Police officers conducting a custodial interrogation cannot withhold essential information that is necessary for the exercise of privilege against self-incrimination
The Supreme Court’s criminal docket this past term was one of the heaviest in recent memory, with 30 criminal law cases on the Court’s calendar. Much as the Court in its past few terms has dealt with the ripple effect of United States Supreme Court cases on sentencing, the Court, this term, dealt with numerous cases spawned by issues arising out of the United State Supreme Court decision in Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the Court ruled that testimonial statements of witnesses who are absent from trial may be admitted only if the declarant is unavailable and the defendant has already had an opportunity to cross-examine.
As a result of Crawford, New Jersey’s highest court was confronted with questions relating to what constitutes a “testimonial statement.” If the Court’s decisions in this area make one thing clear, it is that there is a large gray area left in Crawford’s wake. Cases implicating Crawford, included dealing with DWI issues and dealing with the applicability of exceptions to the hearsay rule, such as those for business records and excited utterances. Narrative statements given to the police by those who observed a crime in progress also raised questions about whether those statements were “testimonial” within the meaning of Crawford.
In keeping with past terms, the Court’s calendar included a disproportionate number of cases involving prior bad acts under Rule 404(b) of the New Jersey Rules of Evidence. The significant undue prejudice that may arise from the admission of prior bad acts has been a consistent concern of the Court, and careful fact-specific line-drawing often occurs. One of the cases decided this term involves whether trial courts have authority to “sanitize” prior bad acts that are dissimilar from the charges facing defendant. In the past, the Court held that courts have the authority and the obligation to sanitize cases where like crimes are at issue. Other cases decided by the Court in the Rule 404(b) area relate to the formulation of limiting instructions to the jury, and defendant confessions that raise Rule 404(b) concerns.
Another area of concern to the Court that has persisted over decades is in the area of jury instructions. Because jury instructions often have direct effect upon the outcome of the trial, cases in this area, as in the area of prior bad acts, figure disproportionately in the cases decided by the Court. Among the Court’s decisions involving jury instructions were interesting ones involving in absentia defendants and lesser-included offenses already charged in the indictment.
In the area of search and seizure, the Court continued to interpret the New Jersey Constitution as being a richer source of privacy rights for state citizens than the federal constitution. One significant case dealt with the important procedural issue of standing. Another dealt with whether passengers, during motor vehicle stops, are subject to having their names run through the NCIC computer database.
The Court’s decisions of the past term also reflect a concern for enlarging the groups of offenders eligible for rehabilitative treatment through court-sponsored programs. One case involved the Pretrial Intervention Program, and another, the Drug Court.
The Court also decided cases involving sexual assault, whether reckless manslaughter can be found if the defense of self-defense succeeds, in-court and out-of-court identifications, constructive drug possession, kidnapping, alibi defenses and the Three Strikes Law. It was an interesting and busy term for the Court.
Confrontation Clause (Witness Statements)
State ex rel. J.A., 195 N.J. 324 (2008
), the Court considered whether defendant’s confrontation rights had been violated by the trial court when it permitted a police officer to testify about a statement given to him by a nontestifying witness to the crime charged that related to what the witness saw, and how they chased the offender.
At trial, the court permitted the officer to testify that he had been told by a witness that he had observed two Hispanic teenage males “just” rob a woman. The witness identified the clothing that each of the men was wearing and stated that he had followed them. A short time later the officer arrested two 14-year old males, who were dressed as described by the witness. The witness identified one of the juveniles as the person who had knocked the woman down, but he could not identify the other juvenile.
The juvenile that the victim could not identify was found guilty of second-degree robbery as an accomplice to the other juvenile. He was committed to a two-year term at the State Home for Boys.
The adjudication of delinquency was upheld by the Appellate Division, which rejected the juvenile’s contention that the Court had improperly permitted the police officer to testify about what was said to him by a nontestifying witness. The appeals court found that the evidence had been properly admitted under the present sense impression exception to the hearsay rule, N.J.R.E. 803(c) (1). The court held that the hearsay exception was applicable because the witness had observed a startling event, with little time elapsing between the observations made by the witness and his recounting of what he saw to the officer. In so ruling, the Court rejected the juvenile’s claims that the statement of the witness was testimonial and was inadmissible unless the witness himself testified.
The Court found the witness’ statement to be nontestimonial because an “objective witness” would not have reasonably believed his testimony would be available for use at a later trial. The appeals court reasoned that the statements were brief and spontaneous, and were not given in response to structured police questioning.
The Supreme Court reversed. Justice Albin, writing for the Court, found that the statements of the witness did not qualify under the present sense exception to the hearsay rule because they were not made “immediately after” the events. The Court stated that the statements might have qualified as an excited utterance, but they were not analyzed by the trial judge under the standard for application of that exception. Further, the officer did not testify as to whether the witness appeared anxious or in an excited state after observing the alleged crime.
The Court then considered whether the statement made was testimonial. The Court concluded that it was and that the statement’s admission therefore violated the confrontation rights of the juvenile.
In holding that the statement was testimonial, the Court noted that the witness described to the police officer an event that had already occurred. The Court also found that there was no ongoing emergency, nor any immediate danger posed to either the witness or the victim. Under these circumstances, the Court held, admission of the witness’s statement without the witness testifying violated the Sixth Amendment confrontation rights of the juvenile. The adjudication of delinquency was reversed.
Confrontation Clause (DWI)
At issue in State v. Sweet, 195 N.J. 357 (2008), was whether, in DWI cases, certificates for the testing of ampoules and breath inspection machines were admissible without testimony under the business records exception to the hearsay rule, or whether such admission would violate Confrontation principles.
The issue was one of several this past term arising out of the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), which held that testimonial statements of witnesses absent from trial are admissible only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine.
In analyzing the admissibility of the certificates at issue, Justice Rivera-Soto, writing for a unanimous Court, first found that the certificates qualified as business records under the business record exception to the hearsay rule. N.J. R. E. 803(c) (6). The certificates qualified because they were: (1) made in the regular course of business; (2) prepared contemporaneously with the events they describe; and (3) facially trustworthy.
Having found that the certificates were business records, the Court next considered whether the records were testimonial. What constitutes “testimonial” evidence, the Court noted, was rooted within the text of the Confrontation Clause, which applies to “witnesses” against the accused or “those who bear testimony.” The Court found that the certificates did not relate to or report a past fact and did not establish any fact that is an element of the offense. In ruling so, the Court noted that the use of foundational documents to demonstrate that a device, such as the one used to conduct the breath tests for a particular defendant was in good working order, did not transform the documents into an element of the offense, or make them testimonial for constitutional purposes.
The Court concluded that because the certificates were rooted in a hearsay exception and were not testimonial, their admission was not barred by Crawford or by the Confrontation Clause.
Confrontation Clause and Excited Utterances
The Court, in State v. Buda, 195 N.J. 278 (2008), considered whether statements made by a child to his mother and a worker of the Division of Youth and Family Services (DYFS) were admissible as “excited utterances,” under Rule 803(c)(2) f the New Jersey Rules of Evidence and, if so, whether they were “testimonial” under the confrontation clause.
Two separate hearsay statements made by a three-year-old boy were at issue: one where the boy was said to have stated to his mother that “Daddy beat me”; and another one where the boy was claimed to have told a representative of DYFS that “Dad says nobody beat me. I fell when I was sleeping in my room.”
Justice Rivers-Soto, writing for the Court, found that the statements, though hearsay, were admissible as excited utterances under Rule 803(c) (2) of the New Jersey Rules of Evidence. The Court found the statement made to the DYFS worker was a closer call than the statement made to the boy’s mother because there was a significant lapse of time between when the alleged abuse occurred and when the boy made a statement to the DYFS representative. Assessing both the quality and chaotic nature of the intervening period, the Court found that the child would not likely have had the opportunity to deliberate and fabricate a statement, causing it to be untrustworthy.
A statement qualified as an excited utterance under Rule 803(c)(2), the Court noted, if it relates ” to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate.” The Court rules that both statements at issue met this test.
The Court next analyzed whether the two statements made by the child were “testimonial” under the confrontation clause. The Court, without difficulty, found that the statement made by the child to his mother was nontestimonial and admissible because it was made spontaneously and without prompting. The child’s statement to the DYFS worker involved circumstances complicating the analysis. The Court recognized that the DYFS worker could be said to stand in the shoes of a police officer and therefore the child’s statement might be deemed a testimonial response to a police inquiry. Though recognizing the analogy, the Court rejected it. The Court found that the DYFS worker, who spoke with the child while in the hospital, functioned less like a police officer than a 911 operator responding to a life-threatening emergency. Calls made to 911 operators, the Court noted, were found by the United States Supreme Court, in Davis v. Washington, 547 U.S. 813 (2006), to be nontestimonial. The Court also noted that the principle obligation of the DYFS worker is not to collect information about past events for the purpose of prosecuting the offender, but rather to prospectively protect a child in need. Given the protective function of DYFS, and the circumstances of the statement, the Court ruled that the statement was nontestimonial, and was therefore properly admitted at trial.
A strong dissent was written by Justice Albin, which was joined in by Justices Long and Wallace. In his dissent, Justice Albin severely criticized the Court for permitting different constitutional standards to apply, depending upon the age of the victim. Justice Albin stated that “The Sixth Amendment’s right to confrontation applies whether the accuser is four years old or forty years old. Testimonial evidence whether from the mouth of a child or an adult must be subject to cross-examination.”
DWI (Admissibility of Alcotest Results)
In State v. Chun, 195 N.J. 54 (2008), Justice Hoens, writing for the Court, issued a much-awaited decision on the legitimacy of the Alcotest, which is used for testing alcohol levels of DWI suspects. The opinion is lengthy, highly technical and detailed, and should be read in its entirety by all DWI practitioners. The Court’s ultimate conclusion was that Alcotest results are admissible in court because the test is scientifically reliable and produces nontestimonial results, thereby eliminating confrontation concerns. In so ruling, the Court adopted the report of a Special Master, subject to certain modifications, and added certain protections of its own creation to ensure the integrity of the procedure.
Clause and Adjournments
In State v. Garcia, 195 N.J. 192 (2008), the Court considered whether it was error for the trial court to refuse to grant an adjournment of the trial in order to enforce an order to produce a jailed defense witness.
Defendant had been charged with second-degree conspiracy to commit armed burglary, second-degree attempted armed burglary, and various weapons offenses.
After the state concluded its case, defense counsel reminded the Court that he intended to call a witness, who was an inmate in the Hudson County jail. The Court had earlier issued a transport order for the attendance of the witness, who had pled guilty and offered to cooperate against his codefendants.
The trial judge stated that he would not tolerate a delay of the trial and placed the burden of producing the witness upon defense counsel. The defense attorney assured the court that he had done everything within his power to produce the witness and it was now up to the Hudson County jail as to whether it was going to comply with the transport order.
The witness was not produced, so the judge, over the objection of defense counsel, went forward with the trial. After ordering that the trial would proceed, the defense rested without calling any witnesses. Defendant was thereafter convicted of all charges, and he was sentenced to an aggregate term of seven years imprisonment.
Justice Albin, writing for a unanimous Court, reversed defendant’s conviction, finding that the trial judge had abused his discretion by not granting an adjournment to enforce the order to produce the witness from prison. The Court remanded the case for a hearing at which defendant would be given the opportunity to call the witness. The Court ruled that if the witness gave testimony at the hearing that would have been favorable to defendant, then defendant will have demonstrated that his right to compulsory process was violated, and he would be entitled to a new trial.
In State v. Gelman, 195 N.J. 475 (2008), the Court interpreted New Jersey’s prostitution statute to determine whether, as amended, it elevated what defendant contended should have been a disorderly persons offense to the fourth-degree crime of engaging in prostitution.
In 1999, the prostitution statute was amended to provide that a conviction for “engag[ing] in prostitution,” N.J.S.A. 2C:34-1(b) (1), was punishable as a disorderly persons offense, “except that a second or subsequent conviction for such an offense constitutes a crime of the fourth degree.” N.J.S.A. 2C:34-1(c) (4). (Emphasis supplied.)
Defendant, who had previously been convicted of a petty disorderly person’s offense, argued that her prior offense did not constitute a predicate under the amended prostitution statute, so that her conviction under the amended law would subject her to punishment for commission of a fourth-degree offense.
Justice Albin, writing for the Court, held that even after considering the legislative history of the new statute, the meaning of the term “for such an offense” was “insolubly ambiguous” and, therefore, under the doctrine of lenity, the indictment had to be dismissed.
Right to Silence and
Questioning by Court
In State v. Tafarro, 195 N.J. 442 (2008), the Court considered whether the trial judge’s questioning of defendant was improper and whether the prosecutor violated defendant’s right to remain silent by asking him whether he failed to make certain statements to his lawyer.
Defendant, as the result of a dispute with his sister over their parents’ estate, had a restraining order entered against him, which barred him from having any direct or indirect communications with his sister. After the restraining order became effective, the sister had received a telephone call from a stranger around midnight, who asked whether she lived in a particular town, which was, in fact, where she resided.
The next morning the sister contacted the police and stated that an obscene posting had been placed on Craigslist, an Internet bulletin board, which invited people to call the “lady of the house,”, at the sister’s unlisted telephone number, for sexual favors.
The police investigated and traced the posting to a computer linked to defendant, who was thereafter indicted for contempt for his disobedience of the restraining order.
Defendant maintained that two acquaintances had typed and posted the message on Craigslist while they were repairing defendant’s computer. Defendant stated that the message had been read to him, and he directed that it be removed. Defendants’ acquaintances denied typing or posting the ad.
At trial, the prosecutor questioned whether defendant had told his lawyer about the Craigslist posting, before or after his arrest, so that his sister could be warned. Defendant responded that he did not know the message had been posted until he had been arrested.
Upon completion of the prosecutor’s cross-examination, the trial judge asked defendant more than 30 questions, which were not the subject to any objections. The judge’s questions established that defendant did not have a close relationship with those who defendant claimed had posted the message. The judge also questioned defendant about why he trusted that his acquaintances had removed the message, and why he did not check the Internet himself to make sure that the message had been deleted. The Court explained, when it instructed the jury, that its questioning of witnesses must not influence the jury, nor must its questioning be read to indicate that the court held any opinion about a witness’s testimony.
Defendant was convicted of contempt. The Supreme Court reversed, finding that despite the trial court’s instruction to the jury, the trial court’s questions suggested that it doubted the credibility of the defendant.
With respect to the prosecutor’s questions, Chief Justice Rabner, writing for a unanimous Court, found that the prosecutor had a right to ask defendant whether he had asked his lawyer to communicate to his sister that a negative message about her had been posted on the Internet. In so ruling, the Court noted that a defendant’s pre-arrest silence could properly be used for impeachment purposes if the silence significantly preceded defendant’s arrest, did not rise in a custodial setting, and would cause a reasonable person in defendant’s position to have come forward.
The Court also ruled that, on retrial, the state may not use defendant’s post-arrest silence against him.
Miranda Warnings (Delayed Administration of Advice of Rights)
In State v. O’Neill, 193 N.J. 148 (2007), the Court considered whether Miranda warnings administered after incriminating statements have been made during a custodial interrogation, are effective to permit post-warning statements of a defendant to be admitted at trial.
Defendant had been convicted of felony murder, first-degree robbery, and first-degree aggravated manslaughter and weapons offenses, for the murder of a cab driver.
Defendant had been arrested on a warrant unrelated to the murder he was subsequently accused of committing. He had been questioned, after his arrest, through the bars of a police department holding cell. No Miranda warnings had been administered.
After being questioned for 20 minutes, he was moved to the police commander’s office, where he was questioned for an additional hour and 15 minutes, still with no Miranda warnings having been provided.
As the questioning continued, defendant admitted that he had driven the cab driver to a location where he knew the driver would be robbed. Upon hearing this, the police read defendant his Miranda rights. About 25 minutes later, the police made a taped statement of defendant, who repeated much of what he had said before the Miranda warnings had been administered.
Defendant was thereafter brought to a holding cell in the prosecutor’s office, and he was subsequently shown certain evidence that the police had collected. Defendant then confessed to having committed the crime.
At trial, defendant moved to suppress the statements he gave to the police. The trial judge admitted the statements made by defendant after his Miranda rights had been read to him. The judge found the statements were made voluntarily.
The Supreme Court found that for Miranda purposes defendant was in custody at the time he was questioned. The Court found that, at minimum, defendant was a suspect in a potential gun charge and a person of interest in a murder investigation.
The Court then established a rule under state law, which would be applicable for Miranda warnings given “midstream” during an interrogation. The Court noted that the rule it formulated offered broader protections than have been recognized under the United States Constitution by the United States Supreme Court. It found a different rule was necessary, however, because the federal rule had resulted in confusion.
The Court held that under state law, police officers conducting a custodial interrogation cannot withhold essential information that is necessary for the exercise of the privilege against self-incrimination. Under the facts before it, the Court noted, the detectives’ failure to advise defendant that those admissions he made prior to the administration of the Miranda warnings could not be used against him, might have caused defendant to believe that he had already incriminated himself and that silence was no longer an option.
Ultimately, the Court noted, the question is whether the belated administration of the Miranda warnings will serve as a firewall between the warned and unwarned statements. In determining whether a suspect has knowingly, voluntarily, and intelligently waived his rights before speaking to the police, the Court ordered lower courts to consider all relevant factors, including:
¦ The extent of questioning and the nature of any admissions made by defendant before being informed of his Miranda warnings;
¦ The proximity in time and place between the pre- and post-warning questioning;
¦ Whether the same law enforcement officers conducted both the unwarned and warned interrogations;
¦ Whether the officers informed defendant that his prewarning statements could not be used against him; and
¦ The degree to which the post-warning questioning is a continuation of the prewarning questioning.
The Court noted that, although the factual circumstances of each case will dictate the weight to be given to any of the factors denominated, great weight must be given to the failure of the police to inform a suspect that admissions he made prior to being administered Miranda warnings could not be used against him.
Finding that under the circumstances before it, the Miranda warnings could not have functioned effectively, the Court reversed defendant’s conviction and sentence.
Jury Instructions (Robbery)
In State v. Nero, 195 N.J. 397 (2008), the Court determined whether the trial judge had accurately informed the jury of the elements necessary to convict defendant of first-degree robbery. Defendant had been charge in a two-count indictment with first-degree and second-degree robbery. Defendant was convicted of first-degree robbery and he was also convicted of simple assault as a lesser-included offense of second-degree robbery.
At trial, the state contended that defendant had simulated possessing a weapon. The judge instructed the jury that to convict defendant of robbery in the first degree, the jury would have to find beyond a reasonable doubt that defendant’s words or conducts or words and gestures created a reasonable belief in the victim that he possessed a deadly weapon capable of causing death or serious bodily injury. No objection was made by defendant to the Court’s instructions.
On appeal, defendant contended for the first time that the jury charge failed to set forth the required mental state for simulation of a weapon. The Appellate Division agreed that there was plain error in the jury instructions and reversed defendant’s conviction. The Supreme Court reinstated the conviction.
In overruling the Appellate Division, the Court found that in order to be convicted of first-degree robbery, the jury must find that the simulation was undertaken with a purposeful state of mind. That standard, the Court held, had been satisfied by the trial court’s instructions, which sufficiently imparted the required mental state needed to prove the crime.
The Court, in deciding the case, specifically noted that defendant’s failure to object contemporaneously to the jury charge required application of the plain error standard, which requires judicial review of the claimed error within the totality of the entire charge, taking into account the overall strength of the State’s case.
Jury Instructions (Overcharging)
In State v. Wilder, 193 N.J. 398 (2008), the Court considered whether the trial court overcharged the jury by including a charge of murder, and whether the Court should reject the State v. Christener standard, which provides a presumption of prejudice if there is a “real possibility” that the jury might have acquitted defendant of a lesser-included offense if not for the overcharging.
In Wilder, the victim had been a passenger in a car driven by his girlfriend. She lost control of the car and crashed into the storefront of defendant’s shoe store. Defendant, enraged, ran out of his store cursing and turning his anger on the passenger. Another man chased the passenger down the street and punched him in the face, knocking him down. As the victim attempted to get up, defendant, who was wearing heavy-duty construction boots, stomped on the temple of the victim’s head and slammed his skull into the pavement. The victim was bleeding from his mouth, nose, ears and eyes. The first assailant attempted to help him but defendant shouted to “leave him there; he’s still breathing.”
The first assailant stayed with the victim until an ambulance arrived. Hours later, the victim died at the hospital. An autopsy revealed that the cause of death was from a blow to his temple. The force of the blow had caused a four-and-one-half inch fracture to the thickest bone in the victim’s skull, resulting in brain herniation. Defendant maintained that death resulted from the victim’s skull hitting the ground from a fall.
Defendant was convicted of aggravated manslaughter and endangering a helpless victim.
The Court upheld the jury’s verdict and found that there had been no overcharging. Justice LaVecchia, writing for the Court, found that viewing all of the state’s evidence in the light most favorable to it, and giving the state the benefit of all favorable inferences that could reasonably be drawn, a jury could properly find defendant guilty of murder beyond a reasonable doubt. A defendant, the Court noted, is guilty of serious-bodily-injury murder (SBI murder), the Court noted, when the person (1) knowingly or purposely inflicted serious bodily injury with actual knowledge that, (2) the injury created a substantial risk of death and that, (3) it was highly probable that death would result. A person could be found guilty of the lesser charge of aggravated manslaughter if the person recklessly causes death under circumstances manifesting an extreme indifference to human life.
The Court found that defendant’s raising of a booted foot to generate downward force, and to strike the victim at a particular section of his head, while it was slightly raised, driving it down to the street pavement, suggested that the acts were intentional. The evidence of purposeful conduct, the Court ruled, was sufficient for the murder charge to be considered by the jury.
After finding that defendant had not been overcharged, the Court considered the state’s contention that the Court’s decision in State v. Christener, 71 N.J. 55 (1976), should be overturned. The Appellate Division relied upon the case to reverse defendant’s conviction.
In Christener, the Court held that if there is a “real possibility” that defendant had been prejudiced by being charged with the commission of a crime for which there was “insufficient evidence to support the instruction,” the conviction must be reversed. Christener was intended to prevent juries from considering severe charges, not supported by the evidence, and then compromising in a way that might result in the conviction of a more serious crime than would be the case if the proper charges had been submitted to the jury. The rationale is that juries believe that if they are asked to consider a particular charge, there must be sufficient evidence to prove it. Accordingly, under Christener, prejudice is presumed if overcharging occurs.
The Court found that
Christener was inconsistent with the Court Rules and caused appellate courts to engage in speculation over what the jury’s deliberative process was. Claims of error in the charging process, the Court ruled, should be from the perspective of whether the claimed mistake constitutes harmless error under Rule 2:10-2, or plain error, in cases, such as the one before the Court, where no objection had been made to the allegedly erroneous instruction. The Court upheld the judgment of conviction and overruled Christener.
Felony Murder, Lesser-Included Charges, In Absentia Trials
In State v. Ingram, 196 N.J. 23 (2008), three questions were before the Court: (1) whether, in those instances in which lesser-included offenses are already charged in the indictment, a trial court must nevertheless instruct the jury that accomplices may have a different state of mind than principals, and thus, may be liable only for the lesser-included offenses; (2) whether the prosecutor misstated the applicability of the statutory affirmative defense to felony murder; and (3) whether when a defendant voluntary absents himself from trial, it is error for the trial court to instruct the jury that defendant’s absence, standing alone, may be considered evidence of defendant’s consciousness of guilt.
As to the first question dealing with already charged lesser-included offenses, the Court ruled that the trial court must comprehensively charge the jury on the elements both of the lesser-included crimes and of accomplice liability. The Court emphasized that trial courts must charge juries that when a principal and an accomplice are charged with the same crime, they may possess differing mental states and, accordingly, different levels of culpability.
Notwithstanding the trial court’s failure to charge the jury as the Supreme Court ruled was appropriate, the Court found that the defect in the charge did not constitute reversible error.
The Court also found that the prosecutor did not misstate the statutory affirmative defense to felony murder. The felony murder statute provides under N.J.S.A. 2C:11-3(a)(3 ), that in any prosecution for felony murder in which the defendant was not the only participant in the crime, it is an affirmative defense that the defendant (a) did not commit the homicidal act or in any way solicit or aid the act; (b) was not armed with a deadly weapon; (c) had no reasonable ground to believe any other participant was armed with a weapon; and (d) had no reasonable ground to believe that any other participant intended conduct likely to result in death or serious physical injury.
Reviewing the prosecutor’s summation, the Court found that, taken as a whole, the state fairly articulated the elements of the statutory affirmative defense to a felony murder charge.
Although the Court ruled against defendant on the first two issues, it held that the trial judge committed reversible error by instructing the jury that it could consider defendant’s voluntary absence from trial as evidence of flight reflecting consciousness of guilt.
The Court stated that although flight may constitute evidence of consciousness of guilt, the flight charge is not triggered unless there are circumstances present and unexplained that reasonably justify an inference that the departure occurred with a consciousness of guilt and pursuant to an effort to avoid detection, arrest, or the imposition of punishment. A flight charge should not lie, the Court ruled, when a defendant absents himself from trial unless separate proofs are tendered to sustain the claim that the absence was designed to avoid detection, arrest, or punishment.
Rule 404(b) Prior Bad Acts Testimony
At issue in State v. Barden, 195 N.J. 375 (2008), was whether testimony that defendant sold crack cocaine to her co-defendant on about 30 occasions over a six-month period prior to her alleged involvement in an alleged robbery was improperly admitted at trial. The evidence of the prior history of drug dealing had been admitted by the trial judge as res gestae because the transactions were related to the crimes being tried and gave context for the crime. On appeal, the Appellate Division disregarded the res gestae theory and instead found that the history of drug transactions was admissible under Rule 404(b) of the New Jersey Rules of Evidence, as “prior bad acts” relevant to demonstrating defendant’s motives for participating in the robbery and to explain how the scheme arose from defendant’s refusal to “loan” drugs to her co-defendant, who testified about the prior drug transactions.
The Supreme Court found that the evidence that there were about 30 prior drug transactions between defendant and her co-defendant was unduly prejudicial and should have been excluded. The damage created by the admission of other crimes evidence, the court noted, was not eliminated by the trial court’s jury instructions, because the instructions failed to focus the jury precisely on the permissible uses of the other-crimes evidence in the context of the subject case and the disputed transactions. The jury should have been instructed, the Court found, that the evidence was limited solely to establish defendant’s motive and intent.
The Court also held that the evidence of prior drug transactions was not admissible under a res gestae theory because the evidence was unduly prejudicial and not needed to establish defendant’s motive and intent. The Court also refused to adopt the defense position that the res gestae doctrine should be abandoned in New Jersey’s jurisprudence. The Court noted that one previous member of the Court, in a concurring and dissenting opinion, suggested elimination of the doctrine because it has been superseded by four separately codified hearsay exceptions. Though acknowledging the controversy over the continued vitality of the res gestae doctrine, the Court specifically refused to resolve it.
Rule 404(b) and
Confession of Defendant
In State v. Kemp, 195 N.J. 136 (2008), the Court considered whether the trial judge had properly admitted into evidence a confession made by defendant to having engaged in a two-day robbery spree. Also considered by the Court was whether evidence of a prior uncharged robbery had been admitted. Defendant had been convicted at trial of felony murder, robbery, and conspiracy.
With respect to the prior uncharged robbery, the Court held that testimony from the victim of that alleged robbery was inadmissible under Rule 404(b) of the New Jersey Rules of Evidence, as well as under the standard set forth in State v. Cofield, 127 N.J. 328 (1992), for determining whether other crimes evidence is admissible under Rule 404(b). The Court held that the evidence was inadmissible because its sole purpose was to establish that defendant had committed a prior robbery and must therefore have committed the robbery and murder that were the subject of defendant’s trial. Such a purpose, the Court ruled, was in direct contravention of the purpose of Rule 404(b), which was to bar just such inferences from being drawn.
Defendant also contended that certain aspects of his confession should have been redacted by the trial court because they related to other crimes. Specifically, defendant, in his confession, made reference to possessing a knife, acknowledged that he was roaming around trying to find someone to rob, and stated that he had robbed at least three other people.
The Court rejected defendant’s claim that his confession should have been redacted. The Court found that the confession related directly to the crimes defendant was charged with having committed. Specifically, the Court found that the statements made by defendant in his confession established where he procured the knife, his intention to rob, the location he chose for the robberies and the aggregate number of people robbed.
Prior Bad Acts (Sanitization of
Prior Bad Acts Dissimilar to
The Court, in State v. Hamilton, 193 N.J. 255 (2008), had to decide whether the trial court had erred in deciding that it lacked authority to sanitize defendant’s prior conviction because the charge on which he was being tried was not the same or similar to the crime for which he had been previously convicted.
Defendant was convicted of third-degree possession of heroin. He had originally been questioned by the police, not as a suspect, but because he was the last person to see a murder victim alive. During the course of the questioning, defendant began taking things out of his pocket. Among the things he had removed from his pockets, much to his surprise, were packets of heroin. Immediately upon realizing what he had removed from his pockets, defendant expressed a look of shock and threw the packets towards the garbage. The packets were picked up by the police and were found to contain heroin.
Previously, defendant had been convicted of aggravated manslaughter and possession of a weapon in connection with the manslaughter.
At his drug trial, the trial court permitted the state to introduce evidence of defendant’s two prior convictions. Although the trial judge was asked to sanitize the prior convictions, pursuant to State v. Brunson, 132 N.J. 377 (1993), the Court refused to do so, finding that Brunson authorized sanitization only when the prior conviction was the same or similar to the offense for which defendant was on trial.
The Supreme Court found that although Brunson made sanitization mandatory where there was similarity between the conviction and pending charges, it did not foreclose sanitization where the conviction and pending charges were dissimilar if a risk of undue prejudice was posed should the prior conviction not be sanitized.
Because a risk of prejudice existed in defendant’s circumstances, and because the trial court did not appreciate the full measure of its authority, the Supreme Court reversed defendant’s conviction and ordered a new trial.
Rule 404(b) and Jury Instructions
In State v. Lykes, 192 N.J. 519 (2007), the Court addressed two issues: (1) whether defendant had been improperly impeached by use of a prior conviction for possession of cocaine; and (2) whether the trial court properly responded to a jury question regarding defendant’s prior knowledge of cocaine.
Defendant was convicted of third-degree possession of cocaine. He had been observed by two plainclothes Jersey City police officers purchasing four vials of cocaine from his co-defendant.
Prior to trial, the state sought the trial court’s authorization to use two prior convictions against defendant: (1) a 1990 conviction for third-degree possession of cocaine, the same charge pending against defendant; and (2) a 2000 conviction for fourth-degree resisting arrest. The trial judge ruled that the 1990 conviction was inadmissible because it was too remote in time. The judge permitted the 2000 resisting-arrest conviction to be received in evidence without sanitization because it was unlike the charges defendant was currently facing.
In opening statements, defense counsel told the jury that defendant saw the four vials while walking along the street near a school. He picked them up, suspecting they could contain something like rat poison, but did not know what was inside them.
Defendant testified that he intended to throw the vials in a sewer so that they would not be picked up by children.
Before the prosecutor began cross-examining defendant, the prosecutor advised the judge that defendant’s testimony that he did not know what the vials contained was contradicted by his earlier conviction for possession of cocaine. The judge stated that he would permit the state to question defendant about his knowledge or lack of knowledge about what was defendant’s 1990 conviction. The judge also ruled that he would permit the state to ask defendant whether he had ever seen drugs before that resembled what was in the vials, and whether he was familiar with what cocaine looks like.
The prosecutor then asked defendant whether he had previously held full vials of cocaine in his hand. Defense counsel objected to the question as being prohibited by Rule 404(b) of the New Jersey Rules of Evidence, which places restrictions on the use of prior bad acts. A motion for a mistrial was made and denied.
The judge stated that he would permit the prosecutor to ask defendant one question: whether he ever held a vial of cocaine in his hand before. The question was asked and defendant answered “yes.” The judge then gave the jurors a limiting instruction, directing them to not use the evidence for any purpose other than whether it affected defendant’s credibility on the issue of picking up the vials, and whether he had knowledge as to what the vials were used for. At the conclusion of the trial, another limiting instruction was given by the judge, restricting the jury’s use of the evidence relating to defendant having held a vial of cocaine previously. During deliberations, the jury sent a note to the judge inquiring whether defendant had to know that cocaine or a danger narcotic substance was contained in the vials. The judge reinstructed the jury on the definition of “knowing” conduct within the context of a case charging possession of cocaine.
On appeal, the Supreme Court affirmed defendant’s conviction. The Court held that because defendant placed his knowledge of the contents of the four vials directly at issue, Rule 404(b) does not bar the questions asked of him on cross-examination.
The Court specifically ruled that the challenged evidence was admissible under Rule 404(b) because: (1) defendant’s familiarity with vials of cocaine was directly relevant to the case against him; (2) the previous crime was similar in kind and reasonably close in time to the offense charged; (3) the other-crimes evidence was clear and convincing; and (4) the probative value of the evidence outweighed any apparent prejudice.
The Court also held that the Court’s instructions to the jury were appropriate and limited the jury’s use of the evidence.
Sexual Assault (Expert Testimony and Asperger’s Disorder Defense)
Defendant, in State v. Burr, 195 N.J. 119 (2008), was convicted of second-degree sexual assault and third-degree endangering the welfare of a child. At issue on appeal was whether defendant had been wrongfully precluded at trial from offering expert testimony on Asperger’s disorder, which defendant maintained was necessary for him to explain himself and his conduct.
Defendant was accused of inappropriately touching a young student while teaching her piano. At trial, defendant sought to introduce testimony from a medical expert who had diagnosed defendant as having Asperger’s Disorder. The expert was offered to testify about defendant’s diagnosis and the features of the disorder: those afflicted have difficulty engaging in social interaction, and they may have bizarre mannerisms and engage in bizarre action.
Defendant was not offering the evidence to establish a defense of diminished capacity. Rather, he wanted to educate the jury about his unusual demeanor and mannerisms, and his difficulty with interpersonal relationships.
At trial, one child testified that defendant touched her private parts over her clothing. She also testified that defendant would often pull her onto his lap, though he would not touch her inappropriately at those times. Three other witnesses also testified that defendant would allow children to sit in his lap during piano instruction. The prosecutor contended that, by allowing children to sit on his lap, defendant was grooming them for later sexual abuse.
At trial, the Court admitted under the tender years exception to the hearsay rule a videotaped statement by defendant’s alleged victim. The jury asked for the videotape to be replayed during deliberations. The Court granted the request of the jury over defendant’s objection. Defendant was thereafter convicted of second-degree sexual assault, and third-degree endangering the welfare of a minor.
The Supreme Court reversed defendant’s conviction. The Court found that the testimony on Asperger’s Disorder was relevant to defendant’s explanation of himself and his conduct. The Court stated that the use of such evidence was not confined to the instances where a diminished capacity defense is asserted. Rather, the Court noted, evidence of a mental disease or defect is relevant when asserted to prove or disprove an element of the crime or to advance a defense. The Court noted explicitly that defendant could have used the evidence to explain how his actions in allowing children to sit on his lap had no nefarious purpose, but might have been an innocent act arising out of defendant’s failure to perceive that his conduct might be viewed as socially unacceptable.
The Court also found that the videotape should not have automatically been replayed for the jury. Rather, the Court stated, the trial court should have asked the jurors whether they would be satisfied to have a read back of the victim’s testimony. If the jurors insist upon a replaying of the tape, the trial court must then take into account the fairness to defendant of a replaying of the tape. If the trial court decides to permit the jury to hear the tape again, the Court must also determine whether to read back to the jury any direct or cross-examination needed in order to place the tape in context.
The trial court barred the evidence, finding that it did not tend to prove that defendant suffered a mental defect that prevented him from understanding his conduct.
Sexual Assault (Expert Testimony and Third-Party Conduct as Defense)
In State v. Schnabel, 196 N.J. 116 (2008), the Court held that although the trial court had properly admitted evidence of Child Sexual Abuse Accommodation Syndrome (CSAAS), admission of that evidence required the trial court to permit defendant to introduce evidence of third-party sexual abuse.
Defendant had been convicted of aggravated sexual assault, after having been indicted for the abuse of two sisters. It came to light during the grand jury proceedings that the sisters had also been abused by their brother, John.
At trial, a forensic expert testified on behalf of the state that the victims evidenced symptoms of CSAAS. Although defendant maintained that the testimony of CSAAS was unduly prejudicial and crossed the line between a description of the syndrome and an implication that defendant actually committed acts of sexual assault, the Court found the testimony to be in compliance with judicial requirements.
In cross-examining defendant, the prosecutor asked why one of the victims would lie about being abused. The prosecutor sought to withdraw the question, but the court refused to permit the withdrawal. The court had ordered defendant, however, to not mention the brother of the victim in answering the question.
The Supreme Court held that the trial court’s ruling was erroneous. The Court found that there were inconsistencies in the testimony of the state’s witnesses, and that defendant should have been permitted to establish that a third party was the cause of the symptoms described by the State’s forensic expert on the issue of CSAAS, once the trial court refused to permit the prosecutor to withdraw his question about why a victim would lie.
Alternatively, the Court noted, the trial judge should have permitted the prosecutor to withdraw the question leading to the dispute.
Self-Defense and Reckless Manslaughter
At issue in State v. Rodriguez, 195 N.J. 165 (2008), was whether a person who honestly and reasonably believes that the use of deadly force is necessary to repel an assailant from inflicting upon him death or serious bodily harm cannot be criminally liable for the reckless manslaughter of the assailant.
The Court stated that, where self-defense is asserted, the state has the burden of proving beyond a reasonable doubt that defendant did not act in self-defense in repelling the attack. Failure of the state to meet that burden would exonerate defendant from criminal liability for murder, aggravated manslaughter and manslaughter.
The Court noted that exoneration on grounds of self-defense is plainly inconsistent with a finding of manslaughter – that a person recklessly killed his aggressor. The Code’s own language, the Court stated, confirms that a person who kills in the honest and reasonable belief that the protection of his own life requires the use of deadly force, does not kill recklessly. The Court noted, however, that though a valid claim of self-defense is inconsistent with an act of recklessness towards one’s aggressor, a separate question arises if the use of force to protect one’s self recklessly endangers innocent third parties. In such circumstances, the Court noted, a person justified in using deadly force for his own protection is stripped of the legal justification of self-defense.
The Court further noted that if a self-defense charge is requested and is supported by some evidence in the record, it must be given.
Prosecutorial Misconduct (Suggestion Testimony Was Fabricated)
In State v. Feal, 194 N.J. 293 (2008), the Court considered the retroactive application of its opinion in State v. Daniels, 182 N.J. 80 (2004), which prohibited the prosecutor from drawing the jury’s attention to defendant’s presence at trial as an opportunity for defendant to tailor his testimony to conform to that of other witnesses.
Defendant was charged with first-degree murder and weapons offenses. He testified at trial, and his testimony was inconsistent with a sworn statement he had given after his arrest.
On cross-examination, the prosecutor noted that defendant had been given discovery, which included statements and photographs, and that he had the opportunity to hear the state’s witnesses “tell their story.” Similar comments were made by the prosecutor in summation.
Defendant was convicted and received a 40-year sentence, with a 30-year period of parole ineligibility.
Although the Supreme Court agreed that Daniels should be given “pipeline retroactivity,” the Court nevertheless found that a reversal of defendant’s conviction was not warranted because no objection had been made to the prosecutor’s tailoring claims, and, though Daniels had been violated, the violation was not sufficiently severe to rise to the level needed for reversal under the plain error standard.
In State v. Adams, 194 N.J. 186 (2008), a consolidation of two cases, the Court considered defendants’ claims that: in-court and out-of-court identifications made of them should have been barred; the trial court committed plain error by failing to instruct the jury on how it was to consider the testimony and guilty plea of a co-defendant; and the sentences imposed violated the principles of State v. Natale, 184 N.J. 458 (2005).
The outcome of the case turned on its specific facts. The Court had been urged by defendants to adopt a new standard to exclude unnecessarily suggestive identifications without regard to reliability, but the Court declined to adopt a new standard in the absence of a trial record on the issue.
Having refused to adopt a new standard for evaluating the admissibility of out-of-court identifications, the Court stated that the starting point of the method currently in use required the court to determine whether the identification procedure itself was impermissibly suggestive. If the procedure is found to be suggestive, the Court noted, it must then go on to determine whether the identifications were reliable by considering all the circumstances and weighing the suggestive nature of the identification against its reliability.
With respect to the issue of suggestiveness, the Court noted that there was no dispute over the suggestiveness of the procedure. A police officer showed one Polaroid photo of each of the three suspects to several witnesses.
Though the procedure used was highly suggestive, the Court nevertheless found that there was sufficient credible evidence in the record to support the trial court’s conclusion that the suggestiveness did not create a substantial likelihood of misidentification. The witnesses, the Court noted, viewed defendants from short distances, and they were consistent in their statements as to where each individual was located within the vehicle. Several witnesses also correctly noted height differences between defendants. The Court also found significant that the times between the initial encounters and the identifications was short.
Defendants also took issue with the trial court’s failure to provide limiting instructions with respect to a co-defendant’s guilty plea. Because no objection to the lack of limiting instructions was raised at trial, the Court determined the issue under the plain error standard.
The Court noted that a jury should be instructed that it must carefully scrutinize a co-defendant’s testimony in light of his or her special interest in the case and that his or her guilty plea may not be used as evidence of a defendant’s guilt. Though the trial court failed to provide such an instruction to the jury, the Supreme Court found that the lack of such an instruction was not clearly capable of producing an unjust result. The Court found significant that, at trial, the co-defendant who pled guilty was thoroughly cross-examined and his credibility was challenged. His lack of credibility, the Court noted, was a major theme in closing arguments for the defense. The Court also found that the magnitude of the error was diminished because the trial judge did give the jury the standard charge on credibility.
Finally, the Court rejected defendants’ contentions that their sentence violated the principle set forth in State v. Natale. In Natale, the Court held that a sentence above the presumptive term, based on a judicial determination of aggravating factors, violates a defendant’s Sixth Amendment jury trial guarantee. Natale was inapplicable to defendants, the Court ruled, because they were not sentenced above the then-existing presumptive sentence.
Search and Seizure (Standing)
In State v. Johnson, 193 N.J. 528 (2008), the Court considered whether a defendant had standing under New Jersey law to challenge the warrantless search of a duffel bag found in the home where he was present.
In Johnson, defendant went to his girlfriend’s apartment and threatened to shoot her. She filed a domestic violence complaint and a warrant was issued for defendant’s arrest. Five officers met at the home of defendant’s father, knocked on the door, and advised defendant’s father that they had a warrant for his son’s arrest.
Defendant’s father informed the police that his son was inside and gave the officers permission to enter. Defendant was arrested and was placed in the back of a police car. No gun was found during a search incident to the arrest.
When asked by the officers why he was at his father’s home, defendant responded that he was visiting. At the request of the police, defendant had agreed to leave the premises; he gathered his belongings and got dressed. After dressing, defendant put a cardboard box about the size of a cigar box in a duffel bag.
As defendant was walking out of the apartment with the duffel bag in one hand and a larger box containing a DVD or VCR player under his other arm, defendant was asked by an officer whether the items he was holding were his. The officers maintained that defendant gave an equivocal answer, first saying that the bag was his and then denying it.
When asked by the officer why he put the box in the duffel bag if the bag was not his, defendant denied knowing who owned the bag. Defendant’s father had also denied knowing who the bag belonged to. The bag was grabbed from defendant’s hand and both the bag and the box inside were opened. Inside the box was a loaded .45 caliber gun.
Defendant was charged in one indictment with third-degree unlawful possession of a weapon and fourth-degree hindering apprehension. In a second indictment, he was charged with second-degree possession of a weapon by a person previously convicted of a crime. Defendant was found guilty of all three crimes in bifurcated trials.
On appeal, Justice Albin, writing for a unanimous Court, reversed defendant’s convictions, finding that the search and seizure were in violation of the New Jersey Constitution, which the Court noted had been construed more broadly in favor of individual privacy than the federal constitution.
In so ruling the Court held, as an initial matter, that defendant had standing to challenge the search. The Court noted that under the New Jersey constitution a defendant has standing to move for the suppression of evidence arising from an allegedly unreasonable search or seizure if he has a proprietary, possessory, or participatory interest in the place searched or the property seized, or if he is charged with an offense in which possession of the seized evidence at the time of the contested search is an essential element of guilt.
The Court also noted that, although a defendant has automatic standing when the seized property constitutes an element of the offense charged, his standing to challenge the search or seizure will be lost if the state can demonstrate that the property at issue had been abandoned. The abandonment exception, the Court stated, was a narrow exception to the automatic standing.
Property is abandoned, the Court observed, when a person, who has control or dominion over the property, knowingly and voluntarily relinquishes any possessory or ownership interest in the property and when there are no other apparent or known owners of the property.
The Court found that, on the facts before it, the duffel bag could not be deemed abandoned, nor could defendant have been said to freely disclaim a possessory or proprietary interest in the bag. The Court also noted that defendant would not be stripped of standing because, in response to police questioning, he denied owning the bag. A defendant, the Court ruled, should not have to sacrifice his right of self-incrimination in order to assert his constitutional right to be free from an unlawful search.
The Court noted that judicially-authorized search warrants are strongly preferred if a home is going to be entered and searched. Assuming, the Court reasoned, that the police had probable cause to believe that the gun was in the home of defendant’s father, and had no time to obtain a search warrant in advance; the state’s search and seizure would only be valid if exigent circumstances were present. Exigent circumstances exist when there is a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene, during the time it would take to obtain a warrant.
Once the police seized the bag from defendant and had it within their control, no immediate danger was posed to the police or the public, and there was no risk that the property would be destroyed. The property was within the control of the police and a warrant should have been obtained. Because a warrant was not obtained, whether by written application or by telephone, the Court ruled that the search of the duffel bag constituted an unreasonable search in violation of Article I, Paragraph 7 of the New Jersey Constitution, and ordered that evidence of the gun must be suppressed.
Search and Seizure (NCIC Checks on Vehicle Passengers)
In State v. Sloane, 193 N.J. 423 (2008), the Court considered two questions: (1) whether a passenger is deemed “seized” during a motor vehicle stop; and (2) whether the police must have a reasonable suspicion of criminal activity to run a computer check in the National Crime Information Center (NCIC) database on the passenger. An NCIC check on the passenger revealed that he had two outstanding warrants and a record of a parole violation.
With respect to the first question, Chief Justice Rabner, writing for the unanimous Court answered affirmatively, holding that under both the state and federal Constitutions a passenger, like a driver, is “seized” when a motor vehicle stop occurs. The rationale for the Court’s conclusion was that, once the stop occurs, a reasonable person, whether in the position of driver or passenger, would not believe that they were free to leave.
As to the second issue – whether the police had a right to run an NCIC check of the passenger on its database – the Court again answered in the affirmative. The Court noted that there are many reasons for running such checks, including the location of fugitives. Because the information maintained in NCIC is public information, the passenger has no reasonable expectation of privacy and a check of the NCIC database would not constitute a search, and would not require the police to have a reasonable and articulable suspicion of criminal activity in order to access the index.
Having concluded that the NCIC inquiry was within the scope of the traffic stop, the Court went on to consider the length of the stop. Noting that the check of the NCIC database did not unreasonably prolong the stop, the Court ruled that the stop was lawful. Though it ruled in favor of the state, the Court did caution that when officers elect to conduct an NCIC check, they should act with dispatch to avoid prolonging a stop for more than a brief period of time.
Pretrial Intervention Program Standards
In State v. Watkins, 193 N.J. 507 (2008), the Court was called upon to consider the meaning of Guideline 3(i)(2) of Rule 3:28, which applies a presumption against admission into the Pretrial Intervention Program (PTI) where the criminal conduct is “part of a continuing criminal business or enterprise.”
Defendant, who had been temporarily laid off by the Trenton Psychiatric Hospital, began receiving unemployment benefits. Over a four-month period, defendant cashed nine unemployment checks totaling $5,670. In order to be entitled to the checks, defendant was required to certify that he was not employed. In fact, defendant was employed and was not entitled to the monies.
During the period of his employment, defendant obtained a culinary technician certificate of completion, and completed a program through Rutgers University, from which he graduated with honors.
After defendant refused to repay the unemployment benefits he received to the Department of Labor, defendant was indicted on one count of third-degree theft by deception and one count of fourth-degree unsworn falsification. He applied for PTI, and was rejected for three reasons: (1) the crime he committed occurred over a four-month period and involved nine separate checks, thereby rendering the conduct a continuing criminal enterprise under Guideline 3(i) (2); (2) defendant had previously been convicted in municipal court for receiving stolen property; and (3) defendant’s status as a public employee warranted denial of his PTI application.
The state dropped its claim that defendant’s status as a public employee should bar him from entering into PTI, but continued to assert its other two grounds.
Defendant appealed to the Supreme Court, which found that his conduct was not part of a continuing criminal business or enterprise. The Court held that individuals acting alone in furtherance of their own criminal interests who commit a series of offenses such as thefts or forgeries are not “part of a continuing criminal businesses or enterprise” because they are not part of a larger whole and are not acting in concert with others.
Having found that defendant’s offenses were not part of a continuing criminal business or enterprise, the Court ruled that he was not subject to the presumption against admission to PTI. The Court remanded the case, ordering a reassessment of defendant’s amenability to correction and responsiveness to rehabilitation under a de novo standard without application of the presumption.
Drug Court (Admission Standards)
In State v. Meyer, 192 N.J. 421 (2007), the Court considered whether nonviolent, drug-dependent defendants, who fail to meet the eligibility requirements for “special probation” under N.J.S.A. 2C:35-14, may be admitted into a drug court program under the general sentencing provisions of the Code of Criminal Justice and the admission criteria specified in the Drug Court Manual of the Administrative office of the Courts (AOC).
Defendant had been indicted with intent to distribute a controlled dangerous substance and shoplifting. He applied for admission into the Warren County Drug Court Program, but his application was objected to by the prosecutor. The prosecutor stated that defendant did not qualify for “special probation” under N.J.S.A. 2C:35-14 because he had four prior convictions on third-degree offenses. According to the prosecutor, defendant’s eligibility for Drug Court required that he meet the criteria for special probation set forth in the statute.
Defendant maintained that admission into the Drug Court was not limited to those cases qualifying for “special probation.” Rather, defendant contended, admission into the Drug Court was governed by the Drug Court Manual of the Administrative Office of the Courts, which did not restrict admission to drug court to a “special probation” requirement. Defendant further contended that his prior convictions did not bar him from a probationary term under the general sentencing provisions of N.J.S.A. 2C:45-1.
The trial court, reviewing a clinical evaluation of defendant’s history of drug dependence since childhood, and the evaluator’s recommendation that defendant complete a long-term residential treatment program, admitted defendant to the Drug Court.
Defendant pled guilty to the crimes charged in the indictment, and the state accepted the plea subject to preserving its right to challenge the court’s order admitting defendant to the Drug Court. Defendant was given a five-year probationary term in Drug Court, and was ordered to follow a specific treatment plan.
The Supreme Court upheld the ruling of the trial court. The Court stated that “Special probation” under N.J.S.A. 2C:35-14 is a type of disposition for certain nonviolent drug offenders, but is not the exclusive means for admission into Drug Court. Consistent with the “Drug Court Manual” and the general sentencing provisions of the Code of Criminal Justice, N.J.S.A. 2C:45-1, the Court ruled, a trial court has discretion to admit nonviolent drug-dependent offenders into Drug Court.
Drugs (Constructive Possession)
In State v. Scott, 193 N.J. 7 (2008), the Court considered whether defendant had actually or constructively possessed cocaine found in a car in which he had been a passenger.
The case came before the Court on a split decision in the Appellate Division. The Appellate Division had affirmed the trial court’s denial of defendant’s motion for a judgment of acquittal, but remanded the case for a determination on whether defendant’s statements were voluntary, and for resentencing.
Defendant had been a passenger in a car driven by his co-defendant, who was stopped for allegedly swerving on the road. The driver did not have a driver’s license and was asked to step out of the vehicle. A police officer searched the inside of the vehicle with a flashlight and found a plastic bag containing 59 smaller bags of crack cocaine and one bag of marijuana.
Defendants were found guilty of third-degree possession of cocaine, third-degree possession of cocaine with intent to distribute, and third-degree possession of cocaine with intent to distribute within 1,000 feet of school property. Defendants were also found guilty of possession of marijuana in a motor vehicle, a disorderly person’s offense.
The Appeals Court had upheld the trial judge’s denial of defendant’s motion for a judgment of acquittal. The appeals court found that there was ample evidence to find that defendant had actually or constructively possessed the drugs, including the smell of raw marijuana, and statements made by defendant.
Nevertheless, because there was question about whether defendant’s statements had been voluntarily made, the Court remanded the case for a hearing pursuant to Rule 104 of the New Jersey Rules of Evidence to determine whether the statements were, in fact, voluntary.
The Court also ordered that defendant be resentenced. The trial judge had imposed a sentence of five years without parole on the third-degree convictions, which is the maximum permissible. The trial court, in sentencing defendant above the presumptive term, relied upon aggravating factors not based solely upon defendant’s prior criminal record. In so doing, the Court held, that the sentence imposed was in violation of the U.S. Supreme Court decision in Blakely v. Washington, 542 U.S. 296 (2004), and the N.J. Supreme Court decision in State v. Natale, 184 N.J. 458 (2005). Those cases, on Sixth Amendment grounds, prohibit sentences above the presumptive term, which are based upon judicial findings of aggravating factors other than prior criminal convictions.
In a per curiam opinion, the Supreme Court affirmed, for the reasons offered by the majority in the Appellate Division decision.
Kidnapping (Child Custody)
In State v. Froland, 193 N.J. 186 (2008), the Court considered whether a stepmother who removes her stepchildren from the state with the consent of their father (her husband), but without the consent of their mother, is guilty of nonconsent kidnapping under N.J.S.A. 2C:13-1.
Defendant shared physical custody of his children with his wife. His wife had obtained an order to prevent defendant from interfering with an established custody schedule.
Thereafter, defendant entered into an elaborate plan with his new wife and nephew to remove his children from New Jersey and have them brought to North Carolina. The Coast Guard found the children, along with defendant, his new wife, and nephew, along with evidence that they intended to disappear with the children. All three collaborators were indicted for first-degree kidnapping, interference with custody, and conspiracy. The cases against each were subsequently severed, with the trial of the defendant step-mother proceeding first.
The trial judge instructed the jurors that the removal of the children was unlawful if it was accomplished without the consent of the children’s mother, even if the children’s father had consented. Defendant was found guilty of first-degree kidnapping, among other charges, and she was sentenced to an aggregate custodial term of seven years.
Justice Long, writing for a majority of the Supreme Court, reversed the judgment of conviction. The Court found that critical to sustaining kidnapping charges under the circumstances before the Court was the use of force or other means specifically designated by the kidnapping statute. The Court held that unless a person, who acts with the permission of a parent, uses force, threat, or deception, the person cannot be guilty of “non-consent kidnapping.”
Three Strikes Law
In State v. Parks, 192 N.J. 483 (2007), the Court considered whether a 2003 amendment to the Three Strikes Law, which required that an enhanced sentence could be imposed only if there were two prior convictions, applied to defendant. The amendment to the law stated that its applicability depended upon the commission of two or more crimes prior to the crime for which the enhanced sentence was sought and not on the sequence of the prior convictions. In a per curiam decision, the Court ruled that although the defendant had two prior convictions, he did not commit the two predicate crimes needed to trigger the law, prior to the offense at issue. Accordingly, the Court found the statute inapplicable to defendant and remanded the case to the trial judge for resentencing.
Alibi Evidence of Defendant
In State v. Bradshaw, 195 N.J. 493 (2008), the Court considered whether the trial court properly barred defendant from offering alibi testimony based on his failure to supply timely notice of his alibi to the state under 3:12-2. The Court also considered whether the prosecutor’s summation was fair when he expressed his opinion that because the victim was deaf and mute she had a heightened sensory perception and, therefore, her identification of defendant was reliable.
At trial, the state presented evidence that S.D., a 40-year old deaf and mute woman, was walking home from a friend’s house late at night. She was high on heroin at the time. As she was walking, she was approached from behind, pulled to the ground and sexually assaulted. She described her attacker as a black male, five feet six inches tall, with a stocky build, wearing a yellow and green “mix” jacket and a black hat. A sketch of the suspect was drawn by an artist.
Four days after the attack, the police spotted defendant riding a bicycle in the area near to where the assault took place. Defendant fit the victim’s description of her attacker.
The next morning, defendant’s photo was included in an array and the victim identified him as her attacker. Defendant was subsequently arrested at his home, where the police seized items of clothing and defendant’s bicycle.
Defendant waived his Miranda rights and admitted that he had consexual sex with the victim on a high school field “about a week ago.” He refused to provide a written statement, but a DNA sample was taken from him, which came back positive.
Soon before the final witness testified for the state, the prosecutor informed the trial court that defendant intended to testify. The court asked defendant, with his attorney’s permission, whether he was going to state that he was someplace else at the time of the offense, or offer another ablibi of some sort. Defendant respondent that he intended to testify that he was elsewhere at the time of the offense and added that he would not claim to have had consensual sex with the victim.
The prosecutor objected to the testimony on the grounds that a timely notice of alibi had not been furnished as required by Rule 3:12-2 of the New Jersey Court Rules. Defense counsel disputed that an alibi was being offered, and argued that notice of an alibi was required, in any event, only if defendant intended to present witnesses to confirm the alibi. The attorney asked the court to allow the testimony and to then decide whether the state was prejudiced, whether some accommodation should be given to the state, or a mistrial should be declared.
The state contended that the testimony proffered constituted an alibi and, if the testimony were admitted, the state would seek to strike it or to obtain time to investigate the details of defendant’s claims. The state reconsidered its position after a recess and asked the court to wait until defendant testified before deciding whether to grant the state additional time to investigate the alibi.
The Court concluded that defendant would be prejudiced if defendant were permitted to present his proffered testimony, and it precluded him from offering his alibi. The Court also warned defendant that, if he did testify, he was not to talk about his alibi.
Defendant testified. He stated that he had never seen the victim before trial, that he never had sexual intercourse with her, and that he never made a statement to the police that he had consensual intercourse with her.
Defendant was convicted of first-degree aggravated assault, second-degree sexual assault, and second-degree robbery. He was sentenced to an aggregate term of 60 years with a 25-year parole disqualifier.
On appeal, Justice Wallace, writing for a unanimous Court, held that while certain standards applied to the preclusion of an alibi defense where notice of an alibi had not been furnished prior to witnesses testifying in support of the alibi, the case before it involved a defendant who was himself offering alibi testimony. In such cases, the Court noted, the trial court had to engage in an analysis of whether defendant engaged in “willful misconduct” and whether there had been an “intentional suppression of alibi evidence in order to gain a tactical advantage.”
The Court noted that this state’s alibi rule expressly provides that if a defendant fails to give notice of his or her alibi, the court may preclude the witness from testifying, “or make such other order or grant such adjournment, or delay during trial, as the interest of justice requires.” R. 3:12-2(b). The Court stated that it interpreted the rule to mean that only in the rarest of circumstances should the “interest of justice standard” result in a prohibition of a defendant’s own alibi testimony as an appropriate sanction. Instead, the Court stated, the balancing test used for considering whether alibi testimony of a defendant should be precluded is the same as that for alibi witnesses, except that an additional factor must be included: the failure to give notice-of-alibi evidence constituted willful misconduct and intended to gain a tactical advantage. The other, traditional factors, which also required examination were:: “(1) [the]extent of prejudice to the State; (2) the extent to which the alibi defense [i]s crucial to [the] defendant’s case; (3) whether a less severe sanction would preserve the policy of [the alibi rule]; and (4) the feasibility of a trial continuance to permit investigation of the alibi.”
The Court ruled that absent a finding that the factors on balance favor preclusion, the “interest of justice” standard requires a less severe sanction. Applying those factors to the case before it, the court stated that it was “satisfied that this is not that rare circumstance when a defendant’s violation of the alibi rule should have resulted in the sanction of preclusion.” The Court concluded that it was an abuse of discretion for the trial court to deny defendant the opportunity to present his alibi testimony. The Court found the preclusion to constitute harmful error and ordered a new trial.
In ordering a new trial, the Court stated that the prosecutor was not to make reference to the deaf and mute victim having heightened sensory perceptions, which made her identification more reliable. At the new trial, the Court ruled, “the prosecutor shall be precluded from arguing facts not in the record and from vouching, whether expressly or implicitly, for the credibility of the victim.”
Zegas owns a five-attorney law practice in Chatham. He is a Past President of the Association of Criminal Defense Lawyers of New Jersey, and Past Chair of the Criminal Law Section of the New Jersey State Bar Association.