May 19, 2010
JERMAINE VAUGHN, PLAINTIFF-APPELLANT,
CAPTAIN DAVID ARMITAGE, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2534-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 28, 2010
Before Judges Stern and Graves.
Plaintiff Jermaine Vaughn (Vaughn), an inmate at New Jersey State Prison, appeals from an order dated February 20, 2009, denying his request to compel the Trenton Police Department to provide him with copies of disciplinary records for three police officers, pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The trial court ruled the disciplinary records were confidential. We agree and affirm.
Vaughn is now serving a life term of imprisonment with a thirty-year period of parole ineligibility following his 1999 conviction for felony murder, robbery, and possession of a weapon for an unlawful purpose. In a prior unpublished opinion, State v. Vaughn, No. A-2877-06 (App. Div. Oct. 14, 2009), this court summarized the facts underlying Vaughn's judgment of conviction and addressed his post-conviction relief claims as follows:
The conviction arises from a chance encounter between Adrian Davis, defendant and co-defendant Jeremiah Bass during the evening of June 5, 1995. After driving around Trenton, stopping at his home to obtain a black hooded jacket and a green hooded sweatshirt, and consuming a forty-ounce bottle of malt liquor, defendant and co-defendant decided they needed money to get into parties. Both men were armed. As they walked down a street, defendant had his revolver in his hand and noticed the victim walking towards him. The man walked right up to defendant and co-defendant. After a momentary struggle, defendant's gun discharged, the man fell to the ground, and defendant and co-defendant walked away. The victim was pronounced dead at the hospital. A woman observed the entire encounter from the front window of her home. When she called police, she informed the dispatcher that the men had entered Marion Street on foot.
Soon, police observed two men on Marion Street fleeing the area on foot. After a foot pursuit, during which police observed co-defendant discard his gun and ammunition, the co-defendant was detained and arrested. Although police located a small chrome revolver and a spent .32 caliber shell casing in the pocket of a black jacket in an empty lot, defendant was not arrested until June 9, when police located him in the hospital recovering from a wound received in another incident on June 6.
When released from the hospital, police arrested defendant on a warrant issued in connection with the June 6 incident. At the police station, police advised defendant why he was in custody, and a detective administered his Miranda rights. Defendant waived his rights, and approximately two hours later provided a formal statement in which he admitted shooting the victim. He explained the incident as follows: "as we got closer to the [victim] he saw my gun, and then he got up on me real quick, grabbed my jacket and pulled me towards him, and then is when the gun went off." This statement was introduced at trial.
In his PCR petition, defendant argued that the arrest warrant for the June 5 shooting was not properly issued; therefore, his post-arrest statement should have been suppressed. Moreover, trial counsel failed to communicate with defendant prior to trial, failed to conduct an investigation and failed to interview witnesses, failed to file the necessary motions, and failed to object to jury instructions. Defendant highlighted trial counsel's failure to explore an intoxication defense. In addition, defendant asserted that "direct appeal counsel was ineffective in that he failed to raise necessary and important issues."
Judge Delehey conducted an evidentiary hearing. At that time, defendant presented the testimony of trial counsel and the detective who administered Miranda rights to defendant, conducted the interrogation and took defendant's statement. The record remained open to allow submission of a report from an expert concerning the effect of phencyclidine and whether the ingestion of this substance would support an intoxication defense. Subsequently, PCR counsel advised the court that an expert report would not be submitted.
In a lengthy written opinion, Judge Delehey denied the petition. The judge found that defendant was arrested after his co-defendant provided a statement inculpating defendant. In short, police had probable cause to arrest defendant. A formal complaint issued following defendant's inculpatory statement and an indictment issued in due course. The judge also noted the warrantless arrest issue had not been raised on direct appeal and was barred pursuant to Rule 3:22-4.
The judge also found that defendant failed to submit any credible evidence to support his contention that he had a viable alibi or intoxication defense. He also found that defendant proffered no information that would have supported retention of an expert and submission of a report concerning the voluntariness of his confession or factors to mitigate the sentence. Furthermore, we rejected defendant's argument on direct appeal that his sentence was excessive.
The judge found that defendant's contention that trial counsel failed to adequately challenge inconsistencies leading to his arrest was too vague and unsupported to allow meaningful consideration. The judge also found that defendant was not entitled to a passion/provocation charge as a lesser included offense because he was charged with felony murder not purposeful or knowing murder. In conclusion, Judge Delehey determined that defendant failed to establish that trial counsel provided a defense that fell below an objective standard of reasonableness or that any error or deficiency contributed to an unwarranted conviction.
In the same unpublished opinion, we set forth the procedural history of Vaughn's criminal case as follows:
This court affirmed defendant's conviction and sentence, but remanded for a Miranda [footnote omitted] hearing. We instructed the trial judge to determine whether defendant had invoked his right to remain silent. State v. Vaughn, No. A-6299-98 (App. Div. June 26, 2001). The Supreme Court denied certification. 170 N.J. 87 (2001). Following the Miranda hearing, the trial judge held that defendant had not invoked his right to remain silent. Defendant appealed, and this court affirmed. No. A-3921-01 (App. Div. June 7, 2004). The Supreme Court denied certification. 182 N.J. 143 (2004).
In the present matter, Vaughn's request for documents concerning certain officers of the Trenton Police Department was prompted by a newspaper article published on April 16, 2008.
The newspaper article stated that Detectives Edgar Rios and James McMillan were transferred out of the Homicide Unit and administrative charges had been filed against Rios. The article did not mention Officer Robert Sheehan.
On July 31, 2008, Vaughn requested a copy of "disciplinary reports and sanctions" for Detective Rios, Detective McMillan, and Officer Sheehan. Vaughn stated on the OPRA request form that the "officers were directly involved in my criminal case . . . and were recently in the newspaper dated April 16, 2008 for administrative charges . . . with the exception of Mr. Sheehan." In a letter dated August 18, 2008, Joseph Santiago, Director of the Trenton Police Department, informed Vaughn that the records would not be released because "the Attorney General's Guidelines [specified] that the contents of internal investigation case files are confidential."
Pursuant to N.J.S.A. 47:1A-6, Vaughn initiated a proceeding in the Superior Court to challenge the police director's decision. In paragraphs ten and eleven of an affidavit in support of his motion to compel the Trenton Police Department to provide the requested documents, Vaughn stated:
10. I believe access to these officer[s'] disciplinary reports and sanctions handed down against them is relevant to me and my appeal process because of their direct involvement affecting the outcome of my case. More specifically, I am only concerned with the disciplinary reports and sanctions against these officers that were present at the time of my arrest and going as far as to the conclusion of my trial.
11. I believe by the newspaper printing the information in exhibit 1, this information is now public record and should be made available to me without any fear that this information would be used to harm public interest, but only to be used in my criminal appeal process, in an effort to get back in the courts and make an effective argument, showing that I am worthy of relief in my criminal convictions.
In an oral decision on February 20, 2009, the trial court found that the requested documents were exempt from the general disclosure requirements of OPRA because they were confidential. We conclude from our review of the record that the matter was correctly decided, and we are convinced that all of Vaughn's arguments are clearly without merit. R. 2:11-3(e)(1)(E). We therefore affirm with only the following comments.
The purpose of OPRA "is to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process." Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005) (citation omitted). Nevertheless, the statute excludes disclosure of twenty-one categories of information "deemed to be confidential." N.J.S.A. 47:1A-1.1. These categories are excluded to further the legislature's recognition that "a public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy." N.J.S.A. 47:1A-1.
OPRA excludes "criminal investigatory records," which are defined broadly as a record "not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding." N.J.S.A. 47:1A-1.1. The Attorney General, as the "'chief law enforcement officer of [this] State,'" is "charged with adopting guidelines, directives and policies that bind local police departments in the day-to- day administration of the law enforcement process." O'Shea v. Twp. of W. Milford, 410 N.J. Super. 371, 382 (App. Div. 2009) (quoting N.J.S.A. 52:17B-98). Although such guidelines are not formal "administrative rules," they are binding and enforceable on local law enforcement agencies. Id. at 383.
The "Confidentiality" section of the Attorney General's Guidelines on "Internal Affairs Policy & Procedures" (Guidelines) declares that "[t]he nature and source of internal allegations, the progress of internal affairs investigations, and the resulting materials are confidential information" and "shall only be released under . . . limited circumstances."
Guidelines, at 11-46. One such limited circumstance permitting disclosure is "for good cause." Ibid. However, Vaughn's broad, general request appears to be a "fishing expedition" without any valid reason in support of disclosure under the "good cause" exception. Consequently, the records sought by Vaughn under OPRA are confidential and were properly excluded from disclosure by the trial court.
Moreover, we note for the sake of completeness that Vaughn also failed to provide a basis for disclosure under the broader common law definition of "public record." See Mason v. City of Hoboken, 196 N.J. 51, 67 (2008) (noting that disclosure of records under the common law requires a requestor to "make a greater showing than required under OPRA.") Additionally, Vaughn has no basis for obtaining the records under the Confrontation Clause because his criminal appeals have been resolved, and he has failed to show how the requested information may be relevant to the officers' credibility.
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