September 30, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WAQAR H. ZAIDI, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FO-18-156-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 10, 2008
Before Judges Parrillo and Lihotz.
Defendant Waqar H. Zaidi appeals from his conviction, following a trial in the Family Part, for the disorderly persons offense of contempt, N.J.S.A. 2C:29-9(b). The charge emanated from an alleged violation of the provisions of a temporary restraining order (TRO) entered pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to-35. Defendant argues the trial court abused its discretion in limiting cross-examination of the State's sole witness. We agree. Accordingly, we reverse the conviction, vacate the sentence, and remand for a new trial before a different Family Part judge.
Defendant and Farah Chughtai engaged in a dating relationship. Following the termination of their affair, Chughtai requested and received a TRO, prohibiting defendant from all communication and contact. Defendant was served with the TRO on September 25, 2007.
Chughtai reported defendant violated the TRO. She described defendant made multiple telephone calls on September 27, 2007, and emailed her on September 29, 2007. The Franklin Township Municipal Court issued two warrants, each charging defendant with contempt.
The hearing to review Chughtai's initial domestic violence complaint was held on October 25, 2007. The Family Part judge concluded defendant was not present at Chughtai's home on the date and time she alleged, thus, defendant could not have committed the claimed acts of domestic violence. The court dismissed the complaint and vacated the TRO.
The same Family Part judge conducted the trial on the contempt charges. Chughtai testified defendant called her at 4:12 p.m., 4:14 p.m. and 4:15 p.m. on September 27, 2007. She introduced a photograph of her telephone taken on September 19, 2007, apparently to demonstrate she knew defendant's cellular telephone phone number, identified as "732-921-3293."
Chughtai testified that during the repeated September 27, 2007 calls, defendant stated he did not "like... the restraining order" and "wanted to kill [her] son and... put a bullet on [sic] [her] head." Later that day, Chughtai received two threatening telephone messages from an unidentified man, not defendant, whose voice she did not recognize. Further, Chughtai testified defendant emailed her on September 29, 2007. However, the only email document introduced was dated September 22, 2007, which was prior to defendant's receipt of the TRO.
During Chughtai's cross-examination the following exchange took place:
[DEFENSE COUNSEL]: Now, the basis of the restraining order from September 11th was that you had stated [defendant] drove around your house in Franklin Township?
[Assistant Prosecutor]: Judge, I'm going to object as to the relevance of the underlying--
[DEFENSE COUNSEL]: My response, your Honor,... this goes to her credibility. In the other case with he restraining order we caught Ms. Chughtai in a lie, if your Honor remembers, where she claimed my client did something when it was physically impossible because he was in another location, he had a log-in sheet, he had a business deal with another woman, and there was a log-in sheet showing that he could not possibly have driven around her house when she claimed. So this goes to credibility. Credibility is always in question.
[Assistant Prosecutor]: Whether the... underlying restraining order, is valid or invalid based on the truth or a lie, it's irrelevant. The only thing that matters in this proceeding is that there was a restraining order and the defendant knew about it.
[DEFENSE COUNSEL]: This isn't going to the validity of the [TRO] and whether this was a valid order. I don't dispute that there was a valid order. This goes to her credibility because she clearly lied in the prior proceeding and hence she is lying now.
[T]hat's my argument.
THE COURT: Well, you're going to ask her did she testify he was driving around the house?
[DEFENSE COUNSEL]: Right. At a specific time.
THE COURT: And then what are you going to ask her?
[DEFENSE COUNSEL]: I'm going to ask her the basis of the restraining order and I'm going to tie that up with other evidence later on presented to my client showing that she's lying.
[ASSISTANT PROSECUTOR]: Essentially, Judge, we're going to be retrying the restraining order hearing. It's--not going to permit it.
THE COURT: I understand your point, but I'm not going to permit it. Even if it's relevant it's going to consume an inordinate amount of time. I remember the hearing. I can take judicial notice of the fact that there was a complaint, the complaint was dismissed.
[DEFENSE COUNSE]: Yes, sir.
THE COURT: Objection sustained.
At another point, defendant sought to elicit facts regarding another legal proceeding, i.e., a municipal court matter resulted from defendant's complaint against Chughtai's "current paramour," to suggest Chughtai's motive and bias. This questioning also was barred.
Defendant testified on his own behalf. Defendant explained that on September 27, 2007, he was in a Toms River dental clinic having a tooth pulled from 3 p.m. to 4 p.m. Defendant testified that on September 19, 2007, he received calls "every minute" from "908-391-4552." Because he did not recognize the telephone number, he called the number. Chughtai had stated this was not her telephone number.*fn1 Defendant's cellular telephone bill, D-3 in evidence, shows an incoming call from this telephone number at 5:11 p.m. on September 19, and two one-minute calls made to the number at 5:12 p.m. and 5:13 p.m.
Defendant denied he contacted Chughtai or asked another to call her on his behalf subsequent to receipt of the TRO. His telephone bill reflects no outgoing calls at the times testified to by Chughtai on September 27, 2007. Also, defendant denied he sent Chughtai emails on September 29, 2007.
At the close of evidence, the trial judge dismissed the charge relating to the email and concluded the State failed to prove defendant caused another to telephone Chaghtai on September 27. Reviewing the contempt charge for telephoning Chughtai on September 27, 2007 the trial judge stated:
It is a classic he said/she said case and comes down to her credibility. In that regard, I accept as credible the victim's testimony in regard to the receipt of those three phone calls. I reject the defendant's testimony in that regard as not being credible.
Based upon my observation of the witnesses, their demeanor, the means and methods by which they conveyed their knowledge or testimony of facts in issue to this [c]court, I conclude that the victim's testimony in that regard was credible, and therefore, I find that the defendant, Waqar H. Zaidi, did in fact contact the victim on September 27 by means of telephone calls as indicated at 9:11, 9:12 and 9:15 and thereby violated the no-contact provision of the temporary restraining order.
It is of no moment that that order was ultimately dismissed in point of fact by me on final hearing. It was in effect on September 27, and that order remains in effect and has legal effect until vacated. State v. Cassidy, 179 N.J. 150 (2004).
The defendant may be found guilty of contempt for violating a TRO even when that TRO is subsequently dismissed, which it was in this case.
As an order of the [c]court must be obeyed unless and until the [c]court acts to change or rescind it. State v. Sanders, 327 N.J. Super. 385 (App. Div. 2000). And therefore, based upon my findings as to credibility I find that the defendant did violate the order and is in contempt of this [c]court by reason thereof under 2C:29-9(b) and a finding of guilt will be entered on FO-18-156-08.
Defendant was sentenced to one year of probation with a thirty day suspended jail sentence, a $500 fine, $50 Violent Crimes Compensation Board Assessment, and $75 Safe and Secure Communities Program Assessment.
On appeal, defendant argues the court erred in limiting his ability to impeach the complaining witness. Defendant sought to show Chughtai was fabricating the alleged contact with defendant because she had been untruthful when last testifying regarding the alleged underlying acts of domestic violence.
"The right to confront and cross-examine accusing witnesses is'among the minimum essentials of a fair trial.'" State v. Budis, 125 N.J. 519, 531 (1991) (quoting Chambers v. Mississippi, 410 U.S. 284, 294-95, 93 S.Ct. 1038, 1045, 35 L.Ed. 2d 297, 308 (1973)). The cross-examination of a witness is "directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand." Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed. 2d 347, 354 (1974). Thus, it is during cross-examination that the credibility of a witness may be impeached. N.J.R.E. 611(b); State v. Martini, 131 N.J. 176, 255 (1993). In this light, cross-examination is the "'greatest legal engine ever invented for the discovery of truth[.]'" California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed. 2d 489, 497 (1970) (quoting 5 Wigmore on Evidence § 1367; First Nat'l Bank of Freehold v. Viviani, 60 N.J. Super. 221, 225 (App. Div. 1960)).
Trial courts are given broad discretion to determine the scope of cross-examination, State v. Siegler, 12 N.J. 520, 526-27 (1953), and the court may properly allow or limit areas of inquiry. State v. Silva, 131 N.J. 438, 444 (1993); Budis, supra, 125 N.J. at 532. "Considerable latitude is customarily allowed in the cross-examination of a witness." State v. Steele, 92 N.J. Super. 498, 503 (App. Div. 1966). Permissible limitations on cross-examination testimony promote policies designed to avoid "unfairness to the witness, confusion of issues, and undue consumption of time." State v. Guenther, 181 N.J. 129, 140 (2004); N.J.R.E. 403.
The scope of our review is limited. An appellate court will not interfere with the trial court's exercised discretion in circumscribing the scope of cross-examination "'unless clear error and prejudice are shown'" State v. Wakefield, 190 N.J. 397, 452 (2007) (quoting State v. Murray, 240 N.J. Super. 378, 394 (App. Div.), certif. denied, 122 N.J. 334 (1990)).
Here, the trial court sought to avoid the undue consumption of time when it restricted the defendant's inquiry of Chughtai. The court added: "I can take judicial notice of the fact that there was a [domestic violence] complaint [and] the complaint was dismissed." The court's comment suggests a misunderstanding of the purpose of the evidence. Defendant never challenged the validity of the provisions of the TRO nor suggested its dismissal obviated prosecution for an alleged violation. Defendant's use of the proffered evidence was designed to challenge the improbability of defendant's contact or the fabrication by Chughtai's testimony, as she was the only witness presented by the State.
We disagree with the trial judge that the proposed examination would inordinately delay conclusion of the proceeding. Contrary to the State's suggestion that the proposed line of questioning required the court to "retry" the domestic violence case, we view counsel's proffer as merely attempting to show Chughtai's prior false statements made while under oath, demonstrating bias as she would lie to obtain defendant's conviction. "[T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Davis, supra, 415 U.S. at 317, 94 S.Ct. at 1110, 39 L.Ed. 2d at 354.
The State argues the introduction of conduct evidence to establish the witness's character for untruthfulness is prohibited. N.J.R.E. 608(a). "[W]e prohibit the use of specific instances of conduct to prove a character trait for pragmatic reasons associated with the efficient and orderly presentation of a trial." Guenther, supra, 181 N.J. at 142. These include "unfairness to the witness, confusion of issues, and undue consumption of time." Ibid. (quoting 3A Wigmore, supra, § 979, at 827). "When those'auxiliary policies' do not apply, the rationale for the exclusion of such evidence no longer exists." Ibid. When credibility is at issue, as it was in this matter, a court must analyze the purpose of the proposed evidence and weigh its probative value as against the limiting auxiliary policies.
Here, the victim-witness's testimony was the State's sole evidence against defendant. Impeaching her credibility by confronting her with the prior false statement made in the underlying domestic violence proceeding against the same defendant was both relevant and admissible to show bias and motive. This does not suggest a trial court abrogate all exercise of permissible discretion on questioning in these circumstances. We conclude the wholesale prohibition of the proposed cross-examination under the circumstances described misapplied the discretion afforded the court by Evidence Rule 611(b).
Additionally, reversal is warranted because the trial court's factual findings do not comport with the evidence presented. The court determined defendant called Chughtai at "9:11, 9:12 and 9:15" on September 27. Neither testimony nor the documentary evidence supports that finding. Defendant's telephone bill, D-3, reflects defendant's first call on the specified date occurred at 9:51 a.m. and the last call was placed at 6:45 p.m. Absent adequate, substantial and credible evidence in the record, we cannot sustain the trial court's factual findings. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
Moreover, the characterization of this matter as a clash of credibility--"a classic he said/she said case"--ignores the documentary evidence defendant produced to support his defense. The court made no finding relative to D-3, which was introduced to provide objective evidence to defeat Chughtai's assertions.
Accordingly, defendant's disorderly person's conviction is reversed and the fines and penalties imposed are vacated. The matter is remanded for a new trial before a different Family Part Judge.