August 8, 2011
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
ASWAD CHARLES, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.
On appeal from an interlocutory order of Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-06-00515.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 24, 2011
Before Judges Payne and Baxter.
The State appeals, by leave granted, from an order granting post-conviction relief (PCR) to defendant, Aswad Charles, and vacating defendant's conviction for first-degree murder, conspiracy to commit murder, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose. In a lengthy and thoughtful oral opinion, the judge determined that the Supreme Court's decision in State v. A.O., 198 N.J. 69, 90 (2009), barring the introduction of polygraph evidence based on stipulations entered into without the advice of counsel was fully retroactive. Thus defendant's convictions, which were based in part on polygraph evidence introduced pursuant to such stipulations was invalid, despite the fact that defendant had exhausted his right of direct appeal prior to the Court's decision in A.O. Additionally, defendant cross-appeals from the judge's denial of his application to suppress his November 12, 2002 post-polygraph statement to law enforcement officials.
On appeal, the State raises the following issues:
THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND VACATING HIS CONVICTION.
A. The Trial Court Incorrectly Held That The New Jersey Supreme Court's Decision in A.O. Should Be Given Full Retroactive Effect.
B. The Trial Court Erred in Granting Defendant's Petition for Post-Conviction Relief Even if A.O. is Given Full Retroactivity and Applies to Defendant's Case.
On cross-appeal, defendant argues:
POINT II - DEFENDANT-RESPONDENT'S CROSS APPEAL [THE JUDGE] ERRED IN HIS DECISION NOT TO SUPPRESS MR. CHARLES' NOVEMBER 12, 2002 POST POLYGRAPH STATEMENT.
We reverse the order on appeal and affirm on the cross-appeal.
At trial, evidence was presented that would have permitted the jury to conclude that defendant and the victim, Eddie Fernandez, were at one time best friends. However, when defendant borrowed a gun from Fernandez and gave it to another without assuring its return, the friendship soured. A year or more later, on October 31, 2002, the two attended a birthday party, and an argument ensued. Following the intervention of other partygoers, defendant left the party, but while walking to his car, he yelled, "I'm gonna shoot your ass."
On November 5, 2002, Fernandez was shot in the chest with a sawed-off shotgun. Although he survived for a period of time after the shooting, he was unable to communicate, and thus did not identify the shooter prior to his death.
On the day after the shooting, defendant sought to develop an alibi by asking a friend to give a false statement regarding his whereabouts. On November 8, 2002, defendant was arrested for a drug offense, having been found at the time to be in possession of eighty bags of heroin and a small amount of marijuana. While in custody, he was questioned regarding the Fernandez murder, but he claimed that he was unaware of it until November 6, when his uncle informed defendant that he was being accused of the crime. To support his claim of innocence, defendant requested a polygraph examination, which was conducted by Detective Kaminskas after defendant had stipulated to its admissibility at trial and agreed to other conditions that appear to have been identical to those at issue in A.O.. See 198 N.J. at 75-76.*fn1
After the polygraph examination, defendant was informed that Kaminskas had concluded from an analysis of his responses to questions regarding the murder, that those responses were deceptive. Thereafter, defendant gave a statement in which he admitted to being the driver of the car utilized in the shooting of Hernandez. However, he claimed that the shooter was Luther (Lex) Lilliewood and the other participant in the murder was Easson (E) Dominick. Both the polygraph results and defendant's confession were admitted at trial.
Following defendant's conviction on July 23, 2004 and sentencing on October 5, 2004, he appealed, arguing on appeal through counsel that the trial judge had erroneously admitted evidence regarding the dispute between him and Hernandez over the gun, which "other crime" evidence was inadmissible under N.J.R.E. 404(b). He argued additionally that his sentence of forty-five years in custody subject to an eighty-five percent parole disqualifier was manifestly excessive. In a pro se supplemental brief, defendant argued that the warrants for his arrest were invalid, and that his November 12, 2002 statement should have been suppressed as the product of an illegal detention. We affirmed defendant's conviction and sentence in an unreported opinion. State v. Charles, No. A-2439-04 (App. Div. January 29, 2007). Certification was denied on April 4, 2007. State v. Charles, 190 N.J. 392 (2007).
Defendant then sought PCR. His motion was argued on April 23, 2010, and thereafter, a testimonial hearing took place at which time testimony was given by defendant's appellate counsel and by defendant. The judge's opinion, in which he found A.O. to be fully retroactive, followed. We granted the State's motion for leave to appeal.
While we appreciate the thought that went into the judge's decision with respect to retroactivity, we cannot agree with his analysis, and therefore we reverse.
We commence our discussion with a brief review of the law as it relates to the admissibility of the results of polygraph examinations. Until 1972, New Jersey had adhered to the rule that polygraph examination results were inadmissible in evidence because they had not attained sufficient scientific acceptance as a reliable and accurate means for determining truth or deception. State v. Driver, 38 N.J. 255, 261 (1962). However, in 1972, the Court recognized a "narrow" exception to Driver's rule in its decision in State v. McDavitt, 62 N.J. 36 (1972). In McDavitt, the defendant, over the prosecutor's objection, was improperly permitted to testify that he had offered to submit to a polygraph examination following his arrest for burglary. Id. at 41. The door having been opened, the prosecutor asked defendant if he would still be willing to take the test. A stipulation to admissibility of any unfavorable results, approved by the judge, was entered into by the State and defendant. Id. at 41-42. When defendant's responses were found to be untruthful, the polygraph results were introduced into evidence. Id. at 42-43.
The Court found the stipulated polygraph results admissible. It held:
We conclude that polygraph testing has been developed to such a point of reliability that in a criminal case when the State and defendant enter into a stipulation to have defendant submit to a polygraph test, and have the results introduced in evidence, such stipulation should be given effect.
Of course, it must appear that the stipulation is clear, unequivocal and complete, freely entered into with full knowledge of the right to refuse the test and the consequences involved in taking it.
It must also appear that the examiner is qualified and the test administered in accordance with established polygraph techniques. [Id. at 46.]
The Court noted that some jurisdictions had taken the position that "a stipulation of admissibility does not make polygraph testing any more reliable and should not lead to any deviation in the exclusionary policy." Id. at 44. However, it determined that "[w]ithin the framework of this appeal it is unnecessary to reconsider the broad issue of admissibility vel non of polygraph test evidence in a criminal case. Indeed, the record herein is inadequate for that purpose." Id. at 44-45 (footnote omitted). The Court continued:
Here we have a much more narrow issue in view of the prior stipulation as to admissibility entered into by defendant and his attorney and the State. The circumstance under which the stipulation came into existence is also a consideration since defendant, over the prosecutor's objection, insisted on injecting into the case his prior offer to take a lie detector test "to prove my innocence." [Id. at 45.]
Then, in State v. Reyes, 237 N.J. Super. 250 (1989), we permitted the introduction into evidence of a polygraph pursuant to an uncounseled stipulation that followed the defendant's knowing waiver of his Miranda*fn2 rights and met the conditions recognized in McDavitt. We reasoned, "State v. McDavitt, supra, has established the terms and conditions of a polygraph stipulation and it does not prohibit the waiver of the right to counsel at the signing of the stipulation. Any change or extension of those established conditions should come from our Supreme Court." Id. at 264.*fn3
After our decision in Reyes, the Supreme Court issued a decision in State v. Domicz, 188 N.J. 285 (2006). In that case, which involved the search of a residential premises, resulting in the discovery of significant quantities of marijuana, defendant underwent a polygraph examination at his attorney's office focusing on the issue of whether defendant had truthfully contended he had never been informed that he could withhold his consent to the search. Id. at 310. Defendant sought the introduction of the polygraph evidence at a suppression hearing to bolster his credibility, but the judge rejected the evidence, concluding that credibility determinations were his function. Id. at 310-11. We reversed, holding that the introduction of such evidence in a hearing before a judge was not covered by McDavitt. State v. Domicz, 377 N.J. Super. 515, 556-60 (App. Div. 2005).
On further appeal, the Court reversed our decision. Domicz, supra, 188 N.J. at 313. In doing so, it framed the parties' arguments in the following fashion:
Defendant and the State dispute the reliability and therefore the relevance of the results of an unstipulated polygraph examination sought to be introduced at a suppression hearing. Defendant essentially argues that if the results of a stipulated examination are sufficiently reliable for a jury's consideration, results from an unstipulated examination surely must be reliable enough for a judge's consideration at a motion hearing. The State stresses that McDavitt was a singular exception to the general rule that polygraph evidence is inadmissible, emphasizing that with a stipulated polygraph examination it is "the stipulation between the State and defendant" that confers "probative value" on the polygraph evidence. [Id. at 311.]
The Court noted that the defendant had not sought to demonstrate that polygraph examinations had achieved a significantly greater degree of scientific acceptance of their reliability. Id. at 312. The Court then stated:
We realize that some may question the very premise of McDavitt, that polygraph test evidence can be reliable in some circumstances and for some purposes but not others. This is not the occasion to revisit McDavitt's narrow holding. On the record before us, we are not prepared to extend McDavitt to unstipulated polygraph examinations, even in a suppression hearing presided over by a judge. [Id. at 313.]
Further challenges to polygraph evidence followed. In 2007 we decided State v. A.O., 397 N.J. Super. 8 (App. Div. 2007), determining that the admission into evidence of polygraph results based on an uncounseled stipulation constituted a violation of the defendant's Sixth Amendment right to counsel.
Id. at 27. In a concurring opinion, Judge Weissbard urged the Supreme Court to bar evidence of polygraph test results entirely. Id. at 30-34.
On appeal, the Supreme Court affirmed our decision in A.O., but on different grounds, holding that the Sixth Amendment was inapplicable during the investigatory phase of the proceeding, at which time the polygraph test had been conducted, State v. A.O., 198 N.J. 69, 81-82 (2009). However, after a survey of the law, nationwide, regarding the admissibility of polygraph evidence together with an expression of considerable skepticism regarding its reliability, id. at 84-86, and a lengthy exposition of bases for concern regarding the nature of the stipulations to which the defendant had agreed, id. at 87-89, the Court invoked its supervisory power to bar the use of uncounseled stipulations to the admissibility of polygraph evidence. It stated:
Our "overarching constitutional responsibility [is] to guarantee the proper administration of justice." State v. Williams, 93 N.J. 39, 62 (1983). "When we perceive . . . that more might be done to advance the reliability of our criminal justice system, our supervisory authority over the criminal courts enables us constitutionally to act." State v. Romero, 191 N.J. 59, 74-75 (2006) (citing N.J. Const. art. VI, § 2, ¶ 3; State v. Delgado, 188 N.J. 48, 62 (2006)). We do so now to ensure greater fairness at trial and reliability of jury verdicts.
[Id. at 89-90.]
Agreeing with our conclusion that the polygraph evidence may well have been the decisive factor leading to the defendant's conviction, the Court reversed the verdict against him and remanded the matter for a new trial. Id. at 90. Whether its decision was in any respect retroactive was not discussed by the Court.
Addressing Judge Weissbard's concurring opinion, the Court acknowledged that concerns regarding the reliability of polygraph evidence "raise questions about the continuing wisdom of McDavitt." Id. at 92. However, it held that "a proper record will have to be developed in the trial court the next time a party seeks to introduce stipulated polygraph evidence, agreed to by both sides. That evidence should be introduced only if the parties can first establish its reliability at an N.J.R.E. 104 hearing." Ibid.
The Court's decision in A.O. overruled our decision in Reyes, thereby establishing a new rule of law with respect to uncounseled stipulations to the admissibility of polygraph results. State v. Dock, 205 N.J. 237, 254 (2011); State v. Feal, 194 N.J. 293, 308 (2008); State v. Cummings, 184 N.J. 84, 97 (2005). Thus, we must determine the degree of retroactivity to be given to the new rule. The Court applied its holding to the case before it; we must determine whether it should also be applied to cases on appeal at the time A.O. was decided and whether full retroactivity should be recognized. Feal, supra, 194 N.J. at 308 (citing State v. Burstein, 85 N.J. 394, 402-03 (1981)).
In making that determination, we consider the following three factors:
(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice. [State v. Knight, 145 N.J. 233, 251 (1996) (quoting State v. Nash, 64 N.J. 464, 471 (1974)).]
The Court has held that the first factor "is often the pivotal consideration." Ibid. "For that reason, exclusionary rules are rarely given retroactive effect. On the other hand, if the old rule was altered because it substantially impaired the reliability of the truth-finding process, the interest in obtaining accurate verdicts may suggest that the new rule be given complete retroactive effect. Ibid. (citing Burstein, supra, 85 N.J. at 406-07).
The second and third factors become significant when "the purpose of the new rule does not, by itself, reveal whether retroactive application of the new rule would be appropriate." Id. at 252. The Court has further held:
[I]n striking the required balance among those three factors, "[w]e distinguish between the second and third factors." In that limited context, we have emphasized that "the second factor inquires whether law enforcement agents justifiably relied on the old rule in performing their professional responsibilities," and "the third factor in the retroactivity analysis, the effect a retroactive application would have on the administration of justice, recognized that courts must not impose unjustified burdens on our criminal justice system." [Dock, supra, 205 N.J. at 255-56 (internal citations omitted).]
Turning to the present case, we are satisfied that grounds for a finding of the complete retroactivity that would be required for defendant to successfully collaterally attack the jury's verdict in his case cannot yet be demonstrated. This is simply not a case in which there is proof that the use of polygraph evidence admitted pursuant to an uncounseled stipulation "substantially impaired the truth-finding function" or raises a serious question regarding the accuracy of the jury's verdict. Feal, supra, 194 N.J. at 308-09. Indeed, the A.O. Court did not acknowledge such to be the fact, stating only that "more might be done to advance the reliability of our criminal justice system" and that the new rule would "ensure greater fairness at trial and reliability of jury verdicts." A.O., supra, 198 N.J. 89-90 (emphasis supplied). While the issue of retroactivity may require revisitation if the Court confronts directly the issue of whether polygraph results are sufficiently reliable to be admitted at all, we regard as premature any decision premised on the prediction that such results will be found inadmissible.
At this point, in the absence of a constitutional deprivation, the Court has exercised its supervisory authority to improve the delivery of justice and to safeguard defendants called upon to forgo rights that they are ill-equipped to knowingly forfeit and to make tactical decisions requiring an attorney's expertise. We do not find that the Court's action is such that complete retroactivity is required. As the Court illustrated in Feal, full retroactivity has been afforded to the requirement that the State may not escape its burden of proof beyond a reasonable doubt by using presumptions to shift burdens of proof to the defense, Hankerson v. North Carolina, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306 (1977); the requirement that, in juvenile proceedings, the State prove beyond a reasonable doubt all elements of an offense that would constitute a crime if committed by an adult, Ivan V. v. City of New York, 407 U.S. 203, 92 S. Ct. 1951, 32 L. Ed. 2d 659 (1972); the right to counsel at preliminary hearings in which a defendant must assert certain defenses or lose them, Arsenault v. Massachusetts, 393 U.S. 5, 89 S. Ct. 35, 21 L. Ed. 2d 5 (1968); the rule barring the admission of one co-defendant's extra-judicial confession implicating another defendant, Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100 (1968); the right to counsel at trial, Pickelsimer v. Wainwright, 375 U.S. 2, 84 S. Ct. 80, 11 L. Ed. 2d 41 (1963); and the requirement that a confession made some time ago meet current standards of voluntariness, Reck v. Pate, 367 U.S. 433, 81 S. Ct. 1541, 6 L. Ed. 2d 948 (1961)..
[Feal, supra, 194 N.J. at 309 (quoting Burstein, supra, 85 N.J. at 407).]
In contrast to these cases, the new rule expressed in A.O. does not present an "extraordinary situation" similarly warranting full retroactivity because there is no present evidence that it strikes "at the heart of the truth-seeking function." Ibid. In this regard, we note that the Court did not abrogate its decision in McDavitt, leaving open the possibility that the Court would continue to distinguish between the admissibility of counseled and uncounseled stipulations, as it appeared to do in Domicz, supra, 188 N.J. at 313. Indeed, despite considerable evidence to the contrary, it may be that scientific opinion can sufficiently establish the reliability of polygraph evidence to permit its continued introduction pursuant to a counseled stipulation.
As a final matter,*fn4 we note the Court's statement that "[w]e generally try to avoid retroactive application if many cases will be impacted. Feal, supra, 194 N.J. at 311 (citing Knight, supra, 145 N.J. at 252). In Feal, the Court had no dispositive statistics regarding the impact of full retroactivity. In this circumstance, it stated: "Generally, the absence of data concerning 'the number and kinds of cases that would be affected by a rule of complete retroactivity and the impact that complete retroactivity would have on the administration of justice mandates that the new rule should apply only to cases pending direct review at the time of the rule's announcement." Id. at 311-12 (quoting State v. Bellamy, 178 N.J. 127, 142-43 (2003) (citing State v. Czachor, 82 N.J. 392, 409-10 (1980)). With that principle in mind, the Feal Court held that "[c]onsistent with our view of what is just and consonant with public policy" pipeline retroactivity should be adopted. Id. at 312. We find a similar result to be appropriate here. As a consequence, defendant's collateral attack fails.
Because of our denial of full retroactivity to the Court's decision in A.O., we need not address the State's further argument that even if the results of defendant's polygraph test should not have been admitted, its admission did not constitute plain error.
In his cross-appeal, defendant first contends through counsel and in the first point of his pro se brief that the PCR judge erred in denying his application to suppress his November 12, 2002 uncounseled post-polygraph statement to law enforcement officials. Defendant argues that by informing him that his polygraph examination disclosed signs of deception, the police created a coercive atmosphere that rendered his statement involuntary.
We decline to address this argument. The issue of whether defendant's confession was voluntary was addressed at a Miranda hearing prior to the trial, and at that time, the trial judge ruled that it was. If defendant sought to contest that ruling, the issue should have been raised on direct appeal, and it was not. Accordingly, it is now barred. R. 3:22-4. Additionally, we reject defendant's pro se argument that the confession should have been suppressed because it was the product of a polygraph examination that was unconstitutionally obtained. The Court in A.O. specifically rejected a constitutional basis for its decision. A.O., supra, 198 N.J. at 80-82.
In his second argument on his cross-appeal, defendant relies on a report by his own polygraph expert, Fred R. Meyer, A.C.P., whose opinion differs from that of Detective Kaminskas,*fn5 to argue that the polygraph results of which he was informed were fabricated. We agree that the report of defendant's expert, Meyer, calls into question the accuracy of some of the results reported by Detective Kaminskas. However, it does not address the detective's truthfulness. Moreover, even Meyer concludes that defendant was deceptive, in part, in his responses to the questions asked of him. Thus, we do not find defendant's collateral attack on his confession sufficient to warrant its invalidation and a new trial.
In his second pro se argument, defendant claims that he was denied the effective assistance of trial and appellate counsel, claiming that trial counsel did not effectively challenge our decision in Reyes and that appellate counsel did not address the issue at all. In order to prevail on that claim, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. To show prejudice, defendant must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. We recognize a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. The New Jersey Supreme Court has adopted the Strickland test. State v. Fritz, 105 N.J. 42, 58 (1987).
In his decision, the PCR judge noted that trial counsel had raised Reyes at trial and had urged that it was time for that decision to be reviewed. For that reason, there was no question that trial counsel was aware of controlling law. The judge then held: "It cannot be found that an attorney is ineffective for following the rule of law in place at the time the matter is in issue. Petitioner has failed to meet the first prong of the Fritz/Strickland test." We concur with the judge's opinion in this regard.
With respect to appellate counsel, defendant contended that he had explicitly requested that counsel address the validity of his uncounseled stipulation on appeal and that counsel had refused. An evidentiary hearing was held on that issue, at which appellate counsel and defendant testified. At its conclusion, the judge found defendant's claim not to be credible, particularly since upon counsel's alleged refusal to address the issue, defendant failed to raise it in his pro se brief. In contrast, the judge found appellate counsel to have been credible in asserting that he did not raise the issue because at the time it had no legal support.
We are bound by the judge's factual findings, which we determine are supported by credible evidence in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999). Further, we concur with the judge's conclusion that appellate counsel could not be deemed ineffective in following existing law.
The order on appeal is reversed; we affirm on the cross-appeal.