Opinion
DOCKET NO. A-2486-11T2
04-03-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JARRELL A. WILLIAMS, 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 brief). Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent; Ms. do Outeiro, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-12-2345.
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 brief).
Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent; Ms. do Outeiro, of counsel and on the brief). PER CURIAM
Tried by a jury in July 2011, defendant Jarrell A. Williams was convicted of second-degree unlawful possession of a weapon, specifically a handgun, contrary to N.J.S.A. 2C:39-5b. The court sentenced defendant on that offense to a five-year custodial term, subject to a three-year period of parole ineligibility. The court also imposed shorter concurrent sentences on three disorderly persons offenses that were not presented to the jury.
According to the State's proofs at trial, the police found a handgun on the floor of a car in the course of a motor vehicle stop. The State contended that defendant, who was the driver and owner of the car, had knowingly and illegally possessed the gun. Defendant acknowledged that the police had removed a handgun from the car. However, he denied any awareness that the car, which his mother had recently purchased, contained a gun. Defendant further denied that the gun had been located, as the State had contended, in plain view on the car floor by the driver's seat. He instead maintained that the gun had been found elsewhere in the car.
Defendant now appeals, claiming that the court deprived him of a fair trial by: (1) unduly restricting his trial counsel's cross-examination of the police officer who had searched the car and recovered the gun, and (2) improperly discouraging the jury from obtaining playbacks or readbacks of trial testimony. For the reasons that follow, we vacate defendant's conviction and sentence, and remand for a new trial.
I.
These are the pertinent facts adduced at the joint trial of defendant and codefendant Brennan Bland. On the night of July 25, 2010, defendant met three other men at his house in Long Branch. The other men were Bland, Paul Tracey, and Elijah Buffaloe. The four men initially stood outside in front of defendant's house and talked. According to the State, at some point Bland and Tracey walked down the street to purchase marijuana. They then returned to defendant's house. All four men then got into defendant's car, a black four-door 1996 Infiniti, which was parked in defendant's backyard. The men smoked the marijuana inside the parked car.
In describing the facts, we recognize that additional or differing facts may be proven at the retrial we have ordered.
After they finished the marijuana, defendant started the car and pulled out of his driveway to drive Tracey home. He immediately pulled over and turned the car off, after two plain-clothed Long Branch police officers came down the street in an unmarked car. According to the State, the officers, Patrolmen Marshall Brown and Julio Delacruz, were on the patrol detail because of an increase in burglaries and thefts in certain neighborhoods.
At around 12:26 a.m., while slowly driving southbound on MacArthur Avenue, the officers passed the Infiniti, which was parked on the side of the road. The car had its lights off. Defendant and his three companions were inside.
Officer Brown recognized defendant, who was sitting in the driver's seat. Brown noticed defendant slouch down in his seat, which made him think that he might have been trying to avoid being seen or detected. Consequently, Brown advised Officer Delacruz to turn the patrol car around.
As the officers drove back toward the Infiniti, all four of its doors suddenly opened and the four occupants emerged. Officer Brown got out of his patrol car and walked over to defendant and Bland. Brown engaged them in conversation on the sidewalk, about twenty to thirty feet behind the Infiniti and in front of defendant's house. Brown asked the defendant and Bland for their names and why everyone had left the car vehicle upon noticing the police presence. According to Brown, defendant falsely stated that his name was "Jerome Smith." Defendant also allegedly told Brown that the Infiniti was his car and it was not currently registered, so he and the others were "just sitting in it."
Meanwhile, Officer Delacruz was standing near the rear driver side of the Infiniti with the backseat passengers, Tracey and Buffaloe. At one point, Buffaloe fled, but the officers remained with the other three individuals.
Defendant's mother, America Williams, then came out of the residence and asked the officers what was going on with her son. Ms. Williams told Officer Brown that the Infiniti was unregistered and uninsured. By that point, a third police officer had arrived on the scene to offer assistance.
Prior to trial, Ms. Williams got married and changed her surname to Colbert. We refer to her by the surname she had at the time of the events in question.
According to his testimony, Officer Brown then approached the Infiniti, the doors of which were still open, to check its registration and insurance status, as well as "to see if there was any . . . evidence of any other crimes such as burglaries, [or] any proceeds of thefts possibly in the vehicle." Standing outside the rear passenger's side of the car and with the aid of his flashlight, Brown allegedly observed a burnt marijuana cigarette and a small clear plastic bag, which he believed was of a kind used to package marijuana, lying in the middle of the car's back seat. Brown immediately went into the car, retrieving the marijuana and placing it in his pocket.
Officer Brown then walked around the rear of the vehicle and used his flashlight to inspect the front driver's side area. According to his account, within seconds Brown found a black and silver Hi-Point semi-automatic pistol on the floor between the driver's seat and the gas and brake pedals. Brown picked up the gun to make it non-operable by removing the magazine and the bullet in the chamber. He placed the gun in his waistband and the ammunition in his pocket. According to Brown, he accomplished all of this in no more than one minute.
In their own trial testimony, Tracey and Ms. Williams contradicted Brown. Tracey initially testified that the search took "[a]bout a minute or so, minute or two at the most." But when defense counsel reminded him that he had said it took "four or five minutes" two days earlier at a Gross hearing concerning the admissibility of his pretrial statement, Tracey responded:
See State v. Gross, 121 N.J. 1 (1990) (requiring a hearing to determine the admissibility and reliability of a prior inconsistent statement of a trial witness). Because Tracey's recollection was refreshed during the Gross hearing, the court did not need to make a ruling as to the admissibility of his prior statement.
A: It could have been one, two, three, four, five. I don't really remember how long it was.
Q: They [the police] were in the car a substantial period of time?
A: Yeah.
Q: Looking for something?
A: Yeah, they were looking for something.
Q: They weren't just walking around the perimeter of the car?
A: No.
Q: They actually went inside the car?
A: He went, searched the car, left, came back, went to the driver side door. Like, he searched the whole car.
Ms. Williams, meanwhile, testified that Officer Brown "didn't sit in the car, but he searched the car thoroughly[,]" specifically "the back" and "the front driver's side." She estimated that the whole car search took about four or five minutes.
Following his search of the car, Officer Brown told Officer Delacruz to place Tracey under arrest. Brown then approached defendant and Bland on the sidewalk to arrest them, at which point defendant allegedly fled into the residence. Brown placed Bland under arrest. He attempted to obtain Ms. Williams' cooperation in retrieving defendant. However, as Brown put it, she became "hostile" and "confrontational."
Contrary to the police witnesses, Ms. Williams testified that when she came outside to see what was going on, Bland was already face down on the ground in handcuffs.
Ms. Williams refused the officers' request for consent to search her home. After briefly looking for defendant inside the house herself, she told the officers he was not in there. About twelve hours after the incident, defendant turned himself in at the Long Branch Police Department headquarters.
Subsequent testing on the handgun revealed that it was operable. There were no potentially identifiable fingerprints on the gun. A check on the gun's serial number turned up no record of its ownership.
Tracey, who was called as a witness for the prosecution, testified that he never saw the gun until Officer Brown retrieved it from the car. Buffaloe likewise testified that he was unaware a gun was in the car that night.
Taking the stand in his own defense, defendant similarly testified that he did not know there was a gun in the car. He asserted that he had fled the scene only because he believed Officer Brown had found the marijuana.
Defendant and Ms. Williams both testified that she had purchased the used Infiniti for him just a few days before the incident. There was still a "for sale" sign on the dashboard, and the car had fictitious license plates.
According to Ms. Williams, she bought the car from a "family friend." She testified that she did not look under the seats or otherwise search hidden areas of the car when she purchased it. She did not know how long the previous owner was in possession of the car. At the time of the incident, she had not registered, insured, or cleaned the car, nor had she taken it to be inspected.
Defendant similarly testified he had "[n]ot really" looked around the interior of the car. He contended that, prior to the incident, the only time he had driven it was the day his mother purchased it.
The police impounded the car after the arrest. Neither the police nor Ms. Williams obtained a vehicle history report on the car to identify any prior owners.
On the second day of deliberations, the jury found defendant guilty of unlawful possession of a weapon. The jury found codefendant Bland not guilty of that same offense.
Defendant moved for a new trial, arguing that the court had unduly restricted his attorney's cross-examination of Officer Brown, and that the court had also improperly discouraged the jurors from requesting a readback or playback of testimony. The court denied the motion in a bench ruling. The court sentenced defendant to a five-year custodial term on the weapons offense, subject to a three-year parole disqualifier, plus shorter concurrent terms on the disorderly persons offenses.
Defendant has not appealed the terms of his sentence.
II.
On appeal, defendant raises two points of trial error:
POINT I
IN A CASE WHERE THE DEFENSE WAS THAT THE POLICE OFFICER ACTUALLY FOUND THE GUN ELSEWHERE IN THE CAR, AND NOT ON THE FLOOR BY THE DRIVER'S SEAT, THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO CONFRONT THE WITNESSES AGAINST HIM AND TO PRESENT A COMPLETE DEFENSE BY RESTRICTING DEFENSE COUNSEL'S CROSS-EXAMINATION DESIGNED TO ESTABLISH THE OFFICER'S MOTIVE FOR CLAIMING THAT THE GUN WAS FOUND IN PLAIN VIEW
POINT II
THE TRIAL COURT ERRED IN SUMMARILY DENYING THE JURY'S REQUEST FOR "THE TRANSCRIPT" OF PAUL TRACEY'S TESTIMONY WITHOUT ASKING IF THEY WOULD LIKE A READBACK, AND IN DISCOURAGING THE JURY FROM ASKING FOR FURTHER READBACKS BY ITS COMMENTS SUGGESTING THAT THEIR REQUESTS WERE DUE TO A FAILURE TO "PAY ATTENTION"
A.
We first address defendant's contention that the trial court unfairly curtailed his counsel's cross-examination of Officer Brown concerning the officer's search of the Infiniti. The pertinent backdrop is as follows.
Prior to trial, defendant had moved to suppress the warrantless search and seizure of the gun from the car. After a suppression hearing at which the two officers and Ms. Williams testified, the trial judge denied the motion. In his detailed written opinion dated April 29, 2011, the judge first determined that the police had lawfully conducted a field inquiry and then an investigatory stop of defendant and his companions. See State v. Harris, 384 N.J. Super. 29, 44 (App. Div.), certif. denied, 188 N.J. 357 (2006). The judge next found that Officer Brown had lawfully viewed evidence of illegality, by observing the marijuana and the handgun in plain view from outside the car. See State v. Johnson, 171 N.J. 192, 208 (2002). In addition, the judge found that the ensuing search of the car interior was authorized under the automobile exception to the warrant requirement, because there was probable cause to believe that evidence of crimes was inside the car and there were exigent circumstances to conduct the search immediately. See State v. Pena-Flores, 198 N.J. 6, 28 (2009). Consequently, the fruits of Officer Brown's search, including the handgun, were admitted at trial.
Defendant has not appealed the suppression ruling.
During defense counsel's cross-examination of Officer Brown, counsel tried to challenge the credibility of the officer's contention about where he found the gun within the car. In particular, defense counsel tried to delve into the officer's state of mind in conducting the search. Counsel evidently hoped to suggest to the jury that the officer deliberately fabricated his assertion that the gun was in plain view by the gas pedal, in order to maximize the chances that the warrantless search would be upheld. The trial court sustained several of the prosecutor's objections to questions that attempted to explore these state-of-mind issues:
[DEFENSE COUNSEL]: Now, when you first arrived on the scene and all four occupants had left the vehicle, did you have a right to search the car?
[PROSECUTOR]: Objection. Your Honor has already heard this issue at a prior hearing. It's not for the jury to decide.
. . . .
THE COURT: [T]he form of the question is improper. It's not up to him to decide ultimately whether or not he had the right. You can ask him what he did.
. . . .
[DEFENSE COUNSEL]: Did you ever call the judge to ask for a
warrant to search the car?
[PROSECUTOR]: Objection.
THE COURT: It's irrelevant.
At a sidebar conference, defense counsel set forth a proffer for his desired cross-examination: to show that Officer Brown "was motivated to search the car and place the gun in the front seat so that he wouldn't have to call for a warrant." The court rejected that proposed line of inquiry, ruling that "[w]hatever [Officer Brown's] motivation is, it's what he did that the jury decides, not his motivations. It's what he actually did." The court advised defense counsel that the objections were sustained "because you were arguing whether or not he had probable cause or he had sufficient legal grounds to search the car, which is not for the jury's consideration." The court clarified that defense counsel was free, however, to ask Officer Brown about the "observations he made" or "what he actually did and the steps that he took" or why he looked in the front seat.
Notwithstanding the court's restrictions, defense counsel was able to elicit from Officer Brown that he "didn't ask permission from anyone" to search the car because he "[d]idn't have a reason to search the car immediately." Brown stated that his "first thought was to speak with the occupants of the car and find out why they got out of the car and left the doors wide open at 12:30 in the morning[,]" but conceded that that didn't "give [him] a reason to search the car." Brown also acknowledged that he had no suspicion that there was any contraband in the car before walking up to it and seeing the marijuana in the back seat.
Defense counsel moved for a mistrial at the conclusion of Officer Brown's testimony, reiterating that he had been denied a fair opportunity to cross-examine the State's key witness. The trial court denied a mistrial, repeating its analysis that the "argumentative questions as to whether or not [Officer Brown] was justified in performing a search under the Fourth Amendment or whether or not he could have called the Magistrate to get a telephonic warrant is not for the jury's consideration."
Defense counsel renewed his claim of unfair curtailment of cross-examination in his subsequent motion for a new trial. The court rejected that claim, noting that there had been "no restriction" on defendant's ability to attack Officer Brown's version of events through conflicting testimony of other witnesses. The court concluded that "the facts that were necessary to determine the issue as to where the gun was located and how it was discovered as well as Officer Brown's credibility [were] clearly placed before the jury[.]"
On appeal, defendant contends that the trial court improperly and unconstitutionally limited his trial counsel's cross-examination of Officer Brown. He emphasizes that the attempted line of questioning had sought to establish the officer's motive for claiming he had observed the handgun in plain view on the floor of the car in front of where defendant had been sitting. Defendant contends the court's limitations unfairly prevented him from establishing his defense theory that he had no knowledge of the gun's presence and that Officer Brown actually had searched the car for several minutes before finding the gun in a hidden location. According to defendant, the questions his lawyer was not permitted to ask were necessary to support his argument that Officer Brown falsely claimed he observed the gun in plain view, theorizing that the officer did not wish to seek a warrant and believed the gun would otherwise be suppressed as the fruit of an illegal search.
The State counters that the attempted questions at issue were irrelevant. It maintains that the trial court properly kept the jury's focus on the factual dispute of whether the gun was in a location within the car indicative that defendant, as the driver, knowingly possessed it. The State argues that the court sensibly prevented a "mini-trial" on the legality of Officer Brown's search, which the court had already resolved as a matter of law on defendant's motion to suppress.
Both the federal and New Jersey constitutions guarantee criminal defendants the right "to be confronted with the witnesses against him." U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. This right assures criminal defendants "'a meaningful opportunity to present a complete defense.'" State v. Garron, 177 N.J. 147, 168 (2003) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d 636, 645 (1986)). "Among the primary interests protected by the right of confrontation are the opportunity for defendants to face their accusers and to cross-examine the state's witnesses." State v. Budis, 125 N.J. 519, 530-31 (1991). This includes "protect[ion] against improper restrictions on questions defense counsel may ask during cross-examination." Id. at 531 (emphasis added) (citing Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S. Ct. 989, 999, 94 L. Ed. 2d 40, 54 (1987)).
Nevertheless, the right of confrontation "is not absolute," Budis, supra, 125 N.J. at 531, and "'may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process,' such as established rules of evidence and procedure designed to ensure the fairness and reliability of criminal trials." Garron, supra, 177 N.J. at 169 (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1046, 35 L. Ed. 2d 297, 309 (1973)). "[T]rial courts 'retain wide latitude . . . to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.'" Budis, supra, 125 N.J. at 532 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986)); see also N.J.R.E. 611(a) ("[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment"); N.J.R.E. 401 (evidence is "relevant" if it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action"). But "if evidence is relevant and necessary to a fair determination of the issues, the admission of the evidence is constitutionally compelled." Garron, supra, 177 N.J. at 171 (emphasis added).
A "particular attack on [witness] credibility is entitled to special protection under the Confrontation Clause." State v. Guenther, 181 N.J. 129, 149 (2004) (citing Davis v. Alaska, 415 U.S. 308, 316-17 94 S. Ct. 1105, 1110-11 39 L. Ed. 9d 347, 353-54 (1974)). In Davis, supra, the United States Supreme Court held that the Confrontation Clause required allowing the defendant to impeach the credibility of a prosecution witness on cross-examination by exposing the witness's potential bias deriving from his probationary status as a juvenile offender. 415 U.S. at 390, 94 S. Ct. at 1119, 39 L. Ed. 9d at 356. The defense theory was that the witness was helping the state out of fear that his probation would be revoked. Id. at 311, 94 S. Ct. at 1108, 39 L. Ed. 9d at 351.
The Court in Davis did not question the state's asserted policy interest in protecting the confidentiality of a juvenile offender's record, but stated that this interest "cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness." Id. at 319-90, 94 S. Ct. at 1119, 39 L. Ed. 9d at 355-56. It was not enough that defense counsel was permitted to simply ask the witness whether he was biased, without the opportunity to "expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." Id. at 318, 94 S. Ct. at 1111, 39 L. Ed. 9d at 354-55. As the court noted, "the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness[.]" Ibid.; see also Van Arsdall, supra, 475 U.S. at 679, 106 S. Ct. at 1435, 89 L. Ed. 2d at 683 (holding that the trial court violated the defendant's confrontation rights by prohibiting all inquiry into the possibility that a prosecution witness would be biased as a result of the state's dismissal of his pending public drunkenness charge); Olden v. Kentucky, 488 U.S. 227, 109 S. Ct. 480, 102 L. Ed. 2d 513 (1988) (finding a Sixth Amendment violation where defendant, accused of rape, was prohibited at trial from inquiring into the alleged victim's interracial relationship with another man on cross-examination because of the risk of undue prejudice).
New Jersey courts likewise have found Confrontation Clause violations where a defendant was denied a sufficient opportunity to expose a prosecution witness's motive to fabricate testimony. In State v. Crudup, 176 N.J. Super. 215, 217-18 (App. Div. 1980), the police suspected that the defendant was a large-scale narcotics dealer, but a search of his home and car only turned up evidence that he was involved in an illegal lottery operation. The defendant claimed that the police planted the evidence, presumably out of frustration, because no narcotics were found. Id. at 218. We held that the trial court unconstitutionally restricted the defense's effort to cross-examine the narcotics detective about his original suspicions that the defendant was engaged in narcotics trafficking. Id. at 221. It was irrelevant that "the likelihood of defendant's contentions might be slim; under our system he was entitled to fully test the State's proofs and show any possible bias, prejudice, interest or ulterior motive." Ibid. Moreover, the obstruction of the defendant's attempt to prove a motive for the police to frame him was made more significant by the State's summation, which "stressed to the jury quite strongly that the police had no motive to falsely accuse defendant." Ibid.
Similarly, in State v. Sugar, 100 N.J. 214, 219, 226 (1985), the trial court allowed a detective to testify against the defendant, who was convicted of murder, despite the detective's involvement in an illegal intercept of a privileged conversation the defendant had with his attorney. In reversing the conviction, the Supreme Court held that the defendant could not effectively cross-examine the detective because the detective's "bias or motive to testify untruthfully could not be established without introducing facts and circumstances surrounding the intercept." Id. at 230. Yet, exposing such facts "would generate inferences about information that was overheard and suppressed as a result of the unlawful intercept" and have an adverse effect upon the jurors. Ibid. The Court stated that "it would be intolerable as a matter of due process and fundamental fairness to allow [the detective] to testify in a setting that forecloses the defendant from showing bias." Ibid.
Here, defendant was attempting to prove that the testifying officer had a motive to lie about the nature of his search of defendant's car and where he found the gun. According to defendant, that motive arose from Officer Brown's unwillingness to obtain a search warrant and his hypothesized concern that the gun would be suppressed at defendant's trial. These state-of-mind considerations legitimately bore upon the credibility of the officer's critical assertion that he had spotted the gun on the floor by the driver's seat. Although defense counsel's initial question to the officer about the legality of the search was inartful, the thrust of his line of inquiry became clearer at the ensuing sidebar.
We share the trial court's valid concern that the jury should not be placed in a position of evaluating, under principles of Fourth Amendment jurisprudence, whether the search and seizure of the car was constitutional. The constitutionality of the search and seizure had already been decided by the trial court after the suppression hearing. We further agree with the State and the court that defendant had no right to, in essence, attempt to relitigate the propriety of the search and seizure at trial. That legal issue was resolved in an analytically sound manner, and the jury would have no role in questioning it. The jury was not bound, however, to replicate the trial judge's credibility findings from the suppression hearing. Instead, it could make its own assessment of Officer Brown's credibility from his trial testimony.
In fact, the Model Criminal Jury Charge on the credibility of witnesses asks jurors to consider, among other things, a witness's "means of obtaining knowledge of the facts," his or her "power of discernment[,] meaning his or her judgment [and] understanding," and "the possible bias, if any, in favor of the side for whom the witness testified," "and any and all other matters in the evidence which serve to support or discredit his or her testimony." Model Jury Charge (Criminal), "Credibility of Witnesses" (2013) (emphasis added).
Defense counsel's proposed line of attack upon Officer Brown's credibility, which has now been clarified further by defendant on appeal, did not require the jurors to become, in effect, instant constitutional scholars. Nor did it require the jurors to usurp the trial court's exclusive function in adjudicating the validity of the search and seizure as a matter of law. Instead, defense counsel wanted to probe into the searching officer's state of mind, in an effort to show that he would have had a motive to fabricate the location where he found the gun.
The proposed line of inquiry would not necessarily have required the jurors to second-guess the judge's suppression ruling, or to understand all of the applicable principles of search and seizure law. It would have sufficed for the jurors to be provided with an explanatory limiting instruction. Such an instruction could have informed the jurors that, under the law, the officer's observation of a gun in plain view, rather than in some hidden location within the car, might have improved the chances that the warrantless search would be upheld. That is all the jurors would need to know about the law in order to evaluate the officer's state of mind, and his potential motivation to lie about where he actually found the gun within the car.
We recognize that defendant's counsel did not craft and propose to the trial court a limiting instruction. The objection and sidebar conference arose in a spontaneous manner that may have limited the opportunity for counsel and the judge to consider such a solution. Even so, given the importance of the constitutional right of confrontation at stake, we cannot sustain the court's ruling that defendant's questions had to be restricted to what Officer Brown observed and what he did. The jury should have been allowed to consider what the officer knew or understood about plain-view concepts, because that would bear upon his credibility.
Defendant sought to expose the officer's alleged motive to lie by inquiring into whether he believed that a full-fledged warrantless search of the car would have been unlawful and hence destructive to the State's case against defendant. Without the opportunity to make this argument, defendant's primary means of rebutting Officer Brown's testimony was through the testimony of defendant, his mother, and the other persons who were in the car with him. Defendant was entitled to probe into the issue further through a less restricted cross-examination of the officer himself.
Defense counsel did point in summation to the "curious" fact that other officers on the scene did not testify and corroborate Officer Brown's testimony. He also argued during summation that defendant naturally would not have left the gun in plain view after noticing the police make a U-turn to approach his car, and that the police did not bother to do DNA testing on the gun.
For these reasons, defendant's confrontation rights were violated here because he was denied a fair opportunity to "expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." Davis, supra, 415 U.S. at 318, 94 S. Ct. at 1111, 39 L. Ed. 2d at 354-55. Even though defendant's "contentions might be slim; under our system he was entitled to fully test the State's proofs and show any possible bias, prejudice, interest or ulterior motive." Crudup, supra, 176 N.J. Super. at 221.
We do not regard this error to be harmless beyond a reasonable doubt. See Van Arsdall, supra, 475 U.S. at 684, 106 S. Ct. at 1438, 89 L. Ed. 2d at 686-87 (applying the harmless error standard to restrictions on the right of confrontation); accord State v. Cabbell, 207 N.J. 311, 337-38 (2011) (same). The credibility of Officer Brown's assertion that he found the gun in plain view by the driver's seat was a critical aspect of the State's case. In fact, the prosecutor emphasized in summation that Officer Brown had no motive to lie:
So, what this case comes down to is credibility. And you heard from Officer Brown. Does it really make sense that Officer Brown would concoct this story up about where he found this gun in this case? He had no axe to grind here. He has no axe to grind. He had nothing personal.Defendant should have been afforded a greater opportunity to
Does it really make sense that [Officer Brown] planned this and, you know, was all out to get [defendant]? You didn't hear anything regarding that. He had no axe to grind in this case.
rebut this argument through a more probing cross-examination of the officer's state of mind and motivation.
We recognize that if the trial court had not restricted defense counsel's cross-examination of Officer Brown, the outcome of the trial may have been no different. Even if Brown conceded that he did not attempt to obtain a warrant and that he knew that finding the gun in plain view could help justify the search's validity, the jury could still have found his testimony about the gun's location to be truthful. Nevertheless, the lack of testimonial corroboration of Officer Brown's account by the other officers on the scene, as well as the competing testimony of the defense witnesses about the length and scope of Brown's search of the car interior, supports defendant's position that the constitutional error in restricting the officer's cross-examination was not harmless.
We therefore reverse defendant's conviction and remand for a new trial. Prior to that second trial, counsel shall confer with the court to finalize the language of an appropriate limiting instruction to be issued in connection with Officer Brown's examination, consistent with the guidance set forth in this opinion.
B.
In his second point, defendant argues that the trial court twice erred in its response to questions from the jury during its deliberations, depriving him of a fair trial. First, defendant contends the court erred by denying the jury's request for "the transcript" of Tracey's testimony, without clarifying whether they wanted a transcript of his former testimony from the Gross hearing (which was not admitted in evidence as an exhibit but used to cross-examine him), or instead wanted a transcript or readback of his testimony at trial. Second, defendant contends that following the jury's separate request to hear or read Ms. Williams's testimony again, the court improperly criticized the jurors for "not paying attention," thereby discouraging them from requesting further readbacks.
As we have already determined that a new trial is required because of the undue restriction on Brown's cross-examination, we need not address at length these points relating to the first jury's deliberations. The case will be tried before a different jury, and thus the issues raised about the first jury's requests are moot. Nevertheless, we offer the following observations.
Jury requests for review of trial testimony should be granted "absent 'some unusual circumstance.'" State v. Miller, 205 N.J. 109, 119-20 (2011) (quoting State v. Wolf, 44 N.J. 176, 185 (1965)). Such requests "are a clear sign that the evidence sought is important to the deliberative process" and "reflect the reality that jurors cannot be expected to have perfect recall of every bit of evidence introduced during a trial." Id. at 120. They should not be denied "simply because it 'would take time.'" Ibid. (quoting Wolf, supra, 44 N.J. at 186). Nevertheless, trial judges "retain discretionary authority to try to narrow a jury's request if it calls for the playback of extensive testimony." Id. at 122-23. "Jurors should not be required to watch or hear more testimony than they ask for. If necessary, the trial judge can clarify what testimony the jury wants repeated." Id. at 123 (internal citations omitted).
The deliberating jurors' first request for a "transcript" of Tracey's testimony was ambiguous. As the trial judge correctly recognized, ordinarily no written transcript of trial testimony is immediately generated, unless counsel have arranged for expedited transcripts to be created as the trial proceeds. Apparently, no such arrangements for immediate transcription were made here. The jurors may well have been mistaken about that, and presumed that such a trial transcript already existed. Conceiving of their request as to Tracey's "transcript" in that manner, the court had justification to deny the request.
However, it is also conceivable that the jurors were actually seeking access to the transcript of Tracey's former testimony from the pretrial Gross hearing. If that is so, the full transcript still would not be admissible in the jury room, because it had not been admitted into evidence as an exhibit. Dunn v. Praiss, 256 N.J. Super. 180 (App. Div.), certif. denied, 130 N.J. 20 (1992). But the jurors would have been entitled to hear a playback or readback of the portions of Tracey's previously-transcribed testimony that had been read aloud during his trial examination. State v. Middleton, 299 N.J. Super. 22, 30-31 (App. Div. 1997). In hindsight, it would have been preferable for the court to have undertaken to clarify the jurors' ambiguous request before denying it outright. See id. at 30 (requiring trial courts to assure that requests being made by deliberating jurors have been correctly interpreted); State v. Parsons, 270 N.J. Super. 213, 221 (App. Div. 1994). That said, we note that defense counsel made no contemporaneous objection to the court's denial of this request.
The second request made by the jurors concerned their desire to "hear" or "read" Ms. Williams's trial testimony again. After consulting with counsel, the court elected to clarify their request, and to ascertain whether there were specific subject matters within her testimony that could be isolated for readback or playback. In taking that approach, the court, as it explained in its later oral decision denying a new trial, sought to follow the precepts of Miller, supra, 205 N.J. at 122-23 (instructing that "[t]rial judges nonetheless retain discretionary authority to try to narrow a jury's request if it calls for the playback of extensive testimony").
Defendant submits that the testimony of Ms. Williams was not extensive, and that the court should have simply played back her entire testimony without further inquiry. Instead, the court addressed the jurors in open court and questioned the scope of their request. As part of its prefatory remarks, the court referred to its initial instructions when the trial commenced and reminded the jurors that they had been "required to pay attention to all of the witnesses all of the time." Because "it would take some time" to replay Ms. Williams's entire testimony, the court asked the jurors to consider whether there was "a particular topic or area of her testimony that you are interested in rehearing." In that vein, the court requested the jurors to provide a note indicating whether they wished to isolate such portions of the testimony, or, alternatively, whether they "want[ed] all of it from beginning to end[.]" The jurors then resumed their deliberations and reached a verdict without providing another note requesting a readback or playback.
Defendant contends that the court's comments to the jurors unduly discouraged them from pursuing a readback or playback of Ms. Williams's entire testimony. The State argues that the court properly acted within its discretion. The State's position is also buttressed by the fact that defendant's trial counsel did not contemporaneously object to the court's allusion to the original instructions advising the jurors to be attentive, although the prosecutor agreed at oral argument before us that the comment was best left unsaid.
Because the case will be tried anew in any event, we need not determine whether the court's handling of the jury's second request created sufficient prejudice, in and of itself, to require a new trial. We do concur with defendant, however, that there was no need for the court, in responding to a request for a readback or playback, to remind the jurors of their obligation to be attentive, irrespective of what might have been the actual impact of that superfluous reminder.
Reversed and remanded for a new trial.
The convictions and sentences on the disorderly persons offenses, which have not been appealed, remain unaltered.
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I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION