On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-02-0160
Before Judges Braithwaite, Parker and Bilder.
The opinion of the court was delivered by: Braithwaite, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
We have combined the opinions in these two appeals because defendants Frank Benitez and Angel Colon raise the same issue: the trial judge erred in allowing the victim of the offense to testify by way of a videotape deposition pursuant to Rule 3:13- 2. Following a trial using this procedure, both defendants were convicted of second degree robbery, N.J.S.A. 2C:15-1a(1); criminal restraint, N.J.S.A. 2C:13-2a; burglary, N.J.S.A. 2C:18- 2a(1); and theft, N.J.S.A. 2C:20-3a. They both received extended term sentences. Benitez was sentenced to an aggregate term of eighteen years with a nine-year parole bar, and Colon received a twenty-year term with a ten-year period of parole ineligibility.
Our review of the record convinces us that the judge erred in permitting the victim to testify by videotape deposition. We therefore reverse defendants' convictions and remand for a new trial. Both defendants raise other issues. We also address some of those issues in this opinion.
We set forth the facts leading to defendants' convictions and those related to the victim's testimony by way of videotape deposition. On Tuesday, October 12, 1999, at approximately 12:00 p.m., the victim, Lillian War ("War"), then age ninety- two, arrived at her home at 1077 25th Street in Paterson with her daughter and son-in-law after taking a trip to the New Jersey Shore. Her daughter and son-in-law left shortly after placing War's plaid suitcase on her bed and her groceries and laundry on the table. At 1:00 p.m. her doorbell rang and she answered the door. War testified that she was sure of the time because she always wore a wristwatch and she looked at the time. At the door was a man she described as tall and heavy-set who indicated that he had a package for her. As she opened the door, a smaller man wearing a hood over his head, whose face she did not see, suddenly grabbed her. She fainted and awoke to find herself lying in the hallway of her home. The assailant who grabbed her then picked her up, sat her in a chair facing a corner, and stood guard over her while the other assailant took her property.
The assailant described by War as the "big guy" then entered her bedroom and emptied the contents of her plaid suitcase and placed the stolen items inside the suitcase. According to War, both assailants left her home at exactly 1:30 p.m. After the assailants left, she went upstairs to get her walker and then tried unsuccessfully to activate her burglar alarm system. She then tried to use the telephone but all four telephones in her home had been disconnected by the assailants. Finally, after being unable to activate the burglar alarm or use the telephone, she used her walker to walk down her driveway and across the street to her neighbor, Lucy Cobilich, to alert her of the incident. War asked Ms. Cobilich to call the bank to prevent the assailants from potentially cashing a check. She testified that she was concerned about her checkbook because she had just deposited $19,000, which she intended to give to her grand- daughter as a deposit on a house. Ms. Cobilich called the bank and then called the police.
Once the police arrived, they met with War who stated that she was not injured. She refused medical treatment. She was unable to identify the assailants. She stated that her vision was impaired and she could only describe one of the suspects as being big and heavy-set and the other as being shorter and smaller. She also told police that she did not know the two men who lived next door.
Ronald Cobilich, Ms. Cobilich's son, testified at trial. He testified that on October 12, 1999, sometime around noon or 1:00 p.m., he was mowing his lawn when he noticed a blue car parked in the area with a man standing next to it. Subsequently, at approximately 1:30 p.m., his neighbor, War, came across the street and told him and his mother that War's house had just been robbed and asked that they call the police. While waiting for the police to arrive, Mr. Cobilich noticed a blue car with two occupants drive slowly on 23rd Avenue past East 25th Street and then park two houses down. Mr. Cobilich then observed an Hispanic male, whom he believed to be one of the occupants of the car, walking on the opposite side of the street on East 25th Street carrying a brown paper bag. The Hispanic male then crossed the street and entered the residence located next to War's home with a key. Approximately one minute later, Mr. Cobilich observed the same blue car traveling down the street with only the driver. The car then stopped in front of the house at 1081 East 25th Street and honked the horn. Mr. Cobilich testified that the person whom he previously observed enter the house with the brown paper bag came outside and spoke with the driver. Both individuals then walked back into the house.
Based on the information provided by Mr. Cobilich, the police examined the blue Chevrolet and noticed that the headlights had been left on. A license plate check determined that the vehicle was registered to Benitez's girlfriend, Vivian Nieves, at 1081 East 25th Street. Approximately six officers went to that address and rang the door bell. They also knocked on the windows, and the front, side, and back doors for approximately ten to fifteen minutes in an attempt to locate Nieves. After receiving no response, an officer was stationed in front of the house to prevent anyone from leaving and to watch the blue Chevrolet.
Police learned that Nieves was employed by the Passaic County Probation Department. The police contacted Nieves at work and met with her at a location near her place of employment. After explaining the situation to her, one of the officers, Sergeant Giaquinto, advised her that the police needed to gain access to her home. He also advised her that she "wasn't compelled to do this . . . but we would appreciate her cooperation." He further testified that Nieves was very cooperative and stated that she was very willing to help. Nieves signed a consent to search form for her residence but indicated that she did not wish to be present. However, she gave Sergeant Giaquinto the keys to her home. The consent to search form clearly advised her of her right to refuse to consent.
After securing the consent to search and the house keys, the police returned to 1081 East 25th Street and knocked on the door. There was no answer. The police then entered the residence with the keys and announced their presence. Benitez came out of a bedroom and the police advised him that they were investigating a robbery. He was also told that he was not under arrest. Sergeant Giaquinto testified that Benitez was very cooperative, and that he asked Benitez what time he came into the house that day. Benitez responded that he "came home from work about 12:30 p.m. today," and that he had been sleeping for about an hour and a half. Benitez advised Sergeant Giaquinto that he came home alone and was alone in the house, and consented to let the police check around the premises. However, Benitez was not told that the police had secured a consent to search from Nieves.
Using a coat hanger, Sergeant Giaquinto unlocked a door off the kitchen and found a second Hispanic male, Colon, sleeping in a bed. In response to Detective Giaquinto's question about what time he came home that day, Colon replied, "It was 12:30 p.m. today." When asked whether he came in alone or with Benitez, Colon replied, "With Benitez."
The police conducted a further search of the residence and located a VCR in an armoire in Benitez's bedroom. A plaid suitcase and two brown paper bags filled with numerous pieces of jewelry were also found in a drop ceiling panel in Benitez's bedroom. In addition, Sergeant Giaquinto recovered a gold chain with the name "Lillian" on the floor near the bed where Colon had been sleeping. Both defendants were then read their rights and arrested. Sergeant Giaquinto testified that as defendants were led outside, Mr. Cobilich identified them as the individuals he had seen previously.
War identified the items as the ones that were stolen from her that day. Defendants were also found in possession of numerous coins, including old coins. Several weeks later, Nieves returned a gold bracelet to War that Nieves found in her home in a pair of socks.
Prior to the trial, the State moved to have War testify by way of videotape deposition. At the hearing on February 15, 2001, the State advised the judge that War was ninety-four years old and would suffer heart palpitations if made to testify in the presence of defendants and the jury. Defendants objected on the grounds that the State had presented no medical evidence that War was physically or mentally incapacitated and that to allow her to testify outside the presence of defendants and the jury violated their right to confrontation. Based on the State's representation, the judge concluded that War could testify by videotape deposition because to allow her to testify at trial in the presence of defendants and the jury would be detrimental because of her advanced age and mental and physical health.
Now, I'm satisfied at this point in time, from the representation by the State, that I have a 94-year-old woman, who is in such mental and physical condition that at this point in time, to subject her to a trial in an open courtroom, before a jury and all of the machinations and all of the aura of a courtroom could prove deleterious to her health. I think it's incumbent upon a judge to take a victim's health into consideration.
Now, I am satisfied, based upon what the State has indicated, that it is likely that she would be unable to testify because of age and because of her mindset by view of what occurred, which apparently affects her and affects her ability to function and to - - whether it's life threatening or not, I don't think is important. . . . It doesn't say it has to be life-threatening. [emphasis added.]
The judge scheduled the deposition for the next day and set forth the procedure that would be followed. He said:
Now, I'm going to make an inquiry tomorrow when she gets here, and I have an opportunity to talk to her, as to whether that can be done. I want to be satisfied personally, and I think all counsel should be satisfied personally whether that can be done.
If, in fact, that can be accomplished, it can be done right here, and then the problem you raised does not apply.
So I want you to understand that I'm not accepting at face value what the State says. I want to be satisfied based upon my discussions with the woman, in the presence of counsel, of course, whether or not it would be a risk to her health or would affect her ability to testify if she sat in this witness box, right in this room.
So that'll be the preliminary inquiry that I will make. And counsel can ask whatever questions they choose, and I'll make the decision right then and there.
If my decision is that, in fact, it would not be appropriate for her to testify in the presence of these defendants, then it is my intention to do it the following way:
I will do it in chambers, with counsel present, the prosecutor present, me present, on videotape. I will have the defendants seated out here, right on the other side of my door, with the door open, and the video will be playing so that they can watch everything that takes place.
. . . . If that's not the way you want to do it, you'll have free and ready access to come out here and talk to your clients about anything that you want to discuss at any time.
Now I realize that that is not, shall we say, face to face, but it's a sensible, reasonable way to try to protect everybody's interest. The interest of [War], who's 94. Your interest in being able to cross-examine fully. Your clients' interest to be able to participate as fully as possible, under the circumstances, in the deposition of the witness.
I'm only going to do that if in fact I conclude, after my own examination, that she cannot, in fact, function in the presence of these defendants. If she can, it's going to be done here.
The next day, February 16, 2001, prior to the deposition, the judge interviewed War. The judge did not place War under oath. The following colloquy occurred:
JUDGE: Ms. War, how old are you?
JUDGE: God bless you. I hope I get that old. Now you understand why you're here today, correct?
MS. WAR: Yes, because they broke into my house.
JUDGE: Now it has been represented to me by the Prosecutor --don't know. I haven't met you before . . . that you are unable to actually testify at the trial. In other words, that you could not sit out there with a jury in the jury box, in the presence of the defendants and tell your story. Is that true or not?
MS. WAR: A number of years ago, I had two heart attacks. And . . . after that, I was able to take care of myself and I could do things. But now that I'm 94 and when he -- when I opened the door and he grabbed me, it did something to me and I'm shaking. I'm shaking and I'm very nervous now. And I don't need problems again. I don't want no problems.
JUDGE: Do you feel that if . . . you had to testify in court next week at the trial with [defendants] in the room and the jury in the jury box, do you feel that it would affect your health and you would be under a tremendous amount of stress?
MS. WAR: I feel that stress won't be good for me because I'm already -- all my insides are like this ...