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State v. Kuchera

March 17, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PAUL J. KUCHERA, SR., DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(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).

In State v. Artwell, this Court considered the question of whether witnesses offered by the defense in a criminal case could be required to appear in restraints or prison garb. The Court held that a witness can only appear in physical restraints only when the trial court has reason to believe it is necessary to maintain security in the courtroom. The Court further held that, prospectively, a trial court may not require a defense witness to appear at trial in prison garb. The two questions currently before the Court are whether, consistent with the principles espoused in Artwell, prosecution witnesses should be allowed to testify in restraints or prison garb.

The wife of defendant Paul J Kuchera, Sr. and her ex-husband had an acrimonious relationship but continued to deal with each other over financial and parental issues. Kuchera and a co-worker, Daniel Kettle, agreed that, in exchange for $1,000, Kettle would "rough up" the ex-husband and that Kettle could keep the proceeds of whatever he could steal from the ex-husband's home during the assault. According to Kettle, Kuchera lent him a gun to "scare" the ex-husband and provided a hand-drawn map leading to the ex-husband's home. They planned the assault and robbery for New Year's Eve, so that Kuchera would have an alibi.

Kettle appeared at the ex-husband's house at about 7:30 p.m. on December 31, 1999 dressed in black and wearing a ski mask. He forced his way into the home and assaulted the ex-husband and threatened the ex-husband's girlfriend. The girlfriend's daughter, also in the house, managed to get to the garage to call police on her cell phone. Kettle bound the ex-husband and girlfriend, agreeing to free them if they paid him money. Kettle was arrested by police when he exited the home.

The Burlington County grand jury returned a fourteen-count indictment charging Kuchera and Kettle with second-degree conspiracy, second-degree burglary, first-degree robbery, two counts of first-degree kidnapping, second-degree aggravated assault, third-degree aggravated assault, two counts of fourth-degree aggravated assault, third-degree terroristic threats, second-degree possession of a weapon for an unlawful purposes, third-degree unlawful possession of a weapon, and second-degree possession of a firearm by convicted persons.

Kettle pled guilty to nine of the fourteen counts in exchange for his cooperation against Kuchera. He was sentenced to seventeen years' imprisonment, subject in part to provisions of the No Early Release Act (NERA), which required that he serve 85% of thirteen of those years before becoming eligible for parole.

The bulk of the case against Kuchera consisted of Kettle's testimony. Although there was very little to corroborate Kettle's testimony or to join the two together in a common plan, the jury convicted Kuchera of one count of second-degree conspiracy, two counts of second-degree kidnapping, and two counts of second-degree aggravated assault. He was acquitted of all other charges. Those convictions were reversed on appeal and the matter was remanded for a new trial.

At the re-trial, after Kettle's counsel testified to the terms of Kettle's plea agreement, Kettle was scheduled to testify. He was brought into the courtroom out of the presence of the jury. He was wearing prison garb and was handcuffed and shackled. The judge discussed with officers whether the leg shackles and handcuffs were necessary. After some discussion, the judge ordered Kettle's handcuffs removed and that he be seated in the jury box before the jury came in so they would likely be unable to see his leg shackles. Defense counsel did not object. The jury convicted Kuchera of one count of second-degree conspiracy; two counts of criminal restraint; and third-degree aggravated assault. He was sentenced to an aggregate term of fifteen years' imprisonment, subject to the provisions of NERA, which required that he serve 85% of eight years in prison prior to becoming eligible for parole.

Kuchera appealed, claiming, among other things, that because Kettle testified against him in leg shackles and prison garb in the absence of a security hearing and a proper jury instruction, he was denied his constitutional right to a fair trial. The Appellate Division disagreed and affirmed the decision of the trial court, finding that, based on the circumstances of this case and in light of the defense using Kettle's imprisonment to discredit him, Kettle's testimony while in leg shackles and prison garb did not require reversal of his convictions.

The Supreme Court granted certification.

HELD: Absent proper reasons, witnesses in criminal cases presumptively should be allowed to testify without restraints. Regardless of the identity of the proponent of the witness, trial courts are obligated to determine whether a witness is a sufficient security risk in order to justify restraints and, if so determined, restraints are appropriate. Further, whether a prosecution witness testifies in prison garb likely does not affect whether the trial as a whole is fair; nevertheless, in exercise of its supervisory powers, the Court finds that, as a matter of course and unless otherwise affirmatively permitted by the trial court in the exercise of its discretion, witnesses in criminal cases, both for the prosecution and defense, should not testify in prison garb.

1. In the context of determining whether a witness at a criminal trial should be shackled, there is no principled reason to differentiate between witnesses based on which party offers them, the prosecution or the defense. The core question remains: is the witness a threat to courtroom security? Artwell envisions, and the Court reaffirms, that a straightforward, candid colloquy among the court, counsel, and security staff should suffice to provide an informed basis on which the trial court can exercise its discretion. Trial courts must inquire into the bases for the request for restraints and must be satisfied that, for security concerns and in the proper exercise of judicial discretion, some level of restraints is appropriate. Such inquiry and conclusions should be placed on the record. And, if the trial court orders restraints, the jury must be instructed that the restraints should be given no consideration is assessing the proofs and determining guilt. (Pp. 13-19)

2. In applying those principles to this case, mindful that Kuchera did not object to Kettle testifying in leg shackles, Kuchera's claims must be reviewed under the plain error standard -- whether the error was clearly capable of producing an unjust result. In the circumstances here, it cannot be concluded that the trial court abused its discretion in allowing Kettle to testify in leg shackles that were likely not visible to the jury. Although sparse, the record was sufficient to justify the limited restraints on Kettle. (Pp. 20-21)

3. In most, if not all prosecutions where the State's case is based in whole or in part on the testimony of witnesses already incarcerated, the defense will seek to exploit that fact to impugn the witness's credibility, like defense counsel did here. In those circumstances, the considerations in respect of prison attire sought to be avoided in Artwell are absent. As a matter of law or constitutional doctrine, the Court cannot accept the Appellate Division's conclusion in State v. Russell that a witness can never testify in prison garb. Nevertheless, the Court exercises its supervisory powers under the State Constitution to impose a level playing field. Therefore, as a general rule, corrections authorities should supply prison witnesses with civilian clothing and those witnesses should never appear in the courtroom in prison attire. The prosecution should request relaxation of the presumptive rule and articulate a basis for any exception sought. The trial court should exercise discretion in making its determination, place its reasoning on the record and, if such attire is allowed, properly instruct the jury as to how it should be considered. Any abuse of judicial discretion will be reviewed under the harmless error standard. (Pp. 22-26)

4. In applying those principles to this case, Kuchera's convictions should be affirmed. There was no objection to Kettle testifying in prison clothes; rather the defense sought to use it to their advantage. Any error that might have arisen as a result of allowing Kettle to testify in prison garb was harmless. (Pp. 26-27)

As MODIFIED, Judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE and HOENS join in JUSTICE RIVERA-SOTO'S opinion.

The opinion of the court was delivered by: Justice Rivera-soto

Argued November 3, 2008

In State v. Artwell, 177 N.J. 526 (2003), this Court considered the related questions of whether witnesses tendered by the defense in a criminal case could be required to appear either in restraints or in prison garb. In respect of the former, this Court determined that "[b]ecause the appearance of a defense witness in restraints presents a risk of unfair prejudice to a defendant, the trial court may subject a witness to physical restraint only when it has reason to believe it is necessary to maintain the security of the courtroom." Id. at 537 (citation and internal quotation marks omitted). In respect of the latter, the Court ruled that, prospectively, "a trial court may not require a defendant's witness to appear at trial in prison garb." Id. at 539 (citations omitted).

This appeal presents Artwell's doppelganger: whether the principles espoused in Artwell apply to prosecution, as well as defense, witnesses. On the question of whether prosecution witnesses should be allowed to testify in restraints, we conclude, consistent with Artwell, that the paramount concern is the security of the courtroom, an issue as to which the proponent of the witness is irrelevant and a matter rightly entrusted to the sound discretion of the trial judge. On the question of whether prosecution witnesses should be allowed to testify in prison garb, however, we conclude that the reasons that animate our decision in Artwell -- that is, that the wearing of prison garb may tend to undermine the credibility of the witness -- may have no true relevance to prosecution witnesses and, hence, whether a prosecution witness testifies in prison garb likely does not affect whether the trial as a whole is fair. That said, we nevertheless exercise our supervisory powers to require that, as a matter of course and unless otherwise affirmatively permitted by the trial court in the exercise of its discretion, witnesses in criminal cases -- both for the prosecution and for the defense -- should not testify in prison garb.

I.

The relevant facts are readily stated. The wife of defendant Paul J. Kuchera, Sr. and her ex-husband had an acrimonious parting; they continued to deal with each other, however, because of continuing financial obligations between the former spouses and because of their daughter, defendant's step-daughter. On December 29-30, 1999, after a particularly contentious Christmas holiday among defendant's wife, her ex-husband and her daughter/defendant's step-daughter, defendant and a co-worker, Daniel F. Kettle, agreed that, in exchange for $1,000, Kettle would "rough up" the ex-husband and "make him look black and blue." They also agreed that Kettle could retain the proceeds of what he could steal from the ex-husband's home during the assault. Defendant, however, insisted that the ex-husband was not to be killed, as defendant "needed the money that he was receiving from" the ex-husband. According to Kettle, defendant lent Kettle a gun to "scare" the ex-husband, and provided to Kettle a hand-drawn map leading to the exhusband's home. They planned the assault and robbery for the next day, New Year's Eve, so that defendant would have an alibi.

At approximately 7:30 p.m. on December 31, 1999, Kettle appeared at the ex-husband's home; present at the home were the ex-husband, his girlfriend, and the girlfriend's minor daughter. Kettle, dressed in black and wearing a ski mask, forced his way into the home, assaulted the ex-husband, and threatened his girlfriend; in the meantime, the girlfriend's daughter hid in the garage and called the police on her cell phone. After binding the ex-husband and his girlfriend, Kettle agreed to free them in exchange for $5,000 in cash. The ex-husband explained that they would have to go to an automatic teller machine to retrieve that much cash. While Kettle led the ex-husband out of the house, police officers -- who had been summoned by the girlfriend's daughter and who were lying in wait on the porch --grabbed and subdued both Kettle and the ex-husband. Once the melee cleared, Kettle was arrested and he confessed later that evening. The next day, January 1, 2000, defendant was arrested.

The Burlington County grand jury returned a fourteen-count indictment charging defendant and Kettle with second-degree conspiracy, in violation of N.J.S.A. 2C:5-2 (count one); second-degree burglary, in violation of N.J.S.A. 2C:18-2(a)(1) (count two); first-degree robbery, in violation of N.J.S.A. 2C:15-1(a)(1) (count three); two counts of first-degree kidnapping, in violation of N.J.S.A. 2C:13-1(b)(2) (counts four and nine); second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1) (count five); third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(2) (count six); two counts of fourth-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(4) (counts seven and ten); third-degree terroristic threats (threat to kill), in violation of N.J.S.A. 2C:12-3(b) (counts eight and eleven); second-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a) (count twelve), third-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(b) (count thirteen); and second-degree possession of a firearm by convicted persons, in violation of N.J.S.A. 2C:39-7(b) (count fourteen).

Kettle pled guilty to nine of the original fourteen counts in exchange for his cooperation against defendant.*fn1 He was sentenced to seventeen years' imprisonment, subject in part to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, which required that he serve 85% of thirteen of those years prior to becoming eligible for parole.

The overwhelming majority of the case against defendant consisted of Kettle's testimony; other than the fact that Kettle and defendant worked together, there was precious little to corroborate Kettle's testimony or to join the two together in a common plan. The jury nevertheless credited much of Kettle's testimony, and defendant was convicted of one count of second-degree conspiracy, two counts of second-degree kidnapping as a lesser-included offense of first-degree, and two counts of second-degree aggravated assault; he was acquitted of all other charges. Defendant appealed and, in an unpublished opinion, the Appellate Division reversed those convictions and remanded the case for a new trial.

At the retrial, after Kettle's counsel testified to the terms of Kettle's plea agreement, Kettle was scheduled to testify. The trial court informed the jury that a recess was necessary because it "need[ed] to give the court staff an opportunity to move Mr. Kettle around[,]" noting that "it's pretty clear . . . he is coming from state prison. That is no big surprise I am sure." Once the jury was excused, the following exchange occurred:

THE COURT: Why don't we put Mr. Kettle in the jury box for a second. I want to ask the officers who brought Mr. Kettle, I'd like him -- is he ...


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