On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-02-00170.
The opinion of the court was delivered by: Holston, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2006
Before Judges Lintner, Holston, Jr. and Gilroy.
This appeal requires us to define the "dominant purpose" test as it applies to pre-indictment proceedings before a grand jury,*fn1 whether the State conducted itself properly under the test, and what sanctions, if any, should be imposed for its violation. Generally it is appropriate for the State to question witnesses before a grand jury on subjects relevant to the grand jury's investigation which relate to a pending indictment. However it is not proper to use a grand jury for the sole or dominant purpose of preparing a case for the penalty phase of a defendant's capital trial. Such use is violative of the "dominant purpose" test and constitutes a misuse of the grand jury.
The State of New Jersey appeals the Law Division's July 13, 2005 interlocutory order precluding the State, in the capital murder trial of defendant, Alturik Francis, from utilizing defendant's family members' testimony before the Union County grand jury on January 31, 2003 for any purpose, with the exception that the State may, subject to the discretion of the trial judge, utilize at trial inculpatory statements allegedly made by defendant to a family member. We affirm the court's order as modified by this opinion.
We hold that the "dominant purpose" test was correctly utilized and applied by the trial judge in determining whether the assistant prosecutor (prosecutor) misused the pre-indictment grand jury by obtaining mitigation evidence to be used at the penalty phase of defendant's trial. We, however, modify the July 13, 2005 order to permit the prosecutor to use the grand jury record to impeach any family member's testimony or expert testimony based on family member's statements that are offered by defendant at the guilt phase of defendant's trial. The prosecutor may also utilize at trial any inculpatory statements made by defendant to a family member.
On February 26, 2003, at a subsequent session, the grand jury returned its Indictment No. 03-02-00170 against defendant charging him, in thirteen counts, with three counts of first-degree murder for the deaths of Majuly Collins, Catherine Almazal and Eduardo Almazal, in violation of N.J.S.A. 2C:11-3a(1) and (2) (Counts One to Three); three counts of first-degree felony murder for the deaths of Majuly Collins, Catherine Almazal and Eduardo Almazal, in violation of N.J.S.A. 2C:11-3a(3) (Counts Four to Six); first-degree attempted murder of Susan Vargas, in violation of N.J.S.A. 2C:11-3 and 2C:5-1 (Count Seven); second-degree burglary, in violation of N.J.S.A. 2C:18-2 (Count Eight); first-degree robbery, in violation of N.J.S.A. 2C:15-1 (Count Nine); first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(3) and (4) (Count Ten); two counts of third-degree possession of a knife with the purpose to use it unlawfully against the persons of Majuly Collins and Susan Vargas, in violation of N.J.S.A. 2C:39-4d (Counts Eleven to Twelve); and fourth-degree unlawful possession of a knife under circumstances not manifestly appropriate, in violation of N.J.S.A. 2C:39-5d (Count Thirteen).
A notice of aggravating factors was served by the State on the defense for all three murders, indicating the State's intention to seek the death penalty. Thereafter, pursuant to State v. Fortin, 178 N.J. 540, 632 (2004), the State again presented this matter to the grand jury. On June 17, 2005, a second notice of aggravating factors, listing the same factors, was handed up.
On April 15, 2003, defendant filed two notices: (1) that he would assert the defense of diminished capacity, pursuant to N.J.S.A. 2C:4-2, and (2) that he would claim the defense of intoxication, pursuant to N.J.S.A. 2C:2-8d.
On March 8, 2004, defendant, alleging prosecutorial misconduct in the use of the grand jury on January 31, 2003, moved to dismiss the indictment and sought other relief. Defendant contended that the prosecutor had improperly questioned four of his closest family members before the grand jury in an effort to obtain penalty phase mitigation evidence and circumvent the restrictions of Rule 3:13-4(b).
On August 2, 2004, the judge issued a written opinion denying defendant's request that the indictment be dismissed, that the Union County Prosecutor's Office be recused from prosecuting the indictment, and that the death penalty be barred. He ruled, however, that the State was precluded from using the testimony of the four members of defendant's family "in any proceeding in this case." We granted the State's motion for leave to appeal on August 25, 2005.
The State's investigation indicates that during the early morning hours of December 7, 2002, Majuly Collins, age thirty-two, her son, Eduardo Almaza, age four, and her daughter, Catherine Almaza, eighteen months, were killed in their apartment in Elizabeth. Majuly Collins was sexually assaulted and stabbed and her children were suffocated. The three bodies were found in the apartment bathtub. Susan Vargas, age twenty-one, had been living temporarily with Majuly Collins and was also stabbed. Vargas feigned her death, and after her assailant left the apartment, she contacted a relative and the police were notified. Although seriously injured, Vargas told the police that the black male who lived in the downstairs apartment was responsible for what had occurred.*fn2
Based upon the particularly gruesome nature of the triple homicide, the State immediately began to focus on aggravating factors in support of the death penalty. Investigators for the county prosecutor obtained school records and court documents. Former school administrators, teachers and employers were asked about defendant's use of drugs or alcohol, his mental health and whether he suffered from blackouts, hearing voices, or hallucinations. The inquiry was clearly appropriate and acceptable investigatory conduct.
On January 31, 2003, the prosecutor presented testimony from defendant's step-father, George Martin, mother, Diane Martin, sister, Kinaya Houston and brother-in-law, Tony Houston to the grand jury. At the outset of the proceedings, the prosecutor announced to the grand jurors that they would not be hearing evidence "at this point" to determine whether to hand up an indictment.
On February 26, 2003, the State presented the testimony of Detectives Ismael Olivero and Carl Riley, as well as twenty exhibits, including Vargas' statement and defendant's four confessions. Based on that evidence, the grand jury returned its indictment.
Defendant contends that the prosecutor improperly used the grand jury on January 31 to uncover facts relevant to his penalty phase mitigation claims in violation of Rule 3:13-4(b). The State contends that there were legitimate grounds for obtaining the January 31, 2003 testimony of defendant's family members. It argues it was engaged in an appropriate pre-indictment investigation to inquire into the mental state necessary for the commission of the crimes charged, i.e., whether defendant performed the acts purposely or knowingly, and whether there were facts that would support an intoxication or diminished capacity defense.
The judge, relying on the "dominant purpose" test utilized in the factually similar case of United States v. Furrow, 125 F. Supp. 2d 1170 (C.D. Cal. 2000), determined that the prosecutor's "dominant purpose" for calling the four witnesses before the grand jury was:
to advance the discovery process related to a possible penalty phase of the case . . . . The questions posed the defendant's relatives only [tangentially] related to his mental state at the time of the offense. The questioning of the witnesses regarding childhood behavior and prior crimes was an attempt to circumvent the restrictions of R. 3:13-4 and obtain penalty mitigation evidence prior to trial.
The judge reached his conclusion after making the following findings of fact: 1) the prosecutor told the grand jurors in February to ignore the testimony heard in January because it had been elicited for a purpose other than considering whether or not to indict defendant; 2) the prosecutor told the grand jurors in January that the purpose of the testimony was to specifically explore defendant's motive for the December 7, 2002 murders, motive not being an element of the crimes charged; 3) the prosecutor failed to produce evidence before the grand jury in January on the affirmative defense of intoxication; and 4) the family members' testimony pertaining to defendant's childhood behavior, history of physical or sexual abuse, abandonment by his father, and prior acts of violence was not relevant to the decision whether to indict defendant or to negate defendant's possible affirmative defenses.
Thereafter, the judge issued clarification opinions on January 12 and June 14, 2005. His ultimate ruling, which is the subject matter of this appeal, was ...