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In re Selby


August 22, 2007


On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-10-01053.

Per curiam.


Submitted August 14, 2007

Before Judges S.L. Reisner and Lyons.

Appellant, Kenneth Selby (Selby), appeals from a judgment of conviction entered on June 7, 2006 finding him in contempt for failure to appear when subpoenaed for a criminal trial and committing him to the Cumberland County jail for a period of 120 days, as well as assessing a $500 fine. The facts and procedural history are as follows.

Selby witnessed the homicide of Kenneth Kent and provided a written statement detailing his eyewitness account to the Cumberland County Prosecutor's office. On February 23, 2006, he met with representatives of the prosecutor's office for a pre-trial interview. While at the prosecutor's office, Selby was served with a "stand-by" subpoena to testify. This subpoena stated in bold letters, "[t]his is a stand-by subpoena. Do not come to court until you have called the prosecutor's office." The text of the subpoena advised Selby to "call the Prosecutor's Office on Friday, March 10, 2006, and ask for Detective George Chopek . . . You will then be told when to appear." During the pre-trial interview, he indicated that he did not wish to testify at the trial.

Selby contends that on March 10, 2006, he called the prosecutor's office, asked for Detective Chopek, and was told he was out. He stated that he did not make any effort to call back after the first call or let a representative in the office know who he was or why he was calling. The representatives of the prosecutor's office testified they received no messages from Selby that he had called on March 10.

The trial of Terrell Cornish, who was accused of killing Kenneth Kent, commenced and ended after a plea arrangement was reached between Cornish and the State. Selby did not appear at the trial despite efforts by the prosecutor's office to locate him and serve him with a second subpoena.

On April 3, 2006, the State asked that an Order to Show Cause be entered as to why Selby should not be found in contempt pursuant to Rule 1:10-2 for failing to comply with the stand-by subpoena. The application for the Order to Show Cause was accompanied by a certification from the First Assistant Prosecutor in Cumberland County outlining the facts relevant to the issuance of the stand-by subpoena and the failure of Selby to attend the trial. The trial court granted the Order to Show Cause setting April 28, 2006 as the return date. That date was postponed to allow Selby to retain counsel. The hearing was conducted on June 7, 2006. Following the hearing, the trial court found Selby guilty of contempt and sentenced him to 120 days in the Cumberland County jail, together with a fine of $500. This appeal ensued. We stayed the imposition of the judgment by order dated October 17, 2006.

On appeal, Selby presents the following arguments for our consideration:



Selby argues that in this contempt case, he was entitled to certain safeguards accorded to criminal defendants, including the presumption of innocence, the privilege against self-incrimination, the right of cross-examination, proof of guilt beyond a reasonable doubt, and the admission of evidence in accordance with the Rules of Evidence. Selby claims that he was essentially deprived of all these protections.

At the outset, we note that Selby received an adjournment so that he could retain counsel and, in fact, he did retain counsel for this hearing. The record indicates that the court utilized the Rules of Evidence with regard to the admissibility of evidence in conducting the hearing. Selby enjoyed the right of cross-examination throughout the hearing as well.

Selby was not advised by the court that he possessed a privilege against self-incrimination, however, the record is devoid of any reference or objection by his counsel to him testifying.

Selby primarily focuses on the allegations that he was not afforded the presumption of innocence, or the requirement that the State prove his guilt beyond a reasonable doubt and, most importantly, that the court shifted the burden of proof from the State to Selby by "ordering defendant to prove to the court that the conduct [Selby's failure to appear at trial] had not been contumacious." Selby further argues that the trial court's impermissible shifting from the State to him of the burden of proving guilt beyond a reasonable doubt is evidenced by the trial court's statements at the hearing and the procedure followed at the hearing.

At the hearing, the trial court first heard from counsel as to whether the subpoena was appropriately issued and valid as one requiring Selby to appear and testify at trial. The trial court concluded that it was, saying, "[w]ell, put your client on the stand, counsel, because I find that it's a valid subpoena." The trial court then said:

[i]s it your client's position that there's some - - for example that he wasn't told to - - he called the Prosecutor's Office's and wasn't told to appear, I'll take his testimony and hear it and then I'll have to let the Prosecutor go from there but since it's your client's burden since I have already found - - [.]

Following the court's statement, a colloquy occurred among the trial court and counsel. The trial court reiterated its position that the subpoena was sufficient and asked, "[s]o would you like your client to take the stand[?]" Selby then testified. After Selby testified, the State's witnesses testified.

Selby points to the trial court's statements and his testifying before the State's witnesses as evidence that there was an impermissible shifting of the burden of proof and a denial of his rights.

Rule 1:9-5 provides that if there is a failure without adequate excuse to obey a subpoena served upon a person, he or she may be deemed in contempt of court. Rule 1:10-2 authorizes summary contempt proceedings to punish contempts other than contempts in the presence of a court. Rule 1:10-2(c) provides that proceedings under the Rule "may be prosecuted on behalf of the court only by the Attorney General, the County Prosecutor of the county, or where the court for good cause designates an attorney, then by the attorney so designated."

In In re Ruth M. Buehrer, the Court held,

[b]ut since the summary [contempt] power lends itself to arbitrariness, it should be hemmed in by measures consistent with its mission. To that end, our rules embody sundry restraints . . . [A] conviction is reviewable upon appeal both upon the law and the facts, and the appellate court shall give such judgment as it shall deem just.

The presumption of innocence of course obtains, and the burden of the prosecution is to prove guilt beyond a reasonable doubt.

Thus, the defendant is afforded all the rights of one charged with crime except the right to indictment and the right to trial by jury. [50 N.J. 501, 515-16 (1967) (citations omitted).] Our Supreme Court, therefore, has made it clear that an alleged contemnor enjoys the presumption of innocence. Further, the Court has made it clear that the burden of proving the alleged contemnor's guilt beyond a reasonable doubt rests with the prosecution. In this case, the County Prosecutor had the burden to prove beyond a reasonable doubt that Selby was guilty of contempt.

The trial court's statement that the burden was Selby's was unclear and confusing. It is unclear whether the court was referring to the burden of persuasion or the burden of producing evidence. See N.J.R.E. 101(b)(2) and N.J.R.E. 101(b)(1). We note though that the burden of producing evidence normally falls on the same party which bears the burden of persuasion. Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 101(b)(2). That did not occur here. The trial court's statements were followed by its direction to have Selby testify first before any of the State's witnesses were produced.

While this matter was a proceeding under Rule 1:10-2 and instituted as a summary contempt proceeding by way of an order to show cause, the method of initiating the proceeding should not compromise the alleged contemnor's rights as outlined in In re Ruth M. Buehrer and the procedure alluded to in Rule 1:10-2(c).

By proceeding as the trial court did in this case, it violated Rule 1:10-2(c), which provides that the matter is to be "prosecuted" by, in this case, the County Prosecutor. On the return of the order to show cause, the trial court should at the outset, simply have taken a "plea" from Selby through his counsel. If Selby had stated he was guilty of contempt, the judge could then hear him on sentencing. If Selby contested the allegation, the matter would proceed by having the County Prosecutor put on the State's case. The procedure employed here, though, was inconsistent with permitting an alleged contemnor to confront and cross-examine the State's witnesses before mounting a defense. Cf. Amoresano v. Laufgas, 171 N.J. 532, 556-57 (2002).

By proceeding as was done in this case, the alleged contemnor, in addition to being prohibited from confronting and cross-examining the State's witnesses before the judge in order to evaluate what, if any, defense he should mount, was denied the ability to argue pursuant to Rule 3:18-1 for a dismissal at the close of the State's case on the basis that the State's evidence was insufficient to warrant a conviction. The procedure employed here was fraught with real and potential problems and is inconsistent with affording the full panoply of constitutional and procedural rights articulated in In re Ruth M. Buehrer to one charged with an offense which may result in incarceration.

In sum, we are convinced that the trial court's confusing and unclear statements as to the burden, as well as the unorthodox procedure used in prosecuting this contempt, merits a reversal and a remand for a new trial.

On remand, the matter shall be tried by a different judge who has not yet made credibility determinations as has the instant trial judge. This holding is consistent with the intent and spirit of Rule 1:10-2(c) which provides in part that "[t]he matter [contempt proceeding] shall not be heard by the judge who instituted the prosecution if the appearance of objectivity requires trial by another judge." Here, the trial judge has already made credibility determinations and an appearance of objectivity can now only be achieved by the matter being heard on remand by a new judge.

Reversed and remanded.


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