Opinion
DOCKET NO. A-2230-14T3
11-25-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. LEIDA FIGUEROA, Defendant-Respondent.
Bethany L. Deal, Assistant Prosecutor, argued the cause for appellant (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Deal, on the brief). Kevin Walker, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Walker, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 13-01-0043. Bethany L. Deal, Assistant Prosecutor, argued the cause for appellant (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Deal, on the brief). Kevin Walker, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Walker, of counsel and on the brief). PER CURIAM
The State of New Jersey (the State) appeals from the Law Division's November 19, 2014 order that barred the admission of a videotaped statement provided to law enforcement officers by defendant Leida Figueroa. The State also appeals from portions of the court's December 10, 2014 order that denied reconsideration and a stay of trial pending appeal.
The December order granted without objection the State's request to "enlarge the record." The judge, therefore, had additional materials before him when considering the State's motion for reconsideration, and they are contained in the appellate record.
There was no evidentiary hearing conducted regarding the videotape, but, to provide the necessary context, we set forth the State's factual contentions from documents in the record as informed by the arguments of counsel. We assume defendant disputes some of the State's evidence, but any factual disputes are not particularly relevant to our resolution of the appeal.
On July 18, 2012, two Maple Shade Township police officers responded to an apartment on the report of a stabbing. Upon arrival, they knocked on the door, and defendant answered. At the time, she was covered in blood, as were the walls and floor of the apartment. The victim, defendant's estranged boyfriend, was on the floor near the front door bleeding profusely from a laceration to his left armpit. He told police that "Leida" had done this to him, and she would not let him leave the apartment for approximately thirty minutes after the stabbing. Police summoned medical assistance, and the victim was taken to the hospital.
Defendant was treated at the scene for a laceration on her hand before being transported to police headquarters. When exiting the police vehicle, defendant collapsed and was transported to the hospital. The police reports indicate that defendant was given her Miranda rights at the hospital after stating, "I just wanted it to stop." Thereafter, defendant allegedly told police there had been previous domestic violence incidents between her and the victim causing her to end the relationship, but, the victim continued to threaten her. He appeared at her apartment, a verbal altercation erupted, and fearing the victim would assault her, she defended herself with a knife.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Shortly thereafter, defendant was released from the hospital and returned to police headquarters where a formal statement was videotaped. When police first commenced videotaping the statement, defendant was still in her bloodied clothing. She requested a change of clothing and a chance to wash. When she next appears on the videotape, defendant is in an orange "jumpsuit" typical of those worn by pre-trial detainees at the Burlington County Jail that was provided by the officers. Defendant's clothing was secured as evidence. The statement lasted more than three hours, and it suffices to say that during the statement, defendant asserted at several points that she was the victim of prior domestic violence and stabbed the victim in self-defense.
During argument on the motion in the Law Division and before us, defense counsel asserted that defendant's daughter arrived at the apartment and later at police headquarters with "a pair of civilian clothes." Although this is unsupported by the record, we accept this representation as true, since the State does not apparently deny it.
Defendant was not arrested after giving the statement, and no complaint was issued until three weeks later. Subsequently, the Burlington County grand jury returned Indictment No. 13-01-0043, charging defendant with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree criminal restraint, N.J.S.A. 2C:13-2(a); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of weapon, N.J.S.A. 3C:39-5(d). Defendant moved to bar admission of her videotaped statement claiming her appearance in a prison jumpsuit was prejudicial. The State argued that the videotape was highly probative because defendant demonstrated, among other things, the manner in which she stabbed the victim.
After considering oral argument, the judge wrote a short opinion granting defendant's motion. Citing case law that we discuss more fully below, the judge noted "[d]efendants in prison garb are not permitted." Although the judge found that police "provided [] defendant with fresh clothing," and "acted in good faith[,]" he concluded the issue was "the impression that jail attire will make upon the jury." The judge ruled the State could introduce only the audio portion of defendant's statement, reasoning,
The court's ruling denies the jury the opportunity to observe the defendant during the interview and it denies the jury the opportunity to see the manner of the stabbing, but the court determines that the defendant's right to a fair trial, one in which she will not be displayed in jail attire, is paramount to the State's evidentiary concerns.The judge entered a conforming order and denied the State's request for a stay of trial.
The State moved for reconsideration. Alternatively, it offered to substitute a black-and-white version of the video that was redacted to remove any scene in which lettering on the back of the jumpsuit appeared. The judge denied the motion. Noting that he had now reviewed the entire video, the judge reversed his earlier findings and concluded that "the State suffer[ed] no evidentiary loss or prejudice by barring the video portion of the interview/interrogation from the jury." The judge also rejected the State's application to substitute a black-and-white, redacted version of the statement. He reasoned,
The letters BCCC can briefly be seen on defendant's back during the videotape.
the entire interview was conducted in a stark, windowless room without decoration . . . . It is clearly a police interrogation room. . . . Given the obvious place of the interview, the defendant's attire (a jump suit) whether in color or black or white, . . . conveys the same impression — that she was confined to a jail or prison.The judge also rejected the State's argument that any prejudice could be addressed by instructions from the court, stating, "[m]aybe so, but there is no reason to venture into that questionable area when the potential prejudice . . . can be avoided in the first place."
The judge entered an order denying the State's motion for reconsideration and a stay pending appeal. We granted the State's motion for leave to appeal and stayed further proceedings in the Law Division pending our decision.
The State argues that the judge misapplied the law by likening defendant's appearance in a prison jumpsuit during the interview to a defendant appearing in similar garb during trial. It further argues that the videotaped statement has significant probative value that is not substantially outweighed by any undue prejudice to defendant. See N.J.R.E. 403(a). Defendant counters by arguing that the judge did not mistakenly exercise his discretion because playing the videotape would "irreparably compromise [defendant's] right to a fair trial." Having considered these arguments in light of the record and applicable legal standards, we reverse.
We begin by noting that "'a trial court's evidentiary rulings are entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Nantambu, 221 N.J. 390, 402-03 (2015) (quoting State v. Harris, 209 N.J. 431, 439 (2012)). "Although the ordinary 'abuse of discretion' standard defies precise definition, it arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (emphasis added) (citation omitted).
On the other hand, "[a] trial court's 'interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" State v. Buckley, 216 N.J. 249, 260-61 (2013) (quoting State v. Handy, 206 N.J. 39, 45 (2011)). In this case, to the extent that the judge relied on binding precedent regarding a defendant's appearance before a jury in "prison garb" in reaching his decision, we review the judge's legal conclusions de novo. Id. at 261 (citing State v. Mann, 203 N.J. 328, 337 (2010)).
In his initial decision, the judge wrote:
The holdings in [Estelle v . Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976)], [State v. Zhu, 165 N.J. 544 (2000)], and [State v. Artwell, 177 N.J. 526 (2003)] are clear: Defendants in prison garb are not permitted.However, none of those cases concern the admissibility of a videotaped, pre-trial statement of a defendant who appears in prison garb. Rather, all three opinions involve extra-evidential events observable by the jury, and the impact of those events on an accused's "right to a fair trial before an impartial jury." Zhu, supra, 165 N.J. 553.
In Estelle, the United States Supreme Court held that "the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes[.]" Estelle, supra, 425 U.S. at 512, 96 S. Ct. at 1697, 48 L. Ed. 2d at 135. The Court recognized that such a practice could possibly impair the presumption of innocence, because it would be a "constant reminder of the accused's condition[,]" and "likely to be a continuing influence throughout the trial[.]" Id. at 504-05, 96 S. Ct. at 1693, 48 L. Ed. 2d at 130-31.
In Zhu, our Supreme Court considered whether the deployment of increased security personnel in the courtroom was "so overbearing that it infringed on [the defendants'] presumed innocence, thereby denying them a fair trial." Zhu, supra, 165 N.J. at 552. While recognizing that "trial courts have a duty to scrutinize closely those practices that pose a threat to fairness and do not serve an essential state purpose[,]" id. at 553, the Court concluded that the "security plan did not pose an unacceptable risk of unfairness." Id. at 554.
In Artwell, the Court required that "defense witnesses no longer appear at trial in prison garb because that practice advances no essential state interest." Artwell, supra, 177 N.J. at 530. Again premising its holding on the right to a fair trial, the Court said, "The fair trial right entitles a criminal defendant 'to have his [or her] guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.'" Id. at 533-34 (emphasis added) (quoting Zhu, supra, 165 N.J. at 553).
We acknowledge other cases, not cited by the judge, that similarly reflect these concerns. For example, in State v. Carrion-Collazo, 221 N.J. Super. 103, 112-13 (App. Div. 1987), certif. denied, 110 N.J. 171 (1988), we mandated certain procedures that must be followed before permitting a defendant to voluntarily appear at trial in prison garb. In State v. Gertrude, 309 N.J. Super. 354, 357-58 (App. Div. 1998), we reversed the defendant's conviction following a jury trial when those procedures were not followed.
Defendant, in particular, relies upon the Court's decision in State v. Maisonet, 166 N.J. 9 (2001). There, the defendant, who was housed in the county jail, was tried jointly with his co-defendant, who was admitted to bail. Id. at 13-14. Both testified and accused the other man of possessing the drugs in question. Id. at 14. During four days of trial, the defendant was denied basic amenities and the opportunity to shower. Id. at 14-15.
The Court reversed the defendant's conviction. Id. at 23. Once again, firmly rooting its decision in the "fundamental" "right to a fair trial[,]" id. at 16, the Court recognized that "a defendant's outward appearance can threaten the fairness of proceedings." Id. at 17. The Court stated,
Through no fault of his own and despite his counsel's objections, defendant was compelled to appear at trial in a disheveled state that undoubtedly had the potential to diminish his credibility before the jury. The harm to defendant was compounded by the
fact that his defense consisted mainly of his own testimony, requiring the jury to assess his truthfulness as compared to that of his co-defendant.
We are satisfied that because defendant's credibility was a central issue for the jury to determine, his dirty and disheveled appearance created an unacceptable risk that the jury's verdict would be tainted. At the root of the inquiry concerning defendant's physical appearance is not whether jurors actually articulated a consciousness of some prejudicial effect, but whether an unacceptable risk is presented of impermissible factors coming into play[.]
[Id. at 19-20 (emphasis added).]
As can readily be seen, these cases deal with the overriding constitutional guarantee of a fair trial, unimpeded by possible prejudice that may result from the jury's observation of a defendant's appearance or other extraneous matters during ongoing proceedings in the courtroom. Simply put, unless any particular courtroom procedure — be it the wearing of prison garb or increased security in the courtroom — advances an essential state interest, a defendant's right to a fair trial, free of impermissible non-evidential taint, must prevail.
Of course, in this case, should there be a trial, defendant's appearance before the jury will likely have little in common with how she appeared on the day she provided her statement. Her appearance in prison garb on a videotaped statement for three hours will certainly not be a "constant reminder of the accused's condition[,]" nor is it "likely to be a continuing influence throughout the trial[.]" Estelle, 425 U.S. at 504-05, 96 S. Ct. at 1693, 48 L. Ed. 2d at 130-31. Moreover, the issue here was not whether impermissible, non-evidential events occurring in the courtroom could taint the jury and infringe upon defendant's right "to have [her] guilt or innocence determined solely on the basis of the evidence introduced at trial." Zhu, supra, 165 N.J. at 553. The issue presented was whether this particular piece of relevant evidence should be admitted at trial, nothing more and nothing less. Cf. State v. Burton, 309 N.J. Super. 280, 289 (App. Div. 1998) (holding admission in evidence of photograph of defendant in prison garb used as part of a photographic identification procedure was error, but harmless because of overwhelming evidence of guilt). In short, the judge misapplied the cited precedents, because there was no risk that by viewing the video, the jury would be influenced by anything other than evidence introduced at trial.
Our inquiry is not over because we must consider whether the judge mistakenly exercised his discretion in barring the evidence pursuant to N.J.R.E. 403(a). Although not explicitly mentioned in the judge's written decision denying reconsideration, he implicitly engaged in the weighing process required under that Rule, which provides: "Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of [] undue prejudice, confusion of issues, or misleading the jury[.]" N.J.R.E. 403(a) (emphasis added).
In considering any evidential issue, the Court has explained:
Our Rules of Evidence provide the basic blueprints for the admission of evidence. As an initial inquiry, we examine whether evidence tendered is relevant, that is, whether it is "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. If the evidence is deemed relevant, our Rules are clear: "[e]xcept as otherwise provided in these [R]ules or by law, all relevant evidence is admissible." N.J.R.E. 402."Our Evidence Rules generally promote admissibility of all relevant evidence, N.J.R.E. 402, and 'evince a more expansive approach to the admission of evidence.'" Harris, supra, 209 N.J. at 439 (quoting State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div.), certif. denied, 178 N.J. 36 (2003)).
[State v. Coder, 198 N.J. 451, 463 (2009) (alterations in original).]
"The party seeking to preclude the admission of evidence pursuant to N.J.R.E. 403 has the burden of convincing the trial judge that the factors favoring exclusion substantially outweigh the probative value of the contested evidence." State v. Swint, 328 N.J. Super. 236, 253 (App. Div.) (emphasis added) (citing State v. Morton, 155 N.J. 383, 453 (1998)), certif. denied, 165 N.J. 492 (2000). Moreover, "[t]he mere possibility that evidence could be prejudicial does not justify its exclusion." Morton, supra, 155 N.J. at 453-54. "Damaging evidence usually is very prejudicial, but the real question is whether the risk of undue prejudice is too high." Swint, supra, 328 N.J. Super. at 253.
It cannot be disputed that defendant's statement is highly probative, and, as the Court has noted, "[i]n most cases . . . the probative value of a defendant's statement would outweigh its prejudicial effect and be admitted" unless "there is available less inflammatory evidence." State v. Covell, 157 N.J. 554, 573-74 (1999); see also State v. Jackson, 182 N.J. Super. 98, 100-02 (App. Div. 1981) (applying predecessor Evidence Rule 4 and reversing trial court's exclusion of defendant's statement because it was provided after a polygraph exam).
In this case, the State argues that the probative side of the Rule 403(a) scale weighs heavily in favor of admitting the video version of defendant's statement, not just the audio version, which the judge ruled was admissible. We agree with the State. In this case, the audio version of defendant's statement is not simply "less inflammatory"; it is qualitatively less probative.
One reason supporting our conclusion is that the jury should be able to assess defendant's demeanor when she gave the statement. It may well be consistent with her claims of self-defense, or it may not, but that is for the jury to decide under the particular facts of the case. Defendant's demeanor, several hours after the assault, cannot be assessed from the audio tape alone. More importantly, other highly probative evidence will be kept from the jury if only the audio version of defendant's statement is admitted.
Although initially concluding that excluding the video "denie[d] the jury the opportunity to see the manner of the stabbing," on reconsideration the judge concluded that the "State suffer[ed] no evidentiary loss or prejudice by barring the video portion . . . ." As justification for this reversal, the judge noted that
during the entire interview, the defendant never left the chair in which she was seated to demonstrate the manner of the stabbing. Although she moved her hands while answering questions, it was more in the manner that people speak with their hands, rather than
an attempt to demonstrate the manner of the subject stabbing.
We approach our review of these factual findings with some trepidation, given the Court's recent holding in State v. Hubbard, 222 N.J. 249 (2015). There, the Court reiterated "the traditional rule that an appellate tribunal should adhere to the findings of fact of the trial court and must avoid disturbing those findings unless the evidential record provides insufficient support for those findings." Id. at 268. As an appellate court, we "may not substitute [our] interpretation of events." Id. at 269.
However, Hubbard was "not one of those cases in which the trial record was confined to a video record of the interrogation." Id. at 269. As already noted, this case is "one of those cases" where no witness testified and the record "was confined" solely on the video recording. Ibid.
In any event, we have viewed the video, and we conclude the judge's findings are not supported by the record. While defendant does not leave her chair during the interrogation, she explains to the officers how the victim was holding the knife when he "came after [me]." She also demonstrates on more than one occasion how she and the victim were positioned during the stabbing. Simply put, defendant was not just "moving her hands" as she spoke; her demonstrative answers were in direct response to questions posed by the interrogators.
We can illustrate this point by citing the following exchange:
Q. If you're . . .
A. I'm this way. Right?
. . . .
And I . . . turned this way like this. Like I didn't physically move my whole entire body.
Moreover, the probative value of this evidence was not "substantially outweighed by the risk of [] undue prejudice." N.J.R.E. 403(a) (emphasis added). "This qualifier [undue prejudice] is critical to proper application of N.J.R.E. 403 because all damaging evidence is prejudicial." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 5 on N.J.R.E. 403 (2015). In State v. Moore, 122 N.J. 420 (1991), a case where the defendant challenged the admission of color, as opposed to black-and-white, crime scene photographs under Evidence Rule 4, the Court explained the prejudice arm of the balancing test: "the danger of undue prejudice must outweigh probative value so as to divert jurors 'from a reasonable and fair evaluation of the basic issue of guilt or innocence.'" Id. at 467 (quoting State v. Sanchez, 224 N.J. Super. 231, 249-50 (App. Div.), certif. denied, 111 N.J. 653 (1988)).
Applying these principles to this case, admitting the black-and-white videotape, redacted to remove scenes that might display the nature of the jumpsuit, would not create a risk of undue prejudice that substantially outweighed the clear probative value of the video. On the probative side of the scale, the ability of the jury to see defendant and her limited recreation of the stabbing is significant. As to any "undue prejudice," it is beyond cavil that the jury will know why defendant is not wearing her bloodied clothes and instead is wearing a jail jumpsuit on the videotape. Some of those clothes may be admitted into evidence.
Part of the record includes photographs of defendant taken while she still wore her bloodied garments. At oral argument, counsel conceded that at least some of those pictures likely would be moved into evidence by either the prosecutor or defendant.
The judge's description of the room in which the statement was taken became part of the calculus of his decision making. However, there is nothing unduly prejudicial about a defendant being questioned in a typical police interrogation room. Moreover, the jury will know that defendant was, in fact, free to leave after she provided police with her version of the facts.
Lastly, the judge can provide, if requested by defendant, an appropriate charge that emphasizes defendant's dress during the statement is irrelevant to the jury's consideration of the evidence. Such instructions are provided in other similar, albeit not exact, circumstances. See, e.g., Model Jury Charge (Criminal), "Defendant — Testifying in Jail Garb or Prison Garb" (5/12/94); Model Jury Charge (Criminal), "Identity — Police Photos" (1/6/92).
Although we cannot predict how any trial may proceed, and we do not know what other evidence the State may marshal, it occurs to us that defendant may want the jury to know that she was in custody and in prison garb during the statement, and that she was subsequently released without arrest. --------
In summary, if defendant's objection to the admission of the videotaped statement continues, the State may introduce at trial a black-and-white version appropriately redacted to remove those scenes where the lettering on defendant's jumpsuit might reveal that it is "prison garb."
Reversed and remanded. The stay previously entered is vacated. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION