Before Judges Kestin, Fall and Weissbard. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, 02-6-1160-I.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On December 20, 2001, Alex Grant was arrested and charged with the December 15, 2001 murder of his live-in girlfriend, Yvette Bacon. Defendant's bail was set at $1 million and he was remanded to the county jail where he has remained up to the present time.
The facts surrounding the homicide need not be recounted in detail except to note that defendant, who had no prior criminal convictions, claimed self-defense. Ms. Bacon had been stabbed eleven times, resulting in her death, while defendant, who was found at the scene, had been stabbed five times, three of the wounds being to his abdomen, resulting in life-threatening blood loss and multiple lacerations to his liver and bowel necessitating emergency surgery. Defendant was in the hospital for ten days. The victim's blood alcohol level was.304%, more than three times the legal limit; evidence of cocaine was also found in her blood and urine"consistent with its recent use." No toxicological tests were performed on defendant at the hospital. Two empty vodka bottles and apparent drug paraphernalia were found at the scene. While in the hospital, defendant made statements"to the effect that he had found Yvette in the house using drugs in front of her son, he threatened to call DYFS, and so Yvette had put a knife to his neck."*fn1 Defendant further stated that he and Yvette started to"wrestle," resulting in the altercation that led to his injuries and her death.
While the State's investigation also developed substantial facts inconsistent with defendant's self-defense claim, the defense certainly appeared to be viable. As a result, defendant's attorney entered into negotiations with the assistant prosecutor assigned to the case to have defendant testify before the grand jury. The assistant prosecutor agreed to the request. An agreement was reached between counsel that defendant, although in custody, would appear before the grand jury in civilian clothes and would be neither handcuffed nor shackled. What happened thereafter is best set forth in the certification subsequently filed by defendant's attorney:
4. Mr. Grant was to testify on June 3, 2002. I was advised that, despite my agreement with the Monmouth County Prosecutor's Office, the Monmouth County Sheriff's Department had determined that Mr. Grant would be brought before the Grand Jury in handcuffs and leg shackles.
5. Based upon this information, on June 3, 2002, I called [the assistant prosecutor] and, with his consent, went to see the [judge] who was filling in for the [criminal presiding judge] at the time. I advised [the judge] of the charges against Mr. Grant, of his desire to testify before the Grand Jury, and of my objection to Mr. Grant's appearance before the Grand Jury in handcuffs and leg shackles. I argued to [the judge] that appearing in handcuffs and leg shackles would seriously prejudice the Grand Jurors against Mr. Grant. As a result of this conference, [the judge] ordered that Mr. Grant would not be required to wear handcuffs or shackles during the course of his Grand Jury testimony. [The judge's] decision was conveyed directly by [the judge] to Sheriff's Department Deputy Officer Roger Moore.
6. I thereafter accompanied Mr. Grant to his Grand Jury proceeding. As arranged, Mr. Grant wore civilian clothing. However, when we approached the Grand Jury room, the assigned Monmouth County Sheriff's Department Deputy Officer, Roger Moore, refused to remove Mr. Grant's handcuffs and leg shackles.
7. The Sheriff's deputy, when asked by both me and [the assistant prosecutor] to remove Mr. Grant's handcuffs and shackles, stated that when his department agreed to remove these restraints in response to [the judge's] order, they did not realize that Mr. Grant had been charged with murder. He further stated, in response to my inquiry, that the sole reason for requiring that Mr. Grant wear handcuffs and shackles was the nature of the charges against him, not any conduct by Mr. Grant during his incarceration. [The assistant prosecutor] advised the Sheriff's Deputy that he had no objection to the removal of Mr. Grant's restraints, and that he did not consider Mr. Grant to be dangerous. Despite this, the Sheriff's deputy refused to remove Mr. Grant's handcuffs and shackles.
8. Based upon this refusal, I, along with [the assistant prosecutor] conducted a telephone conference with [the judge] seeking removal of the handcuffs and shackles. I conveyed the facts to the Court. I stated that [the assistant prosecutor] had no objection to the removal and that the Sheriff's Deputy's sole basis for refusing to remove Mr. Grant's restraints was the nature of the charges against Mr. Grant. [The judge] made no further inquiry, and denied our application, stating that if the Sheriff's deputy wanted Mr. Grant to appear in handcuffs and shackles, he would remain handcuffed and shackled.
Defendant and his attorney then conferred and a decision was made that defendant would testify in restraints. When defendant entered the grand jury room, he was accompanied by two sheriff's officers who were identified as such to the grand jurors by the assistant prosecutor. The officers remained throughout defendant's testimony and escorted him from the room at its conclusion. Lest there be any doubt about defendant's status, the following colloquy occurred between the assistant prosecutor and defendant at the outset:
Q: All right, Mr. Grant, let's first of all deal with the obvious facts as we spoke with your attorney, the fact that you're in handcuffs and leg shackles. You're ...