial court’s findings regarding this issue were also equivocal:
Defendant must then show that knowledge of these consequences would have impacted his decision to plead guilty. Now, this particular case is complicated by the fact that this defendant got a great plea agreement in this particular case.
. . . .
And I realize that the State presents a situation where you know, this defendant was not prejudiced. Anybody in their right mind would have accepted this plea, because of the circumstances of this particular case. And so therefore, if he was aware of this back in 1997, he would have accepted the plea at any rate.
While the defendant was really hesitant about whether he would be or would not in his answers to this particular Court because it is a tough issue. But I think the knowledge of that certainly would have impacted on his decision one way or another. And it’s hard, some six to ten years later to judge what the impact would be.
Moreover, at the points in defendant’s testimony when he seemed to indicate that he would not have pled guilty if he had been aware of the requirement of community supervision for life, the only adverse consequence of such supervision to which he referred was that it was preventing him from residing with his children. However, any condition of parole, including the parole to which a person sentenced to community supervision for life is subjected, must be reasonable, and administrative remedies are available to challenge any unreasonable condition of parole. See Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 241-42 (2008); Sanchez v. N.J. State Parole Bd., 368 N.J. Super. 181, 187-89 (App. Div. 2004). A parole officer could not reasonably bar defendant from residing with his children simply because he had consensual sex more than ten years ago with a thirteen or fourteen year old female (the indictment alleges that the victim was “age 13 thru 14” when the offense was committed). Therefore, unless there are other circumstances in defendant’s record that are not revealed by the record before us, it would appear that the primary alleged consequence of parole supervision for life to which defendant objects could be remedied administratively.2
Consequently, we conclude that application of the Slater factors, including the absence of a colorable claim of innocence, the existence of a plea bargain that was highly favorable to defendant, the prejudice to the State if it were now required to try the charges against defendant, and defendant’s questionable stated reason for seeking to withdraw his plea, requires a reversal of the order allowing defendant to withdraw his guilty plea.
Accordingly, we affirm the part of the April 7, 2008 order that upheld the amendment of the judgment to add the requirement of community supervision for life. We reverse the part that granted defendant’s motion to withdraw his guilty plea.
1 Currently N.J.S.A. 2C:14-2(c)(4) (as amended by L. 1997,
c. 194, § 1).
2 We note that N.J.A.C. 10A:71-6.11(c)(3) provides that a person convicted of a sexual offense that includes as part of the sentence community supervision for life is prohibited from residing with any minor without the prior approval of the assigned parole officer. However, N.J.A.C. 10A:71-6.11(d)(2) provides an exception from this prohibition “[w]hen the minor is in the physical presence of his or her parent.” We do not know whether this exception was intended to apply to a parent’s residence with his or her own children, but even if N.J.A.C. 10A:71-6.11(d)(2) is inapplicable, a prohibition against a parent residing with his own children would not be reasonable in the kind of circumstances presented by this case.
April 14, 2009
Court failed to properly advise defendant of right to counsel
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAY DIMATTEO,
Defendant-Appellant.
_________________________
Argued January 20, 2009 — Decided
Before Judges Reisner, Sapp-Peterson and Alvarez.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4649.
Steven Stadtmauer argued the cause for appellant (Celentano, Stadtmauer & Walentowicz, L.L.P., attorneys; Mr. Stadtmauer, on the brief).
Steven E. Braun, Chief Assistant Prosecutor, argued the cause for respondent (James F. Avigliano, Passaic County Prosecutor, attorney; Mr. Braun, of counsel and on the brief).
PER CURIAM
Defendant, Jay DiMatteo, appeals his conviction of the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4(c). Defendant was sentenced in municipal court to thirty days jail time, placed on probation with conditions for a year, fined $500, and required to pay mandatory costs and penalties. On his appeal to the Law Division, pursuant to Rule 3:23, defendant was again found guilty following a trial de novo. The sentence was modified to credit for fifteen days served, a year’s probation with conditions, a reduced fine of $250, and costs. We reverse and remand for a new trial.
Defendant was charged by Kelly Miller with forwarding unwanted flowers on two occasions and sending unwanted love letters. Kelly alleged that defendant was essentially stalking her, and that his conduct constituted harassment within the meaning of the statute. On August 16, 2006, a first appearance was conducted on the complaint.
At a first appearance in municipal court, pursuant to Rule 7:3-2, a defendant is to be informed of the pending charges, provided with a copy of the complaint if not previously supplied, and advised of the right to remain silent. “The judge shall [also] inform the defendant of the right to retain counsel or, if indigent, to have counsel assigned.” R. 7:3-2. The rule goes on to state that the defendant shall be “specifically asked whether legal representation is desired,” and his or her response is to be recorded on the complaint. The rule is basically identical to the procedure employed on a first appearance on indictable matters. Pressler, Current N.J. Court Rules, comment on R. 7:3-2 (2009).
Defendant, who appeared pro se, entered into the following colloquy with the court:
[THE COURT]: All right. Are you going to get an attorney?
[DEFENDANT]: No. I’m not going to get an attorney. I could, but I’m going to handle the case myself.
[THE COURT]: I would — — I want to just go on the record that this is a serious charge and depending on the outcome of this charge you could go to jail.
[DEFENDANT]: I understand that, Your Honor.
[THE COURT]: So, you know, in the middle of this you can’t just say, well, I don’t like the way this is going — — and I haven’t prejudged this in any way. Don’t get me wrong. But, you know, you’re not an attorney.
[DEFENDANT]: I — — well, I’ll leave that up to me. If I come — — if I come with an attorney, I’ll have [an] attorney. If not, I’ll — — I won’t have an attorney.
[THE COURT]: All right. I’m going to give you — —
[COMPLAINANT]: Your Honor, can I say — —
[THE COURT]: I’m sorry.
[COMPLAINANT]: Can I say something?
[THE COURT]: Sure.
[COMPLAINANT]: This has been going on since 2002. I have postponement after postponements. I mean — —
[THE COURT]: I don’t doubt you at all. I don’t doubt you at all, but this is — —
[COMPLAINANT]: I mean, I feel like — —
[DEFENDANT]: Your Honor.
[COMPLAINANT]: — — I’m going in circles here.
[THE COURT]: You’re not. This is the first time this is before me. Okay. You have one adjournment.
[DEFENDANT]: Okay.
[THE COURT]: And I’m setting this down for a special session, where this case is going to be resolved in one session, and that will be the end of it. There will be no further adjournments. Okay.
. . . .
[DEFENDANT]: Your Honor, if I come with an attorney, I’ll have any attorney. If I don’t have an attorney — but I believe I will win the case.
. . . .
[DEFENDANT]: If I have an attorney. Like I said, if I have an attorney, I’ll have him. If don’t have it — —
[THE COURT]: Right. That’s up to you. Okay.
[DEFENDANT]: Okay. Thank you very much, Your Honor.
It is reversible error to fail to advise a defendant adequately of his right to counsel because incarceration is a consequence of magnitude. State v. Gonzalez, 114 N.J. 592, 608 (1989). A petty disorderly persons offense is punishable by up to thirty days in county jail, in addition to a $500 fine. N.J.S.A. 2C:43-8 and 2C:43-3(d). Although defendant was told that he had the right to return to court for trial with an attorney, and that he faced the possibility of incarceration, neither his right to counsel nor the possibility of jail time was explained.
Defendant was not told that if he could not afford an attorney, one would be assigned to represent him. Similarly, it was not explained to him that the possible incarceration term was up to thirty days. In fact, defendant was jailed for fifteen days by the municipal court immediately upon the sentence being pronounced until the Law Division stayed the sentence pending the trial de novo in that court. Without this information, defendant could not have made a knowing, intelligent and voluntary waiver of his right to counsel.
Defendant contends that the municipal court’s failure to advise him adequately of his right to counsel is error. This omission, however, was not raised before the Law Division judge. Accordingly, we consider the argument pursuant to the plain error doctrine. R. 2:10-2. Only where an error is “clearly capable of producing an unjust result” must the judgment be reversed. Ibid. The possibility of an unjust result arising from the error must be “sufficient to raise a reasonable doubt as to whether the error led the [fact-finder] to a result it otherwise might not have reached.” State v. Macon, 57 N.J. 325, 336 (1971).
We are satisfied that an error capable of producing an unjust result occurred when defendant waived his Sixth Amendment right to counsel prior to the municipal court trial. See State v. Abbondanzo, 201 N.J. Super. 181, 184 (App. Div. 1985). He did not know that he had the right to assigned counsel. He did not know the extent of the jail time that could be imposed after conviction. Because he was not fully informed of his options or the potential consequences of a conviction, he simply did not make a knowing and intelligent waiver.
As “a matter of simple justice,” a defendant must have the opportunity to engage counsel prior to a proceeding that may result in a consequence of magnitude, such as incarceration. Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971). The oversight is particularly problematic in this case where the record discloses that defendant was experiencing employment difficulties and may have been eligible for assigned counsel. Furthermore, our review of the record also indicates that defendant may have some significant mental health issues, as established by the nature of the charges and his conduct during the first appearance and the municipal court trial. It is noteworthy that both trial judges made a mental health evaluation, as well as compliance with any recommended treatment, a condition of probation.
A “searching and painstaking inquiry” is required before a waiver of counsel occurs “when a pro se defendant may be jailed following conviction.” Abbondanzo, supra, 201 N.J. Super. at 184-85. The municipal court judge’s failure to conduct any meaningful inquiry, much less a “searching and painstaking inquiry,” into defendant’s waiver of counsel is an error clearly capable of producing an unjust result. Id. at 184. Accordingly, the conviction is vacated, and the matter is remanded for a new trial.
Reversed and remanded.
April 14, 2009
14
Timing of motion to withdraw plea is key
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JON C. CLARK,
Defendant-Appellant.
__________________________________
Submitted February 24, 2009 – Decided
Before Judges Wefing and Parker.
On appeal from Superior Court of New Jersey,
Law Division, Sussex County, No. 04-09-0287-I.
Yvonne Smith Segars, Public Defender, attorney
for appellant (Abby P. Schwartz, Assistant Deputy
Public Defender, of counsel and on the brief).
Anne Milgram, Attorney General, attorney for
respondent (Leslie-Ann M. Justus, Deputy
Attorney General, of counsel and on the brief).
PER CURIAM
Defendant appeals from his conviction for possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), for which he was sentenced to three years in prison. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was charged under Indictment No. 04-09-0287 with one count of possession of a controlled dangerous substance, heroin, in violation of N.J.S.A. 2C:35-10(a)(1). He was also charged under a separate indictment with two counts of bail jumping, in violation of N.J.S.A. 2C:29-7. Finally, he was charged with driving while intoxicated in violation of N.J.S.A. 39:4-50 and also received several other motor vehicle summonses. The only matter before us on appeal is his conviction for possession, which was the result of defendant pleading guilty after the trial court denied his motion to suppress.
Defendant makes two contentions on appeal:
POINT I THE SEARCH OF DEFENDANT’S TRUCK WAS NOT SUBJECT TO ANY WARRANT EXCEPTION. CONSEQUENTLY, THE SEARCH OF THE TRUCK AND THE SEIZURE OF THE FOLD OF HEROIN VIOLATED DEFENDANT’S FOURTH AMENDMENT RIGHTS AND THE EVIDENCE SEIZED MUST BE SUPPRESSED.
POINT II THE COURT ERRED IN DENYING DEFENDANT’S MOTION [TO] WITHDRAW HIS GUILTY PLEA.
Defendant filed his motion to suppress and, in accordance with Rule 3:5-7(b), the State filed an opposing brief, which set forth its version of the applicable facts in the following manner:
At approximately 12:13 p.m. on January 11, 2004, Sparta Police Officer Jeffrey Mase was traveling southbound on Route 15. He observed what appeared to be a disabled vehicle on the shoulder underneath the Route 517 bypass. He saw two people sitting inside the cab of the pickup [] truck and a man outside of it near the passenger window. He turned around to assist and when he approached the vehicle, he saw the defendant trying to secure a piece of plastic over the passenger window.
The defendant approached the officer and in doing so he was shuffling his feet and staggering as he walked. He explained that the window had been broken last night in Elizabeth and he had stopped to re-secure it because it was ripping. His speech was slurred and he nervously rambled about why he went to Elizabeth to pick up his daughter who had a drug problem and needed to get away from the bad influences of that area. He pointed out the woman in the cab as his daughter and the male passenger as his son.
Officer Mase noted that the defendant’s pupils were constricted and his eyelids were droopy. These are signs of narcotic ingestion or intoxication based upon his training and experience. The defendant was swaying side to side. He explained that he really didn’t stay overnight in Elizabeth and that none of the numerous tools in the bed of his pickup truck had been stolen. He went on to explain that he had not reported the broken window to local police, and then began to ramble about his daughter’s boyfriend having done some serious prison time.
He provided his credentials and volunteered that his license would come back as suspended but that it really wasn’t suspended.
Backup arrived and went to check the status of the defendant’s license. In the meantime, Officer Mase told the defendant that he suspected the defendant of drug use because of his pupils, speech and his swaying and staggering. The defendant denied drug use and indicated that he had just gotten out of detox. Corporal Takacs confirmed that the license was suspended. Officer Mase asked the defendant when he last used drugs and the defendant indicated that he used cocaine maybe a week ago.
Mase went to check with the passengers to see if either of them had a valid license. They both appeared nervous and the woman was singing and turning around and bouncing on her seat. She indicated that her license was suspended and the boy indicated that he did not have a license. She provided the name of “Kelly Clark,” with a birthdate of July 11, 1979, and indicated that she did not have a middle name. She explained that her father, brother and she had gone to Elizabeth that morning in order to get money to repair the broken window, that they had left Greeley, Pennsylvania that morning and had not been in Elizabeth the night before. She went on to explain that she was responsible for the broken window.
A check of the name provided by the woman came back as not on file. In response, Mase turned to the defendant who informed him that his daughter’s name was “Connie E. Clark” with a date of birth of November 9, 1980. Mase inquired why the woman would give him the name “Kelly” and the defendant responded that she had been in a lot of trouble with drugs and probably had warrants.
Mase once again asked the woman her name and she supplied the same name and date of birth as before. She then started to reach down toward the floor under the steering wheel and grab for a pair of gloves among the many items strewn over the floor of the cab. Mase told her to let the gloves alone and to step out of the truck. She continued to insist that she had given her correct name and Mase observed that she had pinpoint pupils and her eyelids were droopy, and she had a bloody scab on her face.
The son, Paul, appeared very nervous, wouldn’t look at Officer Mase and had been moving clothing around inside the cab of the truck. Mase began to speak to him and noticed a waxed paper fold, with a green stamp on it, on the floor of the cab underneath the steering wheel. Mase knew from his training and experience that the waxed paper fold was consistent with being a bag of heroin. He seized it and directed Paul to get out of the truck.
Mase, Sgt. Spidaletto and Officer Rubino searched the truck. Mase found a used hypodermic needle on the passenger side floor and multiple other used bags of heroin on the floor of the truck. Spidaletto recovered a pipe packed with burned marijuana in a cigarette pack on the dashboard, another syringe under the seat and another bag of heroin under the seat. Rubino recovered a cap for a needle and a bag of heroin from the defendant’s coat located behind the seat. A drug recognition expert examined the defendant and gave an opinion that the defendant was under the influence of a narcotic analgesic and depressant. The defendant was directed to provide a urine sample which tested positive for codeine, morphine and 06-monoacetylmorphine, which is a metabolite of heroin. A sample of one of the two full bags of heroin seized from the vehicle tested positive for the presence of heroin.
Defendant did not oppose that factual recitation and agreed that there was no dispute as to the material facts of what had occurred. In that posture, defendant’s motion to suppress was presented to the trial court without a testimonial hearing. State v. Kadonsky, 288 N.J. Super. 41, 45-46 (App. Div.), certif. denied, 144 N.J. 589 (1996).
We are satisfied the trial court correctly denied defendant’s motion. Police Officer Mase was confronted with a driver who exhibited symptoms of being under the influence of a substance and unable to safely drive the vehicle. In addition, a credentials check indicated that defendant’s driver’s license had been suspended. It is immaterial whether defendant told the officer, as he now insists he did, that he did not need assistance. Officer Mase could not simply leave the scene and permit defendant to drive away.
Officer Mase properly went to speak to the other two occupants of the truck to determine whether either of them could be entrusted to safely drive the truck. It was apparent to him that defendant’s daughter was in no shape to drive and his son did not have a license. It was during his conversation with these two individuals that he noticed on the floor of the truck a waxed paper fold which his experience told him was often used to contain a controlled dangerous substance.
The cases which defendant cites to us provide no authority for reversing the order denying his motion to suppress. The issue is not whether Officer Mase had reasonable grounds to stop defendant. Defendant was already stopped and appeared to be in the process of making a repair. Officer Mase made an entirely appropriate field inquiry to determine whether everything was all right and whether further assistance was needed. Defendant’s impaired condition, and his suspended license, were ample justification for all that followed.
Several months after defendant pled guilty to possession of a controlled dangerous substance, he filed a motion to withdraw his guilty plea. He contends on appeal that the trial court erred when it denied his motion.
The Supreme Court has recently had occasion to consider the standards a trial court should employ when it is called upon to decide a motion to withdraw a plea of guilty. State v. Slater, ___ N.J. ___ (2009). In that case, the defendant pled guilty to second-degree possession of cocaine with intent to distribute after the trial court denied his motion to suppress. Id. at ___ (slip op. at 3-4). Twelve days after pleading guilty, the defendant filed a hand-written motion seeking to withdraw his guilty plea. Id. at ___ (slip op. at 5). The trial court denied his motion, saying that a change of mind was not a sufficient basis to withdraw a guilty plea. It proceeded to sentence defendant to five years in prison, in accordance with the bargain which had been negotiated. Id. at ___ (slip op. at 6). While this court affirmed the trial court’s denial of the motion to withdraw the defendant’s guilty plea, the Supreme Court reversed.
According to the Court, decision of a motion to withdraw a guilty plea requires analysis of four factors:
We hold that trial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant’s reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.
[Id. at ___ (slip op. at 13).]
Here, defendant told the trial court that he wanted to withdraw his guilty plea both because he was not guilty (he maintained the drugs found in the truck belonged to his daughter and not to him) and because his attorney at the time had pressured him to plead guilty, telling him he “wasn’t going to go anywhere” if he insisted on a trial.
Those assertions, however, stood in stark contrast to defendant’s statements under oath at the time he pled guilty. And, as opposed to the defendant in Slater, there is no indication in this record that at the time defendant pled guilty he had any unhappiness with his then-attorney. Further, at the time defendant entered this guilty plea, he also had charges of bail-jumping that were pending against him. Defendant clearly stated during the plea colloquy that it was his decision to plead guilty only to the charge of possession and to contest the bail-jumping charges.1 This strongly rebuts defendant’s assertion that his will was overborne.
The Court in Slater noted that defendant had acted swiftly in seeking to withdraw his guilty plea. He filed his motion twelve days after pleading guilty and, according to the Court, insisted as part of the pre-sentence report that he was not guilty and was seeking to withdraw his guilty plea. Id. at ___ (slip op. at 20-21). Here, defendant waited for months before acting, and his pre-sentence report contains not a hint of dissatisfaction with the bargain.
The Court in Slater also noted that a trial “court’s ruling may rest, of course, on its view of defendant’s demeanor and candor at both the plea proceeding and any later hearing on the withdrawal motion.” Id. at ___ (slip op. at 17). Here, defendant’s daughter, who was arrested with defendant, unfortunately died while her matter was pending. In deciding defendant’s motion to withdraw his guilty plea, the trial court made extensive observations about the effect upon defendant of his daughter’s untimely death and its belief that defendant’s motion was the product of his profound distress at his daughter’s death, rather than a reasoned analysis.
Although the trial court did not have the benefit of the Court’s opinion in Slater at the time it denied defendant’s motion, its opinion, in our judgment, can fairly be read to conclude that defendant had not put forth either a colorable claim of innocence or strong reasons for seeking to withdraw his guilty plea. Deciding such a motion rests ultimately in the trial court’s sound discretion. Id. at ___ (slip op. at 10) (“[A] plea may only be set aside in the exercise of the court’s discretion.”). We perceive no abuse of the court’s discretion here.
Affirmed.
1 Defendant later entered a plea of guilty under that separate indictment. He did not seek to withdraw that guilty plea.
April 14, 2009
Clifton police allege that trio used Craigslist to set up robbery
Clifton, New Jersey police have arrested three people accused in the robbery and assault of a teenager who responded to an ad for an iPhone on Craigslist. Two juveniles along with Ronnie Dumas, 18, of Morristown are charged with second-degree robbery. Police say that Dumas had posted an ad on Craigslist and arranged to meet the victim on Broad Street on Tuesday night. Dumas then changed the meeting spot at the last minute to School 16 on Grove Street. When the victim got to the school, where the robbers came out of a vehicle and attacked the man. $220 and a Pope John Paul II gold medallion were stolen.
This is a tough case for Dumas, because the juveniles are going to get great deals to flip on Dumas. In New Jersey, juvenile cases are handled much quicker so before Dumas gets indicted, the juveniles will already be finished with their cases. Of course, if the juveniles don’t have good attorneys and/or the State wants to hit the juveniles hard, they may be waived up to adult court. At that point, the juveniles will be sentenced as an adult if convicted.
Story is here.
Barnegat, NJ man faces DWI & Assault charges after crashing into police car
William Ferri of Barnegat allegedly sideswiped a police car and then continued driving. Seconds later, Ferri was pulled over and arrested. The officer, who was sitting in his police car at the time was treated for pain and stiffness in his back and neck in the hospital and later released. In addition to assault by auto and DWI, he was charged with reckless driving, failing to maintain lane of travel, leaving the scene of an accident and failure to report an accident. Ferri was lodged in the Ocean County Jail.
Of course, the assault by auto charge will be the toughest charge for his attorney to deal with as it is a felony offense. However, his age may help him significantly. Story is here.
NJ Supreme Court seeks adoption of a forfeiture-by-wrongdoing exception to the hearsay rule
State v. Dionte Byrd; State v. Freddie Dean, Jr. (A-105-07)
Argued January 5, 2009 — Decided April 2, 2009
ALBIN, J., writing for the Court.
In a matter of first impression, the Court determines whether, under the Rules of Evidence, a witness’s hearsay statement implicating a defendant in a crime should be admissible when through violence, intimidation, or other unlawful means, the defendant made the witness unavailable to testify at trial.
In 2001, defendants Dionte Byrd and Freddie Dean, Jr. decided to rob Charles Simmons, a known drug dealer. They traveled to Simmons’s apartment, along with Kenneth Bush, in a van. At the apartment, Byrd and Dean, both armed, exited the van leaving Bush behind. The two men forced their way into the apartment and shot Simmons. Another shot struck Byrd in the thigh. Both defendants ran from the apartment, rejoined Bush in the van, and fled.
Byrd and Dean were indicted on charges in connection with Simmons’s death. At trial, an out-of-court statement by Bush was introduced. That statement was made nine days after Simmons’s shooting as a result of Bush’s interrogation by Trenton police detectives, who transposed the questions and Bush’s answers onto a typewritten statement that Bush signed and dated. In the statement, which was read to the jury, Bush described the events leading up to the arrival at Simmons’s apartment, defendants’ return to the van, the fact that Byrd had been shot in the leg during the incident, and Byrd’s insistence that Dean had fired the shot that wounded his leg. According to Bush, the defendants continued to argue and Byrd cracked open his shotgun to show Dean that he had not shot himself in the leg during the incident because his shell had not been fired. Bush also reported observing that the slide to Dean’s handgun was open, suggesting that all the bullets had been fired. Bush reported that he decided to leave after two individuals arrived and stated that “the guy who got shot may die.” In addition, the trial court permitted the jury to hear that Bush handwrote and signed an affidavit, provided to the defense, recanting his statement to the detectives. In the affidavit, Bush attested that the detectives had arrested him on unrelated charges, “coerced” and “pressured” him into signing the statement implicating Byrd and Dean, and threatened to charge him with the homicide. Bush maintained that he had no first hand knowledge of the homicide, and did not see Dean with any weapons or hear Dean admit to the crime. In a separate affidavit, Bush directly repudiated any statements he made inculpating Byrd in the death of Simmons. The jury also heard from a detective in the Mercer County Prosecutor’s Office that, before the trial, Bush confessed that he had fabricated the statements given to defense because he believed the investigating detectives had not treated him fairly in an unrelated matter. Finally, the jury heard about Bush’s criminal past and his participation in an earlier robbery and attempted robbery of Simmons.
At the time of the trial, Bush was serving a sentence for an unrelated crime. He was housed in the same correctional facility and on the same tier with Byrd and Dean. He also was taken to the courthouse in a van with one of them. When he was brought to court to testify against Byrd and Dean, he refused to take the oath or testify and told the prosecutor that he had been placed in situations that endangered him. Later in the trial, the prosecutor advised that Bush wanted to inform the judge about the threats. Without placing Bush under oath, the court questioned Bush in camera, on the record, and out of the presence of the defendants, their counsel, and the prosecutor. Bush acknowledged that the statement he gave to police after the shooting was truthful, but refused to testify and provided details of the circumstances and statements that made him fear for his safety and the safety of his family.
Defense counsel objected strenuously to the in camera hearing and argued, in part, that the proceeding violated defendants’ due process and confrontation rights and their right to present evidence controverting Bush’s assertions. Defense counsel argued further that they were denied the opportunity to subpoena the production of prison records or testimony of inmates and corrections officers to contradict Bush’s accusations. The trial court was convinced that the defendants’ conduct had intimidated Bush, causing him to fear for himself and his family and to refuse to testify. The court determined that because their threatening conduct made Bush unavailable as a witness, defendants had waived any objection to the admission of Bush’s statement to the police. Based on the doctrine of forfeiture by wrongdoing, the court permitted the statement and other contradictory and affirming statements made by Bush to be read to the jury. The jury found Byrd and Dean guilty of felony murder and other crimes.
The Appellate Division determined that the New Jersey Rules of Evidence have no forfeiture-by-wrongdoing exception to the hearsay rule and held that the trial court erred in admitting Bush’s hearsay statement. The panel reversed the convictions and remanded for a new trial. 393 N.J. Super. 218 (2007).
HELD: Defendants’ convictions are reversed and the matter is remanded for a new trial because the trial court improperly introduced the statement of a witness who allegedly was made unavailable by intimidation, examined the witness outside the presence of defendants and their counsel, took testimony without placing the witness under oath, and denied defendants the opportunity to present evidence to rebut the evidence of intimidation. The Court determines also to seek the adoption of a forfeiture-by-wrongdoing exception to the hearsay rule that will allow the admission of a witness’s statement offered against a party who has engaged in wrongdoing that was intended to, and did, procure the unavailability of the witness.
1. Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Generally, hearsay is not admissible unless it is specifically exempted by an evidence rule or other law. Unlike many other jurisdictions, such as the federal courts, New Jersey’s Rules of Evidence do not contain a forfeiture-by-wrongdoing exception to the hearsay rule. The Federal Rules of Evidence codify the common law doctrine of forfeiture by wrongdoing, under which the hearsay statement of a witness is admissible if the defendant “engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” The forfeiture-by-wrongdoing doctrine is founded on three significant public policy rationales. The first is to remove any profit that a defendant might receive from his own wrongdoing. The second is to provide a strong deterrent against intimidation and violence directed at witnesses by defendants attempting to game the judicial system. A defendant calculating whether to contrive to make a witness unavailable may find that his trial prospects are worse off by the admission of an unimpeachable out-of-court statement inculpating him than by the testimony of a live witness subject to cross-examination. Last, the doctrine furthers the truth-seeking function of the adversary process. The doctrine does not offend the Sixth Amendment to the United States Constitution, which gives the accused the right to confront the witnesses against him. The United States Supreme Court has declared that a defendant who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation. (Pp. 19—25).
2. The Court takes notice of the persistent problem of witness intimidation in New Jersey, including in cases involving gangs, drug racketeers, organized crime and domestic violence, and concludes that New Jersey should amend its evidence rules to embrace the forfeiture-by-wrongdoing doctrine. The Court also finds that the Confrontation Clause in New Jersey’s Constitution gives no more quarter than the Sixth Amendment to those who would silence a witness from testifying at a trial. Therefore, if a defendant attempts to undermine the judicial process by procuring or coercing silence from witnesses and victims, his confrontation rights under Article I, Paragraph 10 of the State Constitution will be extinguished on equitable grounds. (Pp. 25—28).
3. In New Jersey, the adoption of evidence rules is governed by the Evidence Act, 1960, N.J.S.A. 2A:84A-33 to -44, and the process involves all three branches of government. The Evidence Act provides two different paths to adoption. One path allows for a Judicial Conference to consider a draft of a new rule, approval by the Supreme Court, and the filing of the rule with the Legislature and the Governor, after which the rule would take effect unless rejected by a joint resolution of the Senate and General Assembly that is signed by the Governor. Because the adoption of a forfeiture-by-wrongdoing exception would render a fundamental change in the hearsay rule, with serious and far-reaching consequences, the Court determines to adhere to the second path for adopting a new evidence rule and to submit a proposed rule to the Senate and the General Assembly for approval by resolution, and to the Governor for his signature. The Court believes that this route will facilitate a more expeditious adoption of the proposed rule, which will allow for the admission of a witness’s statement offered against a party who has engaged, directly or indirectly, in wrongdoing that was intended to, and did, procure the unavailability of the witness. The Court asks that the Legislature and Governor act as soon as possible to adopt this hearsay exception. (Pp. 28—39).
4. In the expectation that the Legislature and the Governor will act favorably on the proposed amendment to the Rules of Evidence, and to ensure fairness in the application of the forfeiture-by-wrongdoing exception, the Court sets forth the procedures that must be followed before the admission of such evidence. Those procedures include notice by the party intending to invoke the rule, a hearing by the trial court outside the presence of the jury but with the presence of counsel and defendant to determine whether the rule’s requirements have been met, and other procedures. At the hearing, the party invoking the rule will bear the burden of proof by a preponderance of the evidence. Before admitting an out-of-court statement of a witness under the new rule, the court also must determine that the statement bears sufficient indicia of reliability. (Pp. 39—45).
5. Here, at the time of defendants’ trial, no codified evidence rule or precedent in this State permitted the introduction of an out-of-court statement inculpating defendants by a non-testifying witness, even if defendants were responsible for making the witness unavailable to testify. Even if such an exception were on the books when Byrd and Dean were tried, their convictions would have been reversed because the trial court admitted Bush’s damning hearsay statement after conducting an in camera hearing, which excluded the defendants and their counsel in violation of their due process and confrontation rights. Nothing in the record suggests that Bush would have refused to give testimony if defense counsel had been present. The trial court also did not require Bush to take an oath or affirmation to tell the truth subject to the penalty provided by law, elicited a number of answers through leading questions, and made credibility determinations based on Bush’s unsworn, unchallenged testimony in chambers. From the defense perspective, Bush was far from a disinterested citizen and, among other things, was a self-confessed drug user with a string of criminal convictions who gave his statement to police after he was arrested for a crime unrelated to Simmons’s killing. Defense counsel wanted to expose his motives and test his recollection through cross-examination. Defense counsel also was denied the opportunity to present witnesses and evidence to rebut Bush’s in camera assertions to the court. It was wholly inappropriate to hold an ex parte, in camera hearing in this manner. Even if the forfeiture-by-wrongdoing exception had been codified in the rules, the Court would reverse defendants’ convictions because of the fundamental procedural violations that occasioned the admission of Bush’s out-of-court statement. The introduction of that statement, which was central to the State’s case, was not harmless error. Defendants’ convictions are reversed and the matter is remanded for a new trial. (Pp. 45—51).
The judgment of the Appellate Division reversing defendants’ convictions is AFFIRMED, and a forfeiture-by-wrongdoing exception to the hearsay rule for inclusion in the Rules of Evidence is forwarded to the Senate and General Assembly for their approval by resolution and to the Governor for his signature.
JUSTICE LaVECCHIA, CONCURRING, joined by JUSTICES RIVERA-SOTO and HOENS, agrees with the judgment of the Court that embraces the forfeiture-by-wrongdoing doctrine, but would apply the Court’s equitable powers, pursuant to the common law, and remand this matter for a new Rule 104 hearing at which the State and defendants would be present and would be allowed to examine the witness to establish whether he was truly unavailable to testify and whether his unavailability was the result of defendants’ wrongdoing. If so, she would affirm defendants’ convictions; if not, the convictions would be reversed.
CHIEF JUSTICE RABNER and JUSTICES LONG and WALLACE join in JUSTICE ALBIN’s opinion. JUSTICE LaVECCHIA, joined by JUSTICES RIVERA-SOTO and HOENS filed a separate, concurring opinion.
SUPREME COURT OF NEW JERSEY
v.
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
FREDDIE DEAN, JR.,
Defendant-Respondent.
Argued January 5, 2009 – Decided April 2, 2009
On certification to the Superior Court, Appellate Division, whose opinion is reported at 393 N.J. Super. 218 (2007).
Daniel I. Bornstein, Deputy Attorney General, argued the cause for appellant (Anne Milgram, Attorney General of New Jersey, attorney).
Andrew F. Schneider argued the cause for respondent Dionte Byrd.
Mark H. Friedman, Assistant Deputy Public Defender, argued the cause for respondent Freddie Dean, Jr. (Yvonne Smith Segars, Public Defender, attorney; Mr. Friedman and William P. Welaj, Former Designated Counsel, on the briefs).
Sharon Bittner Kean argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey.
JUSTICE ALBIN delivered the opinion of the Court.
Witness intimidation in cases involving gangs, drug racketeers, organized crime, and domestic violence has become a significant challenge to the criminal justice system. In this appeal, we must decide whether, under our Rules of Evidence, a witness’s hearsay statement implicating a defendant in a crime should be admissible, when through violence, intimidation, or other unlawful means, the defendant makes the witness unavailable to testify at trial.
We now hold that the time has come for New Jersey to follow the course taken by many other jurisdictions and codify a forfeiture-by-wrongdoing exception to the hearsay rule. That rule will allow the admission of a witness’s statement offered against a party who has engaged, directly or indirectly, in wrongdoing that was intended to, and did, procure the unavailability of the witness. A forfeiture-by-wrongdoing rule will achieve three important policy objectives. First, it will ensure that a criminal defendant will not profit from making a witness unavailable to testify. Second, it will provide a powerful disincentive against witness intimidation. Last, it will further one of the primary goals of every trial — the search for truth. The proposed evidence rule will likely have far-ranging consequences in the trial of both criminal and civil cases. Therefore, in accordance with the Evidence Act, 1960, N.J.S.A. 2A:84A-33 to -44 (Evidence Act), we will forward to the Senate, General Assembly, and Governor, for their urgent consideration, the adoption of a forfeiture-by-wrongdoing exception to the hearsay rule.
We agree with the Appellate Division that the criminal convictions of the two defendants in this case must be reversed. First, the trial court introduced the statement of a witness, who allegedly was made unavailable by intimidation, at a time when there was no forfeiture-by-wrongdoing exception in our evidence rules. Second, even had there been a codified rule, the hearsay statements of the allegedly threatened witness would not have been admissible because the trial court examined the witness ex parte, outside the presence of defendants and their counsel, denying defendants their right of confrontation. Moreover, the court took testimony without placing the witness under oath and did not permit defendants the opportunity to present evidence to rebut the State’s evidence of intimidation. We therefore are compelled to remand for a new trial.
I.
A.
Defendants Dionte Byrd and Freddie Dean, Jr. were indicted by a Mercer County grand jury for crimes related to the killing of Charles Simmons. They were tried together before a jury during a four-week trial in 2004. The essential facts revealed that on the evening of August 26, 2001, Byrd and Dean hatched a plan to rob Simmons, a known drug dealer. They traveled to Simmons’s Trenton apartment, along with Kenneth Bush, in a van driven by Hassan Wilson. At their destination, Byrd, wielding a shotgun, and Dean, armed with a nine-millimeter handgun, exited the van, leaving behind Wilson and Bush. When Byrd and Dean knocked on the door to Simmons’s apartment, Clinton Fudge, one of the apartment’s four occupants, heard a voice on the other side saying, “Mini, Mini, Mini, Mini,” Simmons’s nickname. After Fudge cracked open the door, Byrd and Dean forced their way inside and ordered Fudge to lie down on the floor. Apparently hearing the commotion, Simmons emerged from a back room and confronted the armed assailants. Simmons engaged in a struggle with Dean during which Dean’s handgun discharged four times. One of the shots struck Simmons in the upper chest at point-blank range killing him. Another shot struck defendant Byrd in the thigh. Both defendants then fled the apartment, entered the van, and made their getaway. Fudge was the only eyewitness to testify about what occurred in the apartment. The jury heard from other witnesses about the events leading up to and following the shooting.
At the conclusion of the trial, both Byrd and Dean were convicted of felony murder, N.J.S.A. 2C:11-3(a)(3), first-degree aggravated manslaughter (as a lesser-included offense of murder), N.J.S.A. 2C:11-4(a)(1), and first-degree robbery, N.J.S.A. 2C:15-1(a) and (b). The jury also convicted Byrd of third-degree unlawfully possessing a loaded shotgun, N.J.S.A. 2C:39-5(c)(2), and of possessing a shotgun for an unlawful purpose, N.J.S.A. 2C:39-4(a), and convicted Dean of third-degree unlawfully possessing a handgun, N.J.S.A. 2C:39-5(b), and of second-degree possessing a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a).1
The trial court sentenced both defendants on the felony-murder conviction to life imprisonment with a thirty-year minimum parole-ineligibility period. Byrd received a concurrent ten-year term with a five-year parole disqualifier for possessing a shotgun for an unlawful purpose, and Dean received a concurrent ten-year term with a five-year parole disqualifier for possessing a handgun for an unlawful purpose. The remaining charges were merged with those convictions.
B.
The heart of this case concerns the introduction into evidence of Kenneth Bush’s out-of-court statement, made to two Trenton police detectives, implicating both Byrd and Dean in the robbery and killing of Simmons. Nine days following Simmons’s shooting, Bush was interrogated by the two detectives, who transposed the questions and answers onto a nine-page typewritten statement, which Bush signed and dated.
In that statement, which was read to the jury, Bush related that on the day of Simmons’s shooting he observed defendant Dean carrying a nine-millimeter handgun. Later that evening, Bush was riding in a van with defendants Byrd and Dean driven by Hassan Wilson. After driving around Trenton for fifteen to twenty minutes, Wilson parked on a street corner, where Byrd and Dean exited. They said that “they were going to check something out and they would be right back.” While they were gone, Bush smoked crack in the back of the van.
Approximately five or ten minutes later Byrd and Dean “came running” back into the van, with Byrd exclaiming in words punctuated with expletives that Dean had shot him. Inside the van, Byrd continued ranting at Dean, “[Y]ou were shooting real crazy. . . . [Y]ou know you shot me, I don’t believe you shot me.” Dean retorted that “somebody came out with a gun and [was] shooting, too,” and added, “[M]an, I put it in him. I let off on him.” Dean was holding the same handgun that Bush had observed him with earlier in the day. The slide to the nine-millimeter handgun was open, suggesting that all the bullets had been fired from the gun. Dean repeated that someone in the apartment had a shotgun and that Byrd had been “hit with a pellet,” but Byrd insisted that he “didn’t see nobody else with a gun.”
Eventually, they drove to the home of Dean’s cousin. There, Bush viewed Byrd’s leg wound while Dean and Byrd continued to argue about how Byrd had been shot. In an attempt to prove his point that, perhaps, Byrd had shot himself, Dean picked up Byrd’s shotgun and “cracked it open.” Out popped an “unspent” shell indicating that the shotgun had not been fired. During the course of this debate, Bush continued to consume crack. When two guests came to the house with the news that “the guy who got shot may die,” Bush decided it was time to leave.2
The court also permitted the jury to hear that Bush handwrote and signed an affidavit, provided to the defense, recanting his statement to the two detectives. In his affidavit, Bush attested that the two detectives had arrested him on charges unrelated to the Simmons killing and had “coerced” and “pressured” him into signing the statement implicating Byrd and Dean. Bush claimed that the detectives threatened to charge him with the Simmons homicide and “told [him] what to say.” Bush maintained that he was “high on crack cocaine” at the time of his arrest, that he had “no first hand knowledge of [the] homicide,” and that he “did not see [Dean] with any weapons,” or hear Dean admit to “anything about [the] crime.” In a separate affidavit, Bush directly repudiated any statements he made inculpating Byrd in the death of Simmons.
But that was not the last word the jury heard about Bush’s statement to the detectives. Detective Frank LaBelle of the Mercer County Prosecutor’s Office testified that, before trial, Bush confessed that he had fabricated the statements given to the defense. Bush explained to Detective LaBelle that he was “pissed off” at the investigating detectives because he felt they had not given him “a fair shake in an unrelated matter,” and because Bush’s codefendants in that other case apparently “made out a little better than he did.”
The jury also learned about Bush’s prodigious criminal past. Bush was convicted of a fourth-degree sexual offense in 1986, of third-degree possession of cocaine and second-degree robbery in 1988, of fourth-degree aggravated assault with a weapon in 1996, and of third-degree possession of a weapon for an unlawful purpose in 2001. Moreover, according to the testimony of Kenneth McNeil, a week before Simmons was killed, he, Dean, and Bush had robbed Simmons in his apartment house, taking from him a quantity of cocaine. During the robbery, Bush wielded a shotgun — the same shotgun that Byrd later used in the ill-fated robbery attempt that resulted in Simmons’s death. McNeil testified that not only had he, Dean, and Bush robbed Simmons, but the very same day they attempted to rob him again. However, their efforts were thwarted because no one responded to the ringing of Simmons’s doorbell.
C.
Bush’s hearsay statements were read to the jury only after Bush refused to testify at defendants’ trial and the court concluded at an ex parte hearing that defendants’ threatening and intimidating conduct had rendered Bush unavailable as a witness. We now turn to the events leading up to the ex parte hearing, the hearing itself, and the court’s reasons for admitting Bush’s out-of-court statement to the police.
At the time of defendants’ trial, Bush was serving an eight-year prison sentence with a three-year parole disqualifier for possessing a weapon for an unlawful purpose. While serving that sentence, Bush had been incarcerated in the same correctional facility and placed on the same tier where Byrd and Dean were housed. The prosecutor and Detective LaBelle had visited Bush there and expected his cooperation in the prosecution of Byrd and Dean. However, when Bush was brought to the Mercer County Courthouse and placed on the stand, he refused to take the oath or testify. Bush explained that he had made it known to the prosecutor that he had been put in “situations” that endangered both him and his family. Specifically, he complained that he had been incarcerated with the very defendants against whom he would be offering testimony. The prosecutor also brought to the court’s attention that Bush had been transported in a van with Byrd from state prison for defendants’ trial.
The trial court acknowledged the “screw-ups” that resulted in a key State’s witness being housed with defendants, but also reviewed pragmatically the limited options. At the time of trial, Bush already had served three years of his sentence, and the parole board had given Bush a future parole eligibility date of eighteen months. The court did not believe it likely that either civil or criminal contempt would have the coercive effect of compelling Bush to testify.3
Later in the trial, the prosecutor advised the court that Bush “wants to speak with your Honor regarding the threats that were put upon him by Freddie Dean and Dionte Byrd.” The prosecutor also argued that defendants had forfeited their confrontation rights by making Bush unavailable as a witness and that Bush’s statement inculpating defendants should be read to the jury.
Over the strenuous objections of defense counsel, the court questioned Bush in camera, on the record, out of the presence of defendants, their attorneys, and the prosecutor. Bush was brought into the court’s chambers and, at the court’s urging, his handcuffs were removed. Present in chambers, in addition to the judge and Bush, were three law enforcement officers, the judge’s law clerk, and the court reporter. At no point was Bush placed under oath. The court and Bush engaged in a colloquy. Bush introduced himself as Alim Sprull, noting that his birth name was Kenneth Bush.
In response to questioning by the court, Bush acknowledged that the statement he gave to the police after Simmons’s shooting was truthful. He stated that he refused to testify in court the previous week because “the police have put me in positions where I was locked up with both defendants at one time or the other, and then it happened again coming to court.” Bush related that three years earlier he had been placed on the same tier with Byrd, who offered to have him bailed out if he changed his testimony. As a result of that encounter, Bush felt fearful.
Three or four weeks after that incident, Dean was transferred to Bush’s tier. At some point, Dean learned about Bush’s statement to the police and began to make what Bush construed to be indirect threats to him. Dean “kept pressuring” Bush to repudiate his statement to police, and in order to “keep peace” between the two, Bush signed the affidavit exculpating Dean. With an inmate’s sense of realpolitik, Bush noted, “I can’t stay on the same tier and then constantly tell the man I’m going against him.” Bush also recanted his statement because he was “pissed off” that the investigating detectives had not carried through on their promise to transfer him to a different prison tier, leaving him with no choice but to “do what [he] had to do” to protect himself.
At the time Bush signed the affidavit for Dean’s defense, Byrd had been transferred to another correctional facility. Sometime at the end of 2002 or beginning of 2003, Byrd’s younger brother, who was “locked up” on Bush’s tier, showed Bush a letter that suggested that “[s]omebody [could] get at [him] at any time.” After seeing the letter, Bush considered his physical safety threatened. Moreover, in the summer of 2003, Bush received a letter from Dean that left him with the overall impression that “anyone” who testified against Dean “could be dealt with.”
When Bush was brought to the courthouse for a pre-trial hearing, Byrd and Dean soon learned that he was there to testify for the prosecution, not the defense. Afterwards, Bush’s wife, who was Dean’s cousin, received an inquiry from another cousin about whether she knew the reason for Bush’s appearance in the courthouse. On one occasion, Bush was transported to the courthouse in the same van as Byrd, and although no threats were directed at Bush, the situation was “tense.” On yet another occasion, Bush was placed in a cell across from Dean, who asked “lots of questions [about] what was going on,” prompting Bush to reply, “I’m not going to do anything.”
In light of those cumulative occurrences, Bush told the court that he believed that his safety and the safety of his wife and thirteen-year-old stepson would be endangered if he testified as a prosecution witness. He stated that he was willing to speak with the attorneys for Byrd and Dean, but would not testify against them for fear of retribution against him and his family.
The next day, counsel for defendants stated their objections to the ex parte, in camera hearing, arguing that the proceeding contravened their clients’ due process and confrontation rights as well as their right to present evidence controverting Bush’s assertions. Defense counsel maintained that the court had questioned Bush through leading questions and that the suspension of the adversarial process at the in camera hearing left Bush’s unsworn testimony and credibility unchallenged. In particular, counsel claimed that they were denied the opportunity to subpoena the production of prison records or testimony of inmates and corrections officers to contradict Bush’s damning accusations.
Although the trial court conceded that the in camera hearing was a “strange and novel proceeding” to address circumstances it had never encountered before, it rejected the arguments presented by the defense. The court was “clearly convinced” that Bush was “in fear for himself and for members of his family” as a result of defendants’ conduct. The court found that the methods employed by defendants to deliver their message may have been subtle, but that the message had the “extraordinary . . . capacity to intimidate.” The court concluded that, from its first-hand observations of Bush, “fear prevents and has prevented and will continue to prevent [his] testimony.” On the basis of the doctrine of forfeiture by wrongdoing, articulated in federal cases and State v. Sheppard, 197 N.J. Super. 411 (Law Div. 1984), the court determined that because defendants’ threatening conduct made Bush unavailable as a witness, defendants had waived any objection to the admission of Bush’s statement to the police. The court then heard testimony from the detective who took Bush’s statement implicating defendants, determined that the statement was given under circumstances establishing its reliability, and permitted it and other contradictory and affirming statements made by Bush to be read to the jury.
D.
The Appellate Division held that the trial court erred in admitting Bush’s hearsay statement inculpating defendants, and therefore reversed their convictions and remanded for a new trial. State v. Byrd, 393 N.J. Super. 218, 221, 235 (App. Div. 2007). The panel observed that unlike the Federal Rules of Evidence, the New Jersey Rules of Evidence have no forfeiture-by-wrongdoing exception to the hearsay rule. Id. at 232-34 (comparing Fed. R. Evid. 804(b)(6) with N.J.R.E. 804(b)). More particularly, N.J.R.E. 804(b) does not contain a provision that allows for the admission of a hearsay statement inculpating a defendant when the witness is rendered unavailable to testify due to the threatening or violent conduct of the defendant. Id. at 232-33.
The panel noted that since the promulgation of Federal Rule of Evidence 804(b)(6) in 1997, the highest courts in a number of states that did not have a codified forfeiture-by-wrongdoing hearsay exception in their evidence rules “adopted the forfeiture doctrine through judicial decision.” Id. at 233 (collecting citations). Nonetheless, the panel concluded that “given the significant and far-reaching implications” of the adoption of a similar hearsay exception in this State, “such a change in the Rules of Evidence should be accomplished by our Supreme Court in accordance with the procedure prescribed in N.J.S.A. 2A:84A-38 and -39, rather than by judicial opinion.” Id. at 234 (citing State v. Guenther, 181 N.J. 129, 160 (2004)). Accordingly, the panel found that our evidence rules barred the introduction of Bush’s highly incriminating out-of-court-statement. Id. at 234-35. In addition, the Appellate Division determined that the trial court’s “ex parte procedure,” taking Bush’s testimony outside the presence of defense counsel, “was at variance with the full evidentiary hearings conducted . . . in forfeiture-by-wrongdoing cases.” Id. at 232. For those reasons, a new trial was ordered. Id. at 235.
We granted the State’s petition for certification, 194 N.J. 445 (2008). We also granted the motion of the Association of Criminal Defense Lawyers of New Jersey to participate as amicus curiae.
II.
The State urges this Court to adopt a forfeiture-by-wrongdoing rule, similar to the one codified in the Federal Rules of Evidence and accepted by a majority of state court jurisdictions. The State argues that, as a matter of public policy and equity, a defendant who silences a witness through violence or intimidation should be barred from objecting to the admission of the witness’s out-of-court statements inculpating the defendant. The State believes that widespread intimidation of witnesses poses the single greatest threat to the prosecution of cases involving gangs, organized crime, and domestic violence. Because the forfeiture-by-wrongdoing doctrine has been long embedded in the common law, according to the State, this Court should assert “its constitutional authority over the practice and procedure of the courts” pursuant to Article VI, Section 2, Paragraph 3 of the New Jersey Constitution, and unilaterally recognize this uncodified hearsay rule exception without resorting to the process for adopting new rules of evidence set forth in the Evidence Act, N.J.S.A. 2A:84A-33 to -44. The State also maintains that the trial court acted properly in conducting an ex parte hearing and admitting Bush’s statement to the police. Therefore, it submits that the Appellate Division should be reversed.
Defendants would affirm the Appellate Division. They submit that despite the common law antecedents of the forfeiture-by-wrongdoing hearsay exception, the doctrine was never codified in our evidence rules and therefore the trial court erred in admitting Bush’s statement. Defendants reason that to follow the course proposed by the State would fundamentally alter our evidence rules “solely by judicial decision” in a manner inconsistent with the Evidence Act. That Act, defendants insist, contemplates that any significant change to our evidence rules come about through the collaboration of all three branches of government. (Citing State v. D.R., 109 N.J. 348, 352 (1988)). Whatever course this Court takes, defendants maintain that any new rule of evidence should not be retroactively applied to their concluded trials. They also take issue with the ex parte procedure that led to the court’s admission of Bush’s statement inculpating them. Defendant Byrd points out that the trial court “found forfeiture by wrongdoing based solely on the almost uncorroborated word of an accomplice and co-conspirator . . . after an in camera hearing from which counsel were excluded,” thus denying defendants the opportunity “to cross-examine the allegedly intimidated witness or to present their own evidence casting doubt on his vague assertions.”
Amicus curiae Association of Criminal Defense Lawyers of New Jersey contends that the adoption of the forfeiture-by-wrongdoing doctrine would constitute a “new exception to the hearsay rule and a significant change to the existing rules of evidence.” The amicus asserts that this Court’s constitutional rule-making authority is limited in such circumstances and that the Court should invoke the statutory procedures established in the Evidence Act, one of which is to submit a proposed rule for adoption by the Judicial Conference.
III.
A.
Whether a non-testifying witness’s out-of-court statement inculpating a defendant should be admitted into evidence under the forfeiture-by-wrongdoing doctrine is a matter of first impression in our State.4 Unlike many other jurisdictions, New Jersey’s Rules of Evidence do not contain a forfeiture-by-wrongdoing exception to the hearsay rule.5 Therefore, we first begin with a historical overview of the common law doctrine of forfeiture by wrongdoing and the public policy that gave rise to the doctrine. Second, we examine the doctrine’s relevance to the particular needs of this State’s criminal justice system. We then look to whether a forfeiture-by-wrongdoing hearsay exception should be adopted by judicial decisionmaking or by the procedures set forth in the Evidence Act. Last, we outline the procedures that must be followed before any out-of-court statement can be admitted into evidence pursuant to the forfeiture-by-wrongdoing doctrine.
B.
In 1997, the Federal Rules of Evidence codified the common law doctrine of forfeiture by wrongdoing. See Fed. R. Evid. 804(b)(6). Under that doctrine, the hearsay statement of a witness is admissible if the defendant “engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” Fed. R. Evid. 804(b)(6). Most recently, in Giles v. California, Justice Scalia traced the common law origins of the forfeiture-by-wrongdoing doctrine, which dates back to seventeenth-century English common law. 554 U.S. ___, ___, 128 S. Ct. 2678, 2682-91, 171 L. Ed. 2d 488, 494-504 (2008). The common law “rule has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong.” Reynolds v. United States, 98 U.S. 145, 159, 25 L. Ed. 244, 248 (1879). Simply put, the purpose of the common law forfeiture rule was to “remov[e] the otherwise powerful incentive for defendants to intimidate, bribe, and kill the witnesses against them –- in other words, it is grounded in ‘the ability of courts to protect the integrity of their proceedings.’” Giles, supra, 554 U.S. at ___, 128 S. Ct. at 2691, 171 L. Ed. 2d at 504 (quoting Davis v. Washington, 547 U.S. 813, 834, 126 S. Ct. 2266, 2280, 165 L. Ed. 2d 224, 244 (2006)).
Thus, the forfeiture-by-wrongdoing doctrine is founded on three significant public policy rationales. The first is to remove any profit that a defendant might receive from his own wrongdoing. See Reynolds, supra, 98 U.S. at 159, 25 L. Ed. at 248; United States v. Gray, 405 F.3d 227, 242 (4th Cir.) (“[F]ederal courts have recognized that the forfeiture-by-wrongdoing exception is necessary to prevent wrongdoers from profiting by their misconduct.”), cert. denied, 546 U.S. 912, 126 S. Ct. 275, 163 L. Ed. 2d 245 (2005). The second rationale is to provide a strong deterrent against intimidation and violence directed at witnesses by defendants attempting to game the judicial system. See Giles, supra, 554 U.S. at ___, 128 S. Ct. at 2691, 171 L. Ed. 2d at 504; United States v. Thompson, 286 F.3d 950, 962 (7th Cir. 2002) (“The primary reasoning behind this rule is obvious — to deter criminals from intimidating or ‘taking care of’ potential witnesses against them.”), cert. denied, 537 U.S. 1134, 123 S. Ct. 918, 154 L. Ed. 2d 824 (2003). A defendant calculating whether to contrive to make a witness unavailable may find that his trial prospects are far worse off by the admission of an unimpeachable out-of-court statement inculpating him than by the testimony of a live witness subject to cross-examination. Last, the forfeiture-by-wrongdoing doctrine “furthers the truth-seeking function of the adversary process, allowing fact finders access to valuable evidence no longer available through live testimony.” Commonwealth v. Edwards, 830 N.E.2d 158, 167 (Mass. 2005).
The forfeiture-by-wrongdoing doctrine is applied not only in our federal courts, but also in the courts of most of our sister states and the District of Columbia.6 No court that has considered the forfeiture-by-wrongdoing doctrine has rejected it. See Edwards, supra, 830 N.E.2d at 166-67 (“[W]e are aware of no jurisdiction that, after considering the [forfeiture-by-wrongdoing] doctrine, has rejected it.”); Devonshire v. United States, 691 A.2d 165, 168 (D.C.) (noting “[a]ll federal and state courts that have addressed this issue, that we could find, have” accepted forfeiture-by-wrongdoing doctrine), cert. denied, 520 U.S. 1247, 117 S. Ct. 1859, 137 L. Ed. 2d 1060 (1997).
Significantly, the admission of evidence under the forfeiture-by-wrongdoing doctrine does not offend the Sixth Amendment to the United States Constitution, which guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” 7 U.S. Const. amend. VI. That is so because the forfeiture-by-wrongdoing rule “extinguishes confrontation claims on essentially equitable grounds.” Crawford v. Washington, 541 U.S. 36, 62, 124 S. Ct. 1354, 1370, 158 L. Ed. 2d 177, 199 (2004).
In Reynolds, the United States Supreme Court declared that “[t]he Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away.” 98 U.S. at 158, 25 L. Ed. at 247. More recently, the Court explained in Davis v. Washington that
when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system.
[547 U.S. 813, 833, 126 S. Ct. 2266, 2280, 165 L. Ed. 2d 224, 244 (2006).]
In short, “one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.” Ibid. The Sixth Amendment, however, requires that the wrongdoer have as his intent “the particular purpose of making the witness unavailable” to testify at trial. Giles, supra, 554 U.S. at ___, 128 S. Ct. at 2687, 171 L. Ed. 2d at 500 (citations and internal quotation marks omitted).
Accordingly, the forfeiture-by-wrongdoing doctrine is grounded in common sense, supported by public policy, and does not run afoul of the federal Confrontation Clause. We next examine the doctrine’s relevance to the particular needs and jurisprudence of our State’s criminal justice system.
C.
In certain types of criminal cases, witness intimidation appears to be nothing short of a nationwide pandemic. Although “[e]mpirical data on witness intimidation” may be difficult to gather (successful intimidation seldom comes to the attention of law enforcement), “anecdotal evidence is plentiful.” Brendan O’Flaherty & Rajiv Sethi, Witness Intimidation 2 (Columbia Univ. Dep’t of Econ., Discussion Paper No. 0708-07, Oct. 2007), available at http://www.columbia.edu/cu/economics/discpapr/DP0708-07.pdf. Nationally, prosecutors estimate that witness intimidation occurs in seventy-five to one hundred percent of violent crimes committed in some gang-dominated neighborhoods. H.R. Rep. No. 110-113, at 49 (2007). According to the 2000 National Youth Gang Survey, gang-related witness intimidation is so widespread that “82 percent of the police agencies responding to the . . . survey indicated that measures were being taken to deal with the problem.” John Anderson, Gang-Related Witness Intimidation, Nat’l Gang Center Bull. (Nat’l Gang Ctr., Wash., D.C.), Feb. 2007, at 1.
Witness intimidation is no stranger to New Jersey. Threats to witnesses, the killing of witnesses, and the climate of fear that prevails in some crime-infested neighborhoods have undermined law enforcement’s ability to prosecute even murder cases. See, e.g., David Kocieniewski, With Witnesses at Risk, Murder Suspects Go Free, N.Y. Times, Mar. 1, 2007, at A1 (documenting witness intimidation in New Jersey in eight-part series called “Scared Silent”); William Kleinknecht & Jonathan Schuppe, Getting Away with Murder, Star-Ledger (Newark, N.J.), Jan. 29, 2006, at 1 (noting that from 1998 through 2003, dozens of witnesses either recanted, disappeared, or were killed). In certain cities, the expectation of retribution against those who cooperate with the police has given rise to the urban proverb that “[s]nitches wear stitches.” David Kocieniewski, In Prosecution of Gang, a Chilling Adversary: The Code of the Streets, N.Y. Times, Sept. 19, 2007, at B1; see also Nat’l Ctr. for Victims of Crime, Snitches Get Stitches: Youth, Gangs, and Witness Intimidation in Massachusetts 5 (2007) (documenting “‘no-snitching’” code among urban youth in Massachusetts).
In some crime-ridden communities, it is understood that breaking the street code of silence may lead to a brutal beating, maiming, or death. Kleinknecht & Schuppe, supra, at 1 (noting that at least five witnesses to murders were killed in 2004 and 2005). Indeed, fear of retaliation from gangs can be so overwhelming that some persons will refuse to come forward even when a family member is victimized or the safety of the neighborhood is imperiled. David Kocieniewski, A Little Girl Shot, and a Crowd that Didn’t See, N.Y. Times, July 8, 2007, at A1 (noting that murder charges were dropped against two gang members because none of twenty people in sight of killings willing to testify).
From our review of countless petitions for certification, we can take judicial notice of the all too typical scenario — witnesses to a violent or drug crime give signed or tape-recorded statements to the police at the commencement of an investigation, only to recant their statements or have memory failure at the time of trial. The persistent problem of witness intimidation in New Jersey cannot be denied. Adoption of a forfeiture-by-wrongdoing exception to the hearsay rule is not a panacea, but is a reasonable step that our criminal justice system can take to address the problem.
We therefore conclude that New Jersey should join the ranks of the many other jurisdictions that have amended their rules of evidence to embrace the forfeiture-by-wrongdoing doctrine. We also find that our State Constitution’s Confrontation Clause gives no more quarter than the Sixth Amendment to those who would silence a witness from testifying at a trial. Accordingly, if a defendant attempts “to undermine the judicial process by procuring or coercing silence from witnesses and victims,” Davis, supra, 547 U.S. at 833, 126 S. Ct. at 2280, 165 L. Ed. 2d at 244, his confrontation rights under Article I, Paragraph 10 of our State Constitution will be extinguished on equitable grounds.
We now must determine the appropriate means by which to make the forfeiture-by-wrongdoing doctrine a part of our Rules of Evidence. The State encourages us to act unilaterally whereas defendants and amicus propose that we follow the procedures set forth in the Evidence Act.
D.
In New Jersey, the adoption of evidence rules is governed by statute — the Evidence Act, 1960, N.J.S.A. 2A:84A-33 to -44 — and the process of adopting such rules involves all three branches of government. In accordance with the procedures of the Evidence Act, “[t]he Supreme Court may adopt rules dealing with the admission or rejection of evidence,” N.J.S.A. 2A:84A-33, but those procedures require participation by the Legislature and Governor, see N.J.S.A. 2A:84A-34 to –39.
The Evidence Act provides two different paths to the adoption of new evidence rules. One path allows for a Judicial Conference, which includes judges, lawyers, and academics, to consider a draft of new evidence rules. See N.J.S.A. 2A:84A-34. On recommendation of the Conference, and approval by the Supreme Court, the proposed new evidence rules would be announced “on September 15 next following such Judicial Conference,” and then filed with the Legislature and the Governor. See N.J.S.A. 2A:84A-35. Under that approach, unless rejected by a joint resolution “adopted by the Senate and General Assembly and signed by the Governor,” the proposed evidence rules “take effect on July 1 next following.” N.J.S.A. 2A:84A-36. It is through this process that the 1967 and current 1993 Rules of Evidence, N.J.R.E. 101 to 1103, were adopted. See Busik v. Levine, 63 N.J. 351, 367-68 (“The [1967] rules of evidence were adopted cooperatively by the three branches of government under the Evidence Act, 1960 . . . .”), appeal dismissed, 414 U.S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1973); Supreme Court Order dated September 15, 1992 (adopting New Jersey Rules of Evidence, N.J.R.E. 101 to 1103, pursuant to provisions of N.J.S.A. 2A:84A-36, effective July 1, 1993).
The other path for the adoption of evidence rules permits the Supreme Court, at any time and without presentation to a Judicial Conference, to submit the proposed rules to the Senate and General Assembly, for their approval by joint resolution, and to the Governor for his signature. See N.J.S.A. 2A:84A-38; see also State v. D.R., 109 N.J. 348, 375 (1988) (setting forth procedure). The scheme for the adoption of our evidence rules has historical antecedents that date back to the ratification of the 1947 Constitution.
Before passage of the Evidence Act, the various branches of government made competing constitutional claims as to which branch had authority to enact and regulate evidence rules. See D.R., supra, 109 N.J. at 373-75; Busik, supra, 63 N.J. at 367-68. Although Article VI, Section 2, Paragraph 3 of the New Jersey Constitution granted the Supreme Court plenary authority over procedural rules governing our courts,8 Winberry v. Salisbury, 5 N.J. 240, 245-46, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950), the delegates to the 1947 Constitutional Convention were either unable or unwilling to classify rules of evidence as either procedural rules or substantive law.9 Indeed, there was considerable support for the position that evidence rules contain elements of both. See Busik, supra, 63 N.J. at 367 (noting that evidence rules contain elements of both “‘procedural’” and “‘substantive’” law).
Interestingly, the 1942 draft of the proposed State Constitution empowered the Supreme Court to “make rules as to the administration of all of the courts, and, subject to law, as to pleading, practice and evidence in all courts.” 4 Proceedings of the Constitutional Convention of 1947, at 561 (reprinting text of 1942 “Proposed Revised Constitution”) (emphasis added). The 1944 draft Constitution similarly authorized, but in different language, the Supreme Court to make rules governing evidence. Id. at 566 (reprinting text of “Proposed Revised Constitution of 1944”). The language in the 1942 and 1944 draft Constitutions giving the Supreme Court exclusive authority to adopt rules of evidence fell out of the final draft of the 1947 Constitution. This history suggests that delegates to the Constitutional Convention decided not to resolve the thorny question concerning whether the Supreme Court had exclusive rule-making power to enact evidence rules.
The Evidence Act was a “pragmatic resolution” among the three branches of government, giving each branch a role in the process of enacting rules of evidence. D.R., supra, 109 N.J. at 373-74. In averting a conflict with the other branches of government, “we did not pursue to a deadlock the question whether ‘evidence’ was ‘procedural’ [rather than substantive] and therefore . . . the sole province of the Supreme Court.” Busik, supra, 63 N.J. at 368.
The New Jersey Rules of Evidence are a codification of many common law rules — but not necessarily all common law rules — that governed classes of evidence admissible in our courts and the procedures for introducing such evidence. Our codified evidence rules place both the bench and the bar on notice of the fundamental framework for the admission of evidence during a trial. See Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 102 (2008) (“New Jersey’s Rules of Evidence provide a comprehensive and coherent structure designed to provide specific instruction to the bench and bar in the vast array of evidentiary contexts that may arise in contested trials.”). In recent history, we have adopted evidence rules that dramatically impact the conduct of trials by way of the Evidence Act, D.R., supra, 109 N.J. at 352, 375-76, while allowing evidence rule changes of lesser consequence to be developed through case law, State v. Guenther, 181 N.J. 129, 159-60 (2004).
Although the State and our concurring colleagues correctly point out that other jurisdictions have adopted a forfeiture-by-wrongdoing rule by judicial decisionmaking, they fail to take sufficient note of the fact that New Jersey’s evidence rules, and the process by which we adopt those rules, are different from those of other states. For example, unlike New Jersey, a number of jurisdictions, including the federal system, have catch-all or residual exceptions to their hearsay rules that give their courts greater leeway to recognize evidentiary rules that are not codified.10 See State v. Brown, 170 N.J. 138, 152 (2001) (stating that “New Jersey has expressly declined to adopt the federal residual hearsay exception”). Before adoption of the federal forfeiture-by-wrongdoing rule, Fed. R. Evid. 804(b)(6), in 1997, some federal courts relied on the residual exception of the federal hearsay rule to justify the application of the forfeiture doctrine. See, e.g., United States v. Rouco, 765 F.2d 983, 993-95 (11th Cir. 1985) (admitting hearsay statement of witness killed by defendant pursuant to federal residual hearsay exceptions), cert. denied, 475 U.S. 1124, 106 S. Ct. 1646, 90 L. Ed. 2d 190 (1986); United States v. Carlson, 547 F.2d 1346, 1353-55 (8th Cir. 1976) (admitting, pursuant to federal residual hearsay exception, hearsay statement of witness who refused to testify due to defendant’s threats), cert. denied, 431 U.S. 914, 97 S. Ct. 2174, 53 L. Ed. 2d 224 (1977).
Likewise, some state courts also adopted the forfeiture-by-wrongdoing rule through catch-all exceptions to their hearsay rules. See, e.g., Vasquez v. People, 173 P.3d 1099, 1106 (Colo. 2007) (“The fact that the defendant has forfeited his confrontation rights by wrongdoing does not render the evidence reliable. . . . [T]he reliability of the evidence must still be ensured according to the standards of the Colorado Rules of Evidence [and its residual hearsay exception].”); Boyd v. State, 866 N.E.2d 855, 857 (Ind. Ct. App.) (“Although the Indiana Rules of Evidence do not contain a similar provision [analogous to Federal Rule of Evidence 804(b)(6)], we see no reason why the doctrine of forfeiture by wrongdoing may not be applied as a matter of common law” in accordance with Indiana Rule of Evidence 101(a), permitting common law evidence rules.), trans. denied, 878 N.E.2d 208 (Ind. 2007); State v. Henry, 820 A.2d 1076, 1090 (Conn. Ct. App.) (relying on “‘savings clause,’” Conn. Code Evid. § 1-2(b), to admit victim’s hearsay statements pursuant to forfeiture-by-wrongdoing doctrine), appeal denied, 826 A.2d 178 (Conn. 2003); State v. Valencia, 924 P.2d 497, 501-05 (Ariz. Ct. App. 1996) (admitting hearsay statements of victim killed by defendant, in part, on basis of residual hearsay exception).
Notably, a number of states have enacted by statute the forfeiture-by-wrongdoing rule. See, e.g., Cal. Evid. Code Ann. § 1350; Del. R. Evid. 804(b)(6); Haw. R. Evid. 804(b)(7); 725 Ill. Comp. Stat. 5/115-10.2(d); Ky. R. Evid. 804(b)(5); Md. Cts. & Jud. Proc. Code Ann. § 10-901; Mich. R. Evid. 804(b)(6); N.D. R. Evid. 804(b)(6); Ohio R. Evid. 804(B)(6); Or. Rev. Stat. § 40.465(f); Pa. R. Evid. 804(b)(6); Tenn. R. Evid. 804(b)(6); Vt. R. Evid. 804(b)(6).
Thus, the method by which a state or court has adopted the forfeiture rule depends on the unique laws of the particular jurisdiction. It is understood that our evidentiary laws cannot remain static and that they must adapt to dynamic forces and changing realities in the legal profession and society. In that respect, N.J.R.E. 102 provides that “[t]he adoption of these rules shall not bar the growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”
Although we believe that the addition of a forfeiture-by-wrongdoing hearsay exception to our evidence rules would be a positive development and promote the ascertainment of truth, we cannot accept the State’s argument that this Court should act unilaterally and bypass the procedures of the Evidence Act. The present case is in many ways comparable to the circumstances presented in State v. D.R. The State urged the Court in D.R. to do an end run around the Evidence Act and adopt by judicial decree the “tender years” hearsay exception, which would permit admissibility of a child-victim’s out-of-court statements, even in cases in which the child did not testify. 109 N.J. at 351-52; see also N.J.R.E. 803(c)(27) (current “tender years” exception). We rejected that approach. D.R., supra, 109 N.J. at 375-76. Despite our support for the adoption of the “tender years” hearsay exception, we determined that “adoption of such a rule by judicial decision [was] inappropriate” in light of “the serious and far-reaching nature” of the change to our evidence rules. Ibid. We declined “to probe the outer limits of the judiciary’s power to modify or adopt rules of evidence,” id. at 375, and instead, we decided, as a matter of comity, that “a fundamental change in the hearsay rule solely by judicial decision is inconsistent with the procedure set forth in the Evidence Act, 1960,” id. at 352.
The present case, moreover, is not similar to State v. Guenther, in which we merely modified the scope of an existing evidence rule, N.J.R.E. 608, allowing in very narrow circumstances the use of a prior false criminal accusation to impeach the credibility of a victim-witness in a criminal case. 181 N.J. at 154, 160. In that case, whether to permit impeachment of a witness with a prior false criminal accusation raised a significant constitutional issue concerning the scope of a criminal defendant’s right of confrontation. Id. at 154. We emphasized in Guenther that “we [were] not creating a new rule of evidence,” id. at 159, and reiterated what we said in D.R. — that “significant changes to the Rules of Evidence ‘should be adopted in accordance with the prescribed statutory procedure.’” Id. at 160 (quoting D.R., supra, 109 N.J. at 352, 375-76). Even though we acted alone in modifying in a limited fashion N.J.R.E. 608, we referred to this Court’s Committee on the Rules of Evidence the issue of whether there should be “wider application in other circumstances” of impeaching a witness who had made prior false accusations.11 Ibid.
As in D.R., the adoption of a forfeiture-by-wrongdoing exception in this case would render “a fundamental change in the hearsay rule,” one with “serious and far-reaching” consequences. D.R., supra, 109 N.J. at 352, 375. If the Evidence Act did not apply here, it is difficult to imagine a case in which it would. Accordingly, we will adhere to the procedural requirements of the Evidence Act, and take the second path — previously described — for adoption of a new evidence rule. In accordance with the Act, we will submit the proposed rule to the Senate and the General Assembly for their approval by resolution, and to the Governor for his signature. See N.J.S.A. 2A:84A-38. That route, we believe, will allow for a more expeditious adoption of the proposed forfeiture-by-wrongdoing rule. The hearsay exception to our evidence rules that we propose will allow for the admission of a witness’s statement offered against a party who has engaged, directly or indirectly, in wrongdoing that was intended to, and did, procure the unavailability of the witness.12 Because of the good the new rule will do in combating witness intimidation and ensuring the integrity of court proceedings, we ask that the Legislature and Governor act as soon as possible to adopt a forfeiture-by-wrongdoing hearsay exception.
In the event the Senate and the General Assembly issue a joint resolution, signed by the Governor, the proposed forfeiture-by-wrongdoing exception shall take effect and become part of the Rules of Evidence. See N.J.S.A. 2A:84A-38.
E.
In the expectation that the Legislature and the Governor will act favorably on the proposed amendment to the Rules of Evidence, and to ensure fairness in the application of the forfeiture-by-wrongdoing hearsay exception, we now set forth the procedures that must be followed before the admission of such evidence. Although the forfeiture rule would apply to any party who wrongly procures the unavailability of a witness, for our purposes here, we will refer to the State as the party invoking the rule.
When the State intends to introduce a witness’s statement through the forfeiture-by-wrongdoing exception to the hearsay rule, it must make known its intention as soon as reasonably practicable. Ordinarily, the State should advise defense counsel and the court as soon as it becomes aware that the defendant’s wrongful conduct has made the witness unavailable and that it intends to offer the witness’s out-of-court statement into evidence. The State must reveal the identity of the witness and the particulars of the statement that will be offered into evidence.
Next, the trial court must conduct an N.J.R.E. 104(a) hearing, outside the presence of the jury, to determine whether the witness’s out-of-court statement should be admitted into evidence because the defendant engaged in wrongful conduct, making the witness unavailable.13 See, e.g., United States v. Dhinsa, 243 F.3d 635, 653 (2d Cir.) (“[P]rior to finding that a defendant waived his confrontation rights with respect to an out-of-court statement by an actual or potential witness admitted pursuant to Rule 804(b)(6), the district court must hold an evidentiary hearing outside the presence of the jury.”), cert. denied, 534 U.S. 897, 122 S. Ct. 219, 151 L. Ed. 2d 156 (2001); Commonwealth v. Paddy, 800 A.2d 294, 310 n.10 (Pa. 2002) (“[T]he prevailing federal view [is] that the [forfeiture-by-wrongdoing exception’s] applicability is to be determined at an evidentiary hearing prior to the admission of the evidence in question.”).
The hearing must be conducted in the presence of counsel and defendant, and the defendant can only be excluded from the hearing for extraordinary reasons that must be articulated on the record. See R. 3:16(b) (“The defendant shall be present at every stage of the trial . . . .”); see also State v. W.A., 184 N.J. 45, 60 (2005) (holding that judge must state reasons on record if defendant is denied physical presence at voir dire sidebar of juror because of security concerns).
In those cases in which the witness is available to testify but refuses to do so, due to alleged threats or fear induced by the defendant, the court ordinarily should advise the witness of his obligation to testify and that if he refuses to do so, he will be held in contempt. A witness must know that there will be consequences if a court order is disobeyed. If the witness continues to refuse to testify after the threat of contempt, he will be deemed an unavailable witness.14 See N.J.R.E. 804(a)(2) (stating that an “unavailable” witness, for purposes of hearsay exceptions detailed in N.J.R.E. 804, is one who “persists in refusing to testify concerning the subject matter of the [hearsay] statement despite an order of the court to do so”). A witness is also unavailable if the witness cannot be located, has been rendered unable to testify because of the infliction of physical or psychological injuries, or has been killed as a result of the wrongful conduct of the defendant. See Edwards, supra, 830 N.E.2d at 168-69 (“Without question, the doctrine should apply in cases where a defendant murders, threatens, or intimidates a witness in an effort to procure that witness’s unavailability.” (footnotes omitted)).
At the hearing, the State will bear the burden of proving by a preponderance of the evidence that defendant engaged, directly or indirectly, in wrongdoing that was intended to, and did, procure the witness’s unavailability. See id. at 172 (“We, like virtually all of the jurisdictions that have considered the issue, hold that the prosecution must prove by a preponderance of the evidence that the defendant procured the witness’s unavailability.”). Federal Rule of Evidence 804(b)(6) also applies a preponderance standard. See Fed. R. Evid. 804(b)(6) advisory committee’s note (“The usual Rule 104(a) preponderance of the evidence standard has been adopted in light of the behavior the new Rule 804(b)(6) seeks to discourage.”). In other words, the State must demonstrate that the defendant by his wrongful conduct, directly or indirectly, caused the witness’s unavailability — that is, caused the witness’s physical absence or the witness’s refusal or inability to testify.
Before admitting an out-of-court statement of a witness under the forfeiture-by-wrongdoing rule, the court must determine that the statement bears some indicia of reliability. The methodology that we apply in the case of recanting witnesses will work equally well in the case of witnesses made unavailable under the forfeiture rule. So, for example, when a State’s witness testifies inconsistent with a prior statement that “(A) is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability or (B) was given under oath subject to the penalty of perjury at a trial or other judicial, quasi-judicial, legislative, administrative or grand jury proceeding, or in a deposition,” N.J.R.E. 803(a)(1), the prior statement is admissible “as substantive evidence provided its reliability has been established by a preponderance of the evidence in light of all surrounding relevant circumstances,” State v. Gross, 121 N.J. 18, 29 (1990).
The same general approach should be taken in the case of the statement of a witness made unavailable by a defendant’s wrongdoing. Thus, a witness’s statement taken in the manner prescribed by N.J.R.E. 803(a)(1)(A) or (B), which is determined to be reliable in light of all the surrounding circumstances, will be admissible as substantive evidence if the State establishes that the defendant wrongfully procured the witness’s unavailability. To allow for some flexibility to the wide range of scenarios that may involve a defendant using unlawful means to render a witness unavailable, in limited circumstances, an out-of-court statement may be admissible, even if not contained in a recording or writing, or if not given under oath, so long as the State demonstrates that the statement has compelling indicia of trustworthiness.
Those procedural prerequisites for the admissibility of a statement offered under the forfeiture rule will ensure that only reliable statements of witnesses, whose unavailability has been procured by a defendant’s wrongdoing, are placed before the jury. We now apply the principles enunciated to the facts of this case.
IV.
We agree with the Appellate Division that, at the time of defendants’ trial, no codified evidence rule or precedent in this State permitted the introduction of an out-of-court statement inculpating defendants by a non-testifying witness, even if defendants were responsible for making the witness unavailable to testify. See Byrd, supra, 393 N.J. Super. at 232-34. For the reasons stated earlier, we also agree that the trial court erred by adopting a forfeiture-by-wrongdoing evidence rule by judicial decisionmaking. However, even if a forfeiture-by-wrongdoing exception to the hearsay rule were on the books when defendants were tried, we still would be constrained to reverse their convictions because the trial court admitted Kenneth Bush’s damning hearsay statement after conducting an in camera hearing, which excluded defendants and their counsel in violation of their due process and confrontation rights.
Indeed, without any adequate showing of good cause, the court held an in camera hearing with a State’s witness, who might have been considered an accomplice or co-conspirator to the crimes for which defendants stood trial. By his own account, Bush traveled with Byrd and Dean in the van to the victim’s apartment, waiting in the van while defendants armed with a handgun and shotgun staged a failed robbery that led to the death of Charles Simmons. Along with defendants, Bush was in the van as it fled the scene of the crime. According to Kenneth McNeil, the week before Simmons’s killing, Bush was armed with a shotgun and participated in a robbery of Simmons, and that same day, with others, attempted to rob Simmons yet again. In addition, Bush had an extensive criminal record and drug history and, when called to testify, was serving a prison term for possession of a weapon for an unlawful purpose. Bush, moreover, in affidavits provided to defense counsel had recanted his statement, given to the police, inculpating defendants.
With those facts as a backdrop, when the prosecutor advised the trial judge that Bush wanted to speak with him, Bush was brought to the court’s chambers. Present were three law enforcement officers providing security, the trial judge, his law clerk, and the court reporter. Nothing in the record suggests that Bush would have refused to give testimony if defense counsel and the prosecutor were also present. In fact, Bush stated that he would be willing to speak with defense counsel later.
Before taking testimony from Bush, the court never required Bush to take an oath or make an affirmation to tell the truth subject to the penalty provided by law. See N.J.R.E. 603 (“Before testifying a witness shall be required to take an oath or make an affirmation or declaration to tell the truth under the penalty provided by law.”). The failure to place Bush under oath, alone, was reason enough to disregard his testimony. See State v. Caraballo, 330 N.J. Super. 545, 555 (App. Div. 2000) (holding that defendant was deprived of fair trial, in part, because witnesses were required to testify even though they refused to take oath or make affirmation). The court, moreover, elicited a number of answers through leading questions, allowing Bush to describe what he considered to be direct and indirect threats from Byrd and Dean, which gave him reason to fear for his safety and the safety of his family.
The court made credibility determinations based on Bush’s unsworn, unchallenged testimony in chambers. From the conclusions that it drew at the ex parte, in camera hearing, the court permitted the prosecution to introduce Bush’s statement to the police implicating defendants in the robbery and killing of Simmons. From the defense perspective, Bush was far from the disinterested citizen, who steps forward for the good of the community to expose criminal misdeeds. Indeed, Bush, a self-confessed drug user with a string of criminal convictions, gave his statement to the police after he was arrested for a crime unrelated to Simmons’s killing. Defense counsel wanted to expose his motives and test his recollection through cross-examination. Moreover, defense counsel claimed that they were denied the opportunity to present witnesses and evidence to rebut Bush’s in camera assertions to the court.
In our view, the in camera hearing represented a complete breakdown of the adversarial process. The court — not a recalcitrant witness, whatever his purported reasons for refusing to testify — must control the proceedings. Transferring a hearing from open court to chambers should not be a reason for suspending court rules or constitutional protections. Bush’s unsworn and unchallenged testimony served as the foundational basis for the admission of, perhaps, the most devastating evidence offered against defendants. Both the federal and state constitutions guaranteed defendants the right to cross-examine Bush, and to introduce evidence contradicting and undermining Bush’s version of the events. See State v. Garron, 177 N.J. 147, 168-69 (2003) (explaining that “[t]he Federal and New Jersey Constitutions guarantee criminal defendants a meaningful opportunity to present a complete defense,” including “rights to confront, cross-examine, and produce witnesses” and “to elicit testimony favorable to the defense before the trier of fact” (citation and internal quotation marks omitted)), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). In our system, a State’s witness, particularly one with Bush’s background, does not enter the courtroom as the presumptive truth-teller.
Proceedings in which the judge acts as the sole inquisitor are, with rare exception, foreign to our adversarial system. See United States v. Thompson, 827 F.2d 1254, 1258 (9th Cir. 1987). The United States Court of Appeals for the Ninth Circuit in Thompson found unconstitutional an ex parte, in camera hearing in which the defendant and his counsel were excluded from observing or challenging the prosecution’s reasons for exercising four of its peremptory challenges against potential African-American jurors. Id. at 1256, 1261. The circuit court concluded that “[a]bsent such compelling justification, ex parte proceedings are anathema in our system of justice and, in the context of a criminal trial, may amount to a denial of due process.” Id. at 1258-59.
Likewise, in light of the constitutional right of confrontation, in State v. Ogburne, the Appellate Division held that a trial court erred by barring the defendant from an in camera Rape Shield hearing at which the alleged sexual assault victim testified about her sexual relations in close temporal proximity to the crime. 235 N.J. Super. 113, 117-19 (App. Div. 1989); see also LaPointe v. State, 166 S.W.3d 287, 296-99 (Tex. Ct. App. 2005) (excluding defendant and defense counsel from in camera Rape Shield hearing violated defendant’s rights of confrontation and effective assistance of counsel). In Ogburne, despite defense counsel’s presence at the hearing, the court found that defendant was denied a fundamental constitutional right. 235 N.J. Super. at 118-19.
It was wholly inappropriate to hold an ex parte, in camera hearing in the manner that occurred in this case. Even had the forfeiture-by-wrongdoing exception to the hearsay rule been codified in our evidence rules, we would be obliged to reverse defendants’ convictions because of the fundamental procedural violations that occasioned the admission of Bush’s out-of-court statement. We cannot say that the introduction of that statement, which was so central to the State’s case, was harmless error. See R. 2:10-2 (“Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . .”); State v. Ingram, 196 N.J. 23, 49 (2008) (“[B]efore a . . . constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (citation and internal quotation marks omitted)).
Last, the State has a responsibility to take reasonably prudent measures to protect the safety of its material witnesses. It bears mentioning that, whenever practicable, an imprisoned State’s witness should not be placed on the same cell tier and in physical contact with the defendants against whom he will be offering testimony, or transported to court with one of those defendants, as apparently occurred in this case.
V.
For the reasons expressed, we affirm the judgment of the Appellate Division reversing defendants’ convictions. We now forward to the Senate and General Assembly, for their approval by resolution, and to the Governor for his signature, a forfeiture-by-wrongdoing exception to the hearsay rule for inclusion in our Rules of Evidence.
CHIEF JUSTICE RABNER and JUSTICES LONG and WALLACE join in JUSTICE ALBIN’s opinion. JUSTICE LaVECCHIA filed a separate, concurring opinion in which JUSTICES RIVERA-SOTO and HOENS join.
Appendix A
Proposed New Exception to Hearsay Rule
N.J.R.E. 804(b)(8): Forfeiture-by-Wrongdoing
(8) Forfeiture-by-wrongdoing. A statement offered against a party who has engaged, directly or indirectly, in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
SUPREME COURT OF NEW JERSEY
A-105 September Term 2007
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DIONTE BYRD,
Defendant-Respondent.
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
FREDDIE DEAN, JR.,
Defendant-Respondent.
JUSTICE LaVECCHIA concurring.
I concur in the judgment of the Court that embraces the forfeiture-by-wrongdoing doctrine. I also concur fully in the judgment that the procedures employed by the trial court during defendants’ trial were insufficient and cannot provide a basis for the admission of the pre-trial out-of-court statement of the allegedly intimidated witness who refused to take the stand. The trial court’s ex parte proceedings in respect of the recalcitrant witness do not pass muster under any analysis. That said, I write separately to express my view that the trial court was not powerless to act in the face of what was transpiring on the eve of trial, namely a witness’s sudden unavailability through his refusal to take the oath and to testify, which he attributed to defendants’ wrongful conduct. I base that view on the common law’s long-standing recognition of the forfeiture-by-wrongdoing doctrine.
I.
New Jersey’s Constitution of 1947, art. XI, sec. I, par. 3. provides that “[a]ll law, statutory and otherwise, all rules and regulations of administrative bodies and all rules of courts in force at the time this Constitution or any Article thereof takes effect shall remain in full force until they expire or are superseded, altered or repealed by this Constitution or otherwise.” The State’s earlier constitutions contained similar language.15 Consistent with the earlier versions of the 1947 Constitution’s language, the savings provision in the current article XI referencing “all law” has been interpreted to include the common law. See State v. Culver, 23 N.J. 495, 503 (1957), cert. denied, 354 U.S. 925, 77 S. Ct. 1387, 1 L. Ed. 2d 1441 (1957). Moreover, the term “otherwise” encompasses not only change by the legislative process but also by the “processes of change inherent in the common law.” Ibid. As Chief Justice Vanderbilt said:
One of the great virtues of the common law is its dynamic nature that makes it adaptable to the requirements of society at the time of its application in court. There is not a rule of the common law in force today that has not evolved from some earlier rule of common law, gradually in some instances, more suddenly in others, leaving the common law of today when compared with the common law of centuries ago as different as day is from night. The nature of the common law requires that each time a rule of law is applied it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further application of it the instrument of injustice.
[Id. at 505.]
When the 1776, 1844, and 1947 Constitutions were adopted, each incorporated into our law the extant common law. Thus, in 1947 with the adoption of our current Constitution, the judicial power included whatever equitable powers that the existing common law conferred on courts in respect of the forfeiture-by-wrongdoing doctrine.16
In 1879, the doctrine became expressly part of the common law of this nation, as recognized by the highest court of our country. See Reynolds v. United States, 98 U.S. 145, 158, 25 L. Ed. 244, 247 (1879). Following the equitable doctrine that had long-standing acceptance in England,17 the Supreme Court held in Reynolds that, if the accused is responsible for a witness’s unavailability, then he has forfeited his right to confront that witness. Ibid. “The Constitution does not guaranty an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege.” Ibid.
Although the common law forfeiture-by-wrongdoing doctrine focused initially on a defendant’s waiver of the constitutional right to confront a witness, as the doctrine evolved courts used it as support not only for bypassing a defendant’s confrontation clause challenges, but also to support the admission of the unavailable witness’s hearsay statements without having to resort to a separate hearsay exception. See, e.g., United States v. White, 116 F.3d 903, 912 (D.C. Cir. 1997) (noting common trend of loss of both right to confront witness and to object based on hearsay); United States v. Houlihan, 92 F.3d 1271, 1282 (1st Cir. 1996)(same); United States v. Mastrangelo, 693 F.2d 269, 272 (2d Cir. 1982)(same); United States v. Thevis, 665 F.2d 616, 633 (5th Cir. 1982)(same). As the D.C. Circuit explained in White, supra, “[b]ecause both the hearsay rule and the confrontation clause are designed to protect against the dangers of using out-of-court declarations as proof, a defendant’s actions that make it necessary for the government to resort to such proof should be construed as a forfeiture of the protections afforded under both.” 116 F.3d at 912.
The common rationale in that decisional trend recognized that both bodies of law (confrontation rights and the hearsay rule) attempt to strike a balance between the government’s need for probative evidence and the defendant’s stake in testing the government’s case through cross-examination. See Houlihan, supra, 92 F.3d at 1281 (“In constructing the balance the main interest that must be offset against the government’s need for evidence is the accused’s right to confrontation . . . [o]nce the confrontation right is lifted from the scales by operation of the accused’s waiver of that right, the balance tips sharply in favor of the need for evidence.”). The United States Court of Appeals for the Fifth Circuit was the first to discuss in detail the interplay between the two principles:
Although the Supreme Court explicitly has held that the confrontation clause and the hearsay rule are not coterminous, the Court recently has stated that it is a “truism” that both provisions protect the same values. Both the confrontation clause and the hearsay rule seek to balance the need for relevant, probative evidence against the defendant’s interest in testing the accuracy of evidence through personal confrontation and cross-examination. As noted by the Supreme Court in Mattox v. United States, 156 U.S. 237, 242-43, 15 S. Ct. 337, 339, 39 L. Ed. 409 (1895), the confrontation clause envisions “a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”
Similarly, the hearsay rule envisions testimonial evidence given under the ideal conditions of a witness under oath, in the personal presence of the trier of fact, and subject to cross-examination. The reason that the hearsay rule and confrontation clause are not coterminous is not because the two provisions protect different interests, but because the two may balance the relevant interests differently. Thus a particular hearsay rule may admit evidence which offends confrontation rights because the rule favors the need for evidence and its probable reliability over the defendant’s confrontational rights. Conversely, a particular hearsay rule may restrict evidence which nevertheless satisfies the confrontation clause because the rule favors increased protection for the defendant. In either case, however, the key interest offsetting the need for evidence is the defendant’s interest in confrontation; if this interest is removed by a waiver of confrontation rights, the balance must necessarily fall in favor of the need for evidence. We hold, therefore, that under the circumstances of this case, [defendant’s] waiver of his confrontation rights also acted as a waiver of the right to raise a hearsay objection once the prosecution demonstrated a need for the evidence.
[Thevis, supra, 665 F.2d at 632-33 (internal citations and quotations omitted).]
The Thevis court clarified its holding, emphasizing that its decision would “not permit wholesale admission of hearsay evidence when a witness is unavailable.” Id. at 633 n.17. Thus, “[a] hearsay statement of a potential witness is admissible only if the government shows, by clear and convincing evidence that (1) the defendant caused the witness’ unavailability (2) for the purpose of preventing that witness from testifying at trial.” Ibid. It added that, even when the two-part test is met, the trial court should scrutinize the evidence and, if it “appears unreliable, its probative value may well be outweighed by the unfair prejudice resulting from unreliability and should be excluded under [Federal Rule of Evidence] 403.” Ibid.
To be sure, other circuit courts addressing the hearsay aspect of an unavailable witness’s evidence resulting from a defendant’s wrongdoing have determined that the hearsay rules still applied and required application of an exception to admit the evidence. When the defendant caused the declarant’s unavailability, the decisions in those circuits admitted the hearsay statements based on Federal Rule of Evidence 807.18 See, e.g., United States v. Rouco, 765 F.2d 983, 994 (11th Cir. 1985) (admitting testimony under Fed. R. Evid. 804(b)(5) and Fed. R. Evid. 803(24) which were combined and transferred to Fed. R. Evid. 807 with virtually same language); United States v. Carlson, 547 F.2d 1346, 1354 (8th Cir. 1976) (same). That said, prior to the adoption of an explicit forfeiture-by-wrongdoing evidence rule in the Federal Rules of Evidence in 1997, every federal circuit court of appeals had adopted some form of the common law doctrine of forfeiture by wrongdoing, although differing on how the doctrine should be implemented in respect of the standard of proof necessary. Most required that the government show by a preponderance of the evidence that the defendant procured the witness’s unavailability. See, e.g., United States v. Scott, 284 F.3d 758, 762 (7th Cir. 2002); United States v. Dhinsa, 243 F.3d 635, 653-54 (2d Cir. 2001); United States v. Emery, 186 F.3d 921, 929 (8th Cir. 1999); Houlihan, supra, 92 F.3d at 1280. Only the Fifth Circuit required that the government show by clear and convincing evidence that the defendant was responsible for the witness’s absence. See Thevis, supra, 665 F.2d at 631. And, the circuits differed on whether the defendant forfeited only the right to confrontation or also forfeited the right to object to the evidence from the unavailable witness based on hearsay grounds.
In 1997, those differences evaporated when the doctrine of forfeiture by wrongdoing was codified by Federal Rule of Evidence 804(b)(6). Inserted in the evidence code as a hearsay exception, Rule 804(b) now provides that “the following are not excluded by the hearsay rule if the declarant is unavailable as a witness . . . (6) Forfeiture by Wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.”19 A separate hearsay exception is no longer necessary to admit an out-of-court statement by a witness made unavailable through a defendant’s own wrongdoing. Instead a defendant’s misconduct forfeits both his or her right to confront the witness and the right to object on hearsay grounds. The Rule does not require particularized indicia of reliability concerning the substance of the testimony.20 It operates, as did the common law doctrine, on the recognition of “the need for a prophylactic rule to deal with abhorrent behavior ‘which strikes at the heart of the system of justice itself.’” Fed. R. Evid. 804(b)(6), advisory committee’s note (quoting Mastrangelo, supra, 693 F.2d at 273). In reaffirming the now-codified common law doctrine, the Supreme Court’s decision in United States v. Crawford, accepts that this confrontation exception is in no way a means of assessing reliability. 541 U.S. 36, 62, 124 S. Ct. 1354, 1370, 158 L. Ed. 2d 177, 199 (2004). Rather, “the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability.” Ibid. (citing Reynolds, supra, 98 U.S. at 158-159, 25 L. Ed. at 244). And, differences among the circuit courts about the need for an independent hearsay exception to admit forfeiture-by-wrongdoing evidence were resolved. The doctrine’s codification in the federal rules extinguishes a defendant’s objections to such evidence as hearsay.
Among the states, some version of the doctrine has been adopted in many jurisdictions. Those states have grappled with the same questions that, early on, plagued the circuit courts as to whether the doctrine would apply to both confrontation clause and hearsay objections.
In Commonwealth v. Edwards, the Massachusetts Supreme Judicial Court was presented with the question of whether forfeiture by wrongdoing would apply when the defendant colluded with a witness to ensure that the witness would not be heard at trial. 830 N.E.2d 158, 168-69 (2005). In deciding whether to adopt the common law doctrine, the court recognized the doctrine’s widespread support in other states. Id. at 166-67. More importantly, it found that the forfeiture rule advances important public policy interests by ensuring that a wrongdoer does not profit by reason of his actions, and “furthers the truth-seeking function of the adversary process, allowing fact finders access to valuable evidence no longer available through live testimony.” Id. at 167. The court then fixed the scope of the doctrine as it would be applied in its state: “[a] defendant forfeits, by virtue of wrongdoing, the right to object to the admission of an unavailable witness’s out-of-court statements on both confrontation and hearsay grounds on findings that (1) the witness is unavailable; (2) the defendant was involved in, or responsible for, procuring the unavailability of the witness; and (3) the defendant acted with the intent to procure the witness’s unavailability.” Id. at 170. In so doing, the court acknowledged that denying a defendant the right to object on grounds of hearsay might present a situation where a statement was so lacking in reliability that its admission would raise due process concerns. Id. at 170 n.21; see also United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992) (recognizing that “the admission of facially unreliable hearsay would raise a due process issue” and stating that objection that probative value is outweighed by prejudicial effect is “not waived by procuring a witness’s absence”). That possibility was not presented by the facts of the case, however, because the testimony admitted was taken before the grand jury under oath and, thus, the court found no due process problem with the admission of the testimony. Edwards, supra, 830 N.E.2d at 170 n.21.
Similarly, in 2004, the Kansas Supreme Court reaffirmed its earlier holding in State v. Gettings, 769 P.2d 25 (1989), that a waiver of the right to confrontation, based on the wrongful absenting of a witness, also constitutes a waiver of any hearsay objections to the prior statements made by the absent witness. State v. Meeks, 88 P.3d 789, 794 (2004). The court adopted the reasoning of the Fifth Circuit in Thevis, that a waiver of the right to confrontation based upon the procurement of the absence of the witness also constitutes a waiver of any hearsay objections to prior statements of the absent witness. Ibid. The Kansas Court warned, however, that before a court determines that a defendant has waived his right to object on hearsay grounds, it must determine by a preponderance of the evidence that the accused brought about the unavailability. Ibid. Thus, in Meeks, the Kansas Supreme Court found that the witness’s statements had been properly admitted despite the defendant’s argument that they lacked any adequate indicia of reliability because defendant was involved in procuring the absence of the murdered witness. Ibid.; see also State v. Hallum, 606 N.W.2d 351, 356 (Iowa 2000) (stating that defendant who procures witness’s unavailability is precluded from asserting both confrontation right and right to object on hearsay grounds).
Concededly, some states adopting the forfeiture-by-wrongdoing doctrine have held that application of the doctrine does not preclude hearsay objections under relevant evidence rules and, therefore, the admission of such testimony depends on the applicability of a valid hearsay objection. In Vasquez v. People, the Supreme Court of Colorado held that the doctrine of forfeiture by wrongdoing only applies to confrontation rights and does not preclude hearsay objections. 173 P.3d 1099, 1101-02 (2007) (en banc). The court noted that a number of jurisdictions had held that forfeiture by wrongdoing automatically prohibits a hearsay objection to the unavailable witness’s testimony, id. at 1106, and further acknowledged that the “hearsay rules and the Confrontation Clause are generally designed to protect similar values, both defending against the dangers of using out-of-court declarations as proof,” and that the Confrontation Clause provides more expansive protections, ibid. (quoting White, supra, 116 F.3d at 912-13). The court determined, however, that “the more prudent course is to require that the hearsay rules be satisfied separately.” Ibid. It reasoned that hearsay is presumptively unreliable evidence and “the fact that the defendant has forfeited his confrontation rights by wrongdoing does not render the evidence reliable.” Ibid. Accordingly, the court held that “the reliability of the evidence must still be ensured according to the standards of the Colorado Rules of Evidence.” Ibid.21
II.
Our Court is now presented with the opportunity to apply the common law doctrine of forfeiture by wrongdoing, which we are now expressly adopting. However, in doing so, I respectfully part company with my colleagues in that I would fully adopt the common law doctrine and hold that a defendant found to have procured a witness’s unavailability is precluded from objecting to the admissibility of the witness’s testimony on both confrontation clause and hearsay grounds.
The common law doctrine contains well-recognized decisional strands, based in equity, that hold that a defendant who wrongfully procures the unavailability of a witness at trial forfeits his right to confront that witness and also his right to object on grounds of hearsay. In essence, a court is doing no more than admitting evidence that would have been admissible had the witness been available to testify. In 1982, in Steele v. Taylor, the Sixth Circuit described the admission of such evidence in substantially those terms:
Our research has disclosed no case in which a court upon a finding of wrongful conduct has declined to admit prior statements that would have come in had the witness taken the stand. Neither has our research disclosed a case finding that a defendant wrongfully causes a witness’s unavailability by exercising the right at trial to object to the presence, capacity or testimony of the witness.
From these cases we derive essentially the same rule as the one stated by the state trial judge: A prior statement given by a witness made unavailable by the wrongful conduct of a party is admissible against the party if the statement would have been admissible had the witness testified. The rule . . . is based on a public policy protecting the integrity of the adversary process by deterring litigants from acting on strong incentives to prevent the testimony of an adverse witness. The rule is also based on a principle of reciprocity similar to the equitable doctrine of “clean hands.” The law prefers live testimony over hearsay, a preference designed to protect everyone, particularly the defendant. A defendant cannot prefer the law’s preference and profit from it, as the Supreme Court said in Reynolds, while repudiating that preference by creating the condition that prevents it.
[684 F.2d 1193, 1202 (6th Cir. 1982) (internal citations and quotations omitted).]
Over a decade later, the Court of Appeals for the District of Columbia similarly explained that reliability was not the principal concern of the doctrine of forfeiture by wrongdoing. In White, supra, the D.C. Circuit was presented with an argument by defendants that, notwithstanding that they had forfeited their rights under the hearsay rule in addition to their confrontation rights, the trial court nevertheless “should have more intensively screened [the unavailable witness’s] statements for reliability.” 116 F.3d at 913. In rejecting that claim, the court stated that “[t]he government should be no worse off than if defendants had not murdered [the witness],” ibid., and held that “[t]he trial court properly ruled that the forfeiture would cover only the first layer of hearsay, allowing admission of those statements that would have been admissible if [the witness] himself had made them on the witness stand, no more and no less,” ibid. The court noted that the defendants were free to seek “exclusion under Rule 403 based upon the lack of reliability of the agents who relayed [the witness’s] testimony, but they have identified no trial court error on that score. Thus the evidence did not fall short of the minimal reliability standards of constitutional due process and Fed. R. Evid. 403.” Ibid.
In my view, there are ample procedural safeguards inherent in the common law doctrine. First, as the federal circuits initially recognized and most states require, at a minimum, the prosecution must prove by a preponderance of the evidence that the defendant procured the witness’s unavailability. See Fed. R. Evid. 804(b)(6) advisory committee’s note. That requirement ensures that the defendant actually prevented the witness from testifying. Second, the normal balancing test required under Evidence Rule 403 generally, and sufficiently, excludes unreliable and prejudicial evidence. See generally Kelly Rutan, Comment, Procuring the Right to An Unfair Trial: Federal Rule of Evidence 804(b)(6) and the Due Process Implications of the Rule’s Failure to Require Standards of Reliability for Admissible Evidence, 56 Am. U. L. Rev. 177, 201-02 (2006). Evidence Rule 403 states that “evidence may be excluded if its probative value is substantially outweighed by the risk of []unfair prejudice.” Clearly evidence that is deemed so unduly unreliable as to be prejudicial to the defendant would not be admitted into evidence. Such evidence would be excluded on non-hearsay grounds even if the declarant had been available to testify. When applicable, the same reasoning, not a claim of hearsay, should prevent the admissibility of the evidence when the defendant procures the declarant’s unavailability.22
The question is not one of reliability but one of broad public policy:
whether an accused person, placed upon trial for crime and protected by all the safeguards with which the humanity of our present criminal law sedulously surrounds him, can with impunity defy the processes of that law, paralyze the proceedings of courts and juries, and turn them into a solemn farce. By adopting the doctrine of forfeiture by wrongdoing, we, like many other jurisdictions, recognize that neither in criminal nor in civil cases will the law allow a person to take advantage of his own wrong.
[Edwards, supra, 830 N.E.2d at 176 (internal quotations and citations omitted).]
In my view, we can include a forfeiture-by-wrongdoing exception in our evidence rules, however, we need not “create,” through the formal adoption of an evidence rule, a new “exception” for hearsay when the evidence must not be analyzed and treated in such manner. Rather, we should recognize that our courts have equitable powers, long-accepted in this nation’s common law, for addressing a defendant’s wrongdoing that undermines the judicial system. Our Constitution envisioned a system in which the common law would remain in force until it was in someway altered, superseded or repealed. Not only was the common law to remain in force, but our courts were granted the power to adapt and apply it as needs arose.
Thus, although I have no quarrel with the majority’s determination that our evidence rules would benefit from the inclusion of an express rule to address the admission of evidence in such circumstances, I would not insist that the enactment of a hearsay exception precede further proceedings on remand to correct the process by which the unavailable witness’s testimony was admitted. I would remand for a new Rule 104 hearing at which the State and defendants were present and were allowed to examine the witness to establish whether he was truly unavailable to testify and whether his unavailability was the result of defendants’ wrongdoing. If so, then I would affirm defendants’ convictions. If not, the conviction must be reversed.
Justices Rivera-Soto and Hoens join in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-105 SEPTEMBER TERM 2007
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DIONTE BYRD,
Defendant-Respondent.
______________________________
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
FREDDIE DEAN, JR.,
Defendant-Respondent.
DECIDED April 2, 2009
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING OPINION BY Justice LaVecchia
DISSENTING OPINION BY
| CHECKLIST |
AFFIRM |
CONCUR |
| CHIEF JUSTICE RABNER |
X |
|
| JUSTICE LONG |
X |
|
| JUSTICE LaVECCHIA |
(X) |
X |
| JUSTICE ALBIN |
X |
|
| JUSTICE WALLACE |
X |
|
| JUSTICE RIVERA-SOTO |
(X) |
X |
| JUSTICE HOENS |
(X) |
X |
| TOTALS |
7 |
1 Byrd was found not guilty of purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(2), second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Dean was found not guilty of purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(2), second-degree possession of a shotgun for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a shotgun, N.J.S.A. 2C:39-5(c)(2).
2 Unlike Bush, Hassan Wilson did testify at trial, but repudiated a statement implicating Byrd and Dean that he had given to the police. Wilson’s out-of-court statement to the police was read to the jury and supported many of the details provided in Bush’s statement.
3 A court can hold a witness in civil contempt for refusing to testify and incarcerate that witness until such time as he purges himself of the contempt by testifying. In re Daniels, 118 N.J. 51, 59, cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990). Incarceration under civil contempt can last no longer than the life of the proceedings. See id. at 60.
The court also has the power to hold a recalcitrant witness in criminal contempt. N.J.S.A. 2C:1-5(c) (“This section does not affect the power to punish for contempt, either summarily or after indictment, or to employ any sanction authorized by law for the enforcement of an order or a civil judgment or decree.”); N.J.S.A. 2C:29-9(a) (“A person is guilty of a crime of the fourth degree if he purposely or knowingly disobeys a judicial order or protective order, . . . or hinders, obstructs or impedes the effectuation of a judicial order or the exercise of jurisdiction over any person, thing or controversy by a court, administrative body or investigative entity.”).
4 In State v. Sheppard, a child sex abuse case, the trial court relied on the forfeiture-by-wrongdoing doctrine as one of its reasons for allowing the live videotaping of a child-witness’s testimony out of the presence of the defendant. 197 N.J. Super. 411, 435-43 (Law Div. 1984). Unlike the present case, however, the court ruled that the child-witness would be subject to cross-examination by defense counsel, who would be present in the same room. Id. at 442-43. In addition, the testimony of the child was to be carried live through a video feed to a courtroom where the judge, jury, and defendant would be present, and the defendant would have the ability to confer with counsel. Ibid.
5 “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.J.R.E. 801(c). Generally, hearsay is not admissible at a trial or a hearing unless specifically exempted by an evidence rule or other law. N.J.R.E. 802.
6 See, e.g., State v. Valencia, 924 P.2d 497, 502-05 (Ariz. Ct. App. 1996); Vasquez v. People, 173 P.3d 1099 (Colo. 2007); Devonshire v. United States, 691 A.2d 165 (D.C.), cert. denied, 520 U.S. 1247, 117 S. Ct. 1859, 137 L. Ed. 2d 1060 (1997); People v. Stechly, 870 N.E.2d 333, 348-53 (Ill. 2007); State v. Hallum, 606 N.W.2d 351 (Iowa 2000); State v. Gettings, 769 P.2d 25, 28-30 (Kan. 1989); Commonwealth v. Edwards, 830 N.E.2d 158 (Mass. 2005); People v. Bauder, 712 N.W.2d 506 (Mich. Ct. App. 2005), appeal denied, 720 N.W.2d 287 (Mich. 2006); State v. Fields, 679 N.W.2d 341, 345-47 (Minn. 2004); State v. Alvarez-Lopez, 98 P.3d 699, 703-07 (N.M. 2004), cert. denied, 543 U.S. 1177, 125 S. Ct. 1334, 161 L. Ed. 2d 162 (2005); People v. Geraci, 649 N.E.2d 817, 820-24 (N.Y. 1995); Commonwealth v. Paddy, 800 A.2d 294, 310 n.10 (Pa. 2002); State v. Ivy, 188 S.W.3d 132, 145-48 (Tenn.), cert. denied, 549 U.S. 914, 127 S. Ct. 258, 166 L. Ed. 2d 200 (2006); State v. Jensen, 727 N.W.2d 518, 529-36 (Wis. 2007).
7 The New Jersey Constitution contains a similarly worded Confrontation Clause in Article I, Paragraph 10: “In all criminal prosecutions the accused shall have the right . . . to be confronted with the witnesses against him.” N.J. Const. art. I, ¶ 10.
8 Article VI, Section 2, Paragraph 3 provides that “[t]he Supreme Court shall make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts.” N.J. Const. art. VI, § 2, ¶ 3.
9 During the Convention’s proceedings, several legal luminaries expressed their views concerning the procedural and substantive nature of evidence. For example, when New Jersey Attorney General Walter D. Van Riper was asked if he would invest the Supreme Court with rule-making power, he replied, “Yes, sir, I would, very broadly.” 4 Proceedings of the Constitutional Convention of 1947, at 290. However, the Attorney General was less enthusiastic about conferring on the Court unilateral authority over the rules of evidence, stating that he would give, at least in part, the rule-making power over evidence to the Legislature. See id. at 291. During this exchange, Frank H. Sommer, a delegate to the Convention, noted that “[s]ome of the rules of evidence certainly are of a substantive nature rather than procedural.” Id. at 290. Later, Sommer, a former dean of New York School of Law, further expounded on the breadth of the proposed rule-making power of the Court, explaining that “[i]t’s a complete rule-making power except on some points, not extending to changes on rules of evidence.” Id. at 320. Chancellor A. Dayton Oliphant, who later was one of the first seven Justices to sit on the New Jersey Supreme Court, was emphatic on the subject, “disagree[ing] with the wisdom of giving to the [judicial] rule-making body, as provided in the 1944 draft, power to make rules as to evidence.” Id. at 409 (citation omitted).
10 Federal Rule of Evidence 807 provides:
A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
See also Conn. Code Evid. § 1-2(b) (“Where the Code does not prescribe a rule governing the admissibility of evidence, the court shall be governed by the principles of the common law as they may be interpreted in the light of reason and experience . . . . The provisions of the Code shall not be construed as precluding any court from recognizing other evidentiary rules not inconsistent with such provisions.”); Ind. Evid. R. 101(a) (“If these rules do not cover a specific evidence issue, common or statutory law shall apply.”).
11 In Jacober v. St. Peter’s Medical Center, we adopted by judicial decisionmaking the learned treatise rule because adopting that rule did not “pose as serious and far-reaching consequences as the rule considered in D.R.” and because the new rule merely constituted the “modifying [of] a pre-existing common-law rule of evidence.” 128 N.J. 475, 494 (1992) (citation and internal quotation marks omitted).
12 We have appended to this opinion the proposed rule that we will submit to the Legislature and Governor for their consideration.
13 N.J.R.E. 104(a) provides that “[w]hen . . . the admissibility of evidence . . . is subject to a condition, and the fulfillment of the condition is in issue, that issue is to be determined by the judge. . . . The judge may hear and determine such matters out of the presence or hearing of the jury.”
14 There may be a case in which a court will conclude that entry of a contempt order will be an act of futility. Ultimately, the court must exercise its sound discretion in determining the means to enforce its orders.
15 See N.J. Const. of 1776, art. 22 (“That the common law of England, as well as so much of the statute law, as have been heretofore practiced in this colony, shall still remain in force, until they shall be altered by a future law of the legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this charter . . . .”); N.J. Const. of 1844, art. 10, ¶ 1 (“The common law and statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitation, or be altered or repealed by the legislature . . . .”).
16 This Court’s authority to adopt and develop common law principles when the Legislature has not spoken is a powerful tool. Although the creation of an evidence code decreases the flexibility afforded to the courts, all judicial authority in respect of evidential matters has not been lost. Evidence Rule 102 provides that the evidence rules “shall be construed to secure fairness in administration and elimination of unjustified expense and delay. The adoption of these rules shall not bar the growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.” N.J.R.E. 102. To turn to the common law when addressing a court’s ability to react to alleged wrongdoing by a defendant that hampers the conduct of a trial is nothing more than to resort to equitable principles upon which the forfeiture-by-wrongdoing doctrine is grounded.
17 The doctrine in England’s law was that “if the prisoner had resorted to a contrivance to keep a witness out of the way, the deposition of the witness, taken before a magistrate and in the presence of the prisoner, might be read. Other cases to the same effect are to be found, and in this country the ruling has been in the same way.” Drayton v. Wells, 10 S.C.L. 409, 1 Nott & McC. 409 (S.C. 1818); Williams v. State, 19 Ga. 403 (1856).
18 Rule 807 allows for the admissibility of hearsay statements not specifically covered by the Rules but, “having equivalent circumstantial guarantees of trustworthiness.”
19 The commentary to the Rule provides that, “the usual Rule 104(a) preponderance of the evidence standard [has been adopted] in light of the behavior the new Rule 804(b)(6) seeks to discourage.” Fed. R. Evid. 804(b)(6), advisory committee’s note.
20 Generally under other hearsay exceptions, such as Rules 803, 804, and 807, out-of-court statements of the unavailable defendant are admissible because some indicia of reliability exists, and thus there is no need to produce the declarant to be confronted for cross-examination. See Paul W. Grimm & Jerome E. Deise, Jr., Hearsay, Confrontation, and Forfeiture by Wrongdoing: Crawford v. Washington, a Reassessment of the Confrontation Clause, 35 U. Balt. L.F. 5, 32 (2004).
21 The evidence was admitted in Vasquez under Colorado Rule of Evidence 807, the residual hearsay exception. Id. at 1106.
The Supreme Court of California also has addressed whether, under the forfeiture-by-wrongdoing doctrine, a defendant waives his right to object to testimony on hearsay grounds and has concluded that the doctrine operates only to bar a defendant’s objection under the confrontation clause when the proponent shows that it is more probable than not that the defendant procured the unavailability of the witness. See People v. Giles, 152 P.3d 433, 446-47 (2007). The court held that the doctrine does not bar objections under its evidence code, explaining that “even if it is established that a defendant has forfeited his or her right of confrontation, the contested evidence is still governed by the rules of evidence; a trial court should still determine whether an unavailable witness’s prior hearsay statement falls within a recognized hearsay exception and whether the probative value of the proffered evidence outweighs its prejudicial effect.” Ibid.
22 Many states and circuit courts of appeals have recognized that the Due Process clause may protect a defendant, who threatens a potential witness into not testifying at trial, from the admission of unduly prejudicial extrajudicial statements. See, e.g., Carlson, supra, 547 F.2d at 1360 n.14 (“Elements of due process under the Fifth Amendment may enter into the analysis if the fairness of the trial is sacrificed.”).
Circumstantial evidence shows man dealt drugs
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HAMID A. SHABAZZ,
Defendant-Appellant.
______________________________
Submitted February 2, 2009 – Decided
Before Judges Carchman and Simonelli.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-05-0638.
Yvonne Smith Segars, Public Defender, attorney for appellant (Winnie E. Ihemaguba, Designated Counsel, on the brief).
James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Following a jury trial, defendant Hamid A. Shabazz was convicted of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); two counts of third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and b(3); and two counts of third-degree distribution of controlled dangerous substance within 1,000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a.1 The trial judge sentenced defendant to two concurrent five-year terms in prison with a three-year parole disqualifier, as well as statutory penalties, fines and license suspension. Defendant appeals, and we now affirm.
These are the facts adduced at trial. On February 25, 2005, at 11:00 a.m., Sergeant Samuel Rivera, a thirteen-year veteran of the Passaic Police Department, was performing a narcotics surveillance operation in the area of 49 Pine Street, a location within 1,000 feet of Public School No. 7 in Passaic. The operation itself was divided into two teams, the surveillance officer and the backup team, which would stop and detain any suspects involved in a narcotics transaction observed by Sergeant Rivera. During the operation, Sergeant Rivera was performing the surveillance while Detectives Juan Clavijo, Tamika Santiago, Reynaldo Arroyo, Larson, LeConte and Cassiano2 were acting as backup. Sergeant Rivera had been in that area since 6:00 a.m. and was situated twenty or twenty-five feet away from 49 Pine Street.
During his surveillance, Sergeant Rivera observed Anthony Haskins near the porch of 49 Pine Street and also observed defendant in the alley between 53 and 55 Pine Street. At approximately 11:00 a.m. a third individual, Michael Dennis, approached the area wearing a blue knit cap, a winter vest-type jacket and blue jeans. Dennis had a brief conversation with Haskins in front of 49 Pine Street. Haskins then proceeded to walk into the area between 53 and 55 Pine Street, while Dennis waited on the porch. As Haskins walked towards the alley, he yelled out to defendant, who was in the back of the alley, and “motioned as if making hand signals of 10.” Defendant went behind 55 Pine Street for a few moments and then came back and met Haskins in the center of the alley. Defendant handed Haskins “an item,” which, Sergeant Rivera observed, Haskins took in his right hand. Haskins then walked from the alley back to 49 Pine Street where he handed the item to Dennis. Dennis then handed Haskins what appeared to be United States currency, and Dennis left the area. Haskins went back to the alley and gave defendant the money. Defendant remained in the alley while Haskins returned to the porch at 49 Pine Street.
As Dennis left the area, Sergeant Rivera, based on eight years of experience and observing over 1,000 hand-to-hand street-level drug interactions, concluded that he had observed a drug transaction. He relayed a description of Dennis and Dennis’ current route of travel over the police radio.
After Dennis left the area, another individual, Robert Ellis, emerged from a black Cadillac parked near the front of 49 Pine Street and began talking to Haskins who was sitting on the porch. Haskins returned to the alley and called defendant. They had a brief conversation resulting in Haskins bringing Ellis to defendant, and defendant and Ellis proceeding to the rear of 55 Pine Street. A moment later, Ellis returned “looking a[t] something in his hand”; he entered his vehicle and left the area. Sergeant Rivera then advised his backup team to detain the black Cadillac.
Once the backup team had detained both Dennis, Ellis and the black Cadillac, Sergeant Rivera advised the team to detain Haskins, who was still at 49 Pine Street, and defendant who was in front of 55 Pine Street. Haskins and defendant were then transported to police headquarters.
Detective Clavijo took part in Dennis’s arrest based upon the information received from Sergeant Rivera. Detective Clavijo stated the information he and his partner, Detective Santiago, received from Sergeant Rivera was that “the black male wearing the blue knit cap, the blue vest and blue jean pants was heading south, actually running south, on Pine Street towards Autumn Street.” Once Detective Clavijo saw the individual who met the description, he followed the individual down Pine Street and stopped him at 537 McKinley Street.
Upon arriving at the McKinley Street property, Detective Santiago, spoke to Dennis by talking to him from the window of their vehicle. Both detectives exited the vehicle in plain clothes, and Detective Clavijo, who was wearing his badge around his neck, stated in a loud voice, “[s]top, police.” Dennis stopped and then stated he had crack cocaine in his right front pants pocket. Detective Clavijo retrieved the suspected crack cocaine, secured it and placed Dennis under arrest. Detective Clavijo and Detective Arroyo, who with Detective Larson, had stopped the Ellis vehicle, then went to Pine Street and based on Rivera’s description, placed Haskins and defendant under arrest. No additional narcotics were recovered.
At headquarters, Dennis, Ellis, Haskins and defendant were searched. No drugs were found on Haskins and defendant, only money. Most notably, defendant was carrying $568.00, but no narcotics were found on him. No narcotics were found in the rear of 55 Pine Street either. At headquarters, members of the backup team gave Sergeant Rivera the substances that the buyers allegedly purchased from Haskins and defendant. Sergeant Rivera visually identified the substance as crack cocaine, which, upon subsequent testing, was confirmed as cocaine.
At trial, Ellis stated that he went to Pine Street, got out of his car, saw someone that he knew and asked him where he could buy “$20 worth of base.” He identified Haskins as the “someone” who directed him to the seller and identified defendant as the seller. Ellis described that after he went to the back of the premises, he met defendant, gave him money, received the crack cocaine and then drove away only to be pulled over by the police. Ellis had some cocaine on his front seat and a dollar bill wrapped around cocaine in his sock along with a pipe as well as aluminum foil. The cocaine in the aluminum foil came from the Pine Street transaction. Ellis admitted at trial that he pled guilty to the charge of possession of a controlled dangerous substance in exchange for testifying for the State at this trial.
On appeal, defendant raises the following issues:
POINT I: TRIAL COURT ERRED IN NOT GRANTING DEFENDANT’S MOTION FOR A JUDGMENT OF ACQUITTAL IN VIOLATION OF R. 3:18-1.
POINT II: THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL BY FAILING TO GIVE AN ADEQUATE INSTRUCTION ON ACCOMPLICE LIABILITY, FORECLOSING ANY POSSIBILITY THAT DEFENDANT COULD BE FOUND NOT GUILTY.
POINT III: THE TRIAL COURT VIOLATED DEFENDANT’S CONSTITUTIONAL RIGHTS BY FAILING TO APPROPRIATELY WEIGH THE AGGRAVATING AND MITIGATING FACTORS AND HENCE SENTENCED DEFENDANT TO AN UNREASONABLE TERM OF YEARS.
Defendant urges that he was entitled to a judgment of acquittal at the end of the State’s case. In denying the motion to dismiss, the judge commented:
The broad test for the [de]termination of an application of this kind by the Defense is whether the evidence at this point is sufficient to warrant a conviction of the charge involved pursuant to rule — court rule 3:18-1.
More specifically, the question the trial Judge must determine is whether viewing the State’s evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony, as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable Jury could find guilt on the charge beyond a reasonable doubt.
Of course that’s State vs. Reyes, [50 N.J. 454, 458-59 (1967)]. And there is –this is a circumstantial case. The Jury could, if they accept the credibility of the testimony, find that the officer observed transactions, exchange of currency for an item too small to be identified. That the person who allegedly received the small item in exchange for paper currency was stopped thereafter and was found to have crack cocaine on his possession. In fact one of the purchasers testified to having purchased the cocaine consistent with the way the officer says the transaction went, verifying that.
So based on the circumstantial evidence in the case, I’m satisfied that pursuant to Reyes, the State is entitled to have the case go forward. The motions for Judgment of Acquittal are denied. A Jury could reasonably find from all the evidence in the case that the Defendants were involved in the distribution of crack cocaine and certainly could find there was — there is a basis for accomplice liability by reason — or purposely promoting or facilitating the distribution of cocaine by aiding or assisting in that process by directing buyers to the — supplied.
A court shall enter an order for a judgment of acquittal only “if the evidence is insufficient to warrant a conviction.” R. 3:18-1. The standard to be applied to determining a motion for a judgment of acquittal at the conclusion of the State’s case is set forth in State v. Reyes, 50 N.J. 454 (1967):
[T]he question the trial judge must determine is whether, viewing the State’s evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[Reyes, supra, 50 N.J. at 458-59.]
Under Rule 3:18-1, the trial court “is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.” State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). See also State v. Spivey, 179 N.J. 229, 236 (2004). “An appellate court will apply the same standard as the trial court to decide if a judgment of acquittal was warranted.” State v. Harris, 384 N.J. Super. 29, 52 (App. Div.) (stating “we must view the State’s evidence, in its entirety and giv[e] the State the benefit of all its favorable testimony and all of the favorable inferences to be drawn from that testimony to determine whether a jury could find guilt beyond a reasonable doubt under the statute”) (internal quotations omitted), certif. denied, 188 N.J. 357 (2006); State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004) (“The trial judge must consider only the existence of such evidence, not its ‘worth, nature, or extent.'”) (quoting Kluber, supra, 130 N.J. Super. at 342). “If the evidence satisfies that standard, the motion must be denied.” State v. Felsen, 383 N.J. Super. 154, 159 (App. Div. 2006).
We are satisfied that reviewing the evidence in its totality, the State met its burden, and the judge correctly denied the motion. Defendant, in his brief, parses the testimony and events focusing on, for example, the exchange of money as not forming the basis of criminal conduct sufficient to survive a motion. Here, the officers engaged in a methodical piecing together of facts including the exchange of currency for “objects” coupled with later arrest and apprehension of drugs from a purchaser who ultimately identified defendant as the seller. While each element might not survive, the totality of the described events clearly meets the State’s burden. We find no merit in this claim.
We reach the same result regarding the accomplice charge. We first note that there was no objection to the charge, and we must determine whether, if erroneous, the alleged defective charge was “clearly capable of producing an unjust result.” R. 2:10-2; State v. Adams, 194 N.J. 186, 206-07 (2008).
Here, the judge followed the Model Jury Charge, a practice sanctioned by our Supreme Court. State v. R.B., 183 N.J. 308, 325 (2008) (noting that “insofar as consistent with and modified to meet the facts adduced at trial, model jury charges should be followed and read in their entirety to the jury”). The judge provided the requisite definitions in the context of the entire charge, and we perceive no basis for our intervention.
Finally, we conclude that defendant’s sentence was appropriate. The judge’s conclusion that defendant did not establish mitigating factors is well-supported by the record.
Affirm.
1 Two additional counts of second-degree distribution of a controlled dangerous substance within 500 feet of a public park, building or housing facility, N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5a, were dismissed.
2 The first names of Detectives Larson, LeConte and Cassiano are not set forth in the record.
April 8, 2009
Defendant’s big mouth gives the State what they need to convict him after two mistrials
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ISSAC LENIN,
Defendant-Appellant.
Submitted March 11, 2009 – Decided
Before Judges Axelrad, Parrillo and Messano.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Number 02-02-00179.
Yvonne Smith Segars, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
PARRILLO, J.A.D.
In 1997, two separate juries were unable to reach a verdict as to defendant Issac Lenin’s guilt of the murder with which he was charged. In 2002, after new evidence was received from a confidential informant, defendant was re-indicted on charges of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b). This time, a jury convicted him of all three offenses.
Defendant now appeals, arguing that statements of his, recorded by a confidential informant, violated his constitutional right to counsel; that an FBI agent’s “behavioral assessment” lacked sufficient scientific reliability to justify admission; that a police officer’s testimony concerning defendant’s guilt and credibility denied him his right to a fair trial; and that the prosecutor’s improper remarks in opening and summation denied him a fair trial. For the following reasons, we affirm.
At around 10:30 a.m. on Monday, April 24, 1995, Deborah Fowler was found dead in the basement of a vacant home at 343 Townsend Street in New Brunswick, where defendant occasionally slept on a mattress. Her face was bloody and battered so badly that the police officers could not even determine the victim’s gender. The blood was still wet in places, including where it had splashed on the wall behind her head.
It was later determined that the victim suffered a broken jaw and nose and numerous blunt force injuries to the head, face and neck. She had also been manually strangled. The blunt force trauma injuries were consistent with a ball peen hammer, discovered later that afternoon with human blood on it in the backyard of an abutting property, inasmuch as its semi-circular shape matched the curved lacerations on Fowler’s face. Cause of death was a combination of manual strangulation and blunt force trauma. It was believed the homicide took place where the victim was found, because blood on her body showed gravitational draining. Time of death was estimated to be thirty-six to forty-eight hours before discovery of the body. The autopsy also revealed high levels of alcohol, cocaine and morphine in the victim’s system, ingested no more than four hours before her death. Fowler did not display any defensive wounds.
In the days preceding her death, Fowler was seen in the vicinity of 343 Townsend Street, in the company of defendant, who worked construction. On Friday evening, April 1, 1995, Ernest Wilson, a fellow construction worker, accompanied defendant and Fowler to his girlfriend’s apartment where the four ingested cocaine and drank beer. When, thereafter, Wilson refused to allow defendant to use the bathroom to have sex with Fowler, defendant complained, “If she don’t give me none, I’m going to take it.” Out of defendant’s hearing, Fowler told Wilson’s girlfriend, Tracy Lyles, that she was going to get defendant’s money and that “he wants some but I’m not going to give him none.” Defendant and Fowler left the apartment around 10:00 p.m., at Lyles’ request. Lyles recalled defendant wearing a tool belt that night with a ball peen hammer, which, according to Wilson, defendant also carried in his belt at work.
Sometime in April 1995, Israel Lopez saw defendant bring a mattress into 343 Townsend Street, and, late one Friday night in April, observed defendant with a “dark-skinned lady” whom he later identified as Fowler from a photograph. On Friday, April 21, at about 10:30 p.m., Luis Dastas, who lived across the street from 342 Townsend, saw defendant go into the house with a black woman.1
Michael Rodriguez, a sixteen-year old drug dealer who worked the French/Townsend Street area, knew Fowler for many years and described her “like an aunt.” On Saturday, April 22, at around 6:30 p.m., he sold her a $20 bag of cocaine on Townsend Street, after which she walked down the street toward the railroad bridge. Rodriguez next saw Fowler at 8:30 p.m., coming from the same direction with defendant. She bought another $20 bag of cocaine while defendant stood a few feet away. At 10:30 p.m., he sold her a third $20 bag of cocaine, but defendant was not with her at the time.
Earlier that day, Eddie Warren saw defendant near a liquor store, carrying a ball peen hammer on a belt. Later that evening, around 8:00 p.m., Warren was on his way to see his girlfriend when he saw Fowler and defendant near the railroad tracks. Fowler asked Warren for a cigarette, but defendant remained under the railroad bridge, about eight or nine feet from the two.
Not long afterwards, according to the medical examiner’s estimated time of death, defendant, by his own admission years later, struck Fowler repeatedly with a hammer, because she pushed him in the face and tried to take his wallet. Although, at the time, he denied any involvement in the homicide or even knowing the victim, defendant was actually the first to report finding the dead body. On the Monday following Fowler’s death, April 24, 1995, at about 9:00 a.m., defendant walked into a neighborhood liquor store, reported that he had just discovered the body of a dead woman when he entered the house at 343 Townsend Street to use a bathroom, and asked someone to call the police. An elderly man volunteered, using a pay phone at a nearby bakery, and the police responded.
Later that afternoon, New Brunswick police interviewed defendant, who repeated his account of discovering the body when he entered the house to use a bathroom, but emphatically denied ever having been in the house before. The house was indeed abandoned with no working plumbing. However, just a few days earlier, in applying for financial assistance from the City of New Brunswick, defendant reported to a social worker that he lived in an abandoned house on Townsend Street.
Months later, on August 23, 1995, after discovering discrepancies in the statements of defendant and other witnesses, Sergeant Ronald Kushner and Orlando Roman from the Middlesex County Prosecutor’s Office interviewed defendant. He denied knowing Fowler and, again, denied being inside 343 Townsend Street before April 24. Roman then confronted defendant with information (from witnesses Ernest Wilson and Tracy Lyles) placing him with Fowler on the evening of the homicide or the night before, buying her cigarettes and trying to have sexual relations with her. Defendant denied these reports, but eventually admitted seeing Fowler at Lyles’ house, but insisting she remained behind after he left. When asked the location of his other hammer, defendant denied having one. Defendant was arrested that same day for Fowler’s murder.
The investigation remained open even after two juries in 1997 could not reach a verdict. Years later, on December 5, 2001, Kushner received a call from Detective Michael McHale of the Sarasota, Florida Police Department, who reported that one of his confidential informants, Pedro Dominguez, had information about the Fowler murder from defendant, when the two were together at the county jail. Specifically, defendant had told Dominguez in Spanish that “[defendant] had killed a girl here on Townsend [Street] in [New] Brunswick, that he had hit her on the head with a hammer in the forehead.”2 Defendant also told Dominguez that he had discarded the hammer, but that police officers had found it, and that the site of the murder was a vacant house. Finally, defendant told Dominguez that he had entered a store to report a dead woman, that somebody telephoned the police department, and that police officers answered the call.
As a result, Kushner and another investigator traveled to Florida on January 21, 2002, to meet McHale and Dominguez, a Cuban national who, at the time, was in federal custody awaiting deportation proceedings. After the officers interviewed Dominguez, arrangements were made to transfer Dominguez to the state prison where defendant was incarcerated. Once the two men were reunited, Dominguez was fitted with an electronic transmitter, in the hope of capturing incriminating information on tape. Eventually, their conversations generated hours of dialogue including one in which defendant disclosed how he murdered Fowler. Specifically, defendant related that Fowler took his wallet and would not return it, so “Man, I let her have it. I let her have it and you know how it happened.” Defendant continued, “She was found dead. I don’t even want to tell the story.”
(I)
Defendant’s principal contention is that his surreptiously recorded statements to the State’s undercover informant were in violation of his Sixth Amendment right to counsel, as recognized in Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). We disagree and hold that the right to counsel does not survive dismissal of formal criminal charges against the accused, absent collusion or chicanery on the part of the prosecution.
The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const., Amend. VI. The purpose of this right is “to enable the defendant to confront the prosecution and to ensure the integrity of the judicial process.” State v. Sanchez, 129 N.J. 261, 265 (1992). The right to counsel attaches at the pretrial stages and is “triggered when ‘adversary judicial proceedings have been initiated.'” Ibid. (quoting Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S. Ct. 1877, 1881-82, 32 L. Ed. 2d 411, 417 (1972)). “Adversary judicial proceedings” begin by way of “formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby, supra, 406 U.S. at 689, 92 S. Ct. at 1882, 32 L. Ed. 2d at 417.
In Massiah, supra, a defendant had been indicted, had retained a lawyer, and had been released on bail. Id. at 201, 84 S. Ct. at 1200, 12 L. Ed. 2d at 248. While he was free on bail, a federal agent surreptitiously listened to incriminating statements made by defendant. Ibid. Over the defendant’s objection, evidence of the statements was introduced against him at trial. Ibid. The Court held that eliciting the statements “after [defendant] had been indicted and in the absence of his counsel” violated the Sixth Amendment. Id. at 206, 84 S. Ct. at 1203, 12 L. Ed. 2d at 250; see also United States v. Henry, 447 U.S. 264, 265, 100 S. Ct. 2183, 2184, 65 L. Ed. 2d 115, 119 (1980); Maine v. Moulton, 474 U.S. 159, 161, 106 S. Ct. 477, 479, 88 L. Ed. 2d 481, 486 (1985).
Unlike those cases where an indictment was pending when the incriminating statements were elicited, ibid., here, the judge dismissed defendant’s murder indictment without prejudice on January 23, 1998, after defendant was tried twice on that and related charges in 1997 without conviction. Defendant was not reindicted until February 13, 2002, shortly after he was recorded making incriminating statements. Although no New Jersey case has addressed the right to counsel in this precise situation, other jurisdictions considering the issue have uniformly rejected defendant’s position.
In United States v. Mapp, 170 F.3d 328, 333 (2d Cir. 1999), cert. denied sub. nom Moore v. United States, 528 U.S. 901, 120 S. Ct. 315, 145 L. Ed. 2d 200 (1999), the defendant, Moore, was in a state prison on charges unrelated to the case on appeal. Shortly thereafter, he was charged by the state with murder; however, that charge was dismissed at the state’s request, due to evidentiary and speedy trial problems. Ibid. While Moore was still in state prison, federal prosecutors obtained a writ authorizing Moore’s transfer to a courthouse to take fingerprints. Ibid. As part of that transfer, Moore was intentionally placed in a holding cell with Sainsbury, a man authorities suspected was also tied to the murder, and who was then cooperating with authorities. Ibid. Moore did, indeed, make incriminating statements about the murder and other crimes, with which he was charged by federal authorities. Ibid.
On appeal of the resulting federal convictions, Moore argued that, in arranging for the meeting with Sainsbury, the state and federal authorities had improperly colluded to deprive him of his Sixth Amendment right to counsel. Ibid. The court disagreed, ibid., holding that the Sixth Amendment right to counsel does not attach until a prosecution has commenced. Id. at 334. Moreover, the Sixth Amendment is “offense-specific,” meaning that it does not prohibit the questioning of an individual regarding other crimes that have not been charged. Ibid. The federal prosecution of Moore was not commenced until six months after his conversation with Sainsbury, and, thus, his right to counsel to defend those charges had not yet attached. Ibid.
Nevertheless, Moore argued that, because state and federal officials created a “seamless web of incarceration and prosecution,” the right to counsel that attached upon the filing of the state murder charges survived the dismissal of those charges and prevented questioning outside the presence of counsel. Ibid. Yet the district court had conducted a thorough hearing on the extent of the federal and state collaboration in the dismissal of the state case and the initiation of the federal case, and found no collusion. Ibid. Consequently, the court found no violation of Moore’s Sixth Amendment right to counsel. Ibid.
In a case similar to Mapp, in United States v. Montgomery, 262 F.3d 233, 245 (4th Cir.), cert. denied, 534 U.S. 1034, 122 S. Ct. 576, 151 L. Ed. 2d 448 (2001), the defendant Holland was charged in state court with murder. State authorities nol prossed the charges several months later. Ibid. The nol pross was not an acquittal or a pardon of the murder and did not preclude a prosecution for the same offense. Id. at 246. A year later, three years prior to any charges being initiated, federal authorities taped an incriminating conversation Holland had with an informant. Id. at 245-46. Holland argued that since he “still faced jeopardy” after the state nol prossed the state murder charge, his Sixth Amendment right to counsel had never been extinguished. Id. at 246.
The Fourth Circuit held that “[a]doption of this argument would provide a once-indicted defendant with a permanent constitutional shield[,]” and that “[n]either the Sixth Amendment nor the Supreme Court’s explication of the rights guaranteed by it countenance such a result.” Ibid. The court continued: “When an indictment is dismissed (or nol prossed) and a defendant discharged, the respective positions of the government and defendant undergo a most important change–they cease to be adversarial. Thus, after dismissal of the state murder charge, Holland no longer faced an ‘expert adversary.'” Ibid. Consequently, Holland’s Sixth Amendment right to counsel was not denied. Id. at 246-47.
Recently, the Eleventh Circuit joined in finding that conversations recorded by federal authorities after the same state charges were dismissed did not violate the defendant’s Sixth Amendment rights. United States v. Toepfer, 2008 U.S. App. LEXIS 14811 at *3-4 (11th Cir. July 9, 2008). Similarly, the district court of Kansas held, “[W]here no charges have been filed or remain pending regarding the subject of interrogation, the Sixth Amendment right to counsel simply does not attach, and defendant’s incriminating statements may be used against him.” United States v. Garcia, 861 F. Supp. 996, 1006 (D. Kan. 1994), aff’d, 69 F.3d 549 (10th Cir. 1995).
We fail to see the significance of the distinction defendant draws in Mapp and its progeny, namely that the questioning of the individuals in those cases occurred in circumstances in which the right to counsel had not yet attached. In Mapp, when the statements were taken, the state charges against the defendant had been dismissed, and no federal charges had been filed. Here, when defendant’s statements were taken, the state charges had been dismissed, and there had been no re-indictment by the State. If plaintiff is placing significance on the duality of state-federal prosecutions, he fails to explain the difference, or why it should matter. The fact remains that when defendant was in jail in Florida on unrelated charges, no charges were pending against him for the Fowler murder.
Other courts have addressed similar issues where there was no federal/state distinction. In United States v. Bartelho, 129 F.3d 663, 675 (1st Cir. 1997), cert. denied, 525 U.S. 905, 119 S. Ct. 241, 142 L. Ed. 2d 198 (1998), the defendant was charged with robbery in July 1994, and the charges were dropped in October 1994. In March 1995, while the defendant was incarcerated on other charges, he made statements to a fellow inmate, who was a government informant. Id. at 674-75. The defendant was re-indicted on the same charges in May 1995. Id. at 675. The defendant maintained that the government deliberately dismissed the robbery charges against him before he was incarcerated with the informant, thus orchestrating an opportunity to obtain information at a time when he would not have a right to counsel. Ibid. The court stated that “[d]eliberate chicanery by the government intended to subvert an accused’s Sixth Amendment rights, by delaying formal charges, may give rise to a right to counsel before charges are brought.” Ibid. However, because the trial judge found no manipulation, the court held that the defendant’s Sixth Amendment rights were not violated. Ibid.
In Lindsey v. United States, 911 A.2d 824, 827 (D.C. 2006), cert. denied, 128 S. Ct. 804, 169 L. Ed. 2d 607 (2007), the defendant was charged with murder in 1992, but, after several months, the government dismissed the charges against him. In 1994, he was incarcerated on drug charges. Ibid. In 1997, while the defendant was still in prison, federal agents visited him and told him that they had new evidence relating to the murder and that they believed he was involved. Id. at 828. The defendant confessed, and several months later he was arrested and indicted for the murder. Ibid. He claimed, on appeal, that his Sixth Amendment right to counsel had been violated, but the court disagreed because judicial proceedings were not pending against him when he was questioned. Id. at 834. The court disagreed with the defendant’s contention that his Sixth Amendment right to counsel survived the dismissal of a previous prosecution and held that it must be reasserted “in the absence of bad faith by the government.” Id. at 834, 836.
In a case most similar to the present matter, the defendant in State v. Perry, 515 S.E.2d 582, 584 (W.Va. 1999), was charged with arson. After the preliminary hearing, the magistrate dismissed the case for lack of sufficient evidence to support the charges. Ibid. The State maintained that after the charges were dismissed, the investigation remained open, but was not actively pursued. Ibid. Two years later, authorities obtained a confession from a co-conspirator, who agreed to wear a wire while speaking to the defendant. Ibid. The defendant made incriminating statements, and he was charged with the same offenses that previously had been dismissed. Ibid. The defendant argued that his right to counsel attached in 1995, when he had first been charged. Ibid. The court disagreed, holding that
unless a criminal defendant can show that the government has obtained a dismissal of adversarial judicial criminal proceedings against him or her in order to circumvent his or her constitutional rights, once such criminal proceedings have been dismissed, the right to the assistance of counsel granted by the Sixth Amendment . . . no longer applies.
[Id. at 592.]
The dismissal of an indictment without prejudice cannot be considered a “mere formality” and is not without significance, as defendant posits in seeking to extend his right to counsel permanently, beyond its expiration. On the contrary, “[t]he return of an indictment transforms the relationship between the State and the defendant.” Sanchez, supra, 129 N.J. at 276. In State v. Tucker, 265 N.J. Super. 296, 319 (App. Div. 1993), aff’d, 137 N.J. 259 (1994), cert. denied, 513 U.S. 1090, 115 S. Ct. 751, 130 L. Ed. 2d 651 (1995), we held that the Sixth Amendment right to counsel attached only “at or after the time that adversary judicial proceedings have been initiated against the defendant.” Citing Kirby, supra, 406 U.S. at 689, 92 S. Ct. at 1882, 32 L. Ed. 2d at 417, in defining the initiation of adversary judicial proceedings as one initiated by “formal charge, preliminary hearing, indictment, information or arraignment[,]” Tucker, supra, 265 N.J. Super. at 320, we determined that the right to counsel in New Jersey is triggered by the return of the indictment. Id. at 325. We also held that the Sixth Amendment right “cannot be invoked once for all future prosecutions.” Id. at 322 (quoting McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct. 2204, 2207, 115 L. Ed. 2d 158, 166 (1991)); see also State v. Harris, 181 N.J. 391, 435 (2004), cert. denied sub nom. Harris v. New Jersey, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
Here, the dismissal of defendant’s murder indictment without prejudice, after successive mistrials and without any prospects of developing additional evidence, was entirely proper. State v. Abbati, 99 N.J. 418, 437 (1985). Unforeseen and unexpectedly, that additional evidence surfaced four years later in the fortuitous circumstance of defendant being confined with and befriending a confidential informant in a Florida county jail. No indictment was pending at the time the informant was wired, and there is no evidence that law enforcement authorities orchestrated the circumstances, colluded with each other, or engaged in chicanery to circumvent defendant’s Sixth Amendment rights. Nor is the evidence suspecible of any suggestion that the State engineered the dismissal of the original indictment to allow its investigation to continue while defendant was not represented. Absent such proof, we conclude that there was no right to counsel once defendant’s murder indictment was dismissed, and his surreptiously recorded statements thereafter were properly admitted in his 2004 trial on the newly indicted murder charge.
(II)
Defendant next contends that the admission of the State expert’s behavioral assessment testimony was error. We agree, but find it harmless under the circumstances.
In its in limine motion, the State proffered the testimony of special FBI agent Mark Safarik, who conducted a crime scene analysis from a behavioral perspective and deduced therefrom the dynamics between the victim, the offender and the location of the incident. Following a N.J.R.E. 104 hearing, the trial judge excluded the evidence under N.J.R.E. 702 as lacking in scientific reliability. On the State’s motion for reconsideration, the judge heard additional testimony from Safarik, explaining, among other things, that crime scene analysis was generally accepted in the law enforcement and forensic communities. The judge then ruled that Safarik could testify about the characteristics of the victim and the crime scene, but not the offender.
Accordingly, Safarik testified before the jury that the lack of defensive wounds on the victim indicated that she was not aware of the threat the offender posed. In the same vein, the expert concluded that Fowler probably was in the basement voluntarily given that entry into the house required passing through a very small gate, walking the length of a long pathway, and then entering a door at the end of that pathway. Fowler had no broken fingernails or debris under her fingernails, both signs that would indicate an effort to grab an object to avoid being taken someplace or an effort to defend herself.
Some of the expert’s other opinions, however, went beyond the parameters permitted. For instance, Safarik said the evidence showed neither sex nor money to be a reason for the killing, which he opined was motivated instead by “an interpersonal aggression,” and committed in a manner consistent with overkill. Safarik then explained why he thought that Fowler was manually strangled. In Safarik’s view, whoever killed Fowler was very angry, because her killer struck her many more times with a blunt object than was necessary to kill her. Finally, the expert observed that a “weapon of opportunity” is one that “would be immediately accessible to the offender from the — his immediate vicinity or on his person.”
Quite apart from the fact that a portion of the expert’s testimony transgressed the permitted boundaries, none of it should have been admitted. Under N.J.R.E. 702, for expert proof to be admitted: 1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; 2) the field testified to must be at a state of the art such that an expert’s testimony could be sufficiently reliable; and 3) the witness must have sufficient expertise to offer the intended testimony. Hisenaj v. Kuehner, 194 N.J. 6, 15 (2008); State v. Kelly, 97 N.J. 178, 208 (1984). Under the second prong, behavioral science “should be evaluated under the test for admission of scientific evidence[,]” State v. Fortin, 162 N.J. 517, 525 (2000), namely, whether the technique or mode of analysis has sufficient scientific basis to produce uniform and reasonably reliable results and will contribute materially to the ascertainment of the truth. State v. Cary, 49 N.J. 343, 352 (1967). Reliability of scientific evidence, in turn, may be demonstrated in a number of ways: 1) expert testimony as to the general acceptance of those in the profession of the premises on which the proffered expert based his or her analysis; 2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and 3) by judicial opinions that indicate the expert’s premises have gained general acceptance. Kelly, supra, 97 N.J. at 210. As to the latter, no New Jersey case has ruled on the reliability of crime scene or behavioral analysis.
The present matter affords no better an opportunity for resolution of the issue. Simply stated, the record is far too sparse and undeveloped3 to permit an informed de novo review, State v. Harvey, 151 N.J. 117, 166-67 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 8ll, 145 L. Ed. 2d 683 (2000); cf. Hisenaj, supra, 194 N.J. at 12-13, of whether the field of behavioral assessment and crime scene analysis is at a state of the art such that Safarik’s testimony may be considered sufficiently reliable. Suffice it to say, the State has not borne its burden of demonstrating the scientific reliability of its expert proof. See Hisenaj, supra, 194 N.J. at 15.
There is yet another reason why Safarik’s testimony was inadmissible. It fails to meet the threshold requirement under N.J.R.E. 702 that it be beyond the ken of the average juror, a finding the trial judge made with no analysis. On this score,
the “opinion of a duly-qualified expert may be presented to a jury if it will genuinely assist the jury in comprehending the evidence and determining issues of fact[,]” State v. Odom, 116 N.J. 65, 70 (1989), as where “it relate[s] to a relevant subject that is beyond the understanding of the average person of ordinary experience, education, and knowledge.” Id. at 71. “If the expert’s testimony on such a subject would help the jury understand the evidence presented and determine the facts, it may be used as evidence.” Ibid.
Here, Safarik was not testifying as to a subject matter peculiarly within his expertise or knowledge and unrecognizable or unfamiliar to the layperson, as, for instance, practices in an unknown sub-culture, such as the drug or gang subculture. See State v. Nesbitt, 185 N.J. 504, 515 (2006) (“We do not presume that ordinary members of the public . . . are versed in the many ways in which a seller of crack cocaine can act in concert with others in the business of distributing drugs on the street”); State v. Torres, 183 N.J. 554, 579 (2005) (finding that the organization and structure of gangs is a proper topic for expert testimony). Quite the contrary, Safarik was simply testifying about logical conclusions the ordinary juror could draw from human behavior. For instance, his opinion that the victim knew her attacker and freely accompanied him to the abandoned house amounts to no more than common sense, since a jury could easily infer that one does not usually enter an abandoned building with a stranger unless it is against her will. Similarly obvious is that strangulation coupled with multiple blows to the face with a hammer demonstrates “overkill” committed by an extremely angry perpetrator. These, and others, were all logical inferences the average juror could draw from the facts of record without the need for expert guidance by one knowledgeable of, or experienced in, behavioral assessment.
That said, we are satisfied the admission of such evidence was harmless error. State v. Macon, 57 N.J. 325, 337-38 (1971). In the first place, the matters addressed by Safarik were supported by other competent evidence and witnesses. The county medical examiner testified that Fowler was manually strangled; that Fowler was hit repeatedly with a blunt object; and that Fowler had no defensive wounds. Other witnesses saw defendant in the company of Fowler only hours before the murder; one witness saw defendant bring a mattress into the Townsend Street house; another witness testified that defendant, only a short time before the murder, provided the address of an abandoned house on Townsend Street as his address; and various witnesses had observed defendant with a hammer similar to the one likely used in the murder.
In any event, none of Safarik’s expert testimony opined on the ultimate question of defendant’s guilt, see State v. Baskerville, 324 N.J. Super. 245, 246-47 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000), or really actually mattered, given the “ample independent testimony” that defendant killed Fowler. State v. Singleton, 326 N.J. Super. 351, 354 (App. Div. 1999). As noted, defendant was tried twice previously without conviction. The obvious difference in the third trial was Dominguez, to whom defendant confessed. Given the logistics and the language barrier of the non-English speaking Cuban exile, Dominguez’ testimony was reliable, because he could only have known of the details through defendant. Coupled with the other witnesses’ testimony, there was ample evidence to convict defendant. Under the circumstances, we harbor no reasonable doubt that Safarik’s testimony contributed to the verdict, Macon, supra, 57 N.J. at 337-38, and, consequently, find the admission of Safarik’s testimony harmless error.
(III)
Defendant’s remaining issues are without merit and deserve only brief mention. Contrary to defendant’s contention, Kushner, the lead investigator in the case, did not impermissibly testify as to defendant’s guilt or credibility. He simply responded to defense counsel’s challenge that the State ignored other viable suspects and focused narrowly on the wrong man, his client. In explaining why defendant was pursued as the “main suspect,” Kushner said defendant lied to investigators, at first denying knowing Fowler or having been in Lyles’ house, but then admitting these facts. Nowhere, however, did Kushner opine as to defendant’s guilt or even his general credibility. See State v. Frisby, 174 N.J. 583, 594-95 (2002). Indeed, the witness simply invoked the evidence of defendant’s inconsistencies and implausibilities to explain why he was singled out amongst the others as the prime suspect. Considering the defense’s open invitation, see State v. Corsaro, 107 N.J. 339, 345 (1987), we discern no error, much less plain error. State v. Hock, 54 N.J. 526 (1969), cert. denied sub nom. Hock v. New Jersey, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).
Lastly, defendant points to several comments in the prosecutor’s opening and closing statements that were improper. In our view, none of them deprived defendant of a fair trial.
Defendant first complains that the prosecutor twice asked for justice by rendering a guilty verdict, implying that defendant caused the nine-year delay and that only a conviction will serve justice. We disagree. No fair reading of the challenged remarks can be deemed to have blamed defendant for the delay. Moreover, the prosecutor asked for “justice [in the form of a conviction] based on the evidence.” We perceive nothing improper in equating “justice” with a verdict based on the record evidence.
Defendant next takes issue with the prosecutor’s warning the jury about the State’s imperfect proofs and argues that such a remark impermissibly bolsters the credibility of the State’s witnesses. Again, we disagree. The prosecutor neither vouched for the credibility of his witnesses nor referred to evidence outside the record. Rather, he simply telegraphed discrepancies or inconsistencies in the various witnesses’ accounts due to blurred memories over time, and to weaknesses in his case involving witnesses with criminal convictions or motives to implicate the defendant. There is nothing improper in doing so.
Defendant’s final complaint is that the prosecutor willfully distorted the evidence, noting that Fowler’s son Quadir had seen Fowler and defendant together 20, 30 or 40 times, when, in fact, Quadir testified that he saw them together only twice. We do not perceive this misstatement, however, to be so egregious as to have deprived defendant of a fair trial. The salient point was whether defendant knew the victim and, thus, most likely willingly entered the home with him. Quadir did testify that he had seen his mother in defendant’s company, albeit only twice. Wilson and Lyles testified that Fowler had spent several hours in defendant’s company the day before she was killed. Further, Rodriguez testified that he saw the victim on the night she was killed in the company of defendant, whom he knew. Warren testified that he was “pretty sure” that it was defendant he saw with the victim under the railroad bridge on the day the victim was killed. Other witnesses testified that, on Friday, they saw defendant enter the home with a black woman. Thus, there was ample evidence that the victim was acquainted with defendant. Furthermore, the judge clearly and expressly instructed the jury that it is their recollection of the facts that controls and that counsel’s comments are not evidence. We presume, of course, that the jury faithfully followed the court’s instructions. State v. Manley, 54 N.J. 259, 271 (1969).
Affirmed.
1 Dastas did not testify as such at defendant’s two previous trials, supposedly because he thought the police “had” defendant and would “put him away,” and that he would get himself in trouble. He also admitted that in 1997, he was facing a life sentence for aggravated sexual assault but received a seven-year sentence. He denied receiving any leniency in exchange for his 1997 testimony. At the time of this trial, he was back in prison for having violated Megan’s Law. He had seven convictions in all.
2 There is some indication that Dominguez heard “Townsend” as “thousand”, and actually referred to the street as “1000 Street.”
3 Although it is clear that the State submitted articles and case law to the trial court, none of the articles were submitted on appeal, and the references to the case law in the trial transcripts are fleeting.
April 7, 2009
Tonacchio Law LC 