October 17, 2008
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
SAMUEL SILIGATO, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. S-15-02-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2008
Before Judges A. A. Rodríguez, Payne and Lyons.
The State of New Jersey appeals from an order, dated January 2, 2008, dismissing a 2007 indictment against defendant, Samuel Siligato, charging aggravated arson, conspiracy and obstruction of the administration of law, on the ground that the State had failed to comply with the mandatory joinder requirements of Rule 3:15-1(b) and N.J.S.A. 2C:1-8b.
The unusual facts that underlie this appeal follow. On September 29, 1998, a fire that was determined to be arson occurred at business premises located at 801 South White Horse Pike, Winslow Township, Camden County. Following a lengthy investigation, it was determined that the fire had been set by Siligato in order to obtain insurance proceeds in an amount that exceeded $200,000. Because the statute of limitations on charges of arson had expired, on February 24, 2004, Siligato was not charged with that crime, but he was charged in an indictment with the second-degree crimes of theft by deception, attempted theft by deception and conspiracy to commit theft by deception. The matter was scheduled for trial on May 17, 2005. After the jury had been selected, but before it was sworn in, the trial judge conducted a N.J.R.E. 104 hearing on the admissibility of defendant's evidence in support of a defense of third-party guilt. Although witnesses at that hearing identified other persons and groups as the potential arsonists, evidence suggested that the testimony was perjured,*fn1 and as a consequence, two defense witnesses, Gary Dixon, Sr. and Francisco Diaz, were arrested. Upon arrest, Dixon confessed to perjury, alleging that defendant had threatened him by passing to him dollar bills, smeared with blood. This information was brought to the attention of the trial judge by the prosecutor, who successfully sought a postponement of trial to permit further investigation and presentation of witness tampering charges against Siligato to a State Grand Jury.
Following its investigation, on August 29, 2005, defendant was charged in a five-count indictment with one count of second-degree tampering with witness Gary Dixon, Sr. and four counts of third-degree tampering with witnesses Francisco Diaz, James Cooper, Calvin Blackshear, and William Dixon, Jr., occurring at various times in the period between May 10, 2005 and August 29, 2005.*fn2 Thereafter, the State's motion for permissive joinder of the two indictments was granted, and trial occurred in the period between May 9 and July 24, 2006. Approximately eighty-five witnesses were called during the course of trial. At its conclusion, defendant was convicted of second-degree attempted theft by deception and conspiracy, and of tampering with witnesses William Dixon Sr. and Jr., both crimes of the third-degree. On September 7, 2006, defendant was sentenced to an aggregate term of eleven years in prison.
Approximately one month prior to the initial N.J.R.E. 104 hearing, on April 8, 2005, another fire occurred at vacant residential premises, owned by Neil Pastore and his business, Pastore Farms, and located at 750 South White Horse Pike, approximately one-quarter mile from the initial fire.*fn3 In an undated report, the Camden County Deputy Fire Marshal determined the 750 fire also to have been caused by arson and to have originated in a living room sofa. On June 21, 2005, shortly after the third-party guilt hearing had taken place and while the investigation into witness tampering was occurring, a known informant named Dino Rae, a business associate of defendant, involved in trucking and construction, who had conducted demolition work at 801 South White Horse Pike after the fire at that location, stated in the course of a tape-recorded telephone conversation with State Special Investigator Bill Robertson that defendant was tampering with other proposed trial witnesses. When asked whether defendant had admitted to Rae that he had set the fire at 801 South White Horse Pike, Rae said "no," but stated that defendant had admitted to him that he had recently set a fire near that address. The transcript of the call reflects the following conversation:
Robertson: . . . Let me just ask you one last thing. Remember that place you went and did the demolition work on?
Robertson: Did he [defendant] ever tell you or the guy across the street about who really set that place on fire?
Rae: No, but I'll tell you this. He whispered in my ear one time we're in a truck together, maybe a month ago. He whispered in my ear, he leaned over, because he swears his truck's tapped . . . his trucks got a wire in, o[f] some nature. But he did burn another place down across the street, and he used a couch or something, that a foam or something in the couch is what he used to light it.
Robertson: The place across the street?
Rae: Yea, sit, on the other side of the Pike, down, upper back a little better [sic]. Had it burned down about a month or two ago.
Robertson: Okay. Alright, I'm not familiar with that. I'll take a look at that and we didn't talk about that right now, okay.
Robertson: We'll put that aside for future reference.
Investigation disclosed that the April 8, 2005 fire at 750 South White Horse Pike was the only one that met the description given by Rae. On April 4, 2006, Rae was served with a subpoena to give testimony before a State Grand Jury with respect to Siligano's involvement that fire. Although Rae appeared before the Grand Jury on May 2, 2006, he refused to answer the questions put to him regarding the contents of the June 21, 2005 conversation with Robertson, invoking his Fifth Amendment rights. The State thereupon moved for an order to compel Rae to testify, and its motion was granted by Judge Feinberg on June 13, 2006. Testimony was provided by Rae in accordance with the judge's order on October 18, 2006.
Additionally, on October 13, 2006, Special Investigator Stemmer obtained tax records from the Winslow Township Tax Office that confirmed that payment of taxes on 750 and 641 South White Horse Pike (another nearby arson site), were current. On that same day, the Camden County Deputy Fire Marshal stated to Stemmer that he had observed no signs of squatters or vagrants upon inspecting 750 South White Horse Pike immediately after the fire. On October 27, 2006, Stemmer interviewed property owner Pastore, who stated that although the 750 property had previously been rented, it had been vacant for the past two years. Pastore stated additionally that to his knowledge, neither squatters nor migrant workers had used the house for shelter. After this interview, Stemmer determined that the Winslow Township police had no reports of complaints regarding intruders at either 641 or 750 South White Horse Pike.
On February 7, 2007, Stemmer testified before the State Grand Jury. Prior to that testimony, the prosecutor gave a history of defendant's prosecution for the fire at 801 South White Horse Pike and for his subsequent witness tampering. The prosecutor informed the jury that:
[t]he purpose of presenting the 801 evidence is to show that there was a motive for him [Siligato] to create the fire at 750 and the motive that the State is eliciting is that during the period of time that you've heard about pretrial in May of 2005 that he was trying to point to others that committed the fire at 801 White Horse Pike where he presented Mr. Dixon and Mr. Diaz and other individuals. He was trying to create a situation in which other people had committed the fire at 801. What the motive behind the fire at 750 was was to try to create a scenario where there was the same person or other people were still setting fires to abandoned buildings in that same area. He wanted to create a situation in which even as of April 8, 2005 there were other people besides himself still setting fires on the Pike in the same area to abandoned buildings. So that's the purpose of the evidence regarding 801 White Horse Pike.
Then, during the course of Semmler's testimony, the following exchange with the prosecutor occurred:
Q: Investigator, obviously Mr. Siligato has not ever told anybody what his motive was for setting this fire; is that correct?
Q: You have developed a motive as a result of your investigation into this case; is that correct?
A: Yes, it's in line with the other motive of the third party guilt.
Q: Just please explain to the jurors again generally the motive, the State's theory of the motive behind this?
A: The theory of the case is that Mr. Siligato prior to his trial was putting out all these theories of third party guilt evidence meaning that other people set this fire besides Siligato and he did that by way of the Dixon and Diaz testimony where they heard somebody admit to them that they burnt down 801. It was later discovered that Dixon confessed that Siligato put him up to that information. He also tried to introduce third party guilt with the arson cult saying the cult was running around 10 miles down the road. They could have set fire to this place. He also through another informant Mark Rossi was going to blame it on squatters or migrant workers.
However, Stemmer acknowledged that defendant had never introduced evidence with respect to the fire at 750 South White Horse Pike in the trial of charges arising from the 801 fire.
A third indictment was handed down against defendant Siligato on February 7, 2007, charging him with second-degree aggravated arson, second-degree conspiracy, and fourth-degree obstructing the administration of law. The indictment specifically incorporated the State's theory of defendant's motive for setting the 750 South White Horse Pike fire, stating in Count One that defendant acted "with the purpose of both destroying a building or structure of another, namely Pastore Farms, Inc. and Neil Pastore, and escaping detection and prosecution for an arson fire on September 29, 1998 at SAMUEL SILIGATO'S commercial property located at 801 South Whitehorse Pike." Count Three contained similar language.
Defendant moved for dismissal of this third indictment, claiming that joinder with the prior indictments was required. The motion judge denied defendant's motion. In doing so, he focused on the two fires that had occurred, noting that they took place almost seven years apart at different locations, and they involved different victims. The judge observed that in these circumstances, "[f]or all practical purposes, the granting of this relief sought by Siligato under R. 3:15-1(b) would result in a 'free crime.'"
Upon renewal of defendant's motion, argument focused on defendant's contention that the witness tampering and the arson occurring roughly during the same period constituted part of the same episode, requiring joinder of the two charges in a single indictment. The motion judge agreed, and finding also that the offenses charged in the third indictment were known to the prosecutor well before the May 2006 commencement of trial of the witness tampering charges and that the charges were all within the jurisdiction and venue of the Superior Court, he dismissed the indictment. This appeal followed.
Rule 3:15-1(b) and N.J.S.A. 2C:1-8b, promulgated in response to the Supreme Court's decision in State v. Gregory, 66 N.J. 510 (1975), provide in identical operative language:
[A] defendant shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court.
It has thus been held that "[t]o invoke the mandatory joinder rule a defendant must satisfy all four of the following criteria: (1) the multiple offenses are criminal; (2) the offenses are based on the same conduct or arose from the same episode; (3) the appropriate prosecuting officer knew of the offenses at the time the first trial commenced; and (4) the offenses were within the jurisdiction and venue of a single court." State v. Yoskowitz, 116 N.J. 679, 701 (1989).
On appeal, the State concedes that the only issue presented is whether the offenses charged in the 2005 and 2007 indictments were based on the same conduct or arose from the same episode, and it argues that the motion judge abused his discretion in determining that they did. Additionally, the State argues that it would not have been able to obtain defendant's indictment for the fire at 750 White Horse Pike prior to trial of the two earlier indictments, because it lacked sworn testimony from Rae.
Defendant contests the State's position that the 2007 indictment failed to arise from the same episode, and additionally argues that it is fundamentally unfair to permit the sequential prosecutions to occur when the Rae statement upon which the 2007 indictment was based was known to the State almost one year before the trial on the theft by deception and witness tampering charges commenced on May 9, 2006 and that minimal further investigation occurred in the intervening months between the trial and the 2007 indictment. Further, defendant points to the State's attempted use of evidence of the second arson in the 2006 trial, noting in this respect that the State subpoenaed the Deputy Fire Marshal who had investigated the fire 750 South White Horse Pike to testify regarding that fire at the 2006 trial, and also unsuccessfully sought in rebuttal to present testimony by Rae regarding the 750 fire. A third event, of relevance to this discussion, is the August 25, 2006 proffer by the State of a plea to defendant regarding the 750 fire in a letter to defense counsel that stated:
As you know there is a pending criminal investigation regarding your client's involvement in an April 8, 2005 arson fire at 750 Whitehorse Pike, Winslow Twp., New Jersey. The State would offer your client, a plea to an accusation charging second degree aggravated arson in violation of N.J.S.A. 2C:17-1a. The State would run any sentence concurrent to any sentence the defendant will receive on the two indictments he is to be sentenced on September 8, 2006. You have all the discovery the State has in its possession.
Defendant does not appear to have responded to this plea offer.
It is clear in this case that the 2007 indictment for aggravated arson did not arise from the "same conduct" that underlay the 2005 indictment for witness tampering. Thus the only issues of relevance to this appeal are whether the 2007 indictment arose from the "same episode" and whether it would be fundamentally unfair to separately try defendant for the arson occurring at 750 South White Horse Pike. A difficulty that exists is that what constitutes the same episode is somewhat ill-defined. In the seminal case of State v. Gregory, defendant sold heroin to an undercover Newark police officer, who during the course of the transaction observed an additional stash of the drug in a medicine cabinet. After the purchase, the officer notified other Newark police, who returned to the premises and seized the stash. Defendant was then separately indicted and separately tried for distribution of heroin to an undercover officer and possession of heroin with the intent to distribute it. On appeal, the Supreme Court reversed the latter conviction, establishing the requirement in such cases that the entire controversy be disposed of in a single proceeding, and adopting on an interim basis, and until a court rule could be promulgated, § 1.07(2) of the American Law Institute's Model Penal Code, which precluded separate trials for multiple offenses known to the prosecutor and within the court's jurisdiction "based on the same conduct or arising from the same criminal episode." 66 N.J. at 518-19. In doing so, the Court discussed the definition of "same criminal episode," stating:
Although the Model Penal Code cautiously refrains from any inflexible definition of the "same criminal episode" it leaves no room for doubt that it contemplates compulsory joinder in situations such as those presented in the [previously] cited cases, namely, State v. Cox, supra, 101 N.J. Super. 470; State v. Boening, supra, 63 N.J. Super. 588; State v. Louden, supra,, 21 N.J. Super. 497, where multiple offenses joined at a single trial were viewed as separate acts rather than as part and parcel of the "same transaction. In Commonwealth v. Campana, . . . 304 A.2d 432, 438-439 . . . (1974), Justice Roberts, while describing the compulsory joinder requirement in § 1.07(2) of the Model Penal Code as "[b]y far the most efficient and enthusiastically received proposal for preventing successive prosecutions," also cited the broad understanding of "the same criminal episode" expressed in the commentary appended to § 1.3(a) of the ABA Project on Minimum Standards for Criminal Justice, supra. There "episode" is defined (at 20-21) to mean "an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series."
[66 N.J. at 520.]
In Cox, one of the cases that should have been subject to compulsory joinder in the Gregory Court's view, the defendant was charged with, convicted of, and consecutively sentenced for multiple offenses on proof that he had committed a robbery and, while escaping, assaulted a police officer, kidnapped a victim and stolen an automobile. In Boening, when proof demonstrated that the defendant first struck the victim and then robbed him, the court found (incorrectly in the Gregory Court's view), that the conduct constituted two separate offenses to which consecutive sentences could be applied. In Louden, the defendants received consecutive sentences for (1) larceny of an automobile and (2) breaking, entering and larceny of cash upon proof that defendants had broken into a garage, stolen some cash from the office and stolen an automobile from the adjoining shop. See discussion in Gregory, 66 N.J. at 516. Thus, in all three cases, there was a very close temporal relationship between the criminal acts, and they bore a close relationship to each other.
However, as the Court recognized in State v. Williams:
Other cases decided since Gregory have discussed use of a "flexible" approach to determine whether multiple offenses are factually distinct, or are part of the same episode. . . . Cases applying a "flexible" approach have analyzed many factors, including the nature of the offenses, the time and place of each offense, whether the evidence supporting one charge is necessary and/or sufficient to sustain a conviction under another charge, whether one offense is an integral part of the larger scheme, the intent of the accused, and the consequences of the criminal standards transgressed. [172 N.J. 361, 371 (2002) (citations omitted).]
See also State v. Best, 70 N.J. 56, 62-63 (1976); State v. Whipple, 156 N.J. Super. 46, 52-53 (App. Div. 1978).
In the present case, the second arson, occurring at 750 South White Horse Pike, took place more than a month before the witness tampering took place and at a different location. Both the crimes and the victims differed, as did the evidence of their commission. However, according to the State's theory as expressed at the time of the 2007 indictment, the crimes were an integral part of a larger scheme, and each was motivated by defendant's intent to avoid conviction for crimes arising from the 1998 fire. But we note in this regard that the State's theory, while plausible, is not supported by any testimony by Rae or by any other evidence. For all we know, the fires may simply have been an expression of sequential pyromaniacal impulses on defendant's part, and may have lacked any other connection. We are unaware of any precedent that would support a successful claim of compulsory joinder of indictments of arson and witness tampering based upon so hypothetical a thread.
In considering whether the acts at issue constituted part of the same episode, courts applying compulsory joinder and related doctrines such as double jeopardy and merger have focused on the dual considerations of (1) fairness to the defendant and fulfillment of his reasonable expectations in light of constitutional and common law goals and (2) the promotion of considerations of justice, economy and convenience.*fn4 See, e.g., State v. Currie, 41 N.J. 531, 439-40 (1964) (discussing fairness to defendant in double jeopardy context); Gregory, supra, 66 N.J. at 518 (in a compulsory joinder context, finding that if the State contemplated any additional prosecution based upon defendant's possession and sale of drugs on the day at issue, fundamental fairness required the State to join the second with the original prosecution, not withhold mention of it until the conclusion of the first trial); Best, supra, 70 N.J. at 62 (utilizing concepts of fairness in a merger context).
Application of these principles to the facts of this matter likewise fails to yield an entirely clear result. As we have stated previously, in June 2005, just after the adjournment of trial on the charges of theft by deception against defendant and while investigation of the witness tampering charges was proceeding, the State was informed by Rae of defendant's admission that he had committed arson in connection with property later identified as located at 750 South White Horse Pike. The State claims that Rae's recorded statement was insufficient to support an indictment, and it was only after he was forced to testify under oath on October 18, 2006 (a date after defendant's trial on arson and witness tampering charges had concluded), that the State had sufficient evidence to proceed with defendant's indictment for aggravated arson. Yet, the State does not adequately explain why it did not seek this pivotal sworn testimony at a much earlier date,*fn5 or why its witness tampering investigation was so all-consuming that Rae's testimony could not have been compelled at an earlier time, permitting an indictment to be handed down that contained charges relating to the second arson, along with those of allegedly similarly motivated witness tampering. Certainly, the additional investigation undertaken to corroborate Rae's report was minimal in nature and could not have served to measurably delay the conclusion of the investigation of Rae's claims with respect to the arson.
It is noteworthy in this regard that, as of July 17, 2006, during the trial of the initial two indictments, the State sought to introduce other crimes testimony by Rae regarding the fire at 750 South White Horse Pike pursuant to N.J.R.E. 404b and the standards set forth in State v. Cofield, 127 N.J. 328, 338 (1992). Thus, at that time, it regarded Rae's unsworn statement to constitute clear and convincing evidence that a crime had occurred. The State does not adequately explain why such clear and convincing evidence would not have provided a sufficient basis for defendant's indictment on arson charges.
On the other hand, this is not a case in which defendant was unaware at the time of his first trial that other charges loomed. At the May 2006 commencement of trial, the State moved, ex parte, for an order pursuant to Rule 3:13-3(f)(1) that would have permitted it to withhold discovery regarding a particular witness until just before that witness's testimony. The motion was denied, and by letter dated May 3, 2006, addressed to defense counsel, the State provided defendant with discovery of its investigation of the fire at 750 South White Horse Pike, including the sixteen-page transcript of Rae's telephone conversation with Special Investigator Robertson. At an undisclosed time, the report of the Deputy Fire Marshal was also provided. Upon receipt, defendant did not seek a further adjournment of trial to permit joinder of charges arising from this new evidence, and the subject does not appear to have been addressed before the trial judge.
It is unclear from the record on appeal whether the State sought to introduce evidence of the 750 South White Horse Pike fire in its case in chief or in connection with the cross- examination of defendant.*fn6 However, it appears from a transcript dated July 17, 2007, provided by the State as a supplement to the record on appeal, that the State may have sought to introduce the evidence in its direct case through testimony by Rae, and may have been precluded from doing so by the trial judge, who ruled that such other crimes testimony could be used, if at all, in rebuttal only. However, when the issue again arose as the State prepared to offer rebuttal witnesses including the Deputy Fire Marshal and Rae, their testimony was barred by the trial judge, who ruled that defendant had not offered any testimony that this evidence would rebut. The State has argued on appeal that defense counsel's opposition to introduction of that evidence as prohibited by N.J.R.E. 404b, stating that the evidence was "unrelated to the current indictment" and offered merely to show criminal propensity, constituted an admission for purposes of our analysis of the compulsory joinder issue. We are unwilling to give such import to counsel's words, finding them merely to constitute the only practical response to the State's proffer. Nonetheless, we find that the episode provided further notice to defendant that the State possessed evidence of unindicted criminal conduct on his part -- a fact more graphically expressed in the State's unacted-upon plea offer to a concurrent sentence, extended after the trial but before sentencing.
Although we find the issue to be a close one, in the circumstances presented, we do not find that defendant could reasonably have any expectation of finality at the conclusion of the first trial, or that he could reasonably have failed to anticipate further charges of arson arising from the 750 fire, whether or not those charges arose from a common impulse to avoid prosecution. We thus do not find this case to be one in which the defendant was subject to "oppression, harassment, or egregious deprivation" of due process rights as the result of the State's serial prosecutions. Yoskowitz, supra, 116 N.J. at 712 (Garibaldi, J., concurring in part and dissenting in part).
As a final matter, we consider the goals of justice, economy and convenience as they relate to this case. In this regard, it can be argued that it would have been "efficient" for the State to have packaged all known instances of defendant's attempts to avoid criminal liability for insurance fraud in a single prosecution. Yet, the trial that did take place required three months to conclude and, we are informed, the testimony of eighty-five witnesses. In these circumstances, it is unclear to us whether, from an administrative perspective, it would have made sense to add another element to an already complex and prolonged proceeding. Moreover, at the result of defendant's convictions in the first trial, we see relatively little need for duplication of evidence in a second proceeding, which it appears to us, can be efficiently tried in a stand-alone fashion. Certainly, justice will be better served if defendant is called to account for each of his disparate criminal acts. State v. Colbert, 245 N.J. Super. 53, 59-60 (App. Div. 1990).
We are mindful of the principle that an indictment should not be dismissed except on the "clearest and plainest ground" and only if it is manifestly deficient or palpably defective. State v. Hogan, 144 N.J. 216, 228-29 (1998); State v. Perry, 124 N.J. 128, 168 (1991). We do not find that standard to have been met by defendant in this case.
Reversed and remanded.