Opinion
DOCKET NO. A-4693-11T3
03-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TERRANCE L. MARTIN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment Nos. 09-04-0378, 06-05-0479 and 11-06-0495. Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Terrance L. Martin appeals from his convictions for third-degree possession with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3), and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), (collectively, the CDS conviction), as well as his sentence. These convictions arise from the seizure of cocaine from the trunk of an automobile defendant was driving after a valid motor vehicle stop. Defendant raises a number of issues in this appeal. We agree that the following claims of error have merit: the admission of testimony regarding "suspected marijuana" seized from the trunk of the vehicle (Point IV); a police officer's testimony describing defendant's "lack of reaction" to being arrested and the prosecutor's comments regarding this testimony in summation (Point VI); and the trial court's exclusion of defendant from the courtroom during the final charge to the jury and denial of defendant's motion for a new trial on this ground (Point VIII). Accordingly, we reverse his convictions.
In addition, defendant argues the trial court committed the following errors: permitting the prosecution to introduce late-produced expert testimony at trial (Point I); permitting defendant's prior convictions to be used as impeachment evidence (Point II); admitting a late-produced vehicle registration into evidence (Point III); admitting statements by defendant in violation of Miranda and his Fifth Amendment rights (Point V); denying defendant's request to present evidence of third-party guilt (Point VII); and denying defendant's motion for a new trial (Point IX). Defendant also argues that his sentence was excessive (Point X). Because defendant's convictions must be reversed, we need not consider his arguments that the trial court erred in failing to grant his motion for a new trial (Point IX) or that his sentence was excessive (Point X). After a careful review of the arguments raised in light of the applicable law, we conclude that the arguments raised in Points I, II, III, V, and VII lack merit. R. 2:11-3(e)(2).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
We note, however, that defendant correctly identifies an error in the Judgment of Conviction, which states his sentences are to run consecutively rather than concurrently.
I
Defendant's first trial on these charges ended in a mistrial after a prosecution witness, State Police Trooper Steven Swift, referred to defendant's criminal history in his testimony. The evidence at defendant's second trial can be summarized as follows:
At approximately 12:20 a.m. on November 2, 2008, Swift observed a red sedan speeding and swerving on State Highway 77 in Cumberland County. After signaling for the car to pull over, Swift approached the car and asked the driver, defendant, for his driver's license, registration, and insurance card. Defendant provided his name, address, birth date, and social security number but did not have a driver's license. The only document he produced was a registration that identified Frederick Allen as the owner of the vehicle.
Swift called this information in to dispatch and requested that a K-9 unit respond to the scene. He learned that the car was unregistered and defendant's license was suspended.
Because the car was unregistered, it had to be towed. Swift advised defendant and his passenger, B.M., they could call for a ride home or be driven by Swift to the police station. Defendant and B.M. chose to walk to their destination.
The passenger, who was not charged with any offense, is identified here by her initials.
Swift conducted a frisk of defendant after noticing a bulge in the pocket of his sweatshirt, which produced only a cell phone. At Swift's request, defendant surrendered his keys during the stop. Before leaving, defendant asked for the return of keys to a residence and to a different car. Defendant also asked where the car would be towed and whether it would be secured. Swift assured defendant that the car would be locked and secured.
The K-9 Unit arrived at the scene after defendant and B.M. left. A drug-sniffing dog gave a positive alert to the trunk area of the car. The car was then towed to A-1 Towing.
Swift obtained a warrant to search the vehicle on November 3, 2008. He testified at trial that the ensuing search resulted in the seizure of "32 bags of suspected marijuana [and] 22 bags of suspected crack cocaine" from the trunk. Mary Ann Catto, a State Police forensic scientist, testified at trial that the suspected cocaine found in the trunk was later tested and confirmed to be cocaine. The State also presented expert testimony from Detective Dominic Patitucci, who opined that possession of twenty or more bags of cocaine indicates an intent to distribute cocaine. The "suspected marijuana" was never tested.
When defendant went to A-1 Towing and stated he wanted to get the car out of impoundment, he was referred to the State Police barracks. A few days later, he went to the State Police barracks, presented his driver's license and a registration for the car to Staff Sergeant Derek Leyman and "stated he wished to get his vehicle out of impound." Leyman asked defendant to come through the door into the station, asked him to sit on the station's processing bench, then handcuffed him to the bench. Defendant was subsequently charged with cocaine possession offenses.
At trial, the prosecutor asked Leyman about defendant's reaction to being handcuffed. Leyman testified, "He didn't give a reaction. It wasn't of surprise, which you would expect. It was a generic reaction. There was no reaction."
The defense was that neither the cocaine nor the car in which it was found belonged to defendant. Defendant testified he was driving the car because his cousin, Alfonso Chandler, asked him to drive B.M. to her sister's house and loaned him the car to do so. In her testimony, B.M. corroborated these circumstances.
Defendant denied knowing there were drugs in the trunk of the car. He said he went with Chandler to A-1 Towing to try to get the car back on November 3, 2008, but they did not go to the State Police barracks immediately thereafter to obtain the necessary release form because Chandler did not want to go. Defendant testified that, two days later, Chandler offered to sell the car to defendant for $300. Defendant accepted the offer, and Chandler gave defendant the title to the car. Defendant transferred the title and registered the car in his own name, restored his driver's license, and obtained automobile insurance on November 5, 2008. He then proceeded to the State Police barracks to obtain the release form and was arrested. Defendant testified he was "shocked" when he was arrested but remained calm because he believed the situation was "a misunderstanding" and that "it would all work out in court."
Defendant elicited testimony from Swift that Frederick Allen, whose name was shown on the vehicle registration produced by defendant on November 2, 2008, was the titled owner of the car as of that date. Swift also testified that defendant identified Chandler as the owner and provided Swift with Chandler's name and city of residence. Swift admitted he made no effort to contact either Allen or Chandler during the course of his investigation. It was stipulated that the bags containing cocaine and the suspected marijuana were processed for fingerprints and that there were no identifiable prints for comparison.
In summation, the prosecutor commented on defendant's lack of reaction to being handcuffed:
He goes to the State Police and he gets the release and when he gets there he is handcuffed. At no point does he ask[] why he is being handcuffed. According to [Leyman] who put the cuffs on him, he does not act surprised, he is not shocked by what happens, he doesn't ask any questions as to what is happening.
. . . .
. . . He is caught. He knows he is caught at that point.
. . . .
. . . Is it reasonable to believe that it's somebody else's car when he does not act surprised when he is handcuffed?
Court began promptly at 9:00 a.m. on the morning the jury was to be given its final charge. Defense counsel advised the trial court that defendant was unable to get a babysitter for his infant son, who was sick and therefore, unable to go to daycare. After counsel asked the court for direction, this colloquy followed:
THE COURT: I don't want him in the courtroom. Not going to happen. How do you want to handle it? It's not my issue. You got to do something. No children in the courtroom. We have a jury waiting. That's all I can tell you.
COUNSEL: Well, if Your Honor is inclined, the jury is just going to be charged. We can just sit him back here.
THE COURT: The child is not going to be in the courtroom. That means he is not going in the courtroom, for a myriad of reasons. Not the least of which, we don't allow children in the courtroom on these matters and we've got a jury here. Figure something out in the next ten minutes. We're going to bring that jury in with or without. So, figure it out.
THE DEFENDANT: What do you mean with or without? With or without what? Me?
The court recessed and approximately seven minutes later, defense counsel and the court had the following colloquy:
COUNSEL: I would like the record to reflect that Mr. Martin is here. He is in the courthouse. He does have his son with him who is a little under a year old. My client represents he was not able to take the child
to daycare today, because he is sick, the baby is sick.
THE COURT: So he brought him to court?
COUNSEL: He is in the hallway making phone arrangements to try to get somebody to either come sit with the child for the charges for the hour and then he can try to make more permanent arrangements. The one lady that he is calling has blood work to do this morning and Mr. Martin's stepfather is in Vineland.
THE COURT: Okay. I mean, obviously we come in about nine o'clock. It's now 20 after nine to charge this jury who have been sitting here and we're ready to go. When we walked in this morning the baby carrier with a small infant, and the request was that the defendant have the child in court with him during the charge. I see that as demonstrative. It could impact the jury negatively or positively either way, but it's definitely demonstrative, which is inappropriate. Let alone the fact that a child is not permitted in a courtroom.
I've given the defendant his Hudson warnings before. He understands if he is not here, the trial will proceed without him. In effect, by him coming with the child, it's him not appearing. And I am prepared to charge without him here, giving the defendant's absence from trial charge to the jury that they should not take into consideration and I will simply tell that there is family issues and he is on his way or be here when he can, but we didn't want to hold the jury up.
I am going to give him another ten minutes. I'm going to wait until 9:30. If it can be resolved by then, fine. If not, we're going to proceed. Again, this is clearly demonstrative. I don't know if it was by design or not. But quite frankly, it's
inappropriate. It cannot be allowed. It's as if he came -- he did not come, as far as I am concerned. This is my -- you know, it's not going to happen that we have an infant at the table with the defendant. It's not going to happen. It's definitely demonstrative. It could be taken by the jury as to curry sympathy. And I can't allow it to happen.Defense counsel objected to the court's ruling, stating:
I will give some extra time to try to resolve the issue. But absent that at 9:30, I am going to charge this jury. They're not going to sit here -- enough delay during this trial where they've been sitting doing nothing.
I do object to the Court's rulings. Mr. Martin is present in the courthouse. He is here. I would ask that Your Honor, in light of the fact that he has tried to make arrangements for his childcare issue, that Your Honor give him sufficient time to make these plans.
The child is coughing. I've heard the child cough. He is congested. I don't know if he has a fever. I know that my client represents that he was, he could not take him to daycare today and that's the reason he is not here. I believe it's very prejudicial for the jury to be charged and my client not to be here and for Your Honor to give an instruction that his absence is voluntary.
If anything, and this does not in any way diminish the strength of my objection, I would ask that Your Honor instruct the jurors that Mr. Martin has a sick child. He is here, he is in the hallway. But the Rules of Court prohibit the child from being in the courtroom and that's why he is not here.
[Emphasis added.]
State v. Hudson, 119 N.J. 165 (1990).
Although defense counsel described the child's presence as prohibited by the Rules of Court and the trial court repeatedly stated children were not allowed in the courtroom, neither the court nor counsel have identified a rule that imposes a blanket prohibition against the presence of children in the courtroom.
The court was resolute in denying the request:
THE COURT: And that brings up the same issue of demonstrative evidence currying sympathy and I'm not going to do that, counsel.
You've heard my decision, you've made your record, let's get on with it. You've got another seven minutes. But this jury is not going to sit there for over a half hour. We're going to bring them out and we're going to do this.
At 10:30 a.m., the court stated:
THE COURT: Okay. May the record reflect that it is now 10:30. At 9:20 I said I would give the defendant ten more minutes. After 20 minutes, 25 minutes, he indicated he had somewhere he that he could take the child and he wanted to go to Carl's Corner, which is approximately ten minutes away to drop the child off. Now 45 minutes later he is back with the child. I'll hear you.
[COUNSEL]: Judge, first I believe that it is a little bit further than ten minutes from the courthouse and I would like the record to reflect that.
THE COURT: That's not, but that's fine.
[COUNSEL]: The other issue is that my client indicates that his child -- he did make childcare arrangements for today, as he had for the entire trial. He was unable to drop the child off because the baby was sick and he wasn't able to take him to the daycare.
Mr. Martin did make arrangements with a friend to watch the child temporarily while Your Honor did the charge for the jury. This individual was at Lab Corp and that's where he drove. Mr. Martin took the child to his friend at Lab Corp and received a phone call that the child was continuing to vomit and that she was uncomfortable having the baby while he was so sick.
The child is here. Mr. Martin is here. He has come to every court date. I've represented him for a long time. I would also note that during the suppression hearing in September Mr. Martin was unable to make childcare arrangement for that one particular date and he did bring the baby to court.
THE COURT: There was not a jury here for that, ma'am.
[COUNSEL]: I know, but I'm just -- Judge, if I could just, please. So I am indicating to Your Honor that at the time the child did sit with me. I understand the Court's concerns. I'm asking for additional time so that Mr. Martin can make childcare arrangements for his sick child. He is the parent of primary residence. He has sole custody. He is a single dad.
. . . .
THE COURT: I find specifically that him coming with an infant is the same as not coming at all. He is not going to be able to be in the courtroom and I am going to charge the jury now.
[COUNSEL]: I would ask that Your Honor instruct the jury that Mr. Martin is present in the courtroom, I'm sorry, in the courthouse, but due to the policies of the Court he is not permitted to be at counsel table because he has a family emergency.
. . . .
THE COURT: No, negative. I will read the defendant's absence from trial charge. You are not going to slip this in. My feeling is it's somewhat by design. I have to tell you. That's my feeling. I'm not going to express that to the jury. That's my feeling. It's not going to happen and I'm not going to allow you any sympathy from the jury in any respect for that.
[Emphasis added.]
The judge ordered defendant from the courtroom and gave the following instruction to the jury:
Now, as you can see, the defendant Terrance Martin is absent from the trial today. You should not speculate about the reason for his absence. You are not to consider for any purpose or in any manner in arriving at your verdict, the fact that Terrance Martin is not present at trial here today. That fact should not enter into your deliberations or discussions in any manner at any time. Terrance Martin is entitled to have the jury consider all evidence at trial. He is presumed innocent even, if he is not present.
While the jury was deliberating, defendant moved for a mistrial based on the court's decision to exclude him from the courtroom. The court denied the motion.
Defendant was permitted to return to the courtroom at least as early as 1:36 p.m. after obtaining childcare. Defense counsel requested that the court instruct the jury that defendant was now present and had a family emergency that morning. The court agreed only to instruct the jury that defendant was now present.
The jury found defendant guilty on both counts. After denying defendant's motion for a new trial, the trial court sentenced him on these charges and on separate charges to which defendant pled guilty pursuant to a plea agreement. The court merged the two counts and imposed an extended term of seven years imprisonment with two and one-half years of parole ineligibility for his CDS conviction.
Pursuant to a plea agreement, defendant pled guilty to third-degree unlawful possession of a firearm under Indictment No. 11-06-00495 and violation of the probation imposed for his conviction under Indictment No. 06-05-00479. In exchange, the State agreed to recommend a five-year term of imprisonment for the probation violation and a five-year term with a three-year period of parole ineligibility for the firearm possession. The State further agreed to recommend that the sentences for both of those offenses run concurrently with the sentence to be imposed for the CDS convictions under Indictment No. 09-04-00378.
II
We first address defendant's argument that the trial court erred in allowing Swift to testify he found "suspected marijuana" in the car defendant was driving. We agree.
First of all, the substance seized was never subjected to a laboratory analysis. The only proof the substance was marijuana was the lay opinion of Swift as to what he suspected. His opinion on the subject plainly fell outside the scope of permissible lay opinion, N.J.R.E. 701, and was inadmissible. See State v. McLean, 205 N.J. 438, 460-62 (2011); State v. Brockington, ___ N.J. Super., ___, ___ (App. Div. 2015) (slip op. at 13-16).
The only substance defendant was charged with unlawfully possessing was cocaine. Possession of marijuana is a crime entirely distinct from the offense for which defendant was indicted, see N.J.S.A. 2C:35-5(b); N.J.S.A. 2C:35-10(a); and a crime that does not facilitate the commission of the offense of cocaine possession. Therefore, even if Swift's opinion regarding suspected marijuana was not inadmissible on its face, such evidence would have been subject to analysis under Rule 404(b) as "other crimes" evidence. See State v. Rose, 206 N.J. 141, 180 (2011); State v. Cofield, 127 N.J. 328, 338 (1992).
Defendant objected to the mention of suspected marijuana at his first trial. The court overruled the objection without engaging in a Cofield analysis on the basis that the suspected marijuana was part of "the facts of the case." Although the trial court offered to give a limiting instruction, the record does not reflect that one was ever given.
The trial of this matter preceded the Supreme Court's decision in Rose, in which the Court identified the parameters of intrinsic evidence and clarified that evidence of other crimes was subject to a Rule 404(b) analysis. Rose, supra, 206 N.J. at 177-82.
Where, as here, the trial court did not apply the Cofield test, "'no deference is to be accorded the trial court's decision to admit that evidence; nor is that decision entitled to be reviewed under an abuse of discretion standard.'" State v. Reddish, 181 N.J. 553, 609 (2004) (quoting State v. Darby, 174 N.J. 509, 518 (2002)). In Cofield, supra, 127 N.J. at 338, the Court identified four criteria that must be satisfied for evidence to be admissible under N.J.R.E. 404(b):
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
Without a chemical analysis of the seized substance showing it was marijuana, the third of these requirements - that there was clear and convincing evidence of the other crime - cannot be met. It is therefore unnecessary to assess each of the remaining factors because the evidence was inadmissible under Rule 404(b).
III
Defendant also argues it was plain error for the State to elicit testimony from Sergeant Leyman regarding defendant's lack of a reaction to being arrested and for the prosecutor to comment on that lack of a reaction in summation. Again, we agree.
In United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975), the Supreme Court noted the prejudicial impact of evidence regarding a defendant's silence at the time of his arrest:
Not only is evidence of silence at the time of arrest generally not very probative of a defendant's credibility, but it also has a significant potential for prejudice. The danger is that the jury is likely to assign much more weight to the defendant's previous silence than is warranted. And permitting the defendant to explain the reasons for his silence is unlikely to overcome the strong negative inference that the jury is likely to draw from the fact that the defendant remained silent at the time of his arrest.
[Id. at 180, 95 S. Ct. at 2138, 45 L. Ed. 2d at 107.]
Our Supreme Court has also described the prejudice created by such equivocal evidence:
The reason for a suspect's silence in a police dominated setting cannot easily be discerned. Because we cannot know whether a suspect is acquiescing to the truth of an accusation or merely asserting his privilege, such silence is "equivocal." We have recognized that a "likely explanation" for a suspect's silence while under official interrogation or in custody may be that he is exercising his right "to remain silent." Therefore, we do not permit a jury to infer guilt from that silence.See also State v. Deatore, 70 N.J. 100, 108-09 (1976) (holding that a defendant's silence at or near the time of his arrest may not be used to impeach his credibility at trial).
[State v. Muhammad, 182 N.J. 551, 567 (2005) (citations omitted).]
The prohibition under New Jersey's jurisprudence reaches farther than that under federal law. "[E]ven silence that precedes the administration of Miranda warnings — if it is 'at or near' the time of a defendant's arrest - cannot be used for any purpose at trial." State v. Stas, 212 N.J. 37, 57-58 (2012). A defendant's silence can be used for impeachment purposes only "(1) 'if that silence "significantly" preceded his arrest and did not arise in a custodial or interrogation setting,' and (2) if a jury could infer that a reasonable person in the defendant's position would have come forward and spoken." State v. Taffaro, 195 N.J. 442, 455 (2008) (quoting Muhammad, supra, 182 N.J. at 571-72).
Here, the State used defendant's lack of a reaction to being handcuffed to impeach his testimony. Because his demeanor was observed in a custodial setting, the evidence cannot satisfy the criteria that would permit its use for impeachment purposes. In both Stas, supra, 212 N.J. at 59, and Muhammad, supra, 182 N.J. at 574, the Supreme Court concluded that the State's use of defendant's silence as evidence of guilt violated the defendant's privilege against self-incrimination. Moreover, the Court found such error constituted plain error because it was "clearly capable of producing an unjust result." Muhammad, supra, 182 N.J. at 574 (quoting R. 2:10-2). The same result is required here.
Defendant also argues it was plain error for the prosecutor in summation to encourage the jury to infer guilt from his failure to act surprised or ask questions when he was arrested. The State argues that the comments were justified as a response to defense counsel's argument that defendant's conduct at the State Police barracks "suggest[s] innocence." See State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied, 169 N.J. 610 (2001). Given the fact that the evidential basis for this argument impermissibly encroached upon defendant's privilege against self-incrimination, the comments cannot be justified as a response that "did no more than balance the scales." See ibid. However, in light of our conclusion that admission of the supporting evidence constituted plain error, we need not separately determine whether the prosecutor's comments in summation met the standard for reversal under Rule 2:10-2.
IV
Although it is unlikely that the occasion will arise at defendant's retrial, we are constrained to address the trial court's decision to exclude defendant from the courtroom during the jury charge and its attendant rulings.
Rule 3:16(b) addresses a criminal defendant's right to be present at his trial and provides in pertinent part:
The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule. Nothing in this Rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver may be found either from (a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date, or (2) trial has commenced in defendant's presence.
The Rule therefore requires defendant's presence during the jury charge. In effect, the trial court found that defendant waived his right to be present. The court reasoned that because defendant had notice of his trial date and was given Hudson warnings regarding the consequences of a failure to appear, he had "absented himself from the trial" by showing up with a sick child.
To be sure, the scenario here presented a thorny issue that fell within the trial court's discretion in managing the trial. See State v. Tedesco, 214 N.J. 177, 188-89 (2013) (observing trial judges are entrusted "with the responsibility to control courtroom proceedings at trial and sentencing" and their "discretion in that area is bounded by the law and court rules").
We recognize it is important that the trial court manifest its respect for the jurors' sacrifice of time and that the issue of time management may appear more pressing when the end of the trial draws near. Defendant's right to be present was not absolute. See State v. Reevey, 417 N.J. Super. 134, 150 (App. Div. 2010), certif. denied, 206 N.J. 64 (2011). And, since the evidence here had concluded, there was no apparent infringement of defendant's confrontation rights. See State v. Dellisanti, 203 N.J. 444, 458-59 (2010). However, physical presence during the charge would afford defendant the ability to communicate with his attorney and raise any questions about the charge and have the salutary effect of "influenc[ing] the jury psychologically by defendant's presence." See Reevey, supra, 417 N.J. Super. at 150; see also State v. Morton, 155 N.J. 383, 445 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); Hudson, supra, 119 N.J. at 172.
We do not foreclose the possibility that a defendant may present repeated, unsubstantiated excuses and obstacles to the progress of a trial that would warrant a conclusion he has voluntarily absented himself and waived his presence at trial. But that was not the case here.
It is not disputed that defendant was present at court, that his child was sick, and that he was unable to secure childcare for the child prior to 9:00 a.m. or within the brief period the trial court allowed him to attempt to secure childcare. The record shows that defendant arranged for daycare for his son throughout the trial but was unable to send him to daycare on the day of the jury charge because he was sick. Defendant's initial efforts to arrange alternative care were unsuccessful. However, he secured childcare and was permitted to return to the courtroom just three hours after the trial court ordered him excluded.
To sustain a waiver of the right to be present, it must be shown that, with knowledge of the date of the trial, the defendant unjustifiably failed to appear. Hudson, supra, 119 N.J. at 182-84; State v. Davis, 281 N.J. Super. 410, 416 (App. Div. 1995), certif. denied, 145 N.J. 376 (1996). Before concluding there has been a waiver, the trial judge should make inquiry to determine the reason for the absence and whether there is justification for the absence and make appropriate factual findings. Hudson, supra, 119 N.J. at 182-84.
Here, the trial court was presented with information regarding the illness of defendant's child and his attempts to secure childcare. The court noted its own suspicion that defendant's childcare quandary was "somewhat by design" but cited no facts to support that conclusion. Under these circumstances, we cannot agree that defendant waived his right to be present or that his conduct "evidenc[ed] a knowing, voluntary, and unjustified absence." R. 3:16(b).
Rule 1:2-1 requires that "[a]ll trials . . . shall be conducted in open court unless otherwise provided by rule or statute." (emphasis added). No rule or statute was cited here to support the exclusion of defendant or his child from the courtroom. Although
a trial judge is not restricted from imposing reasonable and, as circumstances may dictate, well-considered limitations on access to a trial in order to prevent situations which might impede the progress or fairness of the trial, as long as basic rights involved are not unduly infringed. . . . Closure of the courtroom can only be effected as a last resort.
[State v. Cuccio, 350 N.J. Super. 248, 266 (App. Div.) (citations omitted) (emphasis added), certif. denied, 174 N.J. 43 (2002).]
We do not suggest that the trial court lacks discretion to order the removal of an attendee, regardless of age, whose conduct disrupts or impedes the progress of the trial. Further, in light of the solemnity with which the jury charge is delivered, it is not unreasonable for the trial court to anticipate and attempt to ameliorate factors that might cause a distraction while the jury is being charged. But, given the right of the defendant to be present at all phases of his trial, it is clear that the circumstances here did not present the "last resort" that could justify the de facto closure of the courtroom to defendant.
The State argues our holding in State v. Hammond, 231 N.J. Super. 535 (App. Div.), certif. denied, 117 N.J. 636 (1989), supports the conclusion that no deprivation of rights occurred here. We disagree.
In Hammond, the defendant arrived late on the day the jury was charged and was kept out of the courtroom by a court attendant. Id. at 538-40. The trial judge carefully instructed the jury in an effort to ensure a fair trial and, after defendant was permitted into the courtroom, instructed the jury again, blaming defendant's absence on an inexperienced court attendant. Id. at 539-40. Unlike here, defense counsel posed no objection to the trial court proceeding with the charge in defendant's absence or to the instructions given by the court. Id. at 540. Although we concluded that the total circumstances showed no error occurred as a result of the defendant's absence, we cautioned, "That is not to suggest that under ordinary circumstances defendant may be excluded during the charge to the jury. Normally, a defendant should always be present during the charge." Id. at 542.
Here, defendant was on time and in the courtroom. The trial judge's decision to exclude him was not informed by the Rules of Court or other legal authority but rather, by the judge's general prohibition against children in the courtroom. This is not an exercise of discretion that merits our deference. Although defendant did not suffer the prejudice of a limitation on his confrontation rights, he was deprived of the ability to communicate with counsel regarding the jury charge and whatever advantage is secured by the jury's awareness that he is present.
We note further that less extreme measures were available to protect the decorum of the courtroom without depriving defendant of his right to be present. Defendant was able to secure childcare by the early afternoon. It therefore appears that the court's interest in seeing the trial progress in an orderly fashion and defendant's interest in being present for the trial could have been accommodated by a longer, but still brief, adjournment. In the event suitable childcare arrangements could not be made within that time, we discern no prejudice to the State by an instruction that defendant was unable to be present due to circumstances beyond his control. The totality of the circumstances here reflect a mistaken exercise of judgment by the trial court in excluding defendant from the courtroom during the jury charge rather than pursuing alternative resolutions of the issue.
V
Because defendant's remaining arguments lack merit, we discuss them only briefly.
A.
The State did not furnish defendant with a copy of Detective Patitucci's expert report until a date approximately ten days before defendant's first trial was scheduled to begin. In Point I, defendant argues the trial court committed reversible error in permitting Patitucci to testify over his objection.
Rule 3:13-3(b)(1)(I) provides that if the State fails to furnish information regarding an expert witness's testimony, including the expert's report, "30 days in advance of trial, the expert witness may, upon application by the defendant, be barred from testifying at trial." Although the Rule vests the trial court with the authority to exclude expert testimony when disclosure is untimely, it does not mandate such a result. As of the time oral argument was held, the trial date had been adjourned to August 9, 2010, a date well in excess of the thirty-day time period specified in the Rule. Citing State v. Labrutto, 114 N.J. 187, 205 (1989), the court determined Patitucci's testimony should not be excluded because there was no intent to mislead and no surprise or prejudice to defendant resulting from the report's untimely submission. The court added that defense counsel would have the opportunity to speak with Patitucci to ensure that defense counsel would have access to all of the information relied upon in the report and that the court "would permit the defense a [N.J.R.E.] 104 Hearing so the defense would be sufficiently prepared and know what to expect as far as responses . . . ."
At the time of defendant's trial, this rule appeared in the Rules as Rule 3:13-3(c)(9).
"A trial court is vested with broad discretion to determine what remedy, if any, it should impose because of a failure to make expert disclosures." State v. Heisler, 422 N.J. Super. 399, 414-15 (App. Div. 2011). In the absence of any intent to mislead or surprise, the trial court took reasonable steps to ensure defendant was not prejudiced by the late disclosure. We find no abuse of discretion.
B.
In Point II, defendant argues the trial court erred in allowing the State to impeach his credibility using three prior convictions: a 2002 conviction for third-degree conspiracy to possess CDS, a 2007 conviction for third-degree burglary, and a 2007 conviction for fourth-degree possession of a radio to intercept emergency frequencies.
N.J.R.E. 609(a)(1) states:
We recite the Rule as amended effective July 1, 2014, to incorporate the principles developed in State v. Sands, 7 6 N.J. 127 (1978), and subsequent cases interpreting the Rule.
For the purpose of affecting the credibility of any witness, the witness's conviction of a crime, subject to Rule 403, must be admitted
unless excluded by the judge pursuant to Section (b) of this rule.
[Emphasis added.]
Because all of the prior convictions are less than ten years old, subsection (b) does not apply and the evidence of defendant's prior convictions is presumptively admissible under N.J.R.E. 609, subject to Rule 403. After conducting a hearing pursuant to N.J.R.E. 609(a), the trial court permitted the State to introduce evidence of the defendant's prior convictions "limited to the degree of the crimes, the dates of the convictions, and the sentences imposed, excluding any evidence of the specific crimes of which defendant was convicted." N.J.R.E. 609(a)(2).
Defendant's argument that, at a minimum, the 2002 conviction was too remote to be admitted is unavailing. Defendant's 2002 conviction was followed by two more convictions, all within ten years of his trial. Sands instructs, "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." Sands, supra, 76 N.J. at 145. We discern no abuse of discretion in the admission of defendant's prior convictions. See State v. Harris, 209 N.J. 431, 442 (2012).
C.
In Point III, defendant argues it was an abuse of discretion for the trial court to admit a document his counsel had requested in June 2009, that the State failed to produce until approximately ten days before trial. This late production was another failure to comply with the State's discovery obligations. The document showed that defendant registered the car in question on November 5, 2008. The prosecutor did not deny that the document's production was untimely but explained he had difficulty obtaining the information himself and turned it over to defendant as soon as it was in his possession.
Under the Rules in effect at the time of defendant's first trial, the State was obligated to make its discovery available "within 14 days of the return or unsealing of the indictment." Pressler & Verniero, Current N.J. Court Rules, R. 3:13-3(b) (2010).
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"An inadvertent prosecutorial error in withholding discovery will not, if harmless, result in penalty or impugn the validity of the conviction." Pressler & Verniero, Current N.J. Court Rules, comment 7.1 on R. 3:13-3 (2015) (citing State v. Koedatich, 112 N.J. 225, 319 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); State v. Zola, 112 N.J. 384, 416-419 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989)). Defendant does not contend the vehicle registration information was "suppressed" in the sense that it was intentionally withheld by the State. Defendant also does not claim the evidence was exculpatory or would have affected the outcome of the trial. Because the vehicle registration information was not material to either guilt or to punishment, see State v. Lozada, 257 N.J. Super. 260, 274 (App. Div.), certif. denied, 130 N.J. 595 (1992), defendant suffered no prejudice from its late production and the trial court did not abuse its discretion in admitting it into evidence.
D.
Defendant argues that the admission of testimony from Leyman that defendant "stated he wished to get his vehicle out of impound" when he went to the State Police barracks violated his privilege against self-incrimination. The trial court denied his motion to suppress this evidence, finding that defendant's statement was voluntary and not made in the context of a custodial interrogation. Defendant contends the statement was not voluntary because the police did not tell him when he entered the barracks that he was a suspect in a drug investigation. According to defendant, the police had a duty to promptly inform him he was a suspect, and because they did not, he did not execute an informed waiver of his right under Miranda to remain silent.
Defendant's reliance upon State v. A.G.D., 178 N.J. 56 (2003), to support this argument is misplaced. In A.G.D., the Court held that police are required "to inform an interrogatee that a criminal complaint or arrest warrant has been filed or issued." Id. at 68-69 (emphasis added). However, as the trial court here noted, defendant was not an interrogatee when he made the statement at issue. To the contrary, it is undisputed that defendant entered the State Police barracks freely, without any invitation, and stated without prompting that he had come to the barracks for the purpose of claiming either "his" vehicle or "a certain vehicle." The trial court therefore correctly denied defendant's motion to suppress testimony regarding his statement. See State v. Brabham, 413 N.J. Super. 196, 210 (App. Div.) ("Miranda has no application to statements that are 'volunteered.'" (quoting Miranda, supra, 384 U.S. at 478, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726)), certif. denied, 203 N.J. 440 (2010).
E.
Defendant also argues that the trial court committed reversible error in precluding him from introducing evidence through cross-examination of Trooper Swift that Chandler had seven convictions, including two convictions for drug-possession offenses. The trial court allowed defendant to cross-examine Swift as to whether he investigated Chandler's possible ownership of the car, but refused to allow questioning as to Chandler's criminal record, reasoning that it could mislead the jury and confuse the issues in the case.
The determination of whether to admit "defensive other-crimes evidence [is] highly discretionary." State v. B.M., 397 N.J. Super. 367, 374 (App. Div. 2008) (alteration in original) (citation and internal quotation marks omitted). When offered by a defendant, "simple relevance to guilt or innocence should suffice as the standard of admissibility" for defensive other crimes evidence. Cook, supra, 179 N.J. at 566 (citation and internal quotation marks omitted). However, a Rule 403 analysis still applies and the trial court "must still consider whether its probative value is substantially outweighed by the risk that its admission will either (a) necessitate undue consumption of time or (b) create substantial danger of confusing the issues or of misleading the jury." Ibid. (citation and internal quotation marks omitted).
"[A]dmissibility depends on whether the proffered evidence 'has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case.'" State v. Jorgensen, 241 N.J. Super. 345, 350 (App. Div.) (quoting State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960)), certif. denied, 122 N.J. 386 (1990). However, "although evidence that another committed the offense may be admitted defensively, where third-party evidence shows no more than 'some hostile event' and leaves to 'mere conjecture' its connection with the case, it may properly be excluded." State v. Bull, 268 N.J. Super. 504, 512 (App. Div. 1993) (quoting Koedatich, supra, 112 N.J. at 301), certif. denied, 135 N.J. 304 (1994).
In this case, Chandler's convictions for drug-possession offenses represented more than "some hostile event" leaving to "mere conjecture" their connection with the case. Defendant had identified Chandler as the owner of the car in which the cocaine was found and intended to offer the theory that Chandler had put cocaine in the trunk without defendant's knowledge. On the other hand, defendant proffered no evidence that the facts underlying those convictions were similar to those in the present case. Moreover, the admission of Chandler's convictions had the potential to confuse the issues and mislead the jury by suggesting that Chandler, rather than Martin, was on trial.
The trial court's decision to exclude evidence of Chandler's convictions did not deny defendant his right to present evidence of third-party guilt because defendant was still permitted to cross-examine Swift on the issue of Chandler's ownership of the car. The trial court exercised its discretion under N.J.R.E. 403, determining that the probative value of the evidence was outweighed by a risk of confusing the issues and misleading the jury. The trial court explained its reasons for excluding the evidence, and its reasoning does not reflect that the decision was a "clear error of judgment." State v. Marrero, 148 N.J. 469, 484 (1997). Cognizant that the determination of the issue here was "highly discretionary," we do not find the exclusion of Chandler's convictions to be an abuse of discretion by the trial court.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION