On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
[NOTE: This is a companion case to State v. Tucker and State v. Elkwisni, also decided today.]
In this appeal the Court considers the propriety of the State's cross-examination of a defendant about his pre-arrest silence to challenge the defendant's self-defense testimony.
The State presented evidence at trial to show that on September 12, 2002, defendant, Lawrence Brown and Paul Russell were playing cards outside of Russell's apartment. At some point, Brown asked Russell if he could borrow some money. Russell refused, claiming he did not have any money. In fact, Russell had $130 in his wallet. Brown did not believe Russell and called him a derogatory name. Later, Brown asked for a beer and Russell retrieved a bottle of beer from his apartment and gave it to Brown. Brown again asked to borrow money and expressed disbelief that Russell had none. Russell turned away and was struck in the face with a beer bottle, causing Russell to fall backwards.
Brown then slashed Russell three or four times with the broken bottle, severing his ear. Russell was stunned. Brown told Russell "you made it like this," as he reached inside Russell's pocket, took his money, and fled. Russell lost a portion of his ear and received over 900 stitches. His face was permanently scarred and disfigured.
Brown testified in his defense and presented a different set of facts. He claimed he was living in Ohio at the time and was visiting friends when he attended a party in front of Russell's apartment. Brown joined Russell and other men in a card game. According to Brown, Russell became agitated upon losing money in the game and continued to be upset when Brown refused to lend him money. Russell then threatened Brown with a knife. Brown testified that he reacted in self-defense by striking Russell with a beer bottle. He denied removing money from Russell's person.
On cross-examination, Brown admitted that a week after the altercation, he learned the incident had been reported in the newspaper. The prosecutor asked Brown about his failure to come forward and tell the police that Russell tried to cut him first. The prosecutor emphasized Brown's silence and suggested that if Brown had acted in self defense, the logical thing would have been to come forward and volunteer the information to the police.
Brown was convicted of second-degree aggravated assault and first-degree robbery, among other crimes. He was sentenced to ten years in prison with eighty-five percent to be served without parole. In an unpublished, per curiam opinion, the Appellate Division affirmed. The panel held that because there was no governmental compulsion involved, Brown's pre-arrest silence was properly admitted for impeachment purposes. The panel also held that the trial court's failure to give an instruction limiting the use of Brown's silence to impeachment was not plain error. The Supreme Court granted Brown's petition for certification.
HELD: When there is no governmental compulsion involved, the State may cross-examine a defendant concerning his pre-arrest silence to challenge his self-defense testimony.
1. Pursuant to the Fifth Amendment to the United States Constitution, "no person . . . shall be compelled in any criminal case to be a witness against himself." New Jersey does not have a provision in the State Constitution similar to the Fifth Amendment, but our "privilege against self-incrimination . . . is deeply rooted in this State's common law and codified in both statute and an evidence rule." Recently, in State v. Muhammad, 182 N.J. 551 (2005), this Court held that a defendant's "silence while in custody, under interrogation, or 'at or near' the time of his arrest cannot be used against him in a criminal trial." In the present appeal, the Court must determine whether that same reasoning pertains to pre-arrest silence that does not involve government compulsion at or near the time of arrest, and in cases in which the defendant testifies at trial. (pp. 10-12)
2. The United States Supreme Court has approved the admission of pre-arrest silence in circumstances similar to those presented here. In Jenkins v. Anderson, 447 U.S. 231,
The opinion of the court was delivered by: Justice Wallace, Jr.
In this case, the Appellate Division held that defendant's right to remain silent was not violated when the prosecutor questioned defendant about his pre-arrest silence. Following a violent physical altercation with another man, defendant fled. He was arrested ten months later and charged with assault, robbery, and weapons offenses. At his trial, defendant claimed he was not the aggressor, but merely defended himself when the other man pulled out a knife. The State cross-examined defendant on his pre-arrest conduct in order to challenge defendant's self-defense testimony. The jury found defendant guilty and the Appellate Division affirmed. We now affirm. We hold that when there is no governmental compulsion involved, the State may fairly cross-examine the defendant concerning pre-arrest conduct or silence to challenge his self-defense testimony. We also conclude that the trial court should give a jury instruction that limits the use of that evidence in assessing a defendant's credibility.
At trial, the State presented evidence to show that on September 12, 2002, defendant, Lawrence Brown, and Paul Russell were playing cards outside of Russell's apartment. At some point, defendant asked Russell to borrow some money. Russell refused, claiming he did not have any money. In fact, Russell had $130 in his wallet. Defendant did not believe Russell and called him a derogatory name. Russell left for his apartment where he remained for about an hour and then returned to join the group. When defendant asked for a beer, Russell retrieved a bottle of beer from his apartment, gave it to defendant, and sat down on the porch. Defendant again asked to borrow money and expressed disbelief that Russell had none. Russell turned away and was subsequently struck in the face with a beer bottle, causing Russell to fall backwards.
Defendant then slashed Russell three or four times with the broken bottle, severing a portion of his ear. Russell was stunned. He heard defendant say "[y]ou made it like this, you make it like this" as defendant reached inside Russell's pocket, took his money, and fled. Russell had a pocketknife in his possession, but did not use it. Unaware of the extent of his injuries, Russell removed his bloody shirt and attempted to find defendant. When Russell paused to rest, a little girl looked at him and said, "you're really bleeding." At that point, Russell returned to his apartment.
By that time, the police had arrived. Officer James Stettner observed Russell's condition. At first, Russell refused medical attention, and Officer Stettner suggested that he look in a mirror. Russell did so and agreed to go to the hospital. Russell's detached ear was located and taken to the hospital, but medical personnel were unable to reattach his ear. Russell received over 900 stitches and his face was permanently scarred and disfigured.
At trial, two of Russell's neighbors testified. Twelve year-old N.B. stated that she heard Russell say "[s]top" and someone else say "[g]ive me money." N.B. told her mother that someone was doing something to Russell. She and her mother opened the back door and saw a man on top of Russell. N.B. identified defendant as the man she saw on top of Russell. She said that defendant ran away and Russell followed after him.
N.B.'s mother testified that when she opened the back door of her apartment, she saw defendant on top of Russell, whose face was bloody. She yelled for defendant to stop and then called the police. Officer Stettner testified that when he arrived at the scene he observed a puddle of blood near the door. He found a piece of Russell's ear, bloody shards of green glass, a broken beer bottle, and a blood spattered fifty-dollar bill in the area of the assault.
Detective Robert Schmeltzly, one of the investigating officers, testified that he took a statement from Russell on September 25, 2002, and signed a complaint against defendant. He testified that he attempted to locate defendant but "the information on the street was that he went to Ohio." Defense counsel objected to that comment. At sidebar, the prosecutor argued that defendant would raise self-defense and he wanted to disprove that defense. The trial court suggested the prosecutor ask, "[d]id you ever hear from [defendant]? . . . did [defendant] ever come in and say, . . . I understand you're looking for me."
Before the jury, the following exchange between the prosecutor and Detective Schmeltzly took place:
Q: Detective Schmeltzly, did you ever, from September 12th, 2002 until August of 2003, did you ever get contacted by [defendant]?
Q: Did the Phillipsburg Police Department get contacted by [defendant]?
A: No, they did not, sir.
Q: Were any charges filed by [defendant] as a victim during that time?
A: Not that I'm aware of, sir.
Defendant testified in his defense and presented a different set of facts. He stated that he was living in Ohio at the time and was visiting friends on September 12, 2002, when he attended a party in front of Russell's apartment. At some point, he joined Russell and two other men in a card game in the backyard. Russell became agitated upon losing money in the card game and continued to be upset when defendant refused to lend him money. After they stopped playing cards, Russell approached him with a knife in his hand and grabbed his shirt. Defendant asked Russell what he was doing and Russell threatened him with the knife. Defendant testified that he reacted in self-defense by striking Russell with a beer bottle. He denied removing money from Russell's person and claimed to have struck Russell only once with a beer bottle.
On cross-examination, defendant admitted that a week after the altercation, he learned that the incident had been reported in the newspaper. The prosecutor asked the following questions:
Q: [L]et's say someone has hit someone with a bottle and cut someone. Would you say they'd know they'd be charged with aggravated assault or some kind of crime?
A: Yes. If you just walk up to --- yes.
Q: So unless you come forward and say, he cut me, he tried to cut me first, Phillipsburg police, unless you do that, didn't you realize that you would very possibly be charged with aggravated assault by the Phillipsburg police department?
Defendant responded that he did not know the extent of any injury or whether Russell would report it or file charges. The prosecutor then engaged ...