April 23, 2008
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
TRINA CHANCEY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-03-00192.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 14, 2008
Before Judges Parrillo and S.L. Reisner.
The State appeals from an August 15, 2007 trial court order dismissing with prejudice an indictment against defendant Trina Chancey. We affirm.
These are the most pertinent facts.*fn1 This appeal arises from a November 1, 2006 incident in which a gun was discharged at defendant's home. Defendant's live-in boyfriend, Brandon George, initially gave police a sworn statement alleging that during a dispute, defendant, an Irvington police officer, pointed her service weapon at him and fired one shot. George was not injured. When he left the house shortly after the incident, George also told a local crossing guard that defendant had tried to kill him. Defendant's version of the event was that George first hit her in the head and then attempted to retrieve her service weapon from a closet; the gun discharged as she was struggling with him over the weapon.
A month later, on December 7, 2006, George gave a defense investigator a sworn statement recanting his earlier accusation. In this statement, George attested that after the couple had an argument, defendant retrieved her service weapon because she was leaving the house and was required to carry the gun with her at all times. However, George misinterpreted her actions, thinking she was intending to shoot him; they struggled over the gun, and it went off accidentally. When called before the Grand Jury, George appeared but declined to testify, invoking his Fifth Amendment right against self-incrimination.
Nonetheless, defendant was indicted on March 7, 2007, on charges of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and second-degree official misconduct, N.J.S.A. 2C:30-2. The Irvington Police Department also initiated a disciplinary action against defendant and suspended her without pay, although a hearing on the charges was held in abeyance pending the outcome of her criminal trial.
On May 10, 2007, George told Prosecutor's Detective Daniel Seib that he would invoke his Fifth Amendment rights if called to testify at the trial. George did not respond to Seib's subsequent attempts to reach him. Thus, the State was aware in May 2007 that George was an uncooperative witness.
Judge Peim and all counsel signed a pre-trial memorandum on June 25, 2007, setting a trial date of August 6, 2007. In agreeing to the trial date, the State represented that it was prepared to try the case. The pre-trial memorandum advised both sides that "[a]ny problems with witness availability must be brought to the Court's attention within ten (10) days of the signing of this Memorandum," or as soon as discovered thereafter. The Memorandum also recited that the State had offered to let defendant plead guilty to the disorderly-persons offense of harassment in exchange for a recommended sentence of probation and forfeiture of public employment. Defendant declined the offer.
The prosecutor mailed George a trial subpoena, but did not attempt to locate him or personally serve him with a trial subpoena until shortly before the scheduled trial date. A few days before the trial, the assistant prosecutor applied for and obtained the Attorney General's approval of a petition for immunity for George; it was signed on August 6, 2007. However, the State did not advise the trial judge that it was not prepared to proceed with the trial. Accordingly, a jury was selected on August 7.
On August 8, before the jury was sworn, the assistant prosecutor moved before Judge Peim to dismiss the indictment without prejudice, claiming that he needed more time to locate George. When questioned by the judge concerning the State's failure to advise the court sooner as to its problems with George, the assistant prosecutor responded that the State intentionally delayed serving George with a trial subpoena or applying for an immunity petition, on the theory that George was more likely to appear for trial if he was notified at the last minute. When the judge reminded the assistant prosecutor that the court picked a jury based on information from court staff that the State was prepared to proceed to trial without George, the assistant prosecutor explained that he initially believed the case could be presented to the jury without George, based on other evidence including the excited utterance to the crossing guard. However, he changed his mind after consulting with a more senior attorney in the office.
Defense counsel strenuously objected to a dismissal without prejudice. Counsel contended that her client would be severely prejudiced by delay because she was suspended without pay from her job and the police disciplinary hearing could not proceed until the criminal trial was concluded. She also argued, and the State agreed, that if the court dismissed the case for thirty days, the State would inevitably re-indict defendant even if it did not locate George.
The trial judge ruled as follows:
[Y]ou [State] really are asking me for an adjournment. You are not asking me for a dismissal without prejudice. That is what this is about. You are asking me for an adjournment of approximately 30 days or maybe more, depending on how things work out with your reindictment, but it is your intent to reindict whether or not you find this person . . . and then go forward with the case. If you have your material witness, go ahead with him. If not, with the excited utterances. . .
The case is adjourned to next Monday afternoon. You have approximately one more week to find this guy. If you can't find him by then, I have no reason to believe that . . . an extra two or three weeks is going to make any difference. We are going to be trying the case either with the witness or without the witness a month from now. I am going to try and preserve this jury . . . I will swear them Monday afternoon and we'll get started.
The judge made abundantly clear to the State that "if this case isn't going to be dismissed with prejudice, it is going ahead next week." The judge also offered to sign a material witness warrant for George.
Both counsel appeared before the judge on the afternoon of August 13, 2007,*fn2 the rescheduled trial date. At that time, the assistant prosecutor once again asked for a dismissal without prejudice because, although the court had issued a material witness warrant, the State "did not pick up the victim in this case." The trial judge then asked the assistant prosecutor, "Why didn't you tell me this when you told me just to dismiss the jury this morning and tell them not to come in?" The prosecutor responded that he had wanted to speak with his supervisor. The judge responded
This morning you told me we're not going ahead with this . . . call the jurors and tell them not to come in. Why didn't you tell me you were going to make this type of application this morning? . . . I could have brought the jurors in. I could have [sworn] them in, right? . . . And I could have said go ahead with your case that was scheduled for last week.
The prosecutor responded that defense counsel was not present and "I didn't think that it was appropriate at that point to . . . ask for a dismissal without prejudice." The judge responded "It was my mistake. . . . I shouldn't have called the jury off without having input from [defense counsel.]."
However, the judge also reminded the assistant prosecutor that Where I left it [last week] was because you originally had told me that you were going to go ahead with your excited utterance witnesses, I then gave you . . . an extra week, because you knew this witness . . . was giving you difficulty at the beginning of May, I gave you an additional week to try and locate this witness, and I had told you that you're either going to go ahead with whatever you have today or I was going to dismiss it with prejudice.
Defense counsel also vigorously opposed the State's application, contending that the State was attempting to re-argue a matter the judge had already decided. Defense counsel contended, "I spent the last week under the assumption that we were either going forward or it would be dismissed . . . But either way I feel like this is just a tactic for them to buy more time . . . You ruled on this. If they want to go forward today, I'm more than ready."
After the State indicated that it was not prepared to present its case, the judge dismissed the indictment with prejudice.
This case was placed on the trial list sometime ago. The witness that you've been speaking of, you knew the witness was a problem from early May.
You did not start looking for him until the week before the trial was scheduled to start. . . . [Y]ou did not ask me for a material witness warrant until Wednesday of last week, which was a couple of days after the trial was supposed to start. I gave you an additional week to try and locate this person. . . . [Y]ou've had since May to get a subpoena or a warrant on this witness. . . .
[T]here's been no showing that any additional time will make a difference.
The case was scheduled for trial last Monday. You've had this additional time to prepare. You've represented to me initially that you were prepared to go ahead without this witness, just based on . . . . the excited utterance.
I understand your frustration with the case, but under the circumstances and the posture this case is in, that's my order [to dismiss with prejudice].
In this case, we consider a number of important factors. We recognize that dismissal of an indictment is an extreme remedy, which is to be avoided if possible because it affects the rights of the victim and the public, and the integrity of the criminal justice system. State v. Ruffin, 371 N.J. Super. 371, 384 (App. Div. 2004); State v. Gomez, 341 N.J. Super. 560, 578 (App. Div.), certif. denied, 170 N.J. 86 (2001). On the other hand, as we also recognized in Ruffin, A criminal trial is not a game, and the courtroom is not a ball field where the prosecutor may pick up his bat and glove and go home if he does not like the ruling of the umpire. The power and responsibility for the conduct, control and disposition of criminal trials resides in the trial judge, not the prosecutor.
As part of its responsibility, the trial court has the power to tightly control its calendar to assure the efficient administration of the criminal justice system. [371 N.J. Super. at 387-88.]
We have also recognized the prejudice that can result to a defendant from trial delays:
[Legally cognizable] prejudice to a defendant resulting from delay is no longer confined to inability or lessened ability to defend on the merits. Prejudice can also be found from employment interruptions, public obloquy, anxieties concerning the continued and unresolved prosecution, the drain on finances, and the like. [State v. Smith, 131 N.J. Super. 354, 368 n.2 (App. Div. 1974), aff'd o.b., 70 N.J. 213 (1976).]
We have recognized that where a case is reached for trial and the State refuses to proceed with its case, the trial judge may dismiss the indictment with prejudice. That remedy, although extreme, was found appropriate in State v. Slobiski, 100 N.J. Super. 590 (App. Div. 1968). In Slobiski, the State refused to go ahead with a scheduled trial.
This case had been assigned to the County Court for disposition . . . , placed on the trial calendar and carried for months. It had been marked ready on the January 3, 1968 calendar and, during the week preceding February 1, 1968, was carried from day to day on a ready basis until it was reached for trial. At this eleventh hour the State, for the first time and without notice to defendant, took the position that it was not ready and could not be ready by the following Monday, even though the court pointed out that there was ample opportunity to subpoena necessary witnesses.
The trial court, in the exercise of its control over the trial calendar, had the power to dismiss the indictment when the case had been reached for trial and the State without good reason refused to proceed. This dismissal . . . was based on the inherent power of the court to control cases on its own trial calendar.
We recognize the public interest involved in the administration of criminal justice. Dismissal of an indictment for failure to prosecute should be ordered only when clearly warranted. Here the prosecutor's office had ample notice that this case was being reached for trial. The reason given for not being ready was not valid. The refusal to accede to the trial court's suggestion made it plain that the prosecutor's office was attempting to frustrate the trial court's control over its own trial calendar. Under the facts and circumstances here presented, the action taken by the trial court was fully justified. [Id. at 594.]
We find Slobiski on point here. The prosecutor was well aware that the judge had granted a short adjournment to allow the State to locate George, and had set a peremptory trial date for August 13. Nonetheless, on the morning of August 13, the prosecutor advised the trial judge to dismiss the jury, without disclosing that his reason for so stating was not that he intended to terminate the prosecution, but that he intended to attempt re-argument of his application to dismiss the indictment without prejudice. This blatant manipulation was tantamount to a refusal to present the case. A jury had been impaneled, and, as the judge properly observed, had the prosecutor appeared with his witnesses that afternoon prepared to proceed, the judge would have directed him to do so with or without George. It was clear on this record, that the State was unwilling to proceed with its case despite clear direction from the court.
Unlike State v. Ruffin, supra, 371 N.J. Super. at 386, where we concluded that in seeking a trial adjournment to file an interlocutory appeal, "[t]he State was not endeavoring to avoid the trial or await better circumstances," here that is exactly what the State was trying to do. Moreover, defendant was severely prejudiced, because she was suspended from her job without pay and could not seek reinstatement until the criminal prosecution was over. The uncooperative witness was also the alleged victim, who clearly had no interest in the prosecution of the case. Moreover, if defendant's statement to the police (or George's recanting statement) is true, defendant is innocent of the charges. We find no abuse of the trial judge's discretion in granting a one-week trial adjournment instead of the thirty days the State requested, and we find no abuse of discretion or other error in the judge's decision to dismiss the indictment with prejudice when the State declined to proceed with the trial on August 13.
Finally, while we in no way underestimate the seriousness of the criminal offenses with which defendant was charged, the State's evidence, even had it found George, was hardly overwhelming; prior to trial the State would have been satisfied with a plea to harassment, with a penalty of probation and forfeiture of public employment. We also note that even after the dismissal of the indictment, defendant still faced civil disciplinary proceedings which might lead to the termination of her employment as a police officer, a penalty which appeared to be the State's key aim in this prosecution.