August 9, 2010
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, No. FV-21-000205-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 6, 2010
Before Judges Stern and Wefing.
Defendant appeals from a Final Restraining Order entered against him pursuant to the Prevention of Domestic Violence Act (N.J.S.A. 2C:25-17 to -35). Plaintiff has not participated in this appeal. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Plaintiff filed for a protective order under the domestic violence statute following an incident which occurred on August 17, 2009. Plaintiff said that the two had an argument, and defendant told her to leave the house, that he would kill her if she did not, and he raised a kitchen stool, threatening to strike her with it. Plaintiff amended her complaint on several occasions to allege additional acts of domestic violence, and the matter finally proceeded to a hearing on October 8, 2009.
Plaintiff testified that defendant returned home from work on August 17 and went to the room she described as the "bar room" in which the family's computer was kept. She said defendant turned on the computer and became angry, demanding to know who had used it. She was in the kitchen and said she had not; their two sons (sixteen and twelve years old at the time) were in the living room, and both denied using it. The older boy approached the bar room, and father and son had an argument. The sixteen-year-old headed to the kitchen with his mother and his father following behind. She said she stepped in between defendant and her son to protect him, and defendant began to yell at her, then picked up a kitchen bar stool, held it over his head and told her to leave or he would kill her. She went to her car, and defendant followed her, got into the back seat and continued to yell at her. He eventually got out, and she drove to a nearby fire station and sought assistance.
Eventually, the police arrived, and she sought and obtained an order of protection.
Defendant testified to a different version of events. He said he had just purchased a new, larger computer for the family because their earlier one had been infected with viruses through the boys' downloading of various items onto it. He had told them not to use the new machine until he returned from work and installed certain security software. When he entered the bar room and turned on the new computer, the e-mail address for one of his sons popped up, indicating the boy had used the machine. When both denied doing so, he became angry because the boy was lying. He said he was confronting his son about lying and asking plaintiff to support him in this, but she refused. He denied raising the chair or threatening her. He said he placed the kitchen stool between plaintiff and himself because she was coming at him. He admitted going to her car but said he did so to try to convince her not to leave.
The trial court found plaintiff's testimony more credible and issued the final restraining order. This appeal followed. On appeal, defendant raises the following arguments:
I. THE LOWER COURT DEPRIVED DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION WHEN IT PERMITTED PLAINTIFF TO ASSERT THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION AS TO TOPICS TO WHICH PLAINTIFF HAD VOLUNTARILY TESTIFIED.
II. THE LOWER COURT DEPRIVED APPELLANT OF HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION WHEN IT PERMITTED RESPONDENT TO ASSERT THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION AS TO PLAINTIFF'S INTOXICATION AND ABILITY TO ACCURATELY PERCEIVE THE EVENTS TO WHICH SHE TESTIFIED.
III. THE LOWER COURT ERRED WHEN IT FAILED TO REQUIRE THAT RESPONDENT SUPPORT HER INVOCATION OF THE FIFTH AMENDMENT [PRIVILEGE] AGAINST [SELF-INCRIMINATION] WITH TESTIMONY INDICATING THE NATURE OF THE CRIMINAL EXPOSURE SHE FEARED.
IV. THE LOWER COURT ERRED WHEN IT ATTEMPTED TO LEGISLATE AND 'LEVEL THE PLAYING FIELD' IN ORDER TO PROVIDE RESPONDENT WITH CERTAIN PROTECTIONS AFFORDED ONLY TO A DEFENDANT BY THE PREVENTION OF DOMESTIC VIOLENCE ACT.
V. THE LOWER COURT ERRED IN FAILING TO STRIKE PLAINTIFF'S TESTIMONY IN LIGHT OF HER REPEATED ASSERTION OF THE FIFTH AMENDMENT PRIVILEGE.
VI. THE LOWER COURT ERRED WHEN IT PERMITTED PLAINTIFF'S COUNSEL TO ASSERT THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION, RATHER THAN REQUIRING THAT PLAINTIFF ASSERT THE PRIVILEGE HERSELF (Not Raised Below).
Defendant's first two arguments are easily disposed of. Despite its placement within Title 2C, our criminal code, proceedings under New Jersey's domestic violence statute are civil in nature, not criminal. The Sixth Amendment right of confrontation upon which defendant relies in his two initial points applies to criminal proceedings only.
At various points during his cross-examination of plaintiff, defendant's attorney sought to inquire about her drug use, both in general and on the date of the incident. At each such question, plaintiff's attorney intervened and objected, citing plaintiff's Fifth Amendment right against self-incrimination. Defendant contends on appeal these rulings were erroneous and deprived him of a fair ability to cross-examine plaintiff.
While we agree the procedure that was utilized was incorrect in many respects, we are satisfied from our review of the record that the final restraining order should nonetheless be affirmed. We agree with defendant that the trial court erred when it permitted plaintiff's attorney to invoke the privilege against self-incrimination and further erred when it did not demand a factual basis for the invocation before upholding it. The privilege against self-incrimination is personal in nature and must be claimed by the person seeking its protection, not by someone on another's behalf. In re Boiardo, 34 N.J. 599, 604 (1961); State v. Jennnings, 126 N.J. Super. 70, 75 (App. Div.) (noting "the privilege against self-incrimination is personal to the individual claimant and the election to invoke it must be exercised by the witness himself . . . . It is not invocable by an attorney as his surrogate."), certif. denied, 60 N.J. 512 (1972). A party, moreover, is not entitled to the protection of the privilege merely by claiming it. State v. DeCola, 33 N.J. 335, 350 (1960); In re Pillo, 11 N.J. 8, 19 (1952) (stating, "The trial judge is not to accept the witness's mere statement that the answer will tend to incriminate him."). Rather, the individual must demonstrate to the court that there is a reasonable basis to fear criminal consequences from answering truthfully the question that is posed. Here, the trial court completely disregarded these principles.
The trial court, however, rested its decision in this matter based upon its assessment of the credibility of the parties as they conducted themselves in the court room-their physical demeanor while testifying and while observing the proceedings when not on the stand. It did not cite any area of plaintiff's testimony that defendant was precluded from covering on cross-examination as playing any role in its ultimate decision. In this posture, we are satisfied that while the court's several rulings were erroneous, they did not lead to a result the trial court otherwise would not have reached. In such a context, they may fairly be characterized as harmless error.
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