July 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRANK G. DELLISANTI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-04-0701.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: June 3, 2009
Before Judges Cuff, Fisher and C.L. Miniman.
Following a jury trial, defendant Frank G. Dellisanti was convicted of fourth degree knowingly exhibiting or displaying to a law enforcement officer a falsely made, forged, altered, counterfeited or simulated motor vehicle insurance identification card, contrary to N.J.S.A. 2C:21-2.3b (Count One); and fourth degree uttering a writing or record, specifically a motor vehicle insurance identification card, knowing that it contained a false statement or information, with purpose to deceive or injure another or to conceal any wrongdoing, contrary to N.J.S.A. 2C:21-4a (Count Two). After merging Count Two with Count One, the trial judge sentenced defendant to ninety days in the Bergen County Jail as a condition of his one-year probation. The appropriate penalties, assessments and fees were also imposed.
In late 2005, defendant attempted to enter a trailer park through an entrance that had been closed by emergency personnel. Defendant persisted and a confrontation ensued with a volunteer firefighter who was monitoring the entrance and directing traffic. The firefighter accused defendant of striking him with his truck as he sought to enter the park. The firefighter declined treatment but defendant was charged with one count of third degree knowingly or recklessly causing bodily injury to a clearly identifiable firefighter. He was acquitted of the charge.
A police officer, who received the report of the alleged assault, confronted defendant and requested that he produce his vehicle documentation and driver's license. Defendant produced a Montana driver's license and vehicle registration, and an expired temporary insurance card. Defendant asserted that he had a valid insurance card and the officer informed defendant that he had twenty-four hours to produce a valid insurance card to the desk officer at the local police station.
When the officer next reported to the station, he found an insurance card clipped to the incident report. Immediately, he questioned the validity of the card. The company number on the card had six digits; he had never seen more than four digits. The company number was also similar to the policy number. He also noticed that the name of the insurer appeared as "A.f.i., inc." rather than "A.F.I., Inc." Finally, the expiration date was February 31, 2006, a nonexistent date. The insurance card instructed the holder to call "USF[&G]" to report claims. When the officer called the number on the card, he learned that the company no longer existed. He was unable to locate a company known as "A.f.i., inc."
On December 27, 2005, defendant appeared at the police station to file a complaint against the firefighter. The commanding officer showed him the insurance card and asked if he had brought it to the station. Defendant confirmed that he did so. The officer applied for and obtained an arrest warrant from the municipal court judge. Defendant was arrested and charged with uttering a false document. Police also issued a motor vehicle ticket for no insurance. Later, defendant was indicted, tried and convicted of one count of knowingly presenting a false insurance card to police and one count of knowingly uttering a false card with the intent to injure, deceive, or conceal wrongdoing.
On appeal, defendant raises the following arguments:
THE TRIAL COURT ERRED IN CONTINUING THE TRIAL IN THE DEFENDANT'S ABSENCE AFTER THE DEFENDANT WAS TAKEN INTO CUSTODY ON A WARRANT FOR A VIOLATION OF PROBATION THEREBY VIOLATING DEFENDANT'S CONSTITUTIONAL RIGHT TO BE PRESENT AT TRIAL (NOT RAISED BELOW)
THE TRIAL COURT ERRED IN ALLOWING A STATE'S WITNESS TO PROVIDE EXPERT OPINION TESTIMONY WITHOUT QUALIFYING HIM AS AN EXPERT, PERMITTING HIM TO RENDER AN OPINION ON AN ULTIMATE ISSUE, AND IN FAILING TO PROPERLY INSTRUCT THE JURY ON THE PROPER USE OF EXPERT TESTIMONY (NOT RAISED BELOW)
PROSECUTORIAL MISCONDUCT DURING CROSS-EXAMINATION OF THE DEFENDANT DEPRIVED THE DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW)
THE TRIAL COURT IMPROPERLY COMMUNICATED ITS DISBELIEF OF THE DEFENDANT TO THE JURY BY REPEATEDLY INTERVENING DURING THE DEFENDANT'S TESTIMONY, THEREBY PREJUDICING THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
THE TRIAL COURT ERRED BY ALLOWING THE JURY TO HEAR TESTIMONY ABOUT THE ISSUANCE AND EXECUTION OF AN ARREST WARRANT FOR THE DEFENDANT WITHOUT PROVIDING THE JURY WITH A CURATIVE INSTRUCTION THEREBY PREJUDICING THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
THE TRIAL COURT ERRED IN FAILING TO PROVIDE A SUFFICIENT STATEMENT OF REASONS IN SUPPORT OF THE SENTENCE IMPOSED (NOT RAISED BELOW)
THE TRIAL COURT ABUSED ITS DISCRETION IN IMPROPERLY FINDING AGGRAVATING FACTORS AND FAILING TO CONSIDER THE APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW)
The principal issue for our consideration is whether the trial judge erred by proceeding with the trial in the absence of defendant. His absence was occasioned by his arrest on a probation violation and removal from the courtroom immediately after the jury commenced its deliberations. Before the jury entered the courtroom to receive answers to questions it had posed, the trial judge advised defense counsel that he would inform the jury that defendant was ill and the judge had excused him. The judge asked defense counsel if he had "[a]ny objection to that?" and defense counsel responded, "No."
When the jury entered the courtroom, the trial judge stated, "[Defendant] is not here. He wasn't feeling well. He asked to be excused to seek medical attention. That's why he's not here." Defense counsel did not object. The jury then asked when the aggravated assault charge was made; the judge responded that it was made by the grand jury with no complaint signed prior to that time. The jury also asked whether there was an EMT report. The judge responded that one did exist but had not been admitted into evidence; therefore, the jury could not consider it. Defense counsel did not object to proceeding without defendant or to the responses provided to the questions. The jury reached its verdict soon thereafter at 2:08 p.m.
A defendant's "right to personal presence at all critical stages of the trial" is a fundamental one. Rushen v. Spain, 464 U.S. 114, 117, 104 S.Ct. 453, 455, 78 L.Ed. 2d 267, 272 (1983); see also State v. Ingram, 196 N.J. 23, 45 (2008) ("[t]he right to be present at a criminal trial belongs to no one other than the defendant"); State v. W.A., 184 N.J. 45, 53 (2005) ("[e]very criminal defendant has the right of presence at his own trial"). This right stems from the confrontation clauses of the United States and New Jersey constitutions' "guarantee[s] [that] criminal defendants [possess] the right to confront witness against them[,]" as well as the Due Process Clause of the Fourteenth Amendment. State v. Whaley, 168 N.J. 94, 99-100 (2001); see also Ingram, supra, 196 N.J. at 45 (noting that although the right to be present is "not specifically set forth in [the New Jersey] Constitution, it is subsumed in the constitutional guarantees" of N.J. Const. art. I, ¶ 10).
Rule 3:16(b) effectuates this right. It provides a "defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict." The defendant can waive his or her right to be present, either by expressly placing the waiver on the record or through his or her "conduct evidencing a knowing, voluntary, and unjustified absence after" either being notified of the trial date or the trial having commenced in his or her presence. Ibid.
A defendant's presence is important because it enables the defendant to assist in his or her defense and in cross-examination, and also ensures the continued confidence of the public in the court system. W.A., supra, 184 N.J. at 53. However, "the right of confrontation is not absolute," and must be viewed in the context of the reason for the right. State v. Zenquis, 251 N.J. Super. 358, 364 (1991), aff'd, 131 N.J. 84 (1993). Both "[t]he right of confrontation and due process require that a defendant be allowed to be present to the extent that a fair and impartial hearing would be impaired in his absence." Ibid. Thus, in order to determine whether a defendant's presence at particular stages of the trial is critical to its outcome or the fairness of the proceeding, the courts "must look to the nature of the hearing" as a whole. Ibid.
Return of a verdict is clearly a critical stage of the proceeding. R. 3:16(b). This court has held that the defendant need not be present in all circumstances. State v. Childs, 204 N.J. Super. 639, 649 (App. Div. 1985). In Childs, the judge received and responded to a note during deliberations from the jury that it was deadlocked and a question about how it should proceed. Id. at 646-47. We emphasized that the better practice is for a defendant to be present when a judge acts on a note from the jury, but found no error in that situation. Id. at 649. In some circumstances a defendant's presence may be necessary or helpful to defense counsel to assist the formulation of an appropriate response to the jury question. We are not prepared to hold, however, that defendant's absence, absent an express waiver by him of his right to be present throughout the trial, requires a new trial in all instances.
Here, the questions posed by the jury did not require consultation with defendant. The questions were straightforward, did not involve any arcane or sophisticated legal principle, or involve a disputed fact issue. Moreover, it is readily apparent that defendant's absence caused him no prejudice. Each question concerned the aggravated assault against the firefighter charge, and the jury acquitted defendant of this charge.
Admittedly, it would have been beneficial if the record contained an explanation of the necessity to remove defendant from the courtroom at the start of deliberations rather than following the return of the verdict. In retrospect, we know that the jury deliberated no more than two hours. The need to transport defendant to Morris County on the violation of probation warrant undoubtedly influenced the decision by the transporting agency not to wait for the return of the verdict.*fn1
Faced with a constitutional right to be present at all critical stages of the prosecution, the trial judge should inquire and obtain specific information to justify a defendant's absence in such a circumstance.
Defendant raised no objection at trial. We must, therefore, find that his absence was clearly capable of producing an unjust result. R. 2:10-2; State v. Burns, 192 N.J. 312, 341 (2007). Where, as here, the error implicates a constitutional right, the error will be found harmful if the error "'cut mortally into the substantive rights of the defendant,'" State v. Shomo, 129 N.J. 248, 260 (1992) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974)), or as stated by the Court in State v. Castagna, "'the court must be able to declare a belief that it was harmless beyond a reasonable doubt,'" 187 N.J. 293, 312 (2006) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed. 2d 705, 710-11 (1967)). Accord Ingram, supra, 196 N.J. at 49. We are mindful that some argue that constitutional error can never be harmless. See Harvey Weissbard, The Harm in Harmless Error, 195 N.J.L.J. 571 (March 2, 2009). Where as here, defendant has not identified any harm occasioned by his absence, and we can discern no harm, the error is harmless and does not require a new trial.
Defendant also alleges that the prosecutor committed error during his cross-examination of defendant that impermissibly shifted the burden of proof to him. He also asserts that the prosecutor improperly placed defendant in the position of commenting on the credibility of other witnesses.
Defendant testified on direct examination that he was driving his daughter's BMW at the time of the incident with the firefighter, contradicting the firefighter's testimony that he was driving the pickup, and he alleged that the police were lying. Similarly, at the beginning of cross-examination, defendant insisted that he was being framed by the police. Later, the prosecutor asked, "All we have is your word that you were not driving [the Dodge] at the time that [the firefighter] says you hit him, correct?" Defendant responded affirmatively. Contrary to defendant's contentions, the prosecutor was not attempting to shift the burden of proof onto him. Instead, he was responding to defendant's allegations that the State's witnesses were conspiring against him.
Moreover, no prejudice resulted from the question at issue. The court clearly instructed the jury that the burden of proof was on the State, stating: "The burden of proving each element of a charge beyond a reasonable doubt rests upon the State and that burden never shifts to the Defendant. The Defendant in a criminal case has no obligation or duty to prove his innocence or offer any proof relating to his innocence." The jury is presumed to follow instructions. Burns, supra, 192 N.J. at 335.
An absence of prejudice is further supported by the fact that, without offering any additional evidence in support of his contention that he was not driving the pickup, the jury acquitted defendant on the assault charge.
Defendant next alleges that the prosecutor improperly compelled defendant to assess the credibility of other witnesses. The prosecutor asked him if he was suggesting that the firefighter made up the story of being hit with the truck to "get back at" him, and he responded that the firefighter and the responding police officer were lying. Near the conclusion of cross-examination, the prosecutor again asked defendant if he was alleging that the firefighter was either mistaken or lying, and that both the police commander and the responding police officer were lying, and defendant again responded affirmatively.
In State v. Bunch, 180 N.J. 534, 549 (2004), the defendant alleged that the prosecutor committed misconduct when she asked if the defendant wanted the jury to believe that the testimony of other witnesses was untrue. The Court agreed that the prosecutor was prohibited from asking the "defendant to assess the credibility of another witness." Ibid. However, it held that "in view of the substantial amount of evidence of [the] defendant's guilt and the trial court's instruction to the jury that it must determine the witnesses' credibility, we conclude that the improper statement was not 'so egregious that it deprived defendant of a fair trial.'" Ibid (quoting State v. Ramseur, 106 N.J. 123, 322 (1987)).
Similarly, here, the prosecutor improperly asked defendant to assess the credibility of other witnesses. Nonetheless, the jury acquitted defendant of the aggravated assault of the firefighter. Moreover, as in Bunch, the trial court properly instructed the jury on credibility, issuing both a preliminary charge and a later instruction informing the jury that it was the sole judge of witness credibility. Thus, the prosecutorial misconduct did not deny defendant a fair trial.
The remaining issues presented by defendant concerning the alleged expert testimony of the insurance company witness, reference to an arrest warrant, interference by the trial judge, cumulative error, and inadequate reasons for the sentence are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Although the prosecutor invoked the experience, training and expertise of the witness, the testimony offered by Bryan P. Dunigan, an investigator for MetLife Auto and Home (MetLife), did not contravene N.J.R.E. 701 or 702. Dunigan was a fact witness. He informed the jury that MetLife had purchased the two companies ostensibly named in the insurance identification card offered by defendant. He was familiar with the cards issued by these companies. He informed the jury of the several errors that demonstrated that the card was not a valid card. Therefore, the judge was not required to caution the jury about the uses and limitations of expert testimony.
To the extent the Dunigan testimony may contain an opinion, the trial judge properly received the evidence from a lay witness. Through his employment, Dunigan was intimately familiar with the documents prepared and distributed by the various companies that issued insurance under the MetLife umbrella. He demonstrated that he was aware of the codes used by the various companies and the appearance and presentation of the information on cards issued by MetLife companies. This testimony was entirely proper. Tirrell v. Navistar Int'l, Inc., 248 N.J. Super. 390, 407 (App. Div.), certif. denied, 126 N.J. 390 (1991).
Mention of an arrest warrant is not error. State v. Marshall, 148 N.J. 89, 240, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). Indeed, the fact that the police acted on the basis of an arrest warrant may be relevant to negate an inference of arbitrary action by police. Ibid.
FISHER, J.A.D., dissenting.
As the majority's thorough opinion accurately explains, defendant was removed from the courtroom during the trial without his consent and taken to another vicinage immediately after the jury began its deliberations. Consequently, defendant was not present when inquiries made by the jury during deliberations were answered by the trial judge, when the jury returned its verdict, and when the jury was polled. The majority concludes that defendant's involuntary absence from these portions of his criminal trial violates Rule 3:16(b). I agree. My colleagues, however, have excused this error through application of the harmless-error standard; it is here that we part company. In my view, defendant's removal from the courtroom prior to the completion of his trial caused a rift in the structure that produced the judgment which can only be repaired by a new trial.
Certainly, if a harmless-error approach were permitted in these circumstances it would be difficult to disagree with my colleagues' analysis. The questions posed by the jury during deliberations and answered in defendant's absence seem to relate only to the count upon which defendant was acquitted, and the evidence of defendant's guilt on the remaining counts appears overwhelming. However, if we are to engender public confidence in our judiciary as an instrument of justice, our concern should not be with the weight of the evidence amassed against defendant but on the legitimacy of the proceedings that produced his conviction.
Rule 3:16(b) declares that an accused has the right, absent his express waiver,*fn2 to be present "at every stage of the trial" including "the return of the verdict." This Rule codifies the important rights emanating from the confrontation and due process clauses of the federal and state constitutions. See State v. W.A., 184 N.J. 45, 53 (2005); State v. Whaley, 168 N.J. 94, 99-100 (2001).*fn3 The nonconsensual removal of defendant from the courtroom before the completion of his trial was, without doubt, an error of constitutional dimension; I do not understand the majority opinion to suggest otherwise. Instead, the point upon which my colleagues and I disagree relates to whether this constitutional deprivation may be excused as harmless error.
In his opinion for the Court in Neder v. United States, 527 U.S. 1, 8-9, 119 S.Ct. 1827, 1833, 144 L.Ed. 2d 35, 46-47 (1999), Chief Justice Rehnquist described a structural error, which may not be rescued by harmless-error analysis, as a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Such errors "infect the entire trial process," and "necessarily render a trial fundamentally unfair." Put another way, these errors deprive defendants of "basic protections" without which "a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair." [Citations omitted.]
In adhering to this approach, the Court in State v. Purnell, 161 N.J. 44, 60-61 (1999), identified various examples of structural defects that defy application of the harmless-error standard, including: an erroneous reasonable-doubt instruction, Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed. 2d 182 (1993); the complete deprivation of counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799 (1963); adjudication by a partial judge, Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); and the deprivation of a public trial, Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed. 2d 31 (1984); see also State v. Cuccio, 350 N.J. Super. 248, 261 (App. Div.), certif. denied, 174 N.J. 43 (2002).*fn4
Focusing on the constitutional rights codified by Rule 3:16(b), our courts have also held that a new trial is warranted, notwithstanding what a harmless-error analysis might produce, when an accused has been deprived of the right to be present: during jury selection, W.A., supra, 184 N.J. at 53-54*fn5 ; State v. Smith, 346 N.J. Super. 233, 236-37 (App. Div. 2002); State v. Dishon, 297 N.J. Super. 254, 267-75 (App. Div.), certif. denied, 149 N.J. 144 (1997); during a readback of testimony, State v. Brown, 362 N.J. Super. 180, 188-89 (App. Div. 2003); and at an extra-judicial discussion between judge and jury after the return of a verdict, State v. Walkings, 388 N.J. Super. 149, 158-59 (App. Div. 2006).
It is not simply a matter of whether the trial would have been different or likely would have produced a different result if the accused had been present at the stages of the trial in question. The "very premise of structural-error review is that even convictions reflecting the 'right' result are reversed for the sake of protecting a basic right." Neder, supra, 527 U.S. at 34, 119 S.Ct. at 1845, 144 L.Ed. 2d at 62 (Scalia, J., dissenting). Defendant possessed the fundamental right to be present at the entire trial and certainly when the judge responded to the jury's questions during deliberations, when the verdict was returned and when the jury was polled.*fn6 The judge's disregard of defendant's constitutional right to be present undermined and damaged the very framework of the vehicle that generated the judgment under review. Regardless of whether we view the evidence as overwhelming or the accused's presence as likely ineffectual in the circumstances, a conviction cannot stand when produced at a trial from which the accused was involuntarily removed. Defendant's exclusion here, without his consent, struck at the trial's structure and the fairness of the proceedings, thus causing a fatal defect of constitutional dimension that should not be tolerated.
In short, I cannot add my voice to a decision that dilutes, through the application of the harmless-error standard, an accused's right to be present at every stage of his trial. The public's confidence in the judiciary as an instrument of justice, State v. Hudson, 119 N.J. 165, 172 (1990), requires nothing less than a new trial in these circumstances. See also State v. Luna, 193 N.J. 202, 210 (2007) (holding that "[o]ur system of justice functions best when the accused is present throughout trial"). If the constitutional right to be present at "every" stage of a criminal trial, as codified in Rule 3:16(b), is to have any real meaning, there must be a remedy for its breach.
I respectfully dissent.*fn7