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State v. Zimmerman


July 28, 2008


On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-03-0826.

Per curiam.


Submitted July 8, 2008

Before Judges C.S. Fisher and Grall.

Mustafa Stribling appeals from an order committing him to the Essex County Correctional Facility for a term of six months for "violation of Rule 1:10-1, based upon his refusal to testify" at defendant David Zimmerman's criminal trial. Because an immediate adjudication of contempt was not "necessary to permit the proceeding to continue in an orderly and proper manner," we reverse. R. 1:10-1(d).

The facts pertinent to our decision are contained in a transcript of a hearing conducted during Zimmerman's trial when the jury was not present. The attorneys in court were Mr. Moskowitz and Ms. Cucinello, who were prosecuting Zimmerman, Ms. Freedman, who was representing defendant Zimmerman, and Mr. Cleary, who was representing Stribling.


Q: Judge, he has now taken the oath. Sir, are you prepared to answer questions concerning an incident of [May] 19, 2007?

A: No.



Q: You are not prepared to answer questions?

A: No.

MR. CLEARY: Your Honor, if I may, I advised Mr. Stribling that he should take the 5th Amendment. I think that's what he means. Is that correct, Mr. Stribling?

THE WITNESS: Yes, sir.

THE COURT: For the record, I have reviewed your statement that has previously been marked.

MR. MOSKOWITZ: S-22, Judge.

THE COURT: S-22. Within the body of your statement, as far as the court is concerned, there is nothing that incriminates you. All right. You can only exercise your 5th amendment privilege not to testify if something you say will incriminate you as to a crime. As far as the four corners of this document is concerned, you've committed no crime. So, it's my ruling that you have no 5th amendment privilege. What that means is that if you refuse to testify, I will hold you in contempt, and I will sentence you to six months in the county jail. Do you understand that?

THE WITNESS: Yes, sir.

THE COURT: Are you willing to testify?


MR. CLEARY: Your Honor, if I may be heard, I think the threshold is lower than that. It's not that we don't think he committed a crime, it's not that he is not charged with a crime, the threshold is lower . . . .

THE COURT: I strongly disagree. There is nothing within the body of that statement which incriminates him in any way whatsoever. He does not have the privilege. If you don't testify, you're getting six months of contempt.


Q: Sir, is that your signature? Take a look at the document, sir. On S-22, is that your signature?

MS. FREEDMAN: Judge, I'm going to object to him being asked questions.

MR. MOSKOWITZ: I'm allowed to ask questions.

MS. FREEDMAN: We didn't establish whether he is testifying.

THE COURT: If he refuses to answer pursuant to - I'll make a decision based upon Gross to admit his statement regardless. Answer any questions at all, Mr. Stribling?


THE COURT: He is held in criminal contempt. He is sentenced to county jail for six months. You can take him away.

The trial court adjudicated this contempt pursuant to Rule 1:10-1. Subsequently, the court found that the sworn statement Stribling gave to the police was admissible under the standards established in State v. Gross, 121 N.J. 1 (1990). The court's findings and reasons for concluding that this contempt could be summarily adjudicated pursuant to Rule 1:10-1 were not stated on the record or in a certification, as required by that rule.

A trial court's authority to punish for contempt is "an extraordinary power, to be exercised sparingly against those whose conduct 'has the capacity to undermine the court's authority and to interfere with or obstruct the orderly administration of justice[.]'" Amoresano v. Laufgas, 171 N.J. 532, 549-50 (2002) (quoting In re Daniels, 118 N.J. 51, 61 (1990)). Our review is de novo, and that standard is applied as "a fail-safe mechanism for assuring that the contempt power is not abused." Daniels, supra, 118 N.J. at 62.

The Rules of Court provide two methods for a trial court to impose a term of incarceration for contempt that is not based on a violation of N.J.S.A. 2C:29-9. Rule 1:10-2 provides for adjudication initiated by an order to show cause or order for arrest. Rule 1:10-1 authorizes a summary proceeding under specified circumstances without written notice. Rule 1:10-1 provides:

A judge conducting a judicial proceeding may adjudicate contempt summarily without an order to show cause if:

(a) the conduct has obstructed, or if continued would obstruct, the proceeding;

(b) the conduct occurred in the actual presence of the judge, and was actually seen or heard by the judge;

(c) the character of the conduct or its continuation after an appropriate warning unmistakably demonstrates its willfulness;

(d) immediate adjudication is necessary to permit the proceeding to continue in an orderly and proper manner; and

(e) the judge has afforded the alleged contemnor an immediate opportunity to respond.

The order of contempt shall recite the facts and contain a certification by the judge that he or she saw or heard the conduct constituting the contempt and that the contemnor was willfully contumacious. Punishment may be determined forthwith or deferred. Execution of sentence shall be stayed for five days following imposition and, if an appeal is taken, during the pendency of the appeal, provided, however, that the judge may require bail if reasonably necessary to assure the contemnor's appearance.

Paragraphs (a) through (e) establish preconditions essential to the court's authority to address contempt pursuant to that rule. The Rule was amended to include these preconditions following the Supreme Court's decision in Daniels. See Pressler, Current N.J. Court Rules, comment 2.1 on R. 1:10 (2008) (appearing after R. 1:10-3). In Daniels, the Court recognized that the power "to punish [contempt] without the formalities required by the Bill of Rights for the prosecution of . . . crimes" is "extraordinary." 118 N.J. at 60 (internal quotations omitted) (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11, 16 (1954)). Exercise of that "extraordinary power" is justified on the ground "that the necessities of the administration of justice require such summary dealings with obstructions to it. It is a mode of vindicating the majesty of law, in its active manifestation, against obstruction and outrage." Id. at 60-61 (quoting Offutt, supra, 348 U.S. at 14, 75 S.Ct. at 13, 99 L.Ed. at 16). The power is not unlimited. Its "outer limit . . . is 'the least possible power adequate to the end proposed.'" Id. at 61 (quoting Hicks v. Feiock, 485 U.S. 624, 637 n.8, 108 S.Ct. 1423, 1432 n.8, 99 L.Ed. 2d 721, 735 n.8 (1988)). Paragraph (d) of Rule 1:10-1 sets the outer limit addressed in Daniels - the "immediate adjudication" must be "necessary to permit the proceeding to continue in an orderly and proper" fashion.

Subsequent to the amendment of the Rule, the Court has found the requisite necessity for exercise of this extraordinary power in cases posing a continuing threat to the ongoing proceeding. See Amoresano, supra, 171 N.J. at 555. Conversely, when the trial can continue without an immediate adjudication of contempt, the adjudication should be done in a separate proceeding and only after the person charged has been afforded an opportunity to respond with oral or written submissions. Daniels, supra, 118 N.J. at 72; see R. 1:10-2.

In this case, loss of liberty was imposed as a sanction for contempt under circumstances in which the punishment could not have had any impact on the trial. Cf. R. 1:10-3 (addressing confinement designed to coerce compliance with a court order obtained by a litigant). Because the sanction could not have had an impact on the remainder of the trial, the immediate adjudication was irrelevant and not "necessary to" continuation of the trial. R. 1:10-1(d).

We do not underestimate the difficulties posed in the prosecution of a serious crime when a witness -- whether for reason of concern about self-incrimination*fn1 or incrimination of another or general disrespect for the criminal justice system -- refuses to testify. That difficulty, however, does not warrant and is not likely to be alleviated by an exercise of judicial authority that is not consistent with the Rules of Court. The foundation for confidence in the criminal justice system is compliance with the rule of law.


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