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).
This appeal addresses the retroactive application of this Court's opinion in State v. Daniels, 182 N.J. 80 (2004), which prohibits a prosecutor from drawing the jury's attention to a defendant's presence at trial as an opportunity for the defendant to tailor his testimony to conform to that of other witnesses. In addition, the Court considers whether the prosecutor's comments in this case warrant a reversal under Daniels.
A Union County grand jury charged defendant, Carlos Feal, with first-degree murder and weapons offenses. At trial, the State adduced the following evidence. In October 2000, Feal was living with his girlfriend, Julia Torres, in an apartment in Elizabeth. Torres's daughter Carmen testified that Feal owned a revolver which he kept in the master bedroom. According to Carmen, the couple had a tense relationship. On several occasions, Carmen overheard Feal threaten to kill Torres if she left him. Carmen did not take the threats seriously.
At approximately 7:30 a.m. on October 31, 2000, the neighbors in the apartment complex heard a gunshot. About fifteen minutes later, they observed Feal walk out of the building with a supermarket bag in hand. A neighbor called 911 and when emergency medical technicians arrived, they pronounced Torres dead at the scene.
Feal fled New Jersey after Torres's death. Seven months later, police received information that Feal was in New York City. Feal was arrested in Manhattan by two detectives from the Elizabeth Police Department along with detectives from New York.
Feal gave a sworn statement shortly after his arrest that was read into the record at trial. In that statement, Feal claims that Torres came at him with a broomstick, so he went to the bedroom and took out his gun and put it in the kitchen. He told Torres that if she hit him again he was going to hit her over the head with the gun or shoot her. Feal claimed that Torres went to grab the gun, and he took it from her. He claims that as he was pointing the gun at Torres, it "just went off, and I shot her in the left shoulder and she fell down." After some questioning, Feal admitted he did not contact anyone for help. Feal also stated that he disposed of a .38 revolver on a grass median on Route 278.
At trial, Feal testified on his own behalf. That testimony was at odds with his prior statement in numerous respects. Notably, Feal stated that after seeing Torres eyeing the gun, he took the gun to the kitchen to hide it. Feal then portrayed Torres as an armed aggressor, who took the gun from its hiding place and "came at him" with it. Fearing that Torres would use the gun against him, Feal stated that he attempted to take it from her and, in the ensuing struggle, the gun accidentally went off.
On cross-examination, the prosecutor pointed out in detail the inconsistencies between Feal's prior statement and his testimony. Among other things, the prosecutor noted that Feal had been given discovery in the form of statements and photographs, and that he had had an opportunity to hear the State's witnesses "tell their story." The prosecutor made similar references in summation.
The jury convicted Feal on all charges, and he was sentenced to an aggregate term of forty years with a thirty-year period of parole ineligibility. Feal appealed, and the Appellate Division reversed on the ground that Daniels should be given pipeline retroactivity and that its application required the overturning of Feal's convictions based on the comments of the prosecutor. This Court granted the State's petition for certification.
HELD: The holding of Daniels should be given pipeline retroactivity but, in this case, the Daniels violation does not warrant reversal of Feal's convictions.
1. A tailoring allegation is a claim that a witness has adapted his testimony to conform to other evidence that has been produced during a trial. Prior to Daniels, the United States Supreme Court held, under the Federal Constitution, that a prosecutor could comment on a testifying defendant's presence in the courtroom as an opportunity for the defendant to tailor his testimony. New Jersey's case law has, for decades, conformed to this approach. In Daniels, New Jersey's tailoring law underwent a sea-change. There, during summation, the prosecutor stated that defendant sits with counsel and listens to each of the State's witnesses, knows what facts he can't get past, and can choose to craft his version to accommodate those facts. Defense counsel did not object to those remarks, and the jury convicted defendant. This Court reversed, explaining that evidentially baseless tailoring accusations, like other baseless credibility challenges, are prohibited. The Court declared that a comment rooted in a defendant's presence at trial, which had previously been considered permissible, is improper. The Court characterized the prosecutor's claims in that trial as plain error. (pp. 13-17)
2. Daniels was silent regarding its retroactivity. The threshold retroactivity question is always the same -- whether a new rule of law has been announced. If a new rule of law is implicated, there are four options: (1) make the new rule of law purely prospective, applying it only to cases with operative facts arising after the new rule is announced; (2) apply the new rule to future cases and to the parties in the case, while applying the old rule to all other pending and past cases; (3) grant the new rule pipeline retroactivity, applying it to cases in (1) and (2) as well as to pending cases where the parties have not yet exhausted all avenues of direct review; and (4) give the new rule complete retroactive effect. In determining which of these options to adopt, the Court considers three factors: (1) the purpose of the rule and whether that purpose is furthered by retroactive application; (2) the degree of reliance placed on the old rule by those who administered it; and (3) the effect a retroactive application would have on the administration of justice. The first factor, the purpose factor, is often the pivotal consideration. Where the purpose of the new rule is to overcome an aspect of the criminal trial that "substantially impairs" its truth-finding function and raises serious questions about the accuracy of guilty verdicts in past trials, the first factor points to a complete retroactive application. That is so without regard to whether the State relied on the old rule or whether retroactivity would have an impact on the efficient administration of justice. In cases where the old rule did not substantially impair the accuracy of the fact-finding process, but the new rule is designed to enhance the reliability of that process, a court will balance the first prong against the second and third. (pp. 17-21)
3. Daniels clearly departed from New Jersey precedent and from the United States Supreme Court's holding which allowed tailoring accusations by a prosecutor, and therefore constituted a new rule of law. Although Daniels interdicted tailoring claims as, in some measure, impacting the truth-seeking function, it seems to the Court that that case is quite different from the kinds of situations that are recognized as warranting complete retroactivity. In addition, to the extent that a jury will always have in mind the fact that a defendant has heard the testimony of those who preceded him in evaluating his credibility, any additional reference to a defendant's presence by a prosecutor would be unlikely to have a substantial effect on the truth-seeking function. Thus, the purpose factor does not weigh clearly in favor of complete retroactive application. (pp. 21-22)
4. Applying the degree-of-reliance test, the State justifiably relied on the old rule that permitted tailoring accusations in good faith. The second factor therefore weighs in favor of a prospective application. As to the administration-of-justice factor, the Court tries to avoid retroactive application if many cases will be impacted. Here, there are no dispositive statistics about the number of cases that could be affected if the rule is applied retroactively. Generally, the absence of such data about the impact of retroactive impact mandates that the new rule be applied only to cases pending direct review. (pp. 23-24)
5. The State concedes that the prosecutor's comments regarding Feal's presence in the courtroom during trial, which were not subject to an objection, violated Daniels, but argues that the remarks did not rise to the level of plain error. Plain error must be sufficient to raise a reasonable doubt as to whether the error led the jury to a result that it otherwise might not have reached. In light of the nature of the credibility challenge to Feal, it does not appear that the prosecutor's fleeting references to Feal's presence in the courtroom could have led the jury to a result it otherwise would not have reached. The Court does not find that plain error occurred. (pp. 24-26)
The judgment of the Appellate division is REVERSED, and the matter is REMANDED to that court for disposition of the remaining issues raised by Feal on appeal.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE LONG's opinion.
The opinion of the court was delivered by: Justice Long
In State v. Daniels, exercising our supervisory role over the administration of criminal justice, we issued a blanket prohibition against a prosecutor's "drawing the jury's attention to defendant's presence during trial and his concomitant opportunity to tailor his testimony" during summation. 182 N.J. 80, 98 (2004) (citing Portuondo v. Agard, 529 U.S. 61, 70-71, 120 S.Ct. 1119, 1126, 146 L.Ed. 2d 47, 57 (2000)). We further stated that "at no time during cross-examination may the prosecutor reference the defendant's attendance at trial or his ability to hear the testimony of preceding witnesses." Id. at 99 (emphasis added). We applied that bright-line rule "even when the record indicates that defendant tailored his testimony." Id. at 101. In the present case, during cross-examination and on summation, the prosecutor accused defendant of tailoring his testimony based on his review of pre-trial discovery and on his ability to "observe all the witness[es] that the State presented come in and testify in this case."
Defendant appealed, and relying on Daniels, the Appellate Division reversed on the ground that the prosecutor improperly commented on defendant's presence during trial as a tailoring opportunity. Because defendant's trial preceded Daniels, we are faced here with an issue of retroactivity. We now hold that Daniels is entitled to pipeline retroactivity but that, in this case, the Daniels violation does not warrant reversal of defendant's convictions.
A Union County grand jury charged defendant Carlos Feal with (1) first-degree murder in violation of N.J.S.A. 2C:11-3(a)(1); (2) second-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a); and (3) third-degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5(b).
At trial, the State adduced the following evidence. In October 2000, defendant was living with his girlfriend, Julia Torres, in an apartment at 220 Third Street in Elizabeth, New Jersey. Torres's daughter Carmen testified that defendant owned a revolver, which was kept in the master bedroom in the nightstand. According to Carmen, the couple had a "tense" relationship. On several occasions, Carmen overheard defendant threaten to kill or injure Torres if she ever left him. Carmen did not take the threats seriously.
On October 30, 2000, Carmen and her two-year-old daughter spent the day at her mother's apartment. At some point during the afternoon, Torres discovered that the child had taken one of defendant's two guns from the nightstand in the bedroom. Defendant then took both guns and placed them on the top shelf of the bedroom closet out of the child's reach. Carmen and her daughter left the apartment around 11:30 p.m.
At approximately 7:30 a.m. on October 31, 2000, the neighbors in the apartment complex heard a gunshot. About fifteen minutes later, they observed defendant walk out of the building with a supermarket bag in hand. A neighbor called 911, and when emergency medical technicians arrived, they pronounced Torres dead at the scene.
Defendant fled New Jersey after Torres's death, traveling to Texas, Florida, and eventually New York under an assumed name. Seven months after Torres's death, the police received information that defendant was in New York City. Detectives Kenney and Olivero, of the Elizabeth Police Department, and two New York City detectives arrested defendant in Manhattan.
Defendant's initial statement*fn1 to the police was read into the record at trial by Detective Olivero, as follows:
I arrived home about 7 in the morning and [Torres] started to fight with me and pull on my pullover saying that I smell like perfume and that I had a hickey on my neck. She then started to hit me with the broomstick, so I went to the bedroom and went to the draw[er] where I kept the gun, took it out and put it on the kitchen counter by the sink. I then told her that if she hits me again that I was either going to hit her over the head with the gun or shoot her. I put it down and she went to grab it. As she grabbed it, I took it from her and told her to stop hitting me with the stick. And as I was pointing the gun at her, the gun just went off, and I shot her in the left shoulder and she fell down.
Question: What did you do after you shot her and she fell down?
Answer: She started to talk to me. She said you killed me. I told her that I would call for help and she said what for you already killed me.
After that I grabbed a pair of jeans, socks, and my sneakers and left.
Question: Did you speak to anybody as you were leaving the building?
Answer: [A neighbor] opened the door and I said to him I think I killed [Torres] . . . and I left.
Defendant also stated that he disposed of a .38 revolver on a grass median on Route 278.
A medical expert produced by the State testified that, in addition to the gunshot wound, Torres had a fresh contusion on the left parietal region of the scalp caused by blunt force, possibly from the butt of a gun. Also, the police could not locate any photographs of Defendant in the apartment, although Carmen indicated that there were always photographs of defendant and Torres in the master bedroom.
Defendant testified on his own behalf. That testimony was at odds with his prior statement in numerous respects. Notably, defendant said that he saw Torres eyeing the nightstand in which the gun was located and as a result took the gun and stored it behind a canister on the kitchen counter. Defendant then portrayed Torres as an armed aggressor and stated that she took the gun from where he had hidden it and came at him "with the pistol in her hand . . . with the pistol facing the floor." Fearing that Torres would use the gun against him, defendant stated that he attempted to take it away from her. According to defendant, in the ensuing struggle, the gun accidentally went off.
During cross-examination, the prosecutor pointed out those inconsistencies in detail:
Q: [Prosecutor]: Now you testified the other day that you went and got the gun because you saw Julia looking at that night stand, correct?
Q: You agree with me that those words are not in that statement in ...