On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-05-0463, 05-03-0339 and 05-05-0549.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Remanded by Supreme Court December 3, 2009
Resubmitted February 3, 2010
Before Judges Carchman and Sabatino.
In an unpublished opinion dated July 28, 2009 we affirmed defendant William A. Brown's conviction of various narcotics offenses, the most severe of which was third-degree possession of heroin with intent to distribute it within a school zone. N.J.S.A. 2C:35-7. See State v. Brown, No. A-2607-07T4 (App. Div. July 28, 2009), remanded, 200 N.J. 547 (2009). As part of our analysis of a variety of issues raised by defendant on appeal, we rejected his contention, under then-applicable law, that the trial court erred in providing the jury with an adverse inference charge under State v. Clawans, 38 N.J. 162 (1962). Brown, supra, No. A-2607-07T4 (slip op. at 23-25).
The Clawans charge stemmed from defendant's failure to call his putative cousin, Ashley Stewart, as a trial witness. Defendant allegedly had come to visit Stewart at the subject premises on the same afternoon when he and a stash of heroin were discovered by police in the adjacent alleyway. The police were unable to locate Stewart or to verify that she actually resided at the premises. Defendant did not produce her as a witness at trial, despite his assertion that she is his relative and his reason for being present at the premises. We sustained the trial judge's issuance of the adverse instruction under Clawans.
This matter returns to this court pursuant to an order of remand from the Supreme Court dated December 3, 2009, following defendant's petition for certification. The Court's order reads as follows:
It is ORDERED that the petition for certification is granted and the matter is summarily remanded to the Appellate Division for reconsideration in light of State of Hill, 199 N.J. 545 (2009). Jurisdiction is not retained. [Brown, supra, 200 N.J. at 547.]
Following the Court's remand order, we received supplemental letter-briefs from defense counsel and the county prosecutor, respectively, addressing the impact of Hill upon the present case.
Hill was decided on July 14, 2009, after defendant's direct appeal was briefed to this court and calendared. In its opinion, the Court substantially curtailed its longstanding approach to "missing witness" adverse-inferences, previously authorized under State v. Clawans, and the Model Criminal Jury Charges. Hill, supra, 199 N.J. at 550-51. The defendant in Hill was convicted of robbery, conspiracy, and weapons offenses for his participation in a robbery as the driver of the getaway car. Id. at 552-54. The defendant claimed that he did not know the car was going to be used during a robbery and that his nephew, one of the robbers, could support this. Ibid. However, the defendant did not call his nephew as a witness. Ibid. The trial court issued a Clawans charge, finding that there were especially strong reasons to suspect that the nephew was accessible to the defense, but probably would have offered testimony that contradicted the defendant's claims. Id. at 555-57. On appeal, a panel of this court affirmed Hill's conviction, finding that any error by the trial court in issuing the Clawans charge was harmless. Id. at 558.
The Supreme Court reversed the judgment of conviction in Hill, and remanded the case for a new trial. In doing so, the Court revisited the principles underlying its 1962 opinion in Clawans. Id. at 558-62. Recognizing the importance of the presumption of innocence that must be accorded to a criminal defendant as well as the State's constitutional burden to establish the elements of a crime beyond a reasonable doubt, the Court substantially narrowed the ...