March 11, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM A. BROWN, JR., DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 11, 2009
Decided July 28, 2009
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In an unpublished opinion dated July 28, 2009 we affirmed defendant William A. Brown's conviction of various narcotics offenses, the most severe of which was third-degree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 situations in which a Clawans charge may be issued against a criminal defendant for failing to produce a missing witness. Ibid.
The Court observed in Hill that "[t]he prejudicial effect from an improper Clawans charge is exponentially higher for a criminal defendant." Id. at 562. Consequently, the Court fashioned a new and strong presumption disfavoring the use of a Clawans charge against a criminal defendant:
We now hold that Clawans charges generally should not issue against criminal defendants. The inclusion in a criminal trial of a Clawans charge from the court risks improperly assisting the State in its obligation to prove each and every element of a charged crime beyond a reasonable doubt. It is difficult to foresee a situation where a Clawans charge might play a proper role in a case against a criminal defendant. Indeed, any reference to a negative inference against a criminal defendant must be carefully scrutinized to ensure that the comment does not mislead or have the capacity to confuse the jury into believing that a defendant had an obligation to produce the witness and the substantive evidence that the witness would have provided. Although we will not engage in hypothetical discussions of possible situations in which a negative inference might be argued to arise, suffice it to say that it would be the rare case, if any, that would warrant a Clawans charge from the court. The instant matter exemplifies why, in the main, a Clawans charge has no proper place being used against a criminal defendant. [Id. at 566-67.]
Applying this new standard, the Court concluded that the issuance of the missing-witness charge in Hill was improper because the charge improperly burdened the defendant in failing to call a witness to corroborate "his claim of innocent intent." Id. at 569.
The present case is comparable to Hill. Defendant explained to the police that he was in the area where the heroin was found for a benign reason, to visit his cousin. He contended that his cousin had requested defendant to come there to help her with some shopping for her child. Defendant repeated this contention when he testified at his trial. Defendant's reference to his cousin was, as in Hill, designed to corroborate his "claim of innocent intent." Applying the new rule of law set forth in Hill to this case, which was in the appellate pipeline when Hill was decided, see State v. Feal, 194 N.J. 293, 308-09 (2008), we must now conclude that the adverse inference charge given by the trial court was improper.
Having again canvassed the trial record, we are further satisfied that the erroneous jury charge was not harmless beyond a reasonable doubt, particularly given the constitutional underpinnings of the Supreme Court's holding in Hill. See State v. Macon, 57 N.J. 325, 338 (1971); State v. Scherzer, 301 N.J. Super. 363, 441 (App. Div.), certif. denied, 151 N.J. 466 (1997). Defendant's connection to Ashley Stewart and her unknown whereabouts comprised a significant portion of his own direct and cross examinations and also the testimony of the police officers presented by the State. Moreover, defendant's failure to produce his cousin was specifically highlighted by the prosecutor in his closing argument, advising the jurors that the trial judge would be issuing a special instruction for them on the legal consequences of defendant's failure to produce her as a trial witness. The judge, albeit in compliance with prior law, issued the adverse-inference instruction over defendant's objection. We discern no material distinction between the circumstances that required reversal and a new trial in Hill and the present case.*fn1
Defendant's conviction is reversed and remanded for a new trial, at which no missing witness adverse-inference instruction shall issue. Our opinion dated July 28, 2009 is hereby superseded as to this discrete issue, but otherwise unaltered.