On appeal from the Superior Court, Appellate Division, whose opinion is reported at 228 N.J. Super. 211 (1988).
For reversal and reinstatement -- Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Handler, J.
The defendants, James Brown and Ronald Emm, became involved in an apparent driving contest that resulted in Brown's car striking a third vehicle, killing its driver. Both defendants were indicted for death by auto, tried jointly, and convicted. On a post-verdict motion, the trial court held that the defendants had been prejudiced by their joint trial because their defenses were in conflict. The court found further that this prejudice was exacerbated by the erroneous admission of Emm's pre-arrest silence, the jury's inability to evaluate the credibility of two eyewitnesses, and the court's failure to instruct the jury on lesser-included motor vehicle offenses. The court concluded that the cumulative prejudice generated by the joint trial justified the grant of new and separate trials for defendants. The State appealed that determination. In a reported decision, the Appellate Division affirmed. 228 N.J. Super. 211, 549 A.2d 462 (1988). We granted the State's petition for certification. 114 N.J. 497, 555 A.2d 618 (1989).
On the night of September 23, 1985, the defendants were both driving in the northbound lane of Route 34, apparently seeking to pass one another. Brown's vehicle suddenly swerved into the southbound lane, striking Frank Dimitri's oncoming car and killing him. The State contended that both defendants were at fault in causing the fatal collision. According to the State, the evidence demonstrated that Brown and Emm had been engaged in a "cat-and-mouse" game, alternately tailgating and passing each other over a two-mile stretch down Morristown Road and onto Route 34, when Brown's vehicle swerved into the opposite lane of travel and crashed into Dimitri's car. Witnesses to this episode included Emm's girlfriend Marilyn Decker, who was a passenger in Emm's car at the time, and several other motorists, Roger Martin, Christopher Mosley, Nicholas LaConte, and Harry Maskell.
Defendants offered different versions of the events leading up to the collision, each implicating the other as the sole or primary guilty party. The sixty-six-year-old Brown testified that he was slow to accelerate his silver Plymouth Volare when a traffic light on Morristown Road, a two-lane roadway that intersects Route 34, turned green and that the eighteen-year-old Emm, driving a green Oldsmobile Cutlass, tried to "beat" him across the intersection by passing him on the right. Unable to pass, Emm tailgated and flashed his headlights at Brown's vehicle down Morristown Road and onto Route 34, causing Brown to have a near-collision with an oncoming New Jersey Transit bus. Brown was too frightened to stop, and he drove past his own driveway, as well as a local gas station and an auto body shop, heading for the Old Bridge police station further up Route 34. Emm, then driving on the right side of Brown's car, began to push Brown's car into the oncoming traffic. The fatal collision with Dimitri's car occurred when Emm, on the righthand shoulder of the highway, forced Brown into the opposite lane.
Emm acknowledged that after the light turned green Brown was slow to accelerate and that he then sought to pass Brown on the right, even though traffic in that lane was required to turn right. Emm, however, claimed that he actually succeeded in passing Brown. This maneuver angered Brown, who started to follow him, driving erratically, tailgating and flashing his high beams along the stretch of Morristown Road. Brown finally passed Emm on the right shoulder of Route 34 and began to move in front of him. The fatal accident occurred when, as Brown's car passed Emm's, it glanced off a curb, appeared to lose control, and veered diagonally across the road into the southbound lane, colliding with Dimitri's car.
Witnesses Nicholas LaConte and Christopher Mosley were riding together on Morristown Road in a Chevrolet pick-up truck driven by LaConte, when Brown and Emm both passed them. Mosley testified that a gray or green Volare, driven by a "bald head, older man," passed first, followed by a "tan,
mustard color" Oldsmobile. The cars appeared to be "fighting for position around [a] bend" in Morristown Road. Mosley testified further that after the two vehicles passed, they forced an oncoming car off the road because their vehicles were traveling side-by-side, taking up both lanes. In Mosley's words, they were "like fighting for land both back and forth back and forth into each other's lane." On cross-examination, Mosley testified that the Oldsmobile passed them first, and the Volare passed second. This inconsistency regarding whether the Volare or the Oldsmobile passed first was highlighted on re-direct-and re-cross-examination.
LaConte testified that the two cars were traveling "side-by-side 'til they got to the end of the road [Morristown Road]," with the Volare in the southbound lane and the Oldsmobile in the northbound lane. Both Mosley and LaConte testified that Brown's and Emm's vehicles appeared to bump each other, although an examination of the cars after the accident proved there was no such contact.
Harry Maskell, the New Jersey Transit bus driver, testified that he clearly saw Emm riding in the northbound lane of Route 34 and turning his wheel towards Brown's car, forcing Brown into the southbound lane. Maskell had to swerve his bus onto the shoulder of the southbound lane to avoid hitting Brown. Roger Martin, another motorist, testified that he saw the vehicles appear to bump each other as they drove side-by-side past the intersection of Cottrell Road and Route 34. Martin observed Brown's car half in the southbound lane and half in the northbound lane, and Emm's car half in the northbound lane and half on the shoulder. He then saw Emm's car veer to the left and force Brown's car further into the southbound lane.
Emm did not stop after the collision, but proceeded to the Cheesequake Fire Department where he was a volunteer firefighter. After reporting the collision, Emm returned to the accident scene with other firefighters to help extricate Dimitri and Brown. During this time, Emm did not disclose to investigating
police officers that he had been involved in the incident. Further police investigation revealed the role of a third car in the accident. Two days later, Emm reported to the police that he had been driving the "other" car that witnesses had observed and mentioned.
Both defendants were indicted in February 1986 for death by auto, contrary to N.J.S.A. 2C:11-5. In March, defendants moved for separate trials. The court denied the motion for severance. State v. Brown (Brown I), 219 N.J. Super. 412, 530 A.2d 402 (Law Div.1987). The court ruled that although the respective defenses of the defendants were antagonistic, they were "not necessarily irreconcilable or mutually exclusive." Id. 219 N.J. Super. at 419, 530 A.2d 402. The Appellate Division denied defendants' motions for leave to appeal from that ruling. In January 1988, defendants renewed their motions for severance before another judge. This application was again denied and, after a joint trial, both defendants were convicted. However, following their convictions, the trial court granted their motions for new and separate trials. The trial court based its decision on four main factors: (1) that Brown's and Emm's defenses were mutually exclusive and antagonistic; (2) that the court had improperly admitted evidence of Emm's pre-arrest silence; (3) that the jury was not able to evaluate properly the credibility of witnesses Mosley and LaConte; and (4) that the court should have instructed the jury on the lesser-included offenses of reckless and careless driving. The Appellate Division affirmed, substantially deferring to the trial court's determination that the prejudice resulting from the joint trial justified new and separate trials.
We consider each of the grounds of the decisions of the lower courts in order to determine whether, separately or cumulatively, they justify the severance of the trial and the grant of new trials. The decision whether to grant severance rests within the trial court's sound discretion and is entitled to great deference on appeal. State v. Laws, 50 N.J. 159, 175, 233 A.2d 633 (1967), cert. denied, 393 U.S. 971, 89 S. Ct. 408, 21
L. Ed. 2d 384 (1968); State v. Sanchez, 224 N.J. Super. 231, 245, 540 A.2d 201 (App.Div.), certif. denied, 111 N.J. 653, 546 A.2d 561 (1988). In reviewing a trial court's decision to grant a new trial following a jury verdict, an appellate court must be "guided by essentially the same standard as that controlling the trial judge's review of a jury verdict" and must "weigh heavily" the trial court's views on "credibility of witnesses, their demeanor, and [the trial court's] general 'feel of the case.'" State v. Sims, 65 N.J. 359, 373, 322 A.2d 809 (1974). If the trial court acts under a misconception of the applicable law, however, the appellate court need not give such deference. See State v. Steele, 92 N.J. Super. 498, 507, 224 A.2d 132 (App.Div.1966); see also Baxter v. Fairmont Food Co., 74 N.J. 588, 598-600, 379 A.2d 225 (1977) (judge must have pervading sense of "wrongness" in overturning jury verdict; "feel of the case" factor does not control appellate review when trial court's "subjective conclusions" are not supported by the record). Moreover, to the extent that the weight of the evidence is germane to its decision, the trial court ought not to engage in a weighing of the persuasiveness of that evidence but only of its sufficiency. Kulbacki v. Sobchinsky, 38 N.J. 435, 445, 185 A.2d 835 (1962); see Battista v. Olson, 213 N.J. Super. 137, 142, 516 A.2d 1117 (App.Div.1986). We have also observed that the trial judge's decision is not "entitled to any special deference where it rests upon a determination as to worth, plausibility, consistency, or other tangible considerations apparent from the face of the record with respect to which [s]he is no more peculiarly situated to decide than the appellate court." Dolson v. Anastasia, 55 N.J. 2, 7, 258 A.2d 706 (1969). Moreover, even intangible considerations must be supported by some factual basis or other objective elements. Baxter, supra, 74 N.J. at 601, 379 A.2d 225.
The dominant issue in this case is whether defendants were entitled to be tried separately. Resolution of that question will
strongly influence, if not dictate, our determination of the remaining issues bearing on whether to grant new and separate trials to defendants.
Our Rule of practice governing the severance of joint trials, Rule 3:15-2(b), prescribes a general standard focusing on the existence of prejudice:
If for any other reason 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.
Despite a concern for prejudice, in considering a motion for severance, the trial court should "balance the potential prejudice to defendant's due process rights against the State's interest in judicial efficiency." State v. Coleman, 46 N.J. 16, 24, 214 A.2d 393 (1965), cert. denied, 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966). Joint trials also offer advantages to our criminal justice system other than judicial economy. "Joint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability -- advantages which sometimes operate to the defendant's benefit." Richardson v. Marsh, 481 U.S. 200, 210, 107 S. Ct. 1702, 1708, 95 L. Ed. 2d 176, 187 (1987). When the crimes charged arise from the same series of acts, and when much of the same evidence is needed to prosecute each defendant, a joint trial is preferable. Ibid.; see State v. Moore, 113 N.J. 239, 273, 550 A.2d 117 (1988); State v. Briley, 53 N.J. 498, 503, 251 A.2d 442 (1969). The danger by association that inheres in all joint trials is not in itself sufficient to justify a severance, provided that by proper instructions to the jury, the separate status of co-defendants can be preserved. State v. Freeman, 64 N.J. 66, 68, 312 A.2d 143 (1973). Thus, the quantum of real prejudice is critical in any determination to grant a severance.
Courts have generally held that defendants cannot be tried together fairly when their defenses are antagonistic and mutually exclusive or irreconcilable. The test for granting
severance, however, is a rigorous one. Separate trials are required only when defendants "present defenses that are antagonistic at their core." United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir.1981). The mere existence of ...