On certification to the Superior Court, Appellate Division.
Clifford, Handler, Pollock, O'Hern, Garibaldi, Stein, Wilentz
The opinion of the court was delivered by
We granted certification, 126 N.J. 328 (1991), to review the Appellate Division's affirmance, in an unreported opinion, of the conviction of defendant, Alejandro Melendez, for distribution of cocaine, a violation of N.J.S.A. 2C:35-5a(1), and for distribution within 1,000 feet of school property, proscribed by N.J.S.A. 2C:35-5a(1) and 2C:35-7. Defendant was tried with a co-defendant, Juan Fortuna, who, however, failed to return to court the day after the State had rested its case. The trial court denied Melendez's motion for a mistrial or for severance, and thereafter charged the jury on the purposes for which it could consider Fortuna's flight.
Melendez's appeal questions the propriety of the trial court's treatment of Fortuna's absence. We conclude that the court properly instructed the jury regarding Fortuna's flight, that an absent co-defendant's flight is neither a statement for purposes of New Jersey's Evidence Rules nor an incriminating statement under the Confrontation Clause, and that the trial court's limiting instructions cured any impairment of Melendez's rights.
The State built the case against Melendez and Fortuna around the testimony of Investigator Eladio Cruz, an undercover officer with the Narcotics Task Force in the Hudson County Prosecutor's Office, and of Lt. Volz, a detective in the Hoboken police department. That testimony established that on September 29, 1987, Cruz was instructed to go to 309 Monroe Street in Hoboken to attempt to purchase narcotics while Volz and other police officers waited in backup vehicles in the area. Cruz drove alone in an unmarked car to the specified location, then left his vehicle and walked over to speak to a man, later identified as defendant. In Spanish, Cruz asked defendant, "What's up?" When defendant responded, "What do you need? What do you need?," Cruz replied, "A half," meaning half a gram of cocaine. Melendez told Cruz to drive around the block, and when Cruz returned to 309 Monroe Street, another man, later identified as Fortuna, came up to the car and gave Cruz a small silver tinfoil packet containing cocaine, whereupon Cruz gave Fortuna $50.
Cruz then drove out of the area and radioed Volz to report the transaction. Volz instructed the back-up team to stop the participants in the drug deal and to ascertain their identities. The officers who stopped defendant and Fortuna released Melendez after obtaining identification. They took Fortuna to the station to verify his identity, after which he too was released.
Cruz then drove to the Hoboken Police Department where Lt. Volz showed him a photograph of Fortuna. Cruz identified Fortuna as one of the men who had sold him the drugs. To protect Cruz's undercover status and his ongoing investigations, the authorities did not arrest either Melendez or Fortuna until several months after the foregoing events.
On the completion of Cruz's and Volz's testimony, the State rested its case. When the court convened the following morning, Fortuna did not appear. (His fugitive status continues to this day.) Melendez thereupon moved for a mistrial or, if that were denied, a severance. Specifically, Melendez's lawyer suggested that the court allow him to proceed with his summation and have the jury deliberate separately regarding Melendez before hearing Fortuna's summation. In denying both motions, the trial court reminded counsel of his preliminary instructions to the jurors before the trial had commenced: "Although [defendants] are being tried together, at the same time, they are two separate individuals and you will be hearing cases relative to each of these individuals separately. They are, as I said, each entitled to your individual consideration as though they were being tried alone." Those remarks, said the court, combined with separate verdict sheets, limiting instructions, and further instructions to deliberate independently regarding each defendant would prevent prejudice to Melendez from a "flight" instruction applicable to Fortuna alone.
Neither defendant presented any evidence. In their summations, the defense attorneys both sought to explain Fortuna's absence as resulting from his fear of an impersonal criminal Justice system that could result in an innocent man being sent to prison -- "Dominican Justice" (Fortuna had come to this country from the Dominican Republic), as Melendez's brief in this court refers to it. Melendez's attorney argued in addition
that the police had fabricated the incident in order to procure arrests. He claimed that the high premium that our criminal-Justice system places on arrests and convictions for narcotics-law violations provided a motive for Cruz and Volz to lie.
The court instructed the jury regarding both flight and accomplice liability. It twice charged the jury in unequivocal, clear, and concise language that although it could consider Fortuna's flight as evidence of his guilty conscience, it could not infer Melendez's guilt from Fortuna's flight. Because of its significance in this case, the "flight" charge is set forth in full.
I have alluded to the fact that he [Fortuna] is not here. Obviously, he is not present at this stage of the proceeding. I'm going to charge you and I do charge you as to flight, because if you find that the defendant Mr. Fortuna, excuse me, hearing [sic] the charges against him would result in his being found guilty at this trial, you may consider that flight, that voluntary absence, in connection with all of the evidence of the case as an indication of the proof of or consciousness of the guilt of Mr. Fortuna individually, and only as to Mr. Fortuna.
You may not consider the fact that Mr. Fortuna is not here as against Mr. Melendez in any way, shape, or form. That has nothing to do with Mr. Melendez's case in the rendering of your verdict. They are tried separately; they are deliberated separately, except as to the accomplice charge which I will give you when I get into the particular charges, and you will render a verdict, as I said, separately.
Additionally, as to Mr. Fortuna, you must follow this instruction that I am giving you. The fact that Mr. Fortuna is not here is one of the circumstances that you may consider in the totality of the circumstances of the case and the fact -- and the facts as you find them, with complete understanding, that the defendant, Mr. Fortuna, whether he is here or not is presumed innocent unless proven guilty beyond a reasonable doubt and that he did not have to testify even if he were here. And you may not consider the fact that he wasn't here to testify because he wouldn't have to testify if he was here or not. But you may consider the fact that he's not present relative to this consciousness of guilt - as to Mr. Fortuna only.
You must also follow the instructions that the State always has the burden of proof to prove the defendant guilty beyond a ...