Opinion
DOCKET NO. A-4798-11T4
02-11-2013
STATE OF NEW JERSEY, Plaintiff-Appellant, v. KENNETH TORRES and DANIEL RIVERA, Defendant-Respondent.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for appellant (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief). Brian S. O'Malley, attorney for respondent Kenneth Torres. Respondent Daniel Rivera has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Kennedy.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 11-06-0538.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for appellant (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).
Brian S. O'Malley, attorney for respondent Kenneth Torres.
Respondent Daniel Rivera has not filed a brief. PER CURIAM
The State appeals, by our leave granted, from an order granting defendant Kenneth Torres's motion to sever his trial from that of co-defendant Daniel Rivera. For reasons stated in this opinion, we reverse the order granting severance and remand the matter to the Law Division for further proceedings.
On June 15, 2011, the Cumberland County Grand Jury returned an indictment charging Torres and Rivera with possession of more than fifty grams of marijuana, contrary to N.J.S.A. 2C:35-10(a)(3) (count one); possession of more than five pounds of marijuana with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(10)(b) (count two); possession of marijuana with intent to distribute while within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7 (count three); and possession of a controlled dangerous substance, Ecstasy, contrary to N.J.S.A. 2C:35-10(a)(1) (count four). The indictment alleged that these crimes occurred on October 26, 2010, in Vineland.
I.
The factual background of this appeal is drawn from the "Vineland Police Department Case Report" which was considered by the motion court. No hearing was held pursuant to N.J.R.E. 104 prior to the grant of Torres's motion for severance, and thus there is no testimony to review.
On September 12, 2010, Vineland police met with a confidential informant who advised that Rivera was selling Ecstasy in the "Vineland area, specifically at [] New Pear Street." Thereafter, police conducted a surveillance of the property and observed different cars parked at various times in the driveway or in front of the premises. None of the cars were registered to either Torres or Rivera.
On September 19, 2010, police made arrangements with the informant to make a "controlled buy of [a controlled dangerous substance] from Rivera." The informant called Rivera by telephone and Rivera provided the informant with a "meet location." The police then observed Rivera leave the New Pear Street property, travel to the nearby meet location, and sell Ecstasy to the informant. After the sale, Rivera returned to the New Pear Street property. A similar "controlled buy" of Ecstasy was conducted on October 17, 2010, with the informant calling Rivera and police thereafter watching as Rivera left New Pear Street to make the sale.
Vineland police obtained a search warrant for the New Pear Street property occupied by Rivera and for the vehicle Rivera used to travel to the meet locations for the "controlled buys." On October 26, 2010, the police met with the owner of the New Pear Street property, a multi-family house, to get keys to the common front door, as well as to the second floor apartment occupied by Rivera. The owner gave police a key to the front door, but advised "he did not possess a key to the second floor apartment [because] Daniel Rivera changed the lock on the door." The owner also stated that Rivera had rented the apartment "for approximately the past five years."
Later that same day, after watching the second floor apartment and seeing Rivera's brother enter and then leave the premises, the Vineland police executed the search warrant and discovered marijuana, quantities of Ecstasy, large amounts of currency and various paraphernalia commonly used in the drug trade. The police report is not entirely clear about precisely where in the apartment these items were found, but it may be inferred that the items were located in common areas, as well as in the bedrooms, of the apartment.
As the police were searching the premises, defendant Torres arrived at the apartment. He told police he lived there with Rivera, and had a bedroom on the south side of the apartment. He was arrested at the scene and complaints were filed against him and Rivera. Rivera's brother was also later arrested, but the precise nature of the charges against him were not provided in the record we have reviewed.
II.
Defendant Torres moved to sever his trial from that of co-defendant Rivera, arguing that at trial he intended to introduce evidence that prior to October 26, 2010, police had observed Rivera selling Ecstasy to the person who had contacted Rivera at the apartment Rivera shared with Torres. The State then moved to dismiss the fourth count of the indictment against Torres, as a "tactical" move to undercut Torres's severance motion, arguing that Rivera's sales of Ecstasy would not be evidential on the charges against Torres, which, after the motion, concerned only marijuana. The State also represented it would not introduce evidence of the observed sales of Ecstasy by Rivera, but would only introduce evidence of the Ecstasy found in the apartment to support the fourth count against Rivera. The court granted the motion to dismiss count four against Torres.
Without deciding whether Torres would be permitted to introduce evidence of Rivera's earlier Ecstasy sales, and without conducting a hearing on the admissibility of the proffered evidence under N.J.R.E. 104, the court nonetheless granted the severance motion, reasoning that evidence pertaining to Rivera's Ecstasy sales could "possibl[y] . . . be utilized by" Torres at trial, thereby unfairly prejudicing Rivera. The court added it could not render a definitive ruling on the admissibility of the evidence because such a ruling would "depend[] on what the evidence is." This appeal followed.
III.
We begin by re-stating some basic principles governing the issue of severance of defendants for trial in a criminal matter. Rule 3:7-7 permits "[t]wo or more defendants [to] be charged in the same indictment . . . if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Rule 3:7-7 also provides that "[r]elief from prejudicial joinder shall be afforded as provided by R. 3:15-2." Rule 3:15-2(a) states that a court should grant severance if one defendant has made a statement implicating any other defendant and that portion of the statement cannot be effectively redacted. That section of the rule is inapplicable here. Rule 3:15-2(b), however, provides that in cases where
it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief.This section of the rule does apply here.
The decision to grant or deny a motion for severance rests in the trial court's sound discretion. State v. Morton, 155 N.J. 383, 452 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Our courts have established a "general preference to try co-defendants jointly." State v. Robinson, 253 N.J. Super. 346, 364 (App. Div.), certif. denied, 130 N.J. 6 (1992). Joint trials are preferred when "much of the same evidence is needed to prosecute each defendant." State v. Brown, 118 N.J. 595, 605 (1990) (Brown I). Nevertheless,
[w]hen considering a motion to sever, a court must balance the potential prejudice to a defendant against the interest in judicial economy. The test for granting severance . . . is a rigorous one. Separate trials are necessary when co-defendants' defenses are antagonistic and mutually exclusive or irreconcilable. However, if the jury can return a verdict against one or both defendants by believing neither, or believing portions of both, or, indeed, believing both completely, the defenses are not mutually exclusive.Judicial economy alone cannot override a defendant's right to a fair trial. State v. Sanchez, 143 N.J. 273, 282 (1996).
[State v. Brown, 170 N.J. 138, 160 (2001) (Brown II) (internal quotation marks and citations omitted).]
In Brown II, the Supreme Court considered a case very similar to the case now before us. There, Brown and Spence, who lived together, were charged with possession of marijuana, possession of marijuana with intent to distribute, and related charges, after police, upon executing a search warrant at their apartment, discovered marijuana, other controlled dangerous substances, and drug paraphernalia in various places within the apartment, including common areas and Brown and Spence's separate bedrooms. 170 N.J. at 144. The search warrant had been issued after a confidential informant advised police that Brown and Spence were selling marijuana from their apartment. The informant later cooperated with police and made two controlled buys of marijuana from Spence. Ibid.
Brown was convicted of various marijuana offenses and appealed, claiming the trial court erred in denying her motion for severance and in precluding her from introducing evidence of the controlled buys from Spence. Id at 143. Brown argued that "the controlled drug buys indicated that only Spence had sold drugs to the informant" and that, consequently, she should have been allowed to cross-examine the officer about the informant's statements concerning the controlled buys. Id. at 147.
Although the Court rejected Brown's arguments and held that the proffered evidence was inadmissible hearsay, the Court explained that had the evidence been admissible, "a severance would have been necessary to protect Spence's rights to a fair trial." Id. at 162. The Court further stated:
We first address the State's assertion that the informant's statements are not relevant. The fact that defendant and Spence were not charged based on the drugs sold by Spence to the informant is not dispositive of the relevancy question. Relevant evidence is defined as "evidence having a tendency in reason to prove orWhile there are some differences between Brown II and the case before us, the holding in Brown II suggests that there may be a basis for the admission of the evidence proffered by Torres, and, if it were admissible, severance of the trials of Rivera and Torres would be required. Accordingly, whether severance is required depends upon the court's ruling as to the admissibility of Torres's proffered evidence. The court erred, therefore, in ordering a severance of the trials of Torres and Rivera without ruling on the admissibility of the proffered evidence.
disprove any fact of consequence to the determination of the action." N.J.R.E. 401. That Spence was the person who twice sold marijuana to the informant is relevant to show that the CDS recovered during the execution of the search warrant probably belonged to Spence and that she probably was a drug dealer. But that evidence does not prove that Brown was not in sole or joint possession of the marijuana recovered from her bedroom; nor does it prove that she was not involved in selling drugs. That evidence can, however, support her claim that she was unaware of the presence of CDS in her bedroom.
[Id. at 147-48.]
Our comments should not be construed to suggest Brown II necessarily dictates the result of a hearing under N.J.R.E. 104(c). See infra. In this case, Torres does not appear to seek introduction of hearsay evidence, but rather the observations of the Vineland police of the controlled buys. Also, unlike the facts in Brown II, the controlled buys at issue here concerned a controlled dangerous substance that Torres is no longer charged with possessing. There are other differences, as well, which may be pertinent to the issues raised by Torres.
We conclude that the admissibility of the proffered evidence - as well as identifying precisely what the proffered evidence will be - should be explored at a hearing held pursuant to N.J.R.E. 104(c). "[T]he best time to make the record on admission of [disputed] evidence is in a Rule 104 hearing." State v. Harvey, 151 N.J. 117, 167 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000); see also State v. Kemp, 174 N.J. 412, 432 (2002) (holding that the trial judge should conduct an N.J.R.E. 104 hearing even if the proponent of the challenged evidence fails to request such a hearing).
Further, although the State and defendant Torres construct their arguments with reference to N.J.R.E. 404(b), the other crimes rule, we consider the proper focus for analysis of the issue in this case is N.J.R.E. 401 and 403. N.J.R.E. 404(b) guides the admission of other crimes committed by defendant, not another person. State v. Figueroa, 358 N.J. Super. 317, 326 (App. Div. 2003). Here, by contrast, the proffered evidence concerns prior crimes or bad acts of Rivera, not Torres, and is proffered by Torres to show that the CDS and the paraphernalia belong to Rivera - not him.
Assuming, of course, that no other admissibility issues arise during the hearing pursuant to N.J.R.E. 104(c).
"[A]n accused is entitled to advance in his defense any evidence which may rationally tend to refute his guilt or buttress his innocence of the charge made." State v. Garfole, 76 N.J. 445, 453 (1978). Thus, a defendant may "defensively" use evidence of "other crimes" wrongs, or acts" of another "if in reason it tends, alone or with other evidence, to negate his guilt of the crime charged against him." Ibid.
"The standard for introducing defensive other-crimes evidence is lower than the standard imposed on the 'State when such evidence is used incriminatorily [because] when the defendant is offering that proof exculpatorily, prejudice to the defendant is no longer a factor, and simple relevance to guilt or innocence should suffice as the standard of admissibility.'" State v. Cook, 179 N.J. 533, 566 (2004) (alteration in original) (quoting Garfole, supra, 76 N.J. at 452-53). "Even if defensive other-crimes evidence passes the 'simple' relevancy test, however, a 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. (alteration in original) (internal quotation marks omitted) (quoting Garfole, supra, 76 N.J. at 455-56).
Our case law suggests that when a criminal defendant introduces evidence of "other crimes, wrongs, or acts," Cook and Garfole represent the appropriate standard, and the four-prong analysis of State v. Cofield, 127 N.J. 328, 334 (1992), is inapplicable. On this record, we need not resolve this issue.
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The proper analysis of the issue before us, then, is whether the information sought to be admitted is relevant, N.J.R.E. 401. If so, its admission would cause undue prejudice to co-defendant Rivera, N.J.R.E. 403, and severance would be required. Brown II, supra, 170 N.J. at 162. Accordingly, while we do not reach the substantive issue of whether the proffered evidence is or is not admissible, we reverse the severance order of the trial court simply because it is premature. That issue will turn on whether the proffered evidence - whatever it may be - is admissible and thus unfairly prejudicial to Rivera.
Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION