On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FJ-04-4458-02.
Before Judges Kestin, Winkelstein and Lario.
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 9, 2003
For throwing rocks at moving cars, thirteen-year-old V.M. was adjudicated delinquent on five counts of criminal mischief and five counts of simple assault. The trial judge placed him on probation for eighteen months. On appeal, the most significant issue is whether the trial judge erred when he sequestered the juvenile's mother from the courtroom during the juvenile's adjudicatory hearing (trial). We conclude that excluding her from the trial was a manifest abuse of discretion. Accordingly, we reverse V.M.'s adjudication of delinquency and remand for a new trial.
The facts are straightforward. V.M. was accused of throwing rocks at vehicles traveling on I-676 in the area of Morgan Boulevard in Camden on August 24, 2001. Two of the victims whose cars had been struck saw V.M. running from the scene, chased him and caught him. V.M. denied being involved. He said,"they're always blaming me," and,"it was them." He then started to cry. Multiple witnesses at the scene identified him as the offender.
At trial, before witnesses were called, defense counsel advised the court that V.M.'s mother"may be a witness," but asked,"that she nonetheless be allowed to sit in the courtroom." V.M.'s mother was his only parent in attendance. The prosecutor objected, arguing that if V.M.'s mother was going to be a witness,"I would ask that she step out." The court responded,"Okay. Like all other witnesses, I assume --" After agreeing that the state trooper who was scheduled to testify should also be sequestered, the court stated,"Reciprocal order. All right. Mom, if you'll have a seat outside... they will all be sequestered." Although she was sequestered, V.M.'s mother was not called as a witness.
During the trial, five witnesses whose cars were struck by rocks were called by the State. With one exception, each either identified V.M. as the rock-thrower or testified that rocks were thrown by an African-American juvenile with an"Afro" hairstyle, wearing a white t-shirt. V.M. matched that description.
New Jersey State Trooper Kavanagh*fn1 was dispatched to the area where the incident occurred. Upon his arrival, he observed the vehicles that had been struck by rocks were lined up on the shoulder of the road. He obtained statements from both passengers and drivers of the vehicles. Four victims informed the trooper that"a young male, black, with an Afro and white t shirt had thrown rocks at their vehicles." After the two individuals who had chased V.M. brought him back to the scene, multiple victims identified V.M. to the trooper as the juvenile who had thrown rocks at their vehicles. V.M., again, denied the allegations.
During the course of the trial, the defense called three witnesses. Included was Norma Reyes, who was offered to testify as a character witness for V.M. The judge barred her testimony.
Testifying in his own defense, V.M. denied throwing rocks at the vehicles. He said he remembered seeing a group of"black kids with white t-shirts and Afros" in the area where the incident took place.
In adjudicating defendant delinquent, the judge said,"four of the five [witnesses] who testified clearly could articulate... that it was [V.M.].... In my mind, that is compelling beyond a shadow of a doubt."
We now turn to the primary issue on appeal: whether the court erred when it sequestered V.M.'s mother from the courtroom during the trial. Whether to sequester a witness is generally discretionary with the trial court. State v. DiModica, 40 N.J. 404, 413 (1963). The use of sequestration prevents"prospective witnesses from hearing what the other witnesses will detail in their evidence,'for the less a witness hears of another's testimony the more likely is he to declare his own knowledge simply and unbiased.'" Ibid. (quoting State v. Zellers, 7 N.J.L. 220, 226 (Sup. Ct. 1824))."Ordinarily, the sound exercise of [the trial court's] discretion requires granting a timely motion for sequestration." Morton Bldgs., Inc. v. Rezultz, Inc., 127 N.J. 227, 233 (1992); see also N.J.R.E. 615 (order sequestering witness may be entered at request of party or on court's own motion).
These general principles, when applied to the vast majority of witnesses, are well founded. However, whether to sequester the parent of a juvenile in attendance at his or her child's adjudicatory hearing implicates additional considerations not applicable to other witnesses. Although our research has uncovered no New Jersey precedent directly on point, the importance of the presence of an accused juvenile's parents at critical stages of the juvenile delinquency process is firmly established. The New Jersey Code of Juvenile Justice, N.J.S.A. 2A:4A-20 to -88 (Code), explicitly gives an accused juvenile's parent the right to participate in the juvenile's detention hearing, N.J.S.A. 2A:4A-38, as well as the right to apply to the court to include public attendance during any court proceeding in the ...