Opinion
DOCKET NO. A-4911-11T3
02-25-2013
STATE OF NEW JERSEY, Plaintiff-Appellant, v. VALTER MAKOVIC, Defendant-Respondent.
John L. Molinelli, Bergen County Prosecutor, attorney for appellant (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief). Faugno & Associates, LLC, attorneys for respondent (Paul Faugno, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-1849-11.
John L. Molinelli, Bergen County Prosecutor, attorney for appellant (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief).
Faugno & Associates, LLC, attorneys for respondent (Paul Faugno, on the brief). PER CURIAM
The State appeals the Law Division's April 26, 2012 order dismissing Bergen County Indictment No. S-1849-11 without prejudice. We reverse.
I.
On October 31, 2011, a Bergen County grand jury issued Indictment No. S-1849-11 against defendant Valter Makovic, which charged him with (1) first-degree maintaining a facility for the manufacture of marijuana in an amount greater than five pounds or ten plants, N.J.S.A. 2C:35-4, and (2) first-degree possession of more than fifty marijuana plants with the intent to distribute the same, N.J.S.A. 2C:35-5(a)(1) and -5(b)(10)(a). The testimonial support for the indictment was provided to the grand jury on October 24, 2011, by Detective Mark Gillies of the Maywood police department.
In summary, Gillies's grand jury testimony was the following. On August 3, 2010, John Lekaj's sister reported to the Maywood police that her brother was growing marijuana in the garage of his house. During the sister's in-person statement at police headquarters, she received a telephone call on her mobile phone from her wheelchair-bound father, who was at the house. The father indicated, in Gillies's words, "there's people here taking stuff and he wasn't sure if it's his son['s] or this person that was taking stuff belonging to them [sic]." Police officers were immediately dispatched to the location to investigate.
John Lekaj was also referred to as Gjon Lekaj in this and related proceedings. We will refer to him as John Lekaj.
When police officers arrived, they encountered Makovic. According to Gillies, Makovic was observed "walking down the front steps of the premises" on his way to "his vehicle that was parked out front." Inside the vehicle, "[i]n plain view there were boxes with heat lamp boxes in the back seat." The police spoke with an occupant of the vehicle, who indicated that Makovic "asked him to come with him and help him remove items from the residence."
Gillies further testified that when he arrived at the scene, he spoke with the father, who told him that his son was in the hospital, "and there's a gentleman downstairs who has been living here but he's removing items." Gillies stated that upon entering the house, "there was a very strong odor of raw marijuana." After obtaining the father's authorization to look inside the garage, Gillies and another police officer went downstairs to investigate further. According to Gillies,
Officer Parodi and I went to the garage area because it's a bi-level house and when you go downstairs to the garage area to the door, the smell is even stronger, you could hear fans operating and next to the door there's like a hole in the wall and you could see like this bright glow coming from the wall.At that point, Gillies "stepped away, did not go into the garage, and [] obtained a search warrant."
The police secured the residence, and detained Makovic and the party that was with him in the car. After executing the search warrant, Gillies found "a pretty elaborate system, a ventilation system with an irrigation system, probably over 100 plants in pods of . . . PVC growing at all different stages from small to large." A forensic team was called to the scene, which found Makovic's fingerprints "on the side of a heat lamp in the garage over suspected marijuana plants." Later, the plants were analyzed by the State Police and found to be marijuana.
Finally, Gillies testified that when Makovic was interviewed by detectives, he told them that he assisted John Lekaj "with setting up and teaching him how to set up the system and supporting financially some of the operation to get it started." Further, John Lekaj "indicate[d] as well that he was involved in the production."
John Lekaj was charged with crimes similar to those charged against Makovic. The record is unclear concerning the ultimate disposition of Lekaj's charges.
On March 8, 2012, Makovic moved to dismiss the indictment on the ground that potentially exculpatory information was not provided to the grand jury. Defense counsel argued that "[Gillies] knew it was very important to somehow connect, factually, Mr. Makovic with that home, where this facility was discovered. Because Mr. Makovic doesn't own the home, nor did he live in the home." Consequently, by failing to tell the grand jury that Makovic was seen "walking out of the home with a Sony Playstation," it was deprived of information that might have convinced the grand jury that Makovic had only an innocent and transitory connection with the residence. Specifically, defense counsel argued that
This was Makovic's second motion to dismiss the charges. Earlier, Makovic was successful in dismissing a similar indictment without prejudice, but the State did not appeal that ruling. Instead, the State presented its evidence to a new grand jury, with a different witness the second time around. Among the defects in the first grand jury presentation was the erroneous direct testimony of the State's witness that Makovic was actually seen carrying marijuana-related equipment from the house.
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by telling the grand jury that he's walking out of the house with nothing in his hands, but in the car is marijuana production equipment, [Gillies] created the impression to that jury, again, that he's carrying that stuff out of the house. He purposely omits to tell that grand jury that he's carrying a Sony Playstation. Because, factually, if he's doing what they're trying to intimate to them, that he's trying to get stuff out of the house that could inculpate him in a crime, why the heck is he carrying a Sony Playstation?
After oral argument, the Law Division granted the defense's motion. The court reviewed the grand jury proceedings and commented about Makovic's Playstation-omission argument: "But I'm not so sure that taking that, in and of itself, is that type of a circumstance that might lead me to, again, dismiss this indictment without prejudice." However, the court went on:
I'm telling you right now — I mean, if I had just the item about the Sony Playstation, I'm not having a problem with this indictment. But I'm having a problem with it, because I don't know, nor do[] the grand jurors at this point, have any idea what allegedly Mr. Makovic said and what other statement he gave, other than a paraphrasing of that statement by this witness, in an area that's crucial, his involvement in why he's there and what he's taking out from the house etcetera. . . . . That's where I've got my issue in this case, because that's a crucial point. And I don't know what else he said. He may not have said anything else, but I think the grand jurors were left in a vacuum by that. And I'm concerned about it, because I don't think . . . it was a fair presentation. . . . . Now you've got him carrying out a Sony Playstation — which is not a crime last I checked, unless you're stealing it from somebody — but a lot of circumstantial evidence that maybe this fellow, Makovic, knew exactly what was going on. But the icing on the cake is, well, he gave a statement. So, if you believe the statement, ladies and gentlemen, then obviously, from his lips to our ears, he did. Well maybe we need the statement in the record, and I think we did. . . . . I'm concerned that there wasn't enough presented to them in terms of the whole picture. And perhaps, very frankly, to come right to the point, if it were presented, they would have had the same decision. And I think they might have and probably would have. But giving the benefit of the doubt to the defendant . . . the indictment is dismissed, without prejudice.This appeal followed.
II.
The State presents a single argument on appeal:
POINT I: THE TRIAL COURT MISCONSTRUED AND MISAPPLIED THE LAW, RESULTING IM A MISTAKEN EXERCISE OF ITS DISCRETION IN DISMISSING THE INDICTMENT.After reviewing the record under the lens of the applicable law, we agree that the Law Division misapplied its discretion and improvidently dismissed the indictment.
It is beyond cavil that a court's power to dismiss a presumptively valid indictment pursuant to Rule 3:10-2(c) may be exercised only if "manifestly deficient or palpably defective," State v. Ramseur, 106 N.J. 123, 232 (1987), based "on the 'clearest and plainest ground.'" State v. Perry, 124 N.J. 128, 168 (1991) (quoting State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984)).
However, the decision to quash an indictment rests with "the discretion of the trial court." State v. McCrary, 97 N.J. 132, 144 (1984). A trial judge's exercise of that discretion should "not be disturbed on appeal unless it has been clearly abused." State v. Hogan, 144 N.J. 216, 229 (1996). See also State v. Lyons, 417 N.J. Super. 251, 258 (App. Div. 2010) (noting that a dismissal of an indictment "will only be overturned upon a showing of a mistaken exercise of that discretion"). "A trial court decision will constitute an abuse of discretion where 'the "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.State v. Salter, 425 N.J. Super. 504, 514 (App. Div. 2012) (quoting State v. Triestman, 416 N.J. Super. 195, 202 (App. Div. 2010)) (alteration in original).
"[A]n indictment should not be dismissed unless the prosecutor's error was clearly capable of producing an unjust result. This standard can be satisfied by showing that the grand jury would have reached a different result but for the prosecutor's error." State v. Hogan, 336 N.J. Super. 319, 344 (App. Div.), certif. denied, 167 N.J. 635 (2001). The State's "sole evidential obligation" in seeking an indictment "is to present a prima facie case that the accused has committed a crime." Hogan, supra, 144 N.J. at 236. The role of the grand jury is "to investigate potential defendants and decide whether a criminal proceeding should be commenced. Credibility determinations and resolution of factual disputes are reserved almost exclusively for the petit jury." Id. at 235 (citations omitted).
"Nevertheless, . . . the State may not deceive the grand jury or present its evidence in a way that is tantamount to telling the grand jury a 'half-truth.'" Id. at 236. Hence, the State has a "limited duty" to present evidence favorable to the accused, "triggered only in the rare case" where evidence "directly negates the guilt of the accused and is clearly exculpatory." Id. at 237.
The positions of defendant and the Law Division are not exactly the same. Defendant argues that the State failed to present to the grand jury exculpatory evidence of Makovic's Playstation removal, as well as other evidence — the entirety of Makovic's and John Lekaj's statements — suggesting that the father's mention of a "gentleman downstairs who has been living here" was referring to someone other than Makovic and that Makovic was not involved in criminal activities at the dwelling. The Law Division did not bottom its decision on the supposed exculpatory nature of the omitted evidence, but rather was subjectively "concerned that there wasn't enough presented to [the grand jurors] in terms of the whole picture."
Our review of the record convinces us that the prosecutor did not withhold evidence from the grand jurors that either "directly negated" defendant's guilt or was "clearly exculpatory." Ibid. Evidence of Makovic's carrying a Playstation from the premises as somehow negating culpability is both illogical and attenuated. We do not suggest that defense counsel cannot fashion something advantageous to his client at trial from the Playstation-omission, but the State was not required to present that aspect of Makovic's conduct for consideration by the grand jury. Resolutions of factual disputes are not the province of the grand jury. Id. at 235.
We also reject defendant's and the court's views that the State was mandatorily obligated to present Makovic's entire statement to the grand jury. Even the court was equivocal about that statement's value when it noted, "very frankly, to come right to the point, if [the statement] were presented, [the grand jurors] would have had the same decision." Finally, due to credibility issues, John Lekaj's statement purporting to exonerate defendant was not required reading by the grand jury. See State v. Evans, 352 N.J. Super. 178, 194-199 (Law Div. 2001) (codefendant's statement exonerating a defendant is not clearly exculpatory and need not be presented to the grand jury).
We are unable to reconcile the Law Division's ambivalence over what the grand jury did not hear with the court's duty to dismiss an indictment only "on the clearest and plainest grounds, where it is manifestly deficient or palpably defective." Triestman, supra, 416 N . J . Super. at 202. Moreover, the court's rejection of Makovic's Playstation-omission argument should have been a material factor in denying Makovic's motion. See State v. Francis, 191 N.J. 571, 587 (2007) (noting that a defendant bears the burden of proving that the prosecutor misused the grand jury for an improper purpose). Taken in their entirety, these shortcomings demonstrate a clearly mistaken exercise of discretion by the Law Division.
We are satisfied that there was no evidence that clearly and directly negated Makovic's guilt or was clearly exculpatory, such that the State's failure to put it before the grand jury amounted to the presentation of "half-truths" warranting dismissal of the indictment. Hogan, supra, 144 N.J. at 236. Similarly, the Law Division's desire that the State present grand jurors with "the whole picture" enjoys no provenance in the law.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION