On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 399-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2008
Before Judges C.S. Fisher and C.L. Miniman.
In this appeal, we consider S.X.H.'s contention that he was deprived of a fair hearing when found to be a sexually violent predator. His argument is based upon the assertion that the trial judge took a dismissive view of his pretrial motions, exemplified by the judge's alleged labeling of his motion papers as "garbage" and her alleged tossing of them into the garbage during an off-the-record discussion with counsel. Although the judge disputed this, the record has not generated a definitive and conclusive understanding of what occurred. However, rather than remand for further proceedings about this dispute, we resolve any doubts about the fairness of the proceedings by remanding for a new trial.
S.X.H. pled guilty to first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1), first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4), and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). At the same time he pled guilty to first-degree kidnapping and first-degree aggravated sexual assault regarding a separate incident. He was sentenced on May 21, 1998 to concurrent seven-year prison terms.
On May 26, 2005, the State filed a petition seeking a determination that S.X.H. was a sexually violent predator and his commitment to the Special Treatment Unit (STU), pursuant to the Sexually Violent Predator Act (the Act), N.J.S.A. 30:4-27. 24 to -27.38. The next day the trial court entered an order that temporarily committed S.X.H. to the STU pending a final hearing, which ultimately commenced on September 27, 2005.
Five days before the start of the final hearing, S.X.H. filed three motions, which raised four issues, namely: whether the enforcement of the Act would violate his constitutional rights; whether the State's expert had rendered only a net opinion; whether S.X.H. was entitled to a probable cause hearing in advance of the final hearing; and whether a hearing, pursuant to N.J.R.E. 104(a), was required to ascertain the reliability of hearsay statements considered by the State's expert in formulating his opinions.
Other than a brief comment uttered during counsel's summation at the conclusion of the final hearing,*fn1 the record of the proceedings in the trial court contained no mention let alone disposition of S.X.H.'s motions. The hearing was conducted over the course of two days at the conclusion of which the trial judge rendered an oral decision. The trial judge found the State's evidence to be clear and convincing, and she committed S.X.H. to the STU.
S.X.H. filed a timely appeal and thereafter filed a motion to expand the record to include his trial counsel's affidavit. This affidavit asserted that a few minutes before the commencement of the final hearing, the trial judge reviewed the pretrial motions "for no longer than 30 seconds and exclaimed 'this is garbage' whereupon she tossed them in the garbage."
In response, the State sought a limited remand. The deputy attorney general's certification neither confirmed nor denied her adversary's sworn recitation that the trial judge cursorily reviewed the papers and then threw them in the garbage; instead, the deputy attorney general asserted only that the trial judge "found these motions to be totally frivolous and rejected" them. The deputy attorney general acknowledged -- and it is not a matter of dispute -- that the record contained no disposition of S.X.H.'s pretrial motions; as a result, the State sought a remand to "recreate the record" regarding the disposition of those motions. We granted both motions so that the matter in controversy could be "developed" in the trial court.
In response to our mandate, the trial judge conducted a hearing, which commenced with her description of the remand order. After this, the judge said only, "I'm here," which caused understandable doubt in counsel's mind as to the procedure he was to follow:
[COUNSEL FOR S.X.H.]: . . . shall I proceed?
[COUNSEL FOR S.X.H.]: Yeah, I thought just what we were to do is to reconstruct the record of what happened.
THE COURT: I beg your pardon. I'm going to act upon the remand. You got it.
[COUNSEL FOR S.X.H.]: Yeah. And the --
[COUNSEL FOR S.X.H.]: My understanding of the remand was just for each of us to describe what our recollection of -- of the event in question was.
THE COURT: I wish that were so. However, the remand is for the development of the record -- the matter, not the record. The development of the matter, the matter being expanding the appellate record to include certification of trial counsel. The matter can be developed. I'm here for you to develop the record.
With this for guidance, S.X.H.'s counsel began to explain his recollection of what occurred ...