Opinion
DOCKET NO. A-0369-11T3
07-01-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN M. RAIMONDO, Defendant-Appellant.
James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, of counsel and on the briefs). Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. do Outeiro, and Barbara N. Suppa, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Sabatino and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-06-1122.
James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, of counsel and on the briefs).
Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. do Outeiro, and Barbara N. Suppa, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
After a 2011 jury trial, defendant John M. Raimondo was convicted of third-degree terroristic threats, N.J.S.A. 2C:12-3a (count one); fourth-degree possession of an illegal butterfly knife and/or a switchblade, N.J.S.A. 2C:39-3e (count two); and a fourth-degree certain persons weapons offense, N.J.S.A. 2C:39-7a (count three). Defendant was also found guilty of the lesser-included petty disorderly persons offense of harassment. The trial court imposed an aggregate four-year custodial sentence, which included concurrent terms on various counts.
We were advised by letter prior to oral argument that defendant has been paroled.
In this direct appeal, defendant argues that (1) incriminating evidence the police seized in response to a domestic violence search warrant is inadmissible and should have been suppressed; (2) the jury charge on terroristic threats was flawed; (3) the court erred by failing to sanitize his prior convictions; (4) the court erred in denying his motion for a new trial; (5) his confrontation rights were violated; (6) cumulative errors; and (7) the court improperly imposed six sentences on a three-count indictment. Because we agree with defendant as to several of these contentions, we reverse his judgment of conviction and authorize a new trial should the State choose to pursue one, notwithstanding his paroled status.
I.
We summarize the pertinent evidence as follows. At the relevant time, defendant, his wife Steffany, and their young daughter resided in the Manalapan home of Steffany's parents. The couple had a stormy relationship. Steffany is a heroin abuser who has frequently relapsed. Meanwhile, defendant has a significant criminal history, including a prior conviction in Florida for kidnapping.
We refer at times to defendant's wife by her first name for purposes of clarity, and do not intend any disrespect.
According to the testimony from Steffany and her mother, Cindy Brooks, defendant had an argument with Steffany on April 22, 2010. He screamed at her, threatening, among other things, that he would cut off her ears and "machine gun her ass" and "dump her body into the Everglades." The incident resulted in Steffany going to the Manalapan Police Department and obtaining a temporary restraining order ("TRO") for domestic violence against defendant.
The municipal court judge issued a domestic violence warrant, authorizing the police to search the premises for weapons. The police went to the house at about 1:40 a.m. that night and found, in defendant's bedroom, two rifle rounds. They then located in the garage a butterfly knife (which was off to the side against the wall) and a box containing a switchblade knife. Both the butterfly knife and the switchblade are unlawful weapons.
Prior to trial, defendant moved to suppress the fruits of the search conducted pursuant to the domestic violence warrant. In a written opinion dated May 6, 2011, the trial judge denied that motion, and the weapons uncovered in the search consequently were admitted at trial as part of the State's evidence.
Defendant's theory at trial was that his wife and his mother-in-law conjured up these allegations because they sought to prevent him from getting custody of the daughter in the parties' divorce case. Evidently, the jury did not accept that theory, and found defendant guilty of the offenses we have noted above.
Defendant moved before the trial judge for a new trial, based on alleged newly-discovered evidence. In particular, defense counsel advised the court that he had learned that Steffany had been arrested for possession of heroin only five days after her trial testimony in this criminal case. In addition, counsel advised the court that the Family Part, after an investigation, had issued an order granting temporary custody of the daughter to Brooks. In a written opinion, the trial court rejected defendant's argument that these developments warranted a new trial.
Defendant's brief on appeal specifically raises the following points:
POINT IWe now examine those points, seriatim.
THE EVIDENCE SEIZED DURING THE SEARCH CONDUCTED PURSUANT TO THE DOMESTIC VIOLENCE WARRANT CANNOT BE USED IN A CRIMINAL PROCEEDING AND SHOULD HAVE BEEN SUPPRESSED. THE COURT WAS WRONG IN HOLDING THAT THE WEAPONS WERE INADVERTENTLY FOUND DURING A SEARCH FOR WEAPONS.
A. The Testimony
B. The Trial Court's Ruling
C. Legal Argument
1. Because A Domestic Violence Search Warrant May Be Issued Without A Judicial Finding Of Probable Cause To Believe That Defendant Is In Possession Of A Weapon, The Fourth Amendment Demands That Evidence Discovered During Such Searches May Not Be Introduced At A Criminal Trial.POINT II
2. The Discovery Of The Knives During The Search For Weapons Was Not Inadvertent.
THE JURY CHARGE ON TERRORISTIC THREATS WAS ERRONEOUS IN THAT IT ALLOWED THE JURY TO CONVICT EVEN IF IT FOUND THAT DEFENDANT HAD ONLY THREATENED A SIMPLE ASSAULT BY KICKING OR PUNCHING THE VICTIM. (Not Raised Below)
POINT III
THE TRIAL COURT'S UNEXPLAINED REFUSAL TO SANITIZE DEFENDANT'S PRIOR CONVICTION FOR KIDNAPPING PREVENTED MR. RAIMONDO FROM TESTIFYING ON HIS OWN BEHALF AND DENIED HIM A FAIR TRIAL.
POINT IV
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE: STEFFANY'S ARREST FOR POSSESSION OF HEROIN DURING THE TRIAL AND THE FAMILY COURT ORDER GRANTING TEMPORARY CUSTODY OF HIS DAUGHTER TO CINDY BROOKS.
A. Steffany's Arrest During Trial
B. The Order Granting Temporary Custody To Cindy Brooks Prior To Trial
C. Because The Newly Discovered Evidence Was Material And Probably Would Have Affected The Jury's Verdict, The Trial Court Should Have Ordered A New Trial
POINT V
THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION BY THE TRIAL COURT'S RULINGS LIMITING HIS CROSS-EXAMINATION OF THE STATE'S WITNESSES.
A. Steffany's Improper Admission to PTI in Union County
B. Steffany's Prior Inconsistent Testimony About Her Medication
POINT VI
THE AGGREGATE OF TRIAL ERRORS, MOST OF WHICH DIRECTLY PREJUDICED DEFENDANT BY LIMITING HIS ABILITY TO ATTACK THE CREDIBILITY OF THE
TWO MAIN PROSECUTION WITNESSES, REQUIRE THAT DEFENDANT'S CONVICTIONS BE REVERSED.
POINT VII
THE TRIAL COURT ERRED IN IMPOSING SIX SEPARATE SENTENCES ON A THREE-COUNT INDICTMENT.
II.
Defendant first argues that the knives, which were seized from the residence by police executing a domestic violence search warrant, should have been suppressed because their illegal nature was not immediately apparent. Defendant supports this argument by citing the inconclusive testimony of the police officers. The State argues that both knives were properly seized. Applying the governing principles of law to the testimony, we agree with defendant that the evidence of at least one of the knives was improperly admitted.
In her application for a TRO in the Family Part, Steffany certified under oath:
[O]n 4-22-10 at approximately 0900 hours, Steffany was going to go with her mother Cindy and daughter [M.R.] to Cindy's work at MEMS. John became enraged as he wanted to take [M.R.] to breakfast. He cursed at her saying she is a "lying, cheating, thieving piece of dog shit." Cindy then came in the room and told John he had to leave. John then started jumping up and down stating "that you are going to have to make me leave[,"] he then knocked all of Steffany'sOn the standardized complaint form, box 2 was checked, indicating that defendant had a criminal record. On the second page of the complaint form, the Family Part judge ordered that defendant was prohibited from possessing any weapons. A "warrant to search for and to seize weapons for safekeeping" was issued. Specifically, the warrant stated, "to search the residence to include [defendant's] room for weapons and ammunition."
belongings off of the dresser. Steffany then left the room and Cindy called the police, John stated "go again call the cops, the pigs." He also stated to Steffany that he was going to "machine gun your ass." The police arrived and John agreed to leave the residence without incident. He has also spit in her face on numerous occasions.
During the suppression hearing, Police Officer Brian Schank testified about the seizure of the knives. According to Officer Schank, he found the butterfly knife "off to the side against the wall in one of the bays" in the two-bay garage. The following exchange occurred with Schank and the prosecutor about the butterfly knife:
Q: At the time you referred to the butterfly knife, were you aware that it was a prohibited weapon?Schank did not have advance knowledge of a butterfly knife specifically, but that several knives, rounds of ammunition and an Asp baton were at the residence.
A: Yes.
Q: When you located the knife, how long did it take before you realized it was a prohibited weapon?
A: Right away just by looking at it.
Q: How did you know that?
A: Just through my training and having seen them before.
Regarding the switchblade knife, Schank testified to the following:
Q: Did you also locate a switchblade knife?Schank's report did not list specific locations of where the knives were found, which he admits in hindsight he should have done.
A: Yes.
Q: And do you recall where that was located?
A: It was in the same lower, all the knives were found generally in the same area against the wall.
Q: And that's in the garage area?
A: Yes.
Q: When you first saw . . . the switchblade knife[,] it was packaged?
A: Yes.
Q: Did you open it?
A: I opened it, just pulled it out. Made sure it was a knife and put it right back in. It never came out of the plastic packaging in the box.
Q: Were you aware at the time that it was a switchblade knife?
A: No. But I was there to collect any weapons, and I knew from [defendant's] past he wasn't allowed to have any weapons.
[Emphasis added.]
The trial judge also questioned Officer Schank as follows:
Q: And when you say "against the wall," was [the switchblade] in the shelf, on the floor?
A: I can't remember specifically because there were boxes stacked there so it was, it wasn't on the shelf but I don't know if it was on the boxes or the ground.
Q: Okay. What I was trying to get at, was it inside the box?
A: Inside its original box, right. As far as like a brown box, like a bigger one, I can't remember.
Q: Okay. And when you say it was inside its original box, describe to me what this box was.
. . . .
A: It was in the Kershaw gray box, like its original what it came with when you bought it.
Q: And was that recognizable to you from your training and experience?
A: Not at the time, no.
Q: Okay. So when you looked at this box, did you know it was inside the box?
A: Yes, because I briefly pulled it out, looked at it through the packaging, put it back in.
Q: I'm saying when you looked at the box, could you tell what was inside?
A: Well, yes, it was a knife.
Q: But how did you know that?
A: By pulling it out and looking at it, I mean it said "knife." I didn't read it into, you know, too much detail.
Q: The box, the outside of the box was labeled with that, said the words "knife?"
A: I believe or there's a picture on it. I can't recall.
Q: Okay. So you saw the knife inside the box that it would be purchased in?
A: Correct.
. . . .
Q: So you pulled open the box and quickly looked at it, then you determined it was a switchblade by looking at it when you pulled it out of the box that said "knife" on it.
A: No. At the time I did not determine it was a switchblade. I just determined it was a knife.
Q: And when did you determine it was a switchblade?
A: When we brought it back for, when I brought it back to put it in as evidence.
Q: So when you sealed it up as evidence, that's when you examined it to determine it was a switchblade?
A: Yes.
Q: Okay. And at that point, because of the defendant's prior criminal record, it was your understanding that he could have no knives so it didn't make any difference at that point what sort of knife it was?
A: When we were in the residence?
Q: Right.
A: Correct.
Q: Okay. And then the butterfly gravity knife was found where?
A: In the area with all the knives but that contained the packaging.
Q: And that's my question. It was in the garage up close to a wall?
A: Correct.
Q: And it was not inside, the gravity knife was not inside the brown boxes?
A: Well, it wasn't inside its original packaging like the other knives were. It was just where I found it. It was the knife by itself.
Q: Okay. But the point is, I think you testified both in the bedroom and perhaps in the garage there were brown cardboard boxes?
A: Right.
Q: My question is when you discovered the butterfly knife, did you have to open the brown cardboard box to find the butterfly knife?
A: I do not remember if it was in the box or on the top of it.
[Emphasis added.]
The Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, was enacted to protect individuals who suffer abuse from their spouses, family members, or cohabitants. The statute declares domestic violence to be "a serious crime against society" and states its intent "to assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. Under N.J.S.A. 2C:25-28j, an alleged victim of domestic violence can file a complaint seeking a temporary restraining order that may include:
forbidding the defendant from possessing any firearm or other weapon enumerated in subsection r. of N.J.S.A. 2C:39-1, ordering the search for and seizure of any such weapon at any location where the judge has reasonable cause to believe the weapon is located and the seizure of any firearms purchaser identification card or permit to purchase a handgun issued to the defendant and any other appropriate relief.
Our courts have addressed the relationship between a search conducted pursuant to a warrant issued under N.J.S.A. 2C:25-28j, which permits warrants based on "reasonable cause," and Article I, paragraph 7 of the New Jersey Constitution and the Fourth Amendment of the United States Constitution, which require warrants based on a higher standard of "probable cause." E.g., State v. Masculin, 355 N.J. Super. 250, 256 (Ch. Div. 2002). In its seminal opinion in State v. Harris, 211 N.J. 566, 570 (2012), decided after the trial court's 2011 admissibility ruling in this case, the New Jersey Supreme Court resolved "whether weapons recovered from a defendant's premises during a search conducted pursuant to a warrant issued under [N.J.S.A. 2C:25-28j] may be admitted in a subsequent criminal prosecution of defendant for possession of those weapons."
In Harris, a woman sought a TRO against her boyfriend, the defendant. Id. at 572. The woman alleged in her complaint that the defendant had assaulted her and threatened to kill her with a gun. Id. at 573. The ensuing order authorized the officers serving the restraining order to conduct a search for weapons. Ibid. The officers served the TRO and searched the premises. Id. at 574. The officers recovered a .308 caliber assault rifle, large capacity magazines, a Colt Anaconda .45 revolver, and a Ruger P89. Ibid. The three firearms were run through the State Police Database, which revealed that the Colt Anaconda was reported stolen. Ibid. The defendant was charged with several offenses including possession of an assault firearm, possession of large capacity ammunition, and possession of a stolen firearm. Id. at 571. The defendant moved to suppress, and the trial court granted the motion. Id. at 574-75. Our court affirmed the suppression of the handguns, reversed the suppression of the assault rifle and ammunition, and remanded for further proceedings. Id. at 575-76.
The Supreme Court in Harris reversed the suppression of the handguns and remanded for further proceedings as to the assault rifle. Id. at 591-92. Reciting the critical legal standard for admissibility, the Court stated, "whether the weapons recovered during the domestic violence search of defendant's premises are admissible in defendant's subsequent trial on charges of possessing those weapons[,]" depends in part "on whether the illegal nature of the seized weapons was immediately apparent or whether a further search was required to determine that illegality." Id. at 586-87 (emphasis added).
Turning first to the Colt Anaconda revolver in Harris the Court found that the check of the handgun's serial number was neither a seizure nor a search. Id. at 587. The Court compared it to checking a motor vehicle's license plate number. Id. at 589. The Court noted that there is no reasonable expectation of privacy in the serial number of a gun, because the gun's serial number is displayed on the gun. Ibid. Turning next to the assault rifle and large capacity magazines, the Court remanded the matter because the motion to suppress was decided without the presentation of testimony, leaving the record silent as to whether the Cetme .308 was "immediately identifiable merely from visual inspection, as an automatic assault rifle" and "as to whether the officers could recognize the illegality of [the] magazines simply by viewing them; for instance, were they packaged, and if so, did the packaging identify their illegal nature." Id. at 591.
We recognize that the trial judge in the present case did not have the benefit of the guidance provided by the Court in its supervening opinion in Harris elucidating the "immediately apparent" standard. Nonetheless, Harris is now the controlling precedent, and we must apply it on this direct appeal of defendant's convictions. Applying that precedent, we conclude that the admission of the butterfly knife and the switchblade was erroneous.
The record plainly shows that the illegality of the boxed switchblade was not, in fact, "immediately apparent" to Officer Schank, the patrolman who performed the search. The device was not determined to be a switchblade until after it was brought back to the police station. The inventory search at the police station was a "new invasion" of privacy and constituted a search. Arizona v. Hicks, 480 U.S. 321, 324-25, 107 S. Ct. 1149, 1152, 94 L. Ed. 2d 347, 354 (1987) (finding that the recording of serial numbers from stereo equipment was not a seizure but moving the equipment to view the numbers constituted a search that was a "new invasion of respondent's privacy unjustified by the exigent circumstance that validated the entry"). The seizure of the switchblade thus fails under Harris, and the trial court erred in denying the motion to suppress that knife.
With respect to the butterfly knife, Officer Schank's testimony revealed that he could not recall whether that other knife was located in a box or conversely, on top of it. If the butterfly knife were, in fact, in plain view on top of the box, then the "immediately apparent" standard of Harris is met here because the officer immediately recognized that it was illegal. On the other hand, if that knife were packaged inside the box and not in plain view, the illegality of the box's contents would not be immediately apparent.
Even assuming for the sake of discussion, the butterfly knife was found on top of the box in plain view, we cannot tell whether the admission of the illegally-seized switchblade knife unfairly tainted the jury's consideration of the proof of the butterfly knife. See N.J.R.E. 403. Given that potential taint, a new trial is appropriate, as the weapons-related allegations and proofs were at the heart of this case.
III.
We next consider defendant's contention that the jury charge on terroristic threats was flawed. In particular, defendant argues that the charge prejudicially allowed him to be convicted of terroristic threats based upon a threatened act of simple assault, which is a disorderly persons offense and not a crime of violence. The State concedes error, but argues that the flawed charge does not rise to the level of plain error. We agree with defendant that the flawed charge compels a new trial.
Jury instructions must provide a "comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v. Green, 86 N.J. 281, 287-88 (1981). The charge as a whole must be accurate. State v. Wilbely, 63 N.J. 420, 422 (1973).
Here defendant's trial counsel did not object to the court's instructions on terroristic threats. "[T]he failure to object to a jury instruction requires review under the plain error standard." State v. Wakefield, 190 N.J. 397, 473 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008); see R. 1:7-2. Plain error is that which is "clearly capable of producing an unjust result." R. 2:10-2. In that respect, "[e]rroneous jury instructions on matters material to a jury's deliberations are ordinarily presumed to be reversible error." State v. Jackmon, 305 N.J. Super. 274, 277-78 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998). Where a jury charge was "inadequate to guide the jury in the course its deliberations should take," the conviction is to be reversed. Id. at 290. Moreover, jury charges providing "incorrect instructions of law 'are poor candidates for rehabilitation under the harmless error theory.'" State v. Harrington, 310 N.J. Super. 272, 277 (App. Div.) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)), certif. denied, 156 N.J. 387 (1998).
The model criminal jury charge for terroristic threats states:
The first element that the State must prove beyond a reasonable doubt is that defendant threatened to commit any crime of violence. The State alleges that defendant threatened to commit the violent crime of ______________________An attached footnote to the model charge states, "The trial court should instruct the jury on the elements of the crime of violence defendant threatened to commit." Model Jury Charge (Criminal), "Terroristic Threats" n.1 (2004) (citing State v. MacIlwraith, 344 N.J. Super. 544, 548 (App. Div. 2001)).
[Model Jury Charge (Criminal), "Terroristic Threats" (2004).]
In MacIlwraith, supra, 344 N.J. Super. at 547-48, we held that:
An element of a subsection (a) terroristic threat is a threat "to commit any crime of violence." In order for a jury to be properly guided it must be instructed on the qualities of "any crime of violence" the proofs suggest the defendant may have threatened. That is, the elements and definition of any such crimes must be adequately explained to the jury, so that the jury is not left to speculate as to the crimes that might be supported by the evidence. See Model Jury Charges (Criminal), N.J.S.A. 2C:12-3(a) (1991) (providing that the instruction should "set forth and define appropriate crime of violence alleged"). This approach exemplifies a well-established principle applying to all matters in which juries are required to determine criminal purpose as an element of the crime charged. The instruction is one of special importance where, as here, the only other convictions that occurred which embodied facts pertinent to the cognate charges were for petty disorderly persons offenses, which are not crimes by definition. See N.J.S.A. 2C:1-4(b).
[(Emphasis added) (citations omitted).]
In the course of charging the jury on terroristic threats in the present case, the trial court instructed:
The first element that the State must prove beyond a reasonable doubt is that the defendant threatened to commit any crime of violence. The State alleges that the defendant threatened to commit the violent crime of kicking, punching, shooting, or killing the alleged victim.
[Emphasis added.]
Defendant argues that, by virtue of the charge's reference to "kicking" and "punching," the jury was improperly allowed to convict him of terroristic threats to commit a simple assault, which is a disorderly persons offense. N.J.S.A. 2C:12-1a; N.J.S.A. 2C:1-4b. The State counters that all of defendant's statements inherently threatened serious bodily injury, which would constitute aggravated assault, a violent crime. N.J.S.A. 2C:12-1b. The State stresses in this regard defendant's alleged statement, "I'm going to cut your ears off, I'm going to knock your eyes into your fucking skull, [and] cut your tongue out."
Despite the graphic and offensive nature of defendant's statements to his wife, the statements do not necessarily convey a threat to commit serious physical violence. His comments could easily have been perceived as hyperbole, and that he was not literally intending to rip out his wife's tongue, push her eyes into her skull, shoot a machine gun at her posterior, or dispose of her body in the Florida Everglades. The words must be considered within the context of the spouses' tumultuous relationship. In that context, a rational juror might have only regarded defendant's words to convey a threat to inflict a simple assault. Hence, the charge's erroneous references to "kicking" and "punching" as qualifying violent crimes could readily have been misleading and unduly prejudicial. In addition, the charge failed to instruct the jurors that, by contrast, the offense of aggravated assault requires proof of a serious bodily injury. See N.J.S.A. 2C:12-1b(1).
Notably, defendant was not found guilty of any violent crimes in this case. He was only found guilty of the lesser-included offense of harassment, which is a disorderly person's offense. Applying the principles of MacIlwraith, supra, we conclude that the flaws in the charge amounted to plain error and compel a new trial.
IV.
Defendant argues the trial court abused its discretion in refusing to sanitize his Florida kidnapping conviction, as the court's ruling allegedly prevented him from testifying about his defense theory that Steffany and her mother had a motive to file false charges against him to gain custody of their daughter. Defendant claims that the court erred in failing to balance the probative value and prejudicial effect of the prior conviction. The State, on the other hand, argues there was no error because the conviction was not similar to the current charges and defendant experienced no undue prejudice. We perceive error in this ruling as well, although it would not be sufficient on its own to require a new trial.
Defendant has two prior identified convictions that the trial court addressed. First, defendant was convicted of kidnapping in Florida in 1999. He was sentenced to an eight-year prison term and released in 2002. Second, defendant was convicted in Florida of violations of an injunction for a restraining order. He received twelve months of probation in 2008.
The trial court sanitized the 2008 conviction. However, it declined to sanitize the 1999 kidnapping offense, reasoning, "[t]he kidnapping is not similar to the charges that are brought here, and it is not remote. There's been an intervening conviction, and he was released within ten years, although the ten years is not a hard-and-fast rule. So, the kidnapping conviction will not be sanitized."
We are mindful 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. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). "Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless 'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" Ibid. (quoting Marrero, supra, 148 N.J. at 484) (internal quotation marks omitted). "[A] defendant need not testify at trial to obtain appellate review of a trial court's ruling that the defendant's convictions may be used for impeachment purposes." State v. Whitehead, 104 N.J. 353, 361-62 (1986).
N.J.R.E. 609 presently states, "For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." However, the danger of prior conviction evidence is its ability to allow the jury to convict a defendant based on "criminal disposition" rather than the facts. State v. Sands, 76 N.J. 127, 141 (1978).
We are aware that the Supreme Court Committee on Evidence recently proposed a revision of N.J.R.E. 609 that would, if adopted, make it more difficult to admit criminal convictions that are more than ten years earlier than the date of trial. 2011-2013 Report of the Supreme Court Committee on the Rules of Evidence (Mar. 15, 2013), http://www.judiciary.state.nj.us/ reports2013/evidence.pdf.
In Sands, supra, the Court first held that the admissibility of a defendant's prior convictions is not absolute and is subject to a trial court's discretion. Id. at 144. The Court stated:
The trial judge shall admit evidence of criminal convictions to affect credibility of a criminal defendant unless in his discretion he finds that its probative force because of its remoteness, giving due consideration to relevant circumstances such as the nature of the crime, and intervening incarcerations and convictions, is substantially outweighed so that its admission will create undue prejudice.The Court went into more detail regarding remoteness. Passage of time is only one factor, as the nature of the convictions is a "significant factor." Id. at 144. "Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving." Ibid. "The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant." Id. at 144-45. Moreover, the trial court should also "consider intervening convictions between the past conviction and the crime for which the defendant is being tried." Id. at 145. "If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible." Ibid. The Court added that jury instructions regarding the limited purpose of prior convictions are necessary to combat the "danger that a jury might improperly use a prior conviction as evidence of the defendant's criminal propensity." Id. at 142 n.3.
[Id at 147.]
The Court thereafter modified the holding of Sands in State v. Brunson, 132 N.J. 377 (1993). In Brunson, the defendant was on trial for possession of a controlled dangerous substance ("CDS") and possession with intent to distribute. Id. at 381. The defendant declined to testify after the trial judge ruled that his prior convictions for possession of a CDS, possession with intent to distribute, and theft were admissible to impeach his testimony. Id. at 381-82. The Supreme Court reversed the convictions, noting that jurors are likely to misuse prior convictions evidence when the prior and present offenses are the same. Id. at 391 ("The introduction into evidence of a similar prior conviction to impeach a testifying defendant is doubtless highly prejudicial, and that prejudice is unlikely to be cured by a limiting instruction."). "Nevertheless, just as the State may impeach the credibility of a defendant who has been convicted of a dissimilar crime, the State is entitled to impeach the credibility of a criminal defendant who previously has been convicted of a similar crime." Ibid.
The Court developed in Brunson a sanitization ruling for such prejudicial prior offenses, stating:
[I]n those cases in which a testifying defendant previously has been convicted of a crime that is the same or similar to the offense charged, the State may introduce evidence of the defendant's prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted. . . . The balance struck adequately vindicates the State's interest in using the prior conviction to cast doubt on the defendant's credibility without subjecting defendant to the extraordinary prejudice that follows if the prior crime was specifically named or described.
[Id. at 391-92 (quotation marks and citation omitted).]
Most recently, in State v. Hamilton, 193 N.J. 255, 268-69 (2008), the Court extended the potential need to sanitize prior convictions to non-similar crimes. In Hamilton, the defendant was convicted of drug possession. Id. at 257. The police came into contact with the defendant during an investigation into the suspicious death of a woman. Ibid. The defendant was not suspected of killing the woman or charged with her murder. Id. at 258. During the questioning of the defendant, heroin was found in his possession. Id. at 259. The State intended to impeach the defendant if he testified with his prior convictions of aggravated manslaughter and unlawful possession of a weapon. Id. at 258. The defendant sought sanitization of the prior convictions because of their highly prejudicial effect but the trial court believed it did not have that authority under Brunson because the prior convictions were not the same or similar. Ibid.
The Court in Hamilton expanded the rule of Brunson and granted trial courts the authority to sanitize dissimilar, but highly prejudicial prior convictions. Id. at 268-69. The Court found that "Brunson held that similarity between a defendant's prior conviction and present charge requires sanitization in all such circumstances[,]" but that "mandatory holding did not foreclose from trial courts the discretion to consider sanitization of prior conviction evidence in any other circumstance that posed a risk of undue prejudice to a defendant." Id. at 269. The trial court should have balanced the probative value against the prejudicial effect of the evidence. Id at 268.
Here, the trial court misapplied its discretion in failing to balance the probative value of admitting the prior Florida kidnapping conviction against the prejudicial effect of admitting it. Like the trial judge in Hamilton, the court seemed to believe it only had the authority to sanitize the conviction if it were the same or similar to the offense presently charged. The court overlooked its authority to sanitize dissimilar convictions that are nevertheless highly prejudicial. This error may well have prevented defendant from testifying, as his kidnapping conviction would have been admitted without sanitization if he had testified. That may have influenced the jury to believe defendant has a propensity for crime and convict based on that alleged propensity.
By failing to weigh sanitization properly, the trial court may have prevented defendant from testifying, thereby denying him an opportunity to present his defense fully. Based on this error, the terroristic threats and harassment convictions should be reversed. However, the weapons charges relied on the physical evidence found at the scene and the testimony of the officers. Defendant's testimony would have little effect, if any, on those convictions and thus reversal is not warranted on the weapons charges based upon this error.
V.
Defendant further argues that a new trial should have been granted based on the newly-discovered evidence that (1) the victim was arrested on indictable drug charges and (2) her mother was granted temporary custody of the minor child. Defendant claims that such evidence was material and would have affected the jury's verdict because the credibility of the victim and her mother was vital to the case. The newly-discovered evidence would have been utilized to contradict their respective testimony. We disagree.
Defendant bases this argument on two items of newly-discovered evidence. Upon receiving the Presentence Report ("PSR"), defendant learned for the first time that Brooks had been awarded temporary custody of defendant's daughter in January 2011. Defendant also learned that Steffany had been arrested for possession of heroin five days after testifying at defendant's trial. Upon receiving this evidence, defendant moved for a new trial, which the trial court denied.
Rule 3:20-1 states in pertinent part:
The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.
To meet the standard for a new trial based on newly discovered evidence, a defendant must show that the evidence is "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." State v. Carter, 85 N.J. 300, 314 (1981). "All three tests must be met before the evidence can be said to justify a new trial." Ibid.
Regarding prong one, "[m]aterial evidence is any evidence that would 'have some bearing on the claims being advanced.'" State v. Ways, 180 N.J. 171, 188 (2004) (quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1991)). Determining whether evidence is "merely cumulative, or impeaching, or contradictory," and, therefore, insufficient to justify the grant of a new trial requires an evaluation of prong three of the Carter test. Id. at 188-89. "The characterization of evidence as 'merely cumulative, or impeaching, or contradictory' is a judgment that such evidence is not of great significance and would probably not alter the outcome of a verdict." Id. at 189. "However, evidence that would have the probable effect of raising a reasonable doubt as to the defendant's guilt would not be considered merely cumulative, impeaching, or contradictory." Ibid. "The power of the newly discovered evidence to alter the verdict is the central issue, not the label to be placed on that evidence." Id. at 191-92.
In denying defendant's motion for a new trial, the trial court found his claim failed to meet the Carter test, stating:
First, the evidence now sought by the defense to be introduced is not material to
the charges of [terroristic] threats, possession of prohibited weapons and a certain person not to have weapons. The defendant now argues that information that the temporary custody of his daughter had been granted to the victim's mother who is also the child's grandmother was crucial to his defense and its discovery now warrants a new trial. Information regarding the custody of the defendant's daughter is not material evidence as to these charges. . . .
Additionally, the evidence sought by the defendant would not likely change the jury verdict and accordingly fails the third prong of the legal test for a new trial. Defendant was able to explore this custody issue on cross-examination as this theory only related to the credibility of the victim and her mother as witnesses. Defense counsel asked several questions regarding the custody of the infant [M.R.], which was permitted by this trial court over the objections of the prosecution. Additionally, this same theory was adequately made in defense counsel's closing statement. The jury was afforded the opportunity to hear this defense theory: that the testimony was fabricated by the victim and her mother to gain custody of [M.R.]. The existence of a family court order on January 31, 2011, granting temporary custody to the child's grandmother months before this trial would have no different impact here because the claims regarding the "motive" for these witnesses' alleged perjury would remain the same. . . . The jury reasonably rejected that theory of perjured testimony to gain an advantage in a custody dispute by finding the defendant guilty. This not only makes the evidence sought not likely to change the jury's verdict, but also highlights that the evidence is merely cumulative, which is not a justifiable reason to support a new trial.
We concur with the trial judge's analysis. The credibility of defendant's wife and mother-in-law was attacked in depth by defense counsel at trial. The antagonistic motives of Steffany and her mother to deprive defendant of primary custody of the infant were extensively explored. The post-trial revelations were merely cumulative. The court did not misapply its discretion in denying a new trial on this basis.
VI.
Defendant next argues he was denied his Sixth Amendment right to confrontation because he was unable to impeach the victim's credibility on two specific instances. Specifically, defendant claims the trial court should have permitted him to cross-examine Steffany regarding her deferred disposition in Florida and the alleged false assertions made by her on her pretrial intervention ("PTI") application in New Jersey, and to cross-examine her about her prior inconsistent testimony about her medications.
The State argues, in opposition, that the trial court properly exercised its discretion in its evidentiary rulings as there was no good faith basis to cross-examine her about the PTI application and the prior inconsistent statements were for a limited purpose. We conclude that the court erred in prohibiting defense counsel from cross-examining Steffany about her prior inconsistent testimony and that the error is of a sufficient magnitude to warrant a new trial.
The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. "Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 19-20, 106 S. Ct. 292, 294, 88 L. Ed. 2d 15, 19 (1985). "[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony." Id. at 22, 106 S. Ct. at 295, 88 L. Ed. 2d at 21.
Applying these standards, we conclude that the court erred in disallowing defense counsel the opportunity to cross-examine Steffany, the prosecution's chief witness, about her false statement on her PTI application. However, we do not discern any such error with respect to Steffany's prior inconsistent statements concerning her medications.
The record shows that Steffany was convicted of possession of CDS in Florida, but received a "deferred disposition." After being sentenced, her "adjudication of guilt" was "stayed and withheld," and she was placed on probation, with the understanding that her conviction would be vacated if she successfully completed probation.
After being arrested for possession of heroin, Steffany was placed in PTI in Union County in December 2010. Defense counsel argued that Steffany was not eligible for PTI under Rule 3:28, Guideline 3(e), because she had a prior deferred disposition in Florida and term of probation. Defense counsel argued that Steffany must have either lied in her application for PTI, or she was given some sort of special consideration in exchange for her testimony against defendant. Accordingly, defense counsel filed a motion asking the trial court to conduct an in camera review of Steffany's PTI record. The trial court denied the motion, finding "no indication that there was any consideration or contact" between the Monmouth County and Union County Prosecutor's Offices.
Guideline 3(e) states, in part, "defendants who . . . irrespective of the degree of the crime have completed a term of probation, incarceration, or parole within five years prior to the date of application for diversion shall ordinarily not be considered for enrollment in PTI except on joint application by the defendant and the prosecutor."
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The court also found that a deferred disposition does not qualify as a conviction that could be used to impeach her credibility. The court noted at a later proceeding that, absent proof that the stay had been lifted, the Florida conviction could not be used for impeachment as it is not an adjudication of guilt that attaches to it with any legal consequences. During cross-examination of Steffany, the court thus prohibited defense counsel from questioning her about the prior offense in Florida.
We believe the trial court acted too restrictively in this context. The circumstances show that Steffany could not have been placed in PTI, unless she either lied on her application or received favorable treatment from the prosecutor in exchange for testimony against defendant. Testifying on behalf of the State in exchange for favorable treatment clearly affects a witness's credibility. Even though there was no evidence of any contact between the Monmouth and Union County Prosecutor's Offices, defense counsel should have been permitted to explore this subject because of its potential probative impact on Steffany's credibility as a witness. If, in fact, she had lied on her PTI application about her Florida disposition, the jury was entitled to know that. Model Jury Charge (Criminal), "False in One, False in All" (2013).
We reach a different conclusion with respect to the cross-examination of Steffany concerning her medications. At a pretrial hearing on January 27, 2011, Steffany testified that she was "on a lot of antidepressants and a couple of medications due to this." She specifically testified she was on Zoloft, Serafin, Cyboxin, anti-seizure medications and "a couple others" she could not remember. When asked if they "affect you sometimes as to the way you think or the way you remember things," Steffany answered "no."
Later, at the trial, defense counsel asked Steffany whether she was on any prescription drugs that day, and she answered that she was not. Defense counsel then asked if she was on prescription medications on January 27, 2011, to which she responded, "No, before that day. I was not that day." The prosecutor objected on relevance grounds. Defense counsel argued this line of questioning was relevant to credibility. The court ruled that "[t]he issue is whether or not she was on prescription drugs on any of these days she testified about. Whether she's on prescription drugs for other things at other times is irrelevant."
At a sidebar conference, defense counsel informed the trial judge he intended to demonstrate Steffany was not telling the truth by using her prior testimony of January 27, 2011. The trial court, noting that Steffany had denied those medications affected her ability to remember, ruled that her use of medications would only be relevant if it affected her ability to recall on a particular day.
Although the issue is a close one, we are not persuaded that the court abused its discretion on this evidentiary issue. The probative significance of Steffany's drug use, and her varying statements on that subject, is sufficiently attenuated to warrant deference to the trial judge.
VII.
Given the various trial errors of consequence that we have identified in our preceding analysis, we agree with defendant that principles of cumulative error warrant a new trial, even if we were to find that none of the errors, in isolation, mandated that disposition. See State v. Vallejo, 198 N.J. 122, 134, 137 (2009); State v. Orecchio, 16 N.J. 125, 129 (1954).
VIII.
Although defendant has already served his sentence, we briefly should note that the State concedes that the court erred in imposing multiple sentences, albeit concurrent ones, on the three counts of the indictment. Had we not ordered a new trial, the sentences would need to be corrected. The issue is mooted, however, by the reversal of all of defendant's convictions and our remand for a new trial.
Reversed and remanded for a new trial.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION