January 6, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT SILVA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-10-0822.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 15, 2010 - Decided:
Before Judges Axelrad and R. B. Coleman.
Defendant Robert Silva appeals from an order denying his motion to dismiss a second superseding indictment arising out of an act of domestic violence committed against his girlfriend S.C. on or about May 17, 2002. He argues the State's grand jury presentation was tainted because of the failure to present exculpatory evidence. We affirm.
On May 19, 2002, defendant was arrested and charged by criminal complaint with disorderly person's simple assault, N.J.S.A. 2C:12-1a(1), and fourth-degree contempt for violating a domestic violence temporary restraining order (TRO) obtained by S.C., N.J.S.A. 2C:29-9b. On July 18, 2002, defendant was indicted by the Somerset County Grand Jury (No. 02-07-0432), which charged fourth-degree contempt.
On March 8, 2003, the grand jury returned the first superseding indictment (No. 03-02-0119), charging defendant with second-degree burglary, N.J.S.A. 2C:18-2b(1); third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); and fourth-degree contempt, N.J.S.A. 2C:29-9b.
Thereafter, the court granted defendant's motion to sever the contempt charge from the burglary and assault charges. We granted the State's motion for leave to appeal and stayed the trial court proceedings. We then reversed the order severing the counts. State v. Silva, 378 N.J. Super. 321, 328 (2005).
In a related Family Part case, Judge Bartlett granted S.C. a final restraining order (FRO) against defendant following a hearing. In response to defendant's motion for reconsideration, however, the court reopened the case and granted defendant an opportunity to present supplemental evidence. At the hearing on December 19, 2005, defendant presented expert testimony analyzing his cell phone records and opining that it would have been impossible for defendant to have traveled from a pinpointed location to S.C.'s house and arrive at his daughter's home at the time to which his daughter testified. The judge found the testimony persuasive, vacated the FRO, and dismissed S.C.'s domestic violence complaint.
Defendant then filed a motion for the criminal trial judge to take judicial notice of Judge Bartlett's opinion, which was granted by order of November 6, 2006. The State appealed and we reversed. State v. Silva, 394 N.J. Super. 270, 278 (App. Div. 2007).
On August 15, 2008, defendant moved to dismiss the superseding indictment. In response, the State returned to the grand jury. On October 30, 2008, the grand jury returned the second superseding indictment (No. 08-10-0822), charging defendant with the same three offenses as contained in the first superseding indictment.
On May 19, 2010, Judge Paul W. Armstrong denied defendant's motion to dismiss the second superseding indictment. On July 28, 2010, we granted defendant's motion for leave to appeal.
Defendant and S.C. had a dating relationship and lived together in defendant's house in Raritan. On May 16, 2002, S.C. obtained a TRO against defendant, which she had amended the next day to expressly bar defendant from their shared residence. Defendant was served with the TRO on May 17, 2002.
The following is a summary of the February 27, 2003 grand jury testimony of Lieutenant*fn1 Mark Ciesla that resulted in the first superseding indictment. At about 9:40 a.m. on May 18, 2002, S.C. entered Raritan Police Department headquarters and spoke with the officer. He observed she was crying, visibly upset, her lip and nose were swollen, and she had dried blood on her lips. The officer recognized the woman as the person he assisted the day before in obtaining an amended restraining order against defendant. According to Lt. Ciesla, S.C. asked whether, if she told the police "he" did this to her, would they have to arrest him or could they just document the incident. The officer responded that defendant would have to be arrested. S.C. said she did not want to say anything and left to go to the dentist for treatment for her injuries, generally stating that her appearance at the courthouse the day before had set him off.
When asked if defendant had done that to her, S.C. did not answer.
Suspecting domestic violence, Lt. Ciesla directed Officer Ludwig to follow S.C. to the dentist's office in an attempt to ascertain the circumstances of the incident. When S.C. left the dentist's office, Officer Ludwig spoke with her in the parking lot. S.C. initially told him she did not want to discuss what occurred and then stated she fell after drinking wine the prior night.
That afternoon, the two officers went to S.C.'s house and spoke with her sixteen-year-old son. He reported he had fallen asleep in his second-floor bedroom the evening of May 17 and was awakened at 12:45 the next morning when his mother entered his room, crying, upset, and bleeding. He assumed she had fallen off a kitchen stool. He showed the officers a bloody towel from the night before. The son responded in the negative when asked if he had seen defendant at the residence.
The son further stated that he and his mother had then gone downstairs and his mother telephoned his grandmother. Lt. Ciesla related that he spoke with the grandmother and she said S.C. had called, crying and upset, and told her she had lost some teeth.
Lt. Ciesla returned to S.C.'s residence later that afternoon and spoke with her. She was nervous, upset, crying, shaking, and her face was still swollen. S.C. appeared hesitant to discuss the events of the prior evening and stated several times that the police had no idea what "he" could do to her if she reported the incident. S.C. eventually agreed to speak with the officers and, still visibly upset, acknowledged that defendant was at her house for five minutes the prior night. S.C.'s son then encouraged her to tell the police what had happened and she provided further information about the incident.
According to the officer, S.C. said she did not trust the system because the restraining order provided no protection, as defendant had entered the house through an open door sometime between 11:30 p.m. and after midnight, and when she threatened to call the police, defendant responded that if she did things would only get worse. According to S.C., defendant then punched her in the face, knocking her off the stool and onto the floor, and immediately left the house. S.C. explained to the officer that she had financial concerns for herself and her family if defendant were arrested because he paid the mortgage and utilities for the house.
Lt. Ciesla also referenced Officer Ludwig's report reflecting that hours prior to the assault on S.C., defendant appeared at headquarters for assistance to obtain his personal belongings from the house after having been served with the TRO. Officer Ludwig overheard defendant's cell phone conversation with an individual named Ron in which he was discussing the TRO and becoming angrier as he described it, ultimately making the statement that "she was going to pay for this."
Pursuant to an investigation subsequent to defendant's arrest, Lt. Ciesla learned that defendant was having dinner at the Basking Ridge Country Club on the evening of May 17 and left the bar at approximately 12:15 a.m. The officer further related that defendant had asserted an alibi that he was at his daughter's house in Budd Lake (Mt. Olive Township) at the time of the alleged incident, and his daughter represented he arrived there between 12:45 a.m. and 1:00 a.m.
The officer elaborated as to S.C.'s injuries, stating his understanding that she had cracked teeth requiring dental work and had a broken nose necessitating surgeries, after which S.C. still continued to have impaired breathing abilities on one side of her nose.
On August 15, 2008, defendant moved to dismiss the superseding indictment, asserting, in part, that the State provided erroneous information that S.C. had suffered a broken nose, which was not substantiated by the medical reports, resulting in the charge of third-degree aggravated assault, and that the State's legally erroneous burglary instruction warranted a dismissal of that charge.
According to the State, instead of responding to defendant's motion, the prosecutor returned to the grand jury to correct the aforementioned factual and legal errors. Lt. Ciesla again testified before the grand jury on October 30, 2008, resulting in the second superseding indictment, which is at issue in this appeal. His testimony was substantially identical to the first hearing, with the following variations and additions. The officer made no mention of the statements S.C. made to the police at headquarters, only generally noting that he asked her questions and she did not advise who the perpetrator was or answer the questions to his satisfaction. The officer did indicate, however, that as an eighteen-year police veteran, in light of S.C.'s statement that "[i]f he did this to me" and the domestic violence restraining order in effect, he "wanted to investigate further to see what happened."
In relating the events occurring outside the dentist's office, Lt. Ciesla did not mention S.C.'s statement that she fell after drinking wine the night before. Instead he stated:
Q. Police officer sat outside the whole time waiting for her to finish her appointment and come out, right?
Q. And when she did he confronted her, right?
Q. What'd he ask her?
A. I believe he was trying to find out what happened.
Q. Did she tell him?
Q. Did she tell him to your satisfaction?
Lt. Ciesla also corrected his inaccurate statement as to S.C.'s injuries. He testified that she went to the dentist because she had a broken tooth and several others that were loosened. Although the dentist told S.C. he thought her nose might be broken, further medical evaluation revealed it was not broken. Nonetheless, S.C. required several surgeries on her face and nose, and for months after the incident, she still complained of not being able to breath through her left nostril.
The officer presented additional testimony in response to defendant's alibi that he could not have gone from the country club to S.C.'s house and have gotten to his daughter's house at her estimated time of 12:45 a.m. to 1:00 a.m. The officer explained he made the drive himself from the country club to the two other locations, and it took him a total of forty-four minutes.
In his motion to dismiss the second superseding indictment, defendant asserted prosecutorial misconduct, arguing the prosecutor failed to present exculpatory evidence directly negating elements of the charged offenses and led the officer to omit that evidence. According to defendant, the exculpatory evidence included the following: (1) S.C.'s statement to Officer Ludwig that she fell after drinking wine the night before the incident, presented to the grand jury on February 27, 2003; (2) S.C.'s dentist's record reporting S.C.'s statement that "she fell [the night before] around midnight and hit her face"; (3) the statement contained in Lt. Ciesla's February 7, 2006 supplementary investigation report that, following the prosecutor's internet driving directions, it took him thirty-two minutes to drive from S.C.'s residence to that of defendant's daughter; and (4) the cell tower evidence presented at the FRO hearing relating to timing, upon which the Family Part judge concluded it was impossible for defendant to have committed the charged offense.*fn2
In his written opinion, Judge Armstrong noted the State's position on this issue to be that the prosecutor "did not engage in any extreme conduct or clearly infringe upon the grand jury's decision-making function." Additionally, the State submitted it had a basis in the evidence for the time frame it presented to the grand jury and the credibility of the witnesses regarding that issue should ultimately be decided by a petit jury following trial.
The judge provided a lengthy recitation of the longstanding case law as to the grand jury's role regarding a defendant's burden in challenging an indictment and a trial judge's broad discretion in deciding a motion to dismiss an indictment, which we will cite and discuss in greater detail later in this opinion. He referenced the seminal case of State v. Hogan, 144 N.J. 216, 237 (1996), holding that the State is not required to present to the grand jury potentially exculpatory evidence
unless such evidence "directly negates the guilt of the accused and is clearly exculpatory."
The judge found S.C.'s statement that defendant had caused her injuries was evidential to support a prima facie case for the charged crimes. He also found the State was not required to present to the grand jury both of the victim's explanations for her injuries, i.e., her initial explanation that she had a drunken fall from a kitchen stool and her later statement to the police that it was defendant who had caused her injuries in response to receiving the domestic violence TRO. The judge explained that under Hogan, supra, recantation testimony is generally more pertinent to the witness' credibility regarding the incident and very rarely rises to the level of clearly exculpatory. See id. at 235-36. The judge thus concluded that both versions of the events could be presented to the petit jurors at trial as the fact finders were the proper parties to make credibility assessments.
The judge also found the timing issue pertaining to defendant's alibi involved the credibility of witnesses, which was a determination to be made by a petit jury. Judge Armstrong further explained that the potential bias of an eyewitness would affect the prosecutor's obligation to present that witness' testimony to a grand jury. Hogan, 144 N.J. 216. "The exculpatory testimony of one eyewitness is not clearly exculpatory if contradicted by the incriminating testimony of a number of other witnesses," in this instance the victim. Id. at 238. Thus, the State was not required to present testimony of Defendant's daughter to rebut the officer's testimony about how long it would take Defendant to go from the Basking Ridge Country Club to Raritan then to Budd Lake. Such testimony should be presented to the petit jury. Further, the evidence would not be considered clearly exculpatory because that determination would be based on a credibility assessment by the petit jury. Therefore, this Court finds that the State did not withhold clearly exculpatory evidence from the grand jury.
Accordingly, the court entered an order denying defendant's motion to dismiss the indictment. This appeal ensued.
On appeal, defendant renews the arguments made to the trial court. Defendant challenges the presentation to the grand jury of the second superseding indictment as tainted based on the State's failure to present purportedly exculpatory evidence, consisting of S.C.'s initial statement to the police that her injuries resulted from an alcohol-induced fall and the objective evidence presented to Judge Bartlett at the final restraining hearings.
We consider defendant's argument in light of well-established law. The trial court, in evaluating defendant's motion to dismiss, correctly determined that Hogan, supra, controlled its disposition of the motion. In that case the Supreme Court "recognized the grand jury's independence and  expressed a reluctance to intervene in the indictment process." 144 N.J. at 228. See also State v. Perry, 124 N.J. 128, 168-69 (1991); State v. Long, 119 N.J. 439, 478 (1990). Generally, the decision whether to dismiss an indictment lies within the discretion of the trial court, and "that exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused." Hogan, supra, 144 N.J. at 229 (internal citations omitted). A grand jury indictment "should be disturbed only on the clearest and plainest ground and only when the indictment is manifestly deficient or palpably defective." Id. at 228-29 (internal citations and quotation marks omitted).
The mission of the grand jury "is to clear the innocent, no less than to bring to trial those who may be guilty." Id. at 228 (internal citations and quotation marks omitted). Accordingly, the Court has demonstrated a "greater willingness to review grand jury proceedings where the alleged deficiency in the proceedings affects the grand jurors' ability to make an informed decision whether to indict." Id. at 229. See also State v. Murphy, 110 N.J. 20, 35 (1988); State v. Del Fino, 100 N.J. 154, 165-66 (1985); State v. Hart, 139 N.J. Super. 565, 568-69 (App. Div. 1976). The Court further explained that the grand jury's role is "not to weigh evidence presented by each party, but rather to investigate potential defendants and decide whether a criminal proceeding should be commenced." Hogan, supra, 144 N.J. at 235. In seeking an indictment, the prosecutor's "sole evidential obligation is to present a prima facie case that the accused has committed a crime." Id. at 236. Furthermore, "[a]n indictment may be based largely or wholly on hearsay and other evidence which may not be legally competent or admissible at the plenary trial." State v. Holsten, 223 N.J. Super. 578, 585 (App. Div. 1988) (internal citations and quotation marks omitted). As Judge Armstrong noted, "[c]redibility determinations and resolutions of factual disputes are reserved almost exclusively for the petit jury." Hogan, supra, 144 N.J. at 235.
That is not to say, however, that the State may "deceive the grand jury or present its evidence in a way that is tantamount to telling the grand jury a 'half-truth'" Id. at 236. The Court further explained that in order for the grand jury to perform its vital function of "protect[ing] persons who are victims of personal animus, partisanship, or inappropriate zeal on the part of a prosecutor[,]" the grand jury cannot be denied access to evidence that is credible, material, and so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused. If evidence of that character is withheld from the grand jury, the prosecutor, in essence, presents a distorted version of the facts and interferes with the grand jury's decision-making function. [Ibid. (internal citations omitted).]
Hogan informs us that there are two factors to consider in evaluating exculpatory evidence. First, the evidence must directly negate guilt by squarely refuting an element of the crime, and second, the evidence must be clearly exculpatory. Id. at 237. The second requirement demands "an evaluation of the quality and reliability of the evidence [and its] exculpatory value . . . should be analyzed in the context of the nature and source of the evidence, and the strength of the State's case." Ibid. The Court cautioned that an indictment should be dismissed on this ground "only after giving due regard to the prosecutor's own evaluation of whether the evidence in question is 'clearly exculpatory[,]'" id. at 238, and "only in the exceptional case will a prosecutor's failure to present exculpatory evidence to a grand jury constitute grounds for challenging an indictment[,]" id. at 239.
Defendant argues the statements from S.C.'s own mouth would arguably have demonstrated an alternative, exculpatory explanation for her injuries and refuted essential elements of the charged crimes. According to defendant, such exculpatory evidence includes S.C.'s statement to Officer Ludwig that she fell after drinking wine the previous night, as presented by Lt. Ciesla at the prior grand jury hearing, S.C.'s statement to her treating dentist that her injuries were caused by a fall, and S.C.'s admission during the domestic violence hearing that she had consumed half a bottle of wine before the incident. Defendant thus urges that the State's failure to provide the grand jury with this evidence resulted in a fundamentally unfair grand jury presentation warranting dismissal because it left the grand jurors hearing only a half truth.
Under the principles articulated in Hogan, supra, we are not satisfied these statements were sufficiently reliable to be "clearly exculpatory." See id. at 239. This was not a situation where there were independent witnesses whose stories the State withheld. Rather, here, the victim arrived at headquarters, visibly upset, bleeding, and with significant visible facial injuries. She first asked the officers what would happen if she told them a man did this to her, and upon being informed he would have to be arrested, left without filing a report. It was only after the police pursued her in an attempt to ascertain what happened that S.C. stated she had been drinking and had fallen. The officers did not believe her story and, based on S.C.'s appearance, conduct, the TRO and their experience, believed she was likely a victim of domestic violence. They urged S.C., with the aid of her teenage son, to tell the truth. S.C. then admitted defendant had caused the injuries and had threatened that if she called the police, things would only get worse. S.C. also explained to the police that she was scared of the safety and financial repercussions if she reported the incident and defendant was arrested.
Analyzing S.C.'s statements in the context of the evidence, even if S.C. had been drinking the evening of the incident, it would not directly negate defendant's guilt because he could still have entered her house and punched her in the face in retaliation for her having obtained a restraining order barring him from the parties' shared residence. Moreover, the record presented to the grand jury resulting in the second superseding indictment established a prima facie case defendant had committed the assault and S.C.'s explanation to Officer Ludwig was a fabrication resulting either or both from the effects of Battered Women's Syndrome and fear of financial repercussions and retaliatory future attacks by defendant if he were arrested. The State could have chosen to bring any or all of the challenged statements to the attention of the grand jurors and presented expert testimony to them regarding Domestic Violence Syndrome. See State v. Zola, 112 N.J. 384, 408, 411 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989) (testimony of serology expert presented to grand jury to support evidence of aggravated sexual assault); State v. Atwater, 400 N.J. Super. 319, 333-34 (App. Div. 2008) (accident reconstruction expert testimony presented to grand jury in vehicular homicide case); Doe v. Klein, 143 N.J. Super. 134, 138 (App. Div. 1976) (grand jury hearing expert testimony in constitutional violation case). We are not convinced, however, that the exclusion of the statements warranted dismissal of defendant's indictment, particularly considering it is not the role of a grand jury to make credibility determinations. Rather, such evidence is more appropriately reserved for the petit jury.
Defendant does not argue as binding in the criminal action the Family Court judge's findings that it would have been impossible for defendant to have made the trip from the Basking Ridge Country Club to the victim's residence in Raritan and then arrive at his daughter's home at the time she claimed. In fact, in the prior appeal, we expressly rejected defendant's request for the criminal judge to take judicial notice of those findings, stating, the domestic violence judge's findings were based upon evidence that was vigorously contested in that proceeding at that time.
Even though the findings may not be reversed on appeal, there is no guarantee that they are in fact true. It also is obvious that the findings cannot be immediately verified through any source whose accuracy cannot reasonably be questioned. Furthermore, the fact findings deal with one of the ultimate questions confronting the criminal jury, whether defendant committed the assault in question. [Silva, supra, 394 N.J. Super. at 278.]
Defendant urges, however, that the judge's findings were logical and thus the prosecutor had a duty to present the evidence adduced in the FRO hearing and the judge's subsequent findings to the grand jury, without which the State's presentation was fatally deficient. We disagree. In essence, defendant is arguing the doctrine of collateral estoppel, which we have held "would be inconsistent with the State policy underlying the handling of DV cases and is not warranted as a matter of constitutional law." State v. Brown, 394 N.J. Super. 492, 505 (App. Div. 2007) (emphasis added). Our rationale was that there is no privity between a victim in a domestic violence complaint and the prosecutor because "the prosecutor did not directly participate in the domestic violence hearing, . . . did not decide who would testify or what evidence to present, and did not cross-examine witnesses at the hearing." Id. at 506.
In addition, defendant's alibi and time frame of events relies almost exclusively on his daughter's testimony that he arrived at her home around 12:50 a.m. and thus he could not have stopped at S.C.'s home and committed the act of domestic violence within the thirty-eight minutes it took him to drive from the area of the country club to his ultimate destination. The Supreme Court has noted that "the credible testimony of a reliable, unbiased alibi witness that demonstrates that the accused could not have committed the crime in question would be clearly exculpatory[,]" Hogan, supra, 144 N.J. at 238, but "if the exculpatory evidence in question is eyewitness testimony, potential bias on the part of the eyewitness may affect the prosecutor's obligation to present the witness's testimony to the grand jury" id. at 237. We discern no abuse of discretion in Judge Armstrong's decision that defendant's daughter's testimony was not clearly exculpatory because she could have been mistaken as to the time of her father's arrival or biased in order to protect him.
Furthermore, the testimony of defendant's expert presented at the FRO hearing should not be accepted in all respects by the prosecutor as definitive regarding the time-frame issue. The prosecutor did not participate in S.C.'s domestic violence proceeding and S.C. did not present opposing expert testimony analyzing cell phone tower data or refuting defendant's defense of "impossibility." This testimony involved "[c]redibility determinations and resolution of factual disputes" which are not appropriately before a grand jury but, rather, are "reserved almost exclusively for the petit jury." Id. at 235.
In summary, we discern no clear abuse of discretion by Judge Armstrong in his ruling. Accordingly, there is no basis to second-guess his denial of defendant's motion to dismiss the indictment.