On appeal from the Superior Court, Appellate Division, whose opinion is reported at 385 N.J. Super. 350 (2006).
(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).
The issue in this appeal is what standard should be used to determine whether testimony by family members of defendant before a grand jury was improper and what remedy is appropriate in the event that standard is violated.
In this capital murder case, the prosecution in its initial presentation to the grand jury subpoenaed four family members of defendant Alturik Francis and questioned them about Francis' upbringing, history of substance abuse, history of violence and psychological background as well as the facts of the crimes. The State also questioned Francis' mother about her discussions with a social worker employed by a mitigation firm that was to assist Francis during the penalty phase of his capital murder trial.
A month later, the prosecutor instructed the grand jury to disregard the earlier testimony and focus instead on the testimony presented that day by law enforcement officers. The grand jury then indicted Francis for the sexual assault and brutal murder of Majuly Collins, the murder of her two small children and an assault on her cousin. Francis moved to dismiss the indictment alleging that the State's questioning of his four family members before the grand jury was improper.
The trial court first concluded that there had been an abuse of the grand jury's function and it barred the State from using the grand jury testimony of Francis' family members in any proceeding. On reconsideration, the trial court said the State could use the testimony in question that specifically related to the issue of guilt, but was precluded from using such testimony in the penalty phase. Whether such grand jury testimony could be used for impeachment purposes, the trial court ruled, would be determined not in the abstract but "in the context" of the trial.
The State's motion for leave to appeal was granted by the Appellate Division. In a published opinion, the panel adopted the "dominant purpose test" and concluded that the prosecutor used the grand jury process for the dominant purpose of preparing the case for the penalty phase of Francis' capital trial and that this was a misuse of the grand jury. The panel, however, modified the trial court's order to permit the use of the grand jury record to impeach any family member's statements in the guilt phase of the trial. State v. Francis, 385 N.J. Super. 350 (App. Div. 2006). Adopting the trial court's distinction, it also allowed the State to use grand jury testimony of family members regarding inculpatory statements made by defendant. The Supreme Court granted the defendant's motion for leave to appeal and the State's cross-motion, as well as the Attorney General leave to appear amicus curiae.
HELD: Because the misuse of grand jury occurred before Francis' indictment, the inquiry should have been whether the testimony of the family members was relevant to the crimes under investigation and not whether the grand jury was used for the sole or dominant purpose of securing additional evidence against the defendant for use in the upcoming trial. The trial court is to determine whether the testimony of Francis' family members is relevant to the charges against Francis.
1. The grand jury is entrusted with expansive powers and it must be free to pursue its investigations unhindered. The prosecutor cannot impinge on a grand jury's independence or improperly influence its determination. A defendant bears the burden of proving that the prosecutor misused the grand jury for an improper purpose. (pp. 15-18)
2. Francis argues that R. 3:13-4 protects his mitigation evidence from premature disclosure. Pursuant to this Rule, the State is required to provide the defense with a list of the aggravating factors on which it intends to rely to seek the imposition of the death penalty and a defendant is required to provide the prosecuting attorney with an itemization of the mitigating factors on which the defendant intends to rely on at the sentencing hearing. Given its express language, efforts by the State to secure in advance information that Francis eventually will be duty-bound to disclose does not amount to improper conduct. The question, however, remains whether the State's use of the grand jury as a means to secure mitigation testimony was proper. (pp. 19-20)
3. Nationally, courts have distinguished between pre- and post-indictment grand jury proceedings in determining what standard is to be applied to grand jury abuse claims. After an indictment has been returned, a prosecutor may not use a grand jury's investigatory powers for the sole or dominant purpose of securing additional evidence against the defendant for use in the upcoming trial. This is known as the dominant purpose test. In contrast, before an indictment has been returned, the applicable standard is whether the evidence sought by the State via the grand jury was relevant to the crimes under investigation, that is, did the evidence sought have a tendency in reason to prove or disprove any fact of consequence to the determination of the action. (pp. 20-25)
4. The State's challenged use of the grand jury occurred before the indictment against Francis was returned. Thus, the Appellate Division applied an incorrect standard of review. It should have inquired whether the evidence the State sought was relevant to the crimes under investigation. As a result, the Court cannot sustain a presumptive bar against use of the Francis family members' grand jury testimony in the guilt phase of his trial. (pp. 25-27)
5. The Court remands to the trial court for a determination of the relevance issues. The trial court may determine that some of the testimony of Francis' family members was not relevant to the charges against him, and any improperly garnered proofs should be suppressed. Irrelevant grand jury evidence may be used for impeachment, unless the suppressed statement is not otherwise trustworthy and reliable. (pp. 27-29)
The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the Law Division for further proceedings consistent with this opinion.
CHIEF JUSTICE ZAZZALI and JUSTICES LaVECCHIA, ALBIN, WALLACE and HOENS join in JUSTICE RIVERA-SOTO's opinion. JUSTICE LONG did not participate.
The opinion of the court was delivered by: Justice Rivera-soto
In this appeal, we address the related issues of the standard to be applied in respect of the presentation of evidence before a grand jury and what remedy is appropriate in the event that standard is violated. During its initial presentation of a capital murder case to the grand jury, the prosecution subpoenaed four family members of defendant Alturik Francis and questioned them concerning defendant's upbringing, history of substance abuse, history of violence, and psychological background, as well as the factual underpinnings of the crimes for which defendant eventually was charged. The State also questioned one of those family members -- defendant's mother -- about her discussions with a social worker employed by a mitigation firm retained to assist during the penalty phase of defendant's capital murder trial. At a grand jury proceeding almost a month later, the prosecutor instructed the grand jury to disregard that earlier testimony and to focus instead on the testimony presented that day by law enforcement officers. It was on that latter testimony that the grand jury returned an indictment against defendant.
Advocating the adoption of the dominant purpose test for all allegations of grand jury abuse, defendant asserts that the State overstepped proper boundaries when it questioned defendant's family members. Specifically, it is defendant's view that, in addition to using the grand jury for proper investigatory and charging purposes, the State misused the grand jury to secure evidence in respect of defendant's mitigation case; that such use of the grand jury violates the dominant purpose test; and that the appropriate remedy for that violation is the suppression ---for all purposes --- of any proofs secured in violation of the dominant purpose test. The State rejoins that the proper test to determine the propriety of a pre-indictment grand jury inquiry is whether the evidence procured is relevant to the grand jury's inquiry, and that all of the grand jury questioning was relevant.
We reject defendant's invitation to apply the dominant purpose test to pre-indictment grand jury proceedings. Instead, we hold that the standard to be applied to determine the proper scope of a grand jury's pre-indictment inquiry is whether the evidence sought is relevant to the grand jury's task; the dominant purpose test applies only to claims of post-indictment grand jury abuse.
During the early morning of December 7, 2002, Majuly Collins, a thirty-two-year-old woman, her four-year-old son, and her eighteen-month-old daughter were brutally murdered in their Elizabeth apartment. Collins was sexually assaulted and stabbed numerous times, and her children were suffocated. The police found the three bodies in the bathtub. Susan Vargas, Collins's twenty-one-year-old cousin who was living with her at the time, also was stabbed in the neck. Vargas, although seriously injured, survived the attack and told the police that a black male who lived in a downstairs apartment committed the rape and murders. The investigation quickly led the police to defendant, who lived in the downstairs apartment with his sister and his brother-in-law.
The police arrested defendant that same day. Over that day and the next, defendant made a total of four recorded statements to the police, each differing from its predecessor. In the first statement taken the morning of December 7, 2002, defendant told the police that he had participated in the robbery, but that his cousin, Jeffrey Corbit, also known as "Jahad," had committed the murders. Later that same day, defendant informed the police that he had committed all of the acts alone and that he had told them that Corbit was a participant in hopes of "get[ing] less time in jail." In the two statements taken the next day, defendant provided further incriminating details of the crimes.
As part of a grand jury proceeding convened on January 31, 2003 to investigate Collins's rape and murder, the murder of her two small children, and the assault on Vargas, the State subpoenaed four of defendant's family members to testify: defendant's stepfather, mother, sister, and brother-in-law. The State first explained to the grand jury that
[t]he first matter is the investigation regarding [defendant]. When I say investigation you're not going to be hearing evidence on this case at this point to determine whether or not to hand up an indictment. This is an investigative function of the Grand Jury where the purpose of this proceeding is to gather information by way of general background and I will keep it somewhat general ...