As gang membership increases in New Jersey, arrests of gang members and leaders will also increase. These cases are difficult from a defense perspective because the stigma of belonging to a gang, on some occasions totally false, will have an impact on plea negotiations and sentencing.
Over the past week in Middlesex County, the following men were arrested and identified as alleged members of the Latin Kings street gang: John Jiminez and Sfand Rajazadeh of Carteret. Both were charged with distribution of controlled dangerous substances. The following men were arrested and identified as a member of the Bloods gang: Ahmed Dempsey Simpson of New Brunswick (charges of drug distribution, distribution of drugs on public property, possession of drugs and possession of a handgun); Tyrone Taylor of Woodbridge; David Roman of Perth Amboy; Johnny Elliot of Carteret; and Jamar Carpenter of Perth Amboy, (all for distribution of drugs); and Marcus Vasquez of Perth Amboy for possession of a weapon.
Lakay Lewis of New Brunswick was identified as an alleged member of a gang known as the 5 Percenters. He was charged with three counts of drug distribution including on public property and possession of a handgun.
Danny Soto of Carteret was identified as an alleged member of Netas. He was charged with distribution and possession of drugs.
Story is here.
What started out as a domestic violence charge, ended in numerous charges that could land Michael Colombo in prison for quite some time. Colombo, of Hoboken was just going to be charged with two counts of aggravated assault with a deadly weapon, one count of burglary, and one count of simple assault in an alleged attack on a woman in Teaneck. However, when police attempted to arrest him, they allege that he lunged at them, punching and kicking two officers, as well as striking one in the head with a metal skillet, then biting him in the arm followed by an attempt to take his gun.
He was eventually subdued charged with one count of resisting arrest, one count of possessing a weapon for an unlawful purpose, one count of aggravated assault upon a police officer, one count of aggravated assault with a deadly weapon upon a police officer and one count of attempting to disarm a police officer. That last charge is a second degree offense. Needless to say, he is facing a ton of time here. Oddly enough, his bail is only $15,000 which is really low given the number of charges and the amount of prison time he is potentially facing.
Story is here.
State v. Dionte Byrd; State v. Freddie Dean, Jr. (A-105-07)
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
STATE OF NEW JERSEY,
FREDDIE DEAN, JR.,
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.
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.
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.
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.
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.
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.
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.
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.
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.
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  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.
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.
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.
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.
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,
STATE OF NEW JERSEY,
FREDDIE DEAN, JR.,
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.
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
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,
STATE OF NEW JERSEY,
FREDDIE DEAN, JR.,
DECIDED April 2, 2009
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING OPINION BY Justice LaVecchia
DISSENTING OPINION BY
|CHIEF JUSTICE RABNER||
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.”).
SUPERIOR COURT OF NEW JERSEY
STATE OF NEW JERSEY,
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
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.”
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.
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.
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).
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
SUPERIOR COURT OF NEW JERSEY
STATE OF NEW JERSEY,
Argued March 4, 2009 – Decided
Before Judges Fisher, C.L. Miniman and Baxter.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-09-3069.
Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Wilensky, of counsel and on the brief).
LeeAnn Cunningham, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Ms. Cunningham, of counsel and on the brief).
Defendant, Shem Walker, appeals from his February 23, 2006 conviction, following a trial by jury, on second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2/2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count three); second-degree manslaughter as a lesser included offense of murder, N.J.S.A. 2C:11-4(b)(1) (count four); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count five). The jury acquitted defendant of third-degree possession of a weapon for an unlawful purpose, as charged in count six. After merging counts one, two and four into the felony murder conviction, the judge sentenced defendant to a thirty-year term of imprisonment with a thirty-year parole ineligibility term. On count five, the judge sentenced defendant to an eighteen-month term of imprisonment, concurrent to the sentence imposed on count three. Appropriate fines and penalties were imposed. On appeal, defendant raises two instructional errors, namely the judge’s failure to sua sponte charge the jury on the statutory affirmative defense to felony murder and his omission of a charge on “afterthought robbery” as a lesser included offense of robbery. We affirm.
On January 24, 2003, Irvington police found the body of Albert Whitley lying on the first floor of his two-story home. Whitley was the victim of a brutal stabbing. According to the testimony of Officer Dawn Koontz, the house was ransacked, with blood smeared on the wall in the foyer. Koontz found Whitley on his back, barefoot, with his hands taped behind his back with clear packing tape. The same clear tape was used to bind Whitley’s legs together. Koontz observed deep stab wounds on his neck and chest.
The forensic pathologist who performed the autopsy, Nobby C. Mambo, M.D., opined that Whitley died of stab wounds caused by a knife or other sharp object. Crime scene investigators located a blood-stained knife handle without its blade in the pocket of a jacket hanging over a chair on the first floor. They also found a wad of blood-stained clear packing tape on the stairway that appeared to match the tape that had been used to bind Whitley’s hands and legs. Police took swabbings of blood stains found throughout the first and second floors of the house.
Terri Mason McIntyre, a forensic scientist, testified that after analyzing the blood stains found in the house, she was able to conclude within a reasonable degree of scientific certainty that defendant was the source of the blood stain that was found in the foyer, but the remaining blood stains were those of Whitley. Eric Carpenter, an expert in fingerprint analysis employed by the Federal Bureau of Investigation, opined that defendant’s prints matched a fingerprint and palm print lifted from the clear packing tape found on the stairway of Whitley’s home. Carpenter also testified that no latent fingerprints were found on the knife handle or the clear tape found on Whitley’s hands and legs.
The State also presented the testimony of Jazeer Redding, who testified that he was at Whitley’s home at approximately 8:45 p.m. on January 23, 2003, when he heard a knock at the door, and admitted two men into the house. Redding identified one of the two as co-defendant Carl Trupaire,1 whom Redding knew from high school. Redding identified defendant as the other individual after selecting defendant’s photograph from a photo array. Redding testified that he left the house shortly after defendant and Trupaire arrived.
Irvington Police Detective Harold Wallace testified that on May 28, 2003, after administering Miranda2 warnings to defendant, he interviewed him and took a formal statement. Wallace described defendant’s statement in the following terms: defendant initially denied knowing either Whitley or Trupaire and claimed he had never been to Whitley’s home; however, when Wallace told defendant that his fingerprint had been found at the crime scene, defendant acknowledged that he and Trupaire were friends and he admitted that he had been to the victim’s home on a prior occasion. Defendant claimed that it was Trupaire who devised the plan of going to Whitley’s home to “rob him.” According to defendant, all three men were upstairs in Whitley’s house, and as soon as Whitley got off the phone, Trupaire began punching him. Whitley fled downstairs, but Trupaire caught up with him and continued slugging him. Defendant claimed he did not assist Trupaire, but admitted that he “punched Whitley one time in the face.”
According to Wallace, defendant claimed that Trupaire told him “to tape” Whitley’s legs. With Trupaire holding the victim, defendant retrieved the tape from the dining room table, and taped Whitley’s “legs and wrists.” After Whitley was bound, defendant “went upstairs looking for money to steal.” According to defendant, Whitley was already “knocked out” by the time he went upstairs. Defendant also maintained that after Whitley was bound, Trupaire hit him and was “stomping him in the face and in the head.” Defendant denied stabbing Whitley, but admitted that he stood “by the door” while Trupaire continued to stab him.
Defendant told Wallace that after the two left Whitley’s house, Trupaire gave him approximately $100. At the conclusion of his statement, defendant commented that he “didn’t know it was going to turn out to be like this” and “didn’t know [Whitley’s] life was going to be taken . . . .” Defendant claimed that if he had been aware of what was going to take place, he “would not have got [sic] involved.” Defendant signed and dated the written statement that Wallace prepared during the interview.
Wallace testified that he did not physically assault or threaten defendant during the interview. He also asserted that defendant appeared to understand the questions and was able to answer them clearly.3
Defendant’s testimony at trial differed sharply from the statement he gave to Wallace. According to defendant’s trial testimony, he worked in the candle store that Whitley operated, and had used packing tape at Whitley’s home to wrap candles, as recently as two days before Whitley was murdered. Defendant testified that although he and Trupaire went to Whitley’s home on the night of January 24, 2003, they had no plans to rob him. Instead, defendant insisted that the two went to Whitley’s home to see if Whitley could assist in obtaining a passport for Trupaire’s brother. Defendant testified that unexpectedly Trupaire hit Whitley in the head with his hand, causing Whitley to run downstairs to get away from him. Defendant admitted that while Trupaire and Whitley were fighting, he punched Whitley in the face with his right hand, causing his knuckle to bleed. Defendant reiterated the claim he made to Wallace that he only hit Whitley once. He also testified that after Whitley tried to get up, Trupaire continued to “hit him to the ground,” stomp him and kick him in the face while Whitley lay on the ground defenseless. After five or ten minutes of watching Trupaire relentlessly beat Whitley, defendant went upstairs, grabbed his jacket and left the house because “what [Trupaire] was doing to [Whitley] didn’t look right.”
However, contrary to the statement he gave to Wallace, defendant denied: 1) binding Whitley or seeing him constrained around his wrists and legs; 2) seeing Trupaire stab Whitley; 3) observing a weapon while he was at Whitley’s home; and 4) ransacking Whitley’s bureau to look for money.
Defendant also testified that Wallace threatened to throw him out the window “if [he] didn’t start talking.” He also asserted that he never read the statement before signing it and that the answers he gave were not truthful because he was “[a]nswering [Wallace’s] questions as he wanted me to.”
On November 3 and 4, 2005, the judge conducted charge conferences to discuss the appropriate felony murder jury charge. During the first charge conference, the assistant prosecutor commented that the model jury charge would need “to be tailored to the facts of this case, which don’t fit neatly into either of [the] model charges,” Felony Murder-Non-Slayer Participant or Felony Murder-Slayer Participant. When the judge commented that he was not sure what charge the State was requesting, the assistant prosecutor clarified the State’s theory, commenting that Trupaire and defendant “acted together, that this jury can be satisfied either of the individuals, [or] both of the individuals together[,] killed Albert Whitley during the commission of a robbery and that is felony murder. I’m not picking one or the other.”
The judge then turned to defense counsel, who replied:
I don’t see the need to have an ultimate outcome on that right now, only for this reason. I don’t think it’s going to preclude or inhibit her from arguing what she’s going to argue, before the Jury anyway. She’s not going to tell the Jury that [defendant] stabbed this man, killed him . . . . She’s going to say they were acting together, they’re responsible for each other’s action — I don’t want to make her arguments, I’m being forced to — not forced, but I am, and you know, I have to flesh it out a little more to be honest.
The November 3 charge conference concluded with the State commenting that it saw no need to immediately resolve the felony murder instruction, and reiterated that, in its summation, it could argue “accomplice liability as it pertains to the substantive offense of murder and the lesser included offenses of aggravated murder and reckless manslaughter.” The judge agreed.
Defense counsel then presented his summation, in which he argued that defendant was “totally innocent,” and labeled defendant’s conduct “not a crime,” but “a mistake in judgment” when he accompanied Trupaire to Whitley’s home on January 23, 2003. In particular, defense counsel argued defendant was unaware that Trupaire “was going to do anything wrong and certainly not something to what ultimately happened” to Whitley. He reminded the jury that defendant “was in [Whitley’s] house, not when the man died, but when the fight started and things got out of hand.”
The defense also argued in summation that none of defendant’s DNA was found on Whitley or his clothing, asserting that Mambo was unable to identify the individual who killed Whitley or determine when the killing occurred. Defendant also asserted that, of the eight fingerprints, “seven had nothing — or prints that were not identifiable as [defendant].” The defense concluded its summation, arguing that defendant had no involvement in Whitley’s death or in the robbery, and urging the jury to acquit him on all counts.
After the defense closing, the judge conducted the second charge conference, in which he explained that he had been provided with “a version of the felony murder instruction which [both] counsel have agreed upon.” When asked, both attorneys agreed that the judge’s statement was correct. The assistant prosecutor explained that the parties had cooperated in drafting the felony murder charge that they were requesting the judge to use when instructing the jury. The assistant prosecutor commented:
Judge, I indicated yesterday, I [sic] previously to that and even again today went over with counsel the felony murder charge. I know your Honor indicated you would look at it, but it basically is the felony murder charge adding in that, where it says in the felony murder, “slayer participant,” this is not, you know, a one-guy-has-gun-and-three-guys-don’t situation. It’s a hybrid, as I said. I crafted the charge to say “death caused by the defendant or one of the participants in the underlying robbery,” and I need an indication from the Court before I sum up, because I intend to sum up on that.
Immediately thereafter, the following exchange occurred:
THE COURT: I just said, I thought, that I believe counsel have agreed on the submission, which I have inside, about the felony murder instruction.
[PROSECUTION]: That is correct, and then you said I’ll consider it.
THE COURT: yeah, I’m going to consider it, I’m going to read it, see if it’s grammatically correct.
THE COURT: See if it tracks the elements of the crime. That’s all I mean.
THE COURT: We have agreed on the legal theory about which this jury needs to be instructed —
THE COURT: — as to the felony murder.
THE COURT: Is that correct, [defense counsel]?
[DEFENSE COUNSEL]: Yes.
THE COURT: And only for that reason.
[PROSECUTION]: All right. Thank you, Judge.
During the November 4, 2005 charge conference, the judge also discussed the lesser included offenses that would be charged. He granted defendant’s request to charge simple assault as a lesser included offense of robbery; however, because neither side requested an instruction on theft as a lesser included offense of robbery, and because the facts did not warrant such an instruction, the judge concluded that a theft instruction would not be given.
During his charge to the jury, Judge Giles instructed the jury using the charge entitled Model Jury Charge (Criminal), “Felony Murder – Slayer Participant” (2004) with one significant alteration pursuant to the State’s and defense counsel’s agreed upon instruction.4 The judge’s instruction did not include the non-slayer participant affirmative defense set forth in N.J.S.A. 2C:11-3a(3)(a) through (d), and in the felony murder non-slayer participant model jury charge.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT ERRED, TO DEFENDANT’S GREAT PREJUDICE, IN FAILING TO INSTRUCT THE JURY AS TO THE AFFIRMATIVE DEFENSE TO FELONY MURDER. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10. (Not Raised Below)
II. THE TRIAL COURT ERRED, TO DEFENDANT’S GREAT PREJUDICE, IN FAILING TO INSTRUCT THE JURY AS TO “AFTERTHOUGHT ROBBERY.” U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10. (Not Raised Below)
Because both claims of error are being raised for the first time on appeal, the plain error standard of review governs. Accordingly, we will disregard these alleged errors unless they are “clearly capable of producing an unjust result.” R. 2:10-2.
In the context of a jury instruction:
[P]lain error requires demonstration of “legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.” The alleged error is viewed in the totality of the entire charge, not in isolation. In addition, any finding of plain error depends on an evaluation of the overall strength of the State’s case.
[State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Chapland, 187 N.J. 275, 288-89 (2006)) (internal citations omitted).]
We turn first to Point I, in which defendant argues that the judge’s failure to charge the jury on the affirmative defense to felony murder constitutes plain error that entitles him to a reversal of his conviction and a new trial. He asserts that the affirmative defense should have been charged sua sponte because “there would appear to be no legitimate trial strategy that would be furthered by not giving the charge.”5
In relevant part, the statutory non-slayer participant affirmative defense to felony murder provides:
[E]xcept that in any prosecution under this subsection, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:
(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and
(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and
(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and
(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.
Moreover, the felony murder jury charge that incorporates the defense specifically instructs the jury that unless there is evidence in the record supporting each of the four subsections, the affirmative defense must be rejected. The relevant portion of the charge provides:
If there is such supporting evidence, either in the State’s proofs or as presented in behalf of the defendant, then it is incumbent upon the State to negate this evidence by proof beyond a reasonable doubt. However, it is not necessary that all four requirements be negated. Since the defense is not available to defendant unless the evidence supports all four of the requirements, it is sufficient for the State in such case to present proof beyond a reasonable doubt negating any one of them.
[Model Jury Charge Criminal, “Felony Murder – Non-Slayer Participant” (2004) (emphasis added) (footnote omitted).]
Here, while the State does not expressly concede that subsections (a) through (c) are satisfied, it vigorously argues that because the record could not remotely support the requirements of subsection (d), the trial judge did not err when he failed to sua sponte charge the affirmative defense to felony murder. In particular, the State argues that defendant’s own testimony “failed to establish that he had no reasonable ground to believe that Trupaire intended to engage in conduct likely to result in the death or serious physical injury” to Whitley. In support of that argument, the State points to defendant’s testimony that he observed Trupaire tackle the victim to the ground and repeatedly punch and kick him in the head for five to ten minutes. The State also points to defendant’s testimony that while the victim lay defenseless on the floor, defendant went upstairs to retrieve his jacket and left the victim’s house.
As such, the State maintains that defendant could not reasonably have believed that Trupaire had any purpose other than causing Whitley’s death or inflicting serious physical injury. The State therefore argues that because no reasonable jury could conclude that subsection (d) was satisfied, the judge’s failure to instruct the jury on the affirmative defense was not error, much less plain error.
During appellate oral argument, defendant argued that for purposes of the subsection (d) analysis, the “clock stops running” at the moment defendant inflicted his single punch to Whitley. He asserts the record demonstrates that after he punched Whitley, his participation was merely that of a bystander who stood near the door and watched as Trupaire continued to beat Whitley. Under those circumstances, defendant argues, his active participation had come to an end. Therefore, any evaluation of his assessment of Trupaire’s intentions toward Whitley must be judged only as of that moment and must not encompass Trupaire’s vicious continued attack on Whitley thereafter.
As the State correctly argues, defendant’s proposed construction of subsection (d) adds an element that the Legislature did not include when it enacted N.J.S.A. 2C:11-3a(3). We must assume that had the Legislature intended to essentially “stop the clock” at the moment a defendant’s own active participation comes to an end, it would have so stated. State v. Vonderfecht, 284 N.J. Super. 555, 559 (App. Div. 1995).
Neither of the two reported decisions that discuss the quantum of proof necessary to warrant an instruction on the affirmative defense is dispositive in light of the particular facts adduced at trial here. In State v. Smith, 322 N.J. Super. 385, 392 (App. Div.), certif. denied, 162 N.J. 489 (1999), the defendant testified that he and his co-defendant had conspired to commit the robbery but had agreed that no weapons would be used. The defendant did not have a gun and claimed he was surprised when his co-defendant displayed the gun during the robbery. Ibid. We held that the defendant was not entitled to an instruction on the affirmative defense because in “defendant’s own testimony to the jury[,] he admitted, on direct examination, that after he saw his accomplice display the handgun, he actively continued to perpetrate the robbery by demanding money and kicking the victim.” Id. at 397. Here, Whitley did not die from the blows that Trupaire and defendant inflicted. Thus, the active participation of the defendant even after he saw the weapon, which was dispositve in Smith, is missing here. Consequently, Smith is distinguishable.
In State v. Sheika, we held that the defendant was not entitled to the felony murder affirmative defense because the State’s proofs established through eyewitness testimony that the defendant repeatedly kicked the helpless victim who was found dead the next morning as a result of blows inflicted by the defendant and his co-defendant. 337 N.J. Super. 228, 234-35 (App. Div.), certif. denied, 169 N.J. 609 (2001). Under those circumstances, because the defendant was a direct participant in the very conduct that led to the victim’s death, we rejected his argument that the trial court erred when it failed to sua sponte instruct the jury on the affirmative defense. Id. at 251. Here, the State’s proofs did not support such a conclusion. Thus, neither Smith nor Sheika provides definitive guidance on the question of whether the trial judge had a responsibility to sua sponte instruct the jury on the affirmative defense.
In evaluating defendant’s claim, we must determine whether there was “some evidence” to support all four sections of the affirmative defense. Smith, supra, 322 N.J. Super. at 396 (“The jury is only to be instructed on a defense if there is some evidence supporting it.”)
Applying that test, we agree with the State that, contrary to N.J.S.A. 2C:11-3a(3)(d), the record contained evidence that defendant had “reasonable ground[s] to believe that [Trupaire] intended to engage in conduct likely to result in death or serious physical injury.” Even if the jury had accepted defendant’s trial testimony, and rejected Wallace’s account of defendant’s statement to police, defendant’s own testimony established that he had a reasonable ground to believe that Trupaire intended to inflict, at a minimum, “serious physical injury,” N.J.S.A. 2C:11-3a(3)(d), upon Whitley. Trupaire’s brutal and prolonged assault on Whitley, who lay helplessly on the ground while Trupaire stomped and kicked him in the head, was consistent with no other purpose on Trupaire’s part than inflicting serious physical injury. Under the circumstances, there was no evidence to support subsection (d). Consequently, the judge did not err by failing to sua sponte charge the jury on the affirmative defense.
Our conclusion that defendant’s claim in Point I is meritless is bolstered by defendant’s express approval of the jury charge that the judge ultimately gave. The record reflects that defendant participated in drafting it, and that there were at least two discussions between the trial judge, the prosecutor, and defense counsel in which the defense approved the jury charge in question. The affirmative defense was specifically referenced by both the judge and the prosecutor, yet at no point during either of those discussions did defense counsel mention, let alone request, the affirmative defense. More importantly, the record also shows: the prosecutor and defense counsel cooperated with one another in drafting the felony murder jury charge that the judge gave to the jury; and defense counsel told the judge he was satisfied with the felony murder jury charge that he helped draft.
This situation implicates the invited-error doctrine, because the alleged error, the trial judge’s failure to instruct the jury on the affirmative defense, was “induced, encouraged[,] acquiesced in or consented to by defense counsel[.]” State v. Corsaro, 107 N.J. 339, 345 (1987) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974)). The invited-error doctrine, also referred to as induced error, “applies when a defendant in some way has led the court into error.” State v. Jenkins, 178 N.J. 347, 359 (2004). As such, “[s]ome measure of reliance by the court is necessary for the invited-error doctrine to come into play.” Ibid. In particular, we must determine “whether defense counsel [was] responsible directly or indirectly for the asserted error[.]” Corsaro, supra, 107 N.J. at 345. In Corsaro, the Court explained that in deciding this issue, generally “[t]rial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal.” Ibid. (quoting Harper, supra, 128 N.J. Super. at 278).
Here, the record shows that the judge relied on defense counsel’s failure to request the affirmative defense when the opportunity twice presented itself during the charge conferences, and defense counsel’s participation in drafting the charge the judge ultimately gave. However, the Court warned that a finding of reliance “does not foreclose reversal.” Ibid. The central inquiry must be whether the asserted error “cut mortally into the substantive rights of the defendant.” Id. at 345 (quoting Harper, supra, 128 N.J. Super. at 277). The Court explained that:
where the invited error did not demonstrably impair a defendant’s ability to maintain a defense on the merits or where the after-criticized judicial action was reasonably thought to secure a trial or tactical advantage for the defendant, it has not been considered so egregious as to mandate a reversal on appeal. We must recognize, however, that, although brought about by the defendant, there are errors of such magnitude that they trench directly upon the proper discharge of the judicial function. Some errors “may go so plainly to the integrity of the proceedings that . . . a new trial is the just course. . . .” We conceive that errors of this dimension may be cognizable on appeal as plain error notwithstanding their having been precipitated by a defendant at the trial level.
[Id. at 346 (quoting Harper, supra, 128 N.J. Super. at 277-78) (emphasis added).]
The Court held that, in determining whether an invited error requires reversal, a reviewing court should engage in “a close, balancing examination of the nature of the error, its impact on the . . . jury’s verdict and the quality of defendant’s motives and conduct in bringing about the error.” Ibid. (quoting Harper, supra, 128 N.J. Super. at 278.) In this case, the error did not have the capacity to “deflect the jury from a fair consideration of the competent evidence of record[.]” State v. Simon, 79 N.J. 191, 207 (1979). The absence of an instruction on the affirmative defense had no impact on the jury’s capacity to consider all of the evidence, and to decide which portions it accepted and which it rejected. The error did not have a capacity to constrict defendant’s proofs, nor did it affect his trial strategy. Indeed, in his closing, defendant strenuously argued he did not participate in a robbery, had no idea Trupaire intended to rob Whitley, was not present when a stabbing occurred and never saw a weapon. Thus, the error did not alter the jury’s fact-finding responsibilities and function. Under those circumstances, the induced error doctrine remains applicable. Ibid.
Based on the specific facts presented, we conclude that the failure of the trial judge to charge the non-slayer participant affirmative defense was not reversible error. Specifically, this invited error did not “deflect the jury from a fair consideration of the competent evidence of record and from reaching a verdict of guilt . . . supported overwhelmingly by properly admitted evidence.” Ibid. Specifically, as was the case in Harper, supra, 128 N.J. Super. at 273, there was sufficient circumstantial evidence for the jury to find defendant guilty of felony murder beyond a reasonable doubt. In particular, the State’s proofs demonstrated that: defendant’s blood was found at the crime scene, in the area where the beating occurred; defendant’s fingerprints were found on a piece of packing tape — the same type of tape used to bind the victim — that was recovered from the stairway at the victim’s house; and the victim had, in fact, been robbed.
The State also presented the testimony of Wallace, who recounted defendant’s statement from which the jury could reasonably have concluded that: defendant had the specific intent to commit a robbery; defendant did, in fact, rob the victim; and defendant was an active participant in the felony murder in that he assisted Trupaire in binding the victim’s hands and feet. Thus, the evidence was sufficient to enable the jury to find beyond a reasonable doubt that a felony murder had taken place, and that defendant actively participated in that felony.
Thus, we reject the claim defendant advances in Point I for the following reasons: 1) accepting defendant’s construction of N.J.S.A. 2A:11-3a(3) would require us to add to the statute a “stop-the-clock” condition that the Legislature never adopted; 2) the record is devoid of evidence that defendant could reasonably have concluded that Trupaire had no intention to engage in conduct likely to result in serious physical injury to Whitley; and 3) if there was any error, it was induced, in significant part, by defendant himself. We therefore conclude that the judge’s failure to sua sponte charge the non-slayer participant affirmative defense to felony murder charge was not “sufficiently grievous . . . to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.” Nero, supra, 195 N.J. at 407.
We turn next to Point II, in which defendant argues that the judge’s failure to instruct the jury that “afterthought robbery . . . is not recognized as robbery under our law” was plain error warranting reversal.
In State v. Lopez, the Court held that N.J.S.A. 2C:15-1, the robbery statute, does not include afterthought robbery. 187 N.J. 91, 101 (2006). The Court reasoned that because the intimidating or assaultive conduct that elevates theft to robbery must occur during either a theft or an attempted theft, or during immediate flight thereafter, the “intimidating or assaultive conduct that is unrelated to a theft cannot elevate the theft to robbery.” Id. at 98. Therefore, the Court held:
[O]ur statute requires that the threats or violence be carried out in furtherance of the intention to commit a theft. Indeed, the sequence of events is critical; the intention to steal must precede or be coterminous with the use of force. That is why a person who has stolen goods and thereafter uses violence in flight is guilty of robbery — the intention to commit the theft generated the violence. That model simply does not work where a violent fracas occurs for reasons other than theft, and the perpetrator later happens to take property from the victim. In the former example, the theft is the reason for the violence and a robbery has occurred. In the latter, the violence and the theft are unconnected, and the perpetrator is guilty of assault and theft but not of robbery.
[Id. at 101.]
Relying on Lopez, defendant argues that the judge was required to instruct the jury that he could not be convicted of robbery if the intent to steal did not arise until after the violence had been completed. That argument is a misreading of Lopez. The Court did not require that such an instruction be given. Instead, the Court concluded that the trial court’s response to a question from the jury was reversible error, id. at 101, and that the Appellate Division’s sua sponte molding of the verdict to the lesser offense of theft was unwarranted, id. at 103. The trial judge’s instruction, which the Court disapproved, told the jury that “it makes no difference whether the intent to steal was formulated before the use of force or after it, so long as the intent to steal and the use of threat of force can be found as constituting a single transaction.” Id. at 94.
The Court did not hold — as defendant’s argument would have us believe — that a judge is required to specifically instruct the jury that “afterthought robbery” is not encompassed within N.J.S.A. 2C:15-1. Here, the judge instructed the jury that the State must prove beyond a reasonable doubt that while “in the course of committing a theft, the defendant knowingly inflicted bodily injury or used force upon another.” The judge also instructed the jury that “an act is considered in the course of committing a theft if it occurs in an attempt to commit the theft, during the commission of the theft itself, or in immediate flight after the attempt or commission.” As such, the judge’s instruction would have prevented the jury from finding defendant guilty if the intention to steal did not arise until after the violence against Whitley had ceased. Neither Lopez nor any other reported decision has required a trial court to issue the instruction defendant urges here. Consequently, we reject the claim defendant raises in Point II.
1 Trupaire entered a negotiated plea of guilty to first-degree aggravated manslaughter. He did not testify at defendant’s trial.
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3 Defendant filed a pre-trial motion to suppress his May 28, 2003 statement, which the judge denied. The denial of that motion is not an issue on appeal.
4 The alteration, as charged to the jury, stated:
It also does not matter that the act which caused the death was committed by another participant in the robbery. Each participant in the crime of robbery, whether the defendant himself caused the deaths, is guilty of felony murder. Alright? Now, this is — these instructions are applicable to this offense and this offense alone. Alright?
5 In a footnote, defendant contends that it was per se ineffective assistance of trial counsel to fail to request the affirmative defense. Because defendant has failed to raise the issue of ineffective assistance of counsel under the appropriate point heading format, pursuant to Rule 2:6-2(a)(5), and has failed to brief it, we will not consider the issue of ineffective assistance. See Almog v. Israel Travel Advisory Serv., Inc., 298 N.J. Super. 145, 155 (App. Div. 1997), appeal dismissed, 152 N.J. 361 (1998). However, the issue is preserved for post-conviction relief. State v. Preciose, 129 N.J. 451, 461 (1992).
April 8, 2009