On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-04-0642.
The opinion of the court was delivered by: Parrillo, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Alvarez and Skillman.
The opinion of the court was delivered by PARRILLO, P.J.A.D.
We granted the State's motion for leave to appeal to decide whether the forfeiture by wrongdoing exception to the hearsay rule, N.J.R.E. 804(b)(9), applies retroactively to wrongdoing that occurred before the new rule's effective date. We conclude that it does and that such application does not constitute an ex post facto violation.
Briefly, by way of background, defendant Anthony Rose was indicted for the June 8, 2009 murder of Dareus Burgess and related offenses. Prior to trial, the State moved to admit a statement by Willie Matthews implicating defendant in the victim's homicide. The application was made under N.J.R.E. 804(b)(9), which allows the admission of a witness's statement "against a party who has engaged, directly or indirectly, in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." Apparently, Matthews had declined to testify after allegedly being confronted by members of defendant's family following defense discovery of Matthews' account. The trial judge denied the motion because the alleged wrongdoing predated the July 1, 2011 effective date of the rule, reasoning that the Legislature, by not enacting the new rule on the date of its adoption, September 15, 2010, evinced a clear intent that it not apply to conduct prior to its effective date.
We discern no such legislative intent from the adoption of N.J.R.E. 804(b)(9). The adoption of new evidence rules in this State is governed by the Evidence Act, 1960, N.J.S.A. 2A:84A-33 to -44, which provides two different paths, both requiring participation of all three branches of government. N.J.S.A. 2A:84A-34 to -39. One path allows for a Judicial Conference, which includes judges, lawyers and academics, to consider a draft of new evidence rules. N.J.S.A. 2A:84A-34. Upon its recommendation, and approval by the Supreme Court, the proposed new evidence rules would be announced "on September 15 next following such Judicial Conference[,]" and then filed with the Legislature and the Governor. N.J.S.A. 2A:84A-35. Unless rejected by a joint resolution "adopted by the Senate and General Assembly and signed by the Governor[,]" the proposed evidence rules "take effect on July 1 next following. . . ."
It is through this process that N.J.R.E. 804(b)(9) was adopted.*fn1 Contrary to the view expressed by the motion judge,
there is no legislative intent to delay implementation of this new evidence rule. Indeed, the rule was drafted by the Supreme Court, not the Legislature, and approved by a Judicial Conference. The process, as noted, creates a built-in delay in implementation - a statutorily mandated effective date that allows the Senate and General Assembly an opportunity to reject the new rule by joint resolution. See N.J.S.A. 2A:84A-36. To construe this delay mechanism otherwise, especially to shield those parties who employ intimidation before July 1, 2011, to procure the unavailability of witnesses who would otherwise testify against them, is simply mistaken.
Nothing in the language of the forfeiture-by-wrongdoing rule suggests it was intended to apply only to cases where the defendant's wrongdoing occurred after July 1, 2011. The note to the rule indicating its effective date contains no exceptions to its application to trials conducted thereafter. Were such exceptions anticipated, the rule, we submit, would have clearly specified any time limitations on its applicability.
Finding some ill-defined legislative intent not to apply the rule retroactively also ignores well-settled principles that new rules relating only to modes of procedure and the conduct of trials, in which no one can be said to have a vested right, apply if they are in effect at time of trial, regardless of when the underlying crime was committed. State v. Nagle, 226 N.J. Super. 513, 516-17 (App. Div. 1988). In other words, a trial is governed by the rules of evidence in existence at the time. State v. Kittrell, 279 N.J. Super. 225, 235 n.3 (App. Div. 1995). Here, the ...