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State of New Jersey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 16, 2012

STATE OF NEW JERSEY IN THE INTEREST OF Q.R., JUVENILE-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FJ-01-560-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 26, 2012

Before Judges Sabatino and Ashrafi.

Juvenile Q.R. appeals from an adjudication of delinquency on charges that, if committed by an adult, would constitute disorderly persons resisting arrest, N.J.S.A. 2C:29-2a, and obstruction of justice, N.J.S.A. 2C:29-1. After trial at which the Family Part judge found the juvenile guilty of those charges, the judge ordered that the juvenile be supervised on probation for one year and that he pay a mandatory fee of $60 to the Victims of Crime Compensation Board, N.J.S.A. 2C:43-3.1a(2)(b). We affirm the adjudication of delinquency.

The juvenile presents one argument on appeal:

THE COURT ABUSED ITS DISCRETION WHEN IT DENIED THE DEFENDANT THE RIGHT TO PRESENT AN EXCULPATORY WITNESS AT TRIAL.

In the particular circumstances presented on this record, we reject this argument because the court had given the juvenile and his family several opportunities to find witnesses for the defense, because the newly-identified witness's testimony may have been tainted by contacts with the juvenile's family members during the trial, and because the record did not establish that the excluded testimony would have been exculpatory.

Charges were filed against the fifteen-year-old juvenile on September 2, 2010, after his arrest for engaging in a physical altercation with the police at a residence in Atlantic City. The juvenile's trial was conducted on January 10, 2011. The only witness for the State was the arresting Atlantic City police officer.

The officer testified that at about 7:30 p.m. on September 2, 2010, he was dispatched to a residence on a report of domestic violence and a woman screaming for help. When he arrived, several people were sitting or standing near the front stoop, but none of them were cooperative in telling the officer what had occurred. All the persons outside denied being residents of the apartment.

According to the officer, as he approached the front door of the apartment, several males ran out, and one of them tried to close the apartment door. The officer prevented him from doing so and pushed him back into the apartment's foyer. As the officer detained and questioned the man, who was later identified as the juvenile's brother, the man began yelling to several persons outside to come into the apartment and get the officer "off me."

The officer put the brother in a compliance hold and called for backup help. A large group of people began gathering outside the apartment - the officer estimating the number as forty to fifty people. The juvenile then opened the screen door of the apartment. The officer immediately told him in a loud voice to close the door and not come inside or he would be arrested. According to the officer, the juvenile complied at that time.

Shortly, however, the brother again called for help, and the juvenile opened the door a second time and "came at" the officer. The officer pushed the brother toward a backup officer and grabbed at the juvenile. The two struggled physically, moving through the door and out of the apartment during the altercation. According to the officer, the juvenile attempted to put his arms around the officer's body. The officer struck the juvenile with his knee and fist. On the ground, the juvenile resisted being handcuffed, but the officer was eventually able to subdue him.

The juvenile was originally charged with resisting arrest and obstruction as fourth-degree offenses, and he was also charged with third-degree burglary, N.J.S.A. 2C:18-2a(1), for entering the apartment. At a pretrial conference, for which we have not been provided a transcript but which is mentioned in other transcripts,*fn1 the case was continued when defense counsel stated that the juvenile's mother proposed to provide the names and addresses of witnesses to assist the defense.

On December 16, 2010, the juvenile and his mother appeared in court with counsel. Defense counsel still had not received information about the defense witnesses. He told the court that the mother had information about three witnesses and he wished to have time to find them for the trial. When the court questioned the juvenile's mother about her knowledge of the witnesses, the mother said that she "lost the paper" with the names of witnesses and that there were approximately ten to fifteen potential witnesses to the incident. The court rescheduled another conference for several days later, urging defense counsel and the juvenile's mother to investigate and find defense witnesses so that there would be no further delay of the trial.

On December 20, 2010, defense counsel appeared as directed, but neither the juvenile nor his mother were in court at the start of the proceedings. The juvenile's mother had called court staff seeking to be excused because the juvenile was ill, but court staff had denied her request for an adjournment. Later on that date, the juvenile and his mother appeared with counsel in court. They still did not have the names or addresses of their witnesses. The court scheduled the trial to begin three weeks later, on January 10, 2011, and indicated there would be no further delay.

At the beginning of the trial on the latter date, defense counsel stated that the juvenile and his family had appeared with only one witness, the woman whose apartment was the scene of the incident, but he had not had an opportunity to interview or prepare the witness. He asked for time to speak with the witness before proceeding with the defense case. The court then heard the prosecution's case as previously described through the testimony of the arresting officer. After the State rested, defense counsel was granted a recess so that he might speak to the new female witness.

In the defense case, the woman testified that she was the fiancee of the juvenile's brother, that she was not at home at the time of the September 2, 2010 incident, but that both the juvenile and his brother had permission to enter her apartment. This testimony later resulted in the judge's finding that the juvenile was not guilty of the burglary charge.

Next in the defense case, the juvenile testified, denying that he had resisted the officer's instructions or had begun the fight on the night of the arrest. He claimed that he merely held the screen door open after he heard his brother's calls for help and that the officer lunged at him and struck him several times without any reason.

Following the juvenile's testimony, the defense rested. Immediately, however, the juvenile and his family members told defense counsel that they had an additional witness. The court granted counsel a recess. When the proceedings resumed, defense counsel reported that a male defense witness had just arrived in the courthouse during the trial and that he would provide testimony for the defense as to "the happenings of that day."

The prosecutor objected to the late attempt to present another previously unidentified witness, expressing concern that the juvenile's mother and brother had walked in and out of the courtroom during the trial and there had been no control over the sequestration of the new witness. The court questioned defense counsel and the juvenile's mother about why the witness had not been identified earlier. The mother stated that there had been an attempt to "get [the witness] up" that morning, but "he was not answering the door." The court declined to allow the new witness to testify.

On appeal, the juvenile contends correctly that the court must protect the "fundamental" due process right of an accused to present witnesses in his own defense. Taylor v. Illinois, 484 U.S. 400, 409, 108 S. Ct. 646, 653, 98 L. Ed. 2d 798, 810-11 (1988); Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923, 18 L. Ed. 2d 1019, 1023 (1967); State v. Garcia, 195 N.J. 192, 202 (2008); State v. Sanchez, 143 N.J. 273, 290 (1996). We have held that a discovery violation should not have barred presentation of exculpatory defense evidence but that the trial court could have granted a short recess to allow the State to investigate the new evidence. State v. Williams, 214 N.J. Super. 12, 22 (App. Div. 1986), certif. denied, 107 N.J. 629 (1987).

Similarly, in State v. Dimitrov, 325 N.J. Super. 506, 509-12 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000), we held that it was reversible error for the trial court to bar the testimony of a defense witness identified only on the first day of trial in violation of the defense's discovery obligations. We stated: "[b]efore invoking the ultimate sanction of barring a witness, the court should explore alternatives." Id. at 511 (alteration in original) (quoting State v. Volpone, 150 N.J. Super. 524, 530 (App. Div.), aff'd, 75 N.J. 543 (1977)).

The facts of this case, however, demonstrate circumstances that permitted the trial judge, in the exercise of his discretion and with a first-hand sense of the proceedings, to determine that the testimony of the new witness should be excluded. The judge was concerned that the new witness's testimony may have been tainted by an opportunity to learn about the conflicting testimony earlier of the arresting officer and the juvenile. The juvenile's family members had stepped out of the courtroom several times and had only notified the juvenile's attorney that the witness had arrived after the others had testified. The judge had already permitted a recess to prepare another newly-identified witness on the day of trial, the brother's fiancee who exculpated the juvenile on the charge of burglary. The judge was wary of new witnesses who, in his words, "pop up" at the "last minute."

The prosecutor faced a substantial disadvantage because there had been no earlier opportunity to interview the witness and to make a record of his version of the facts. Most important, in the course of earlier pretrial conferences and adjournments, the court had repeatedly urged the defense and the juvenile's family to identify all witnesses. The only reason given on behalf of the juvenile for the late appearance of the new witness was that he had apparently been sleeping the morning of trial and did not open his door. That explanation is not an excuse for failing to identify the witness after the December 16 and 20 pretrial court proceedings so that counsel for both sides could attempt to learn about his knowledge of the facts and contribution to the evidence. Defense counsel himself expressed frustration that he was required on the day of trial to interview witnesses for the first time.

Furthermore, the defense never proffered any exculpatory testimony that the new witness would have provided. The general description of his proposed testimony as "the happenings of that day" did not alert the judge that the witness had significant knowledge of the most relevant facts. See Sanchez, supra, 143 N.J. at 291 ("the trial court must focus on the substance and quality of the proffered testimony, and attempt to ascertain the testimony's exculpatory value"). Here, the judge heard differing versions from the arresting officer and the juvenile regarding what had occurred in a matter of seconds in the foyer and outside the apartment. He had to make a credibility determination between the competing testimony and make a finding as to whether the juvenile or the officer initiated the physical altercation. Without a specific proffer of the witness's knowledge relevant to that issue, the judge could reasonably conclude that the new witness would not contribute significantly to the resolution of the central issue in dispute.

In Taylor, supra, 484 U.S. at 406, 418, 108 S. Ct. at 651, 658, 98 L. Ed. 2d at 809, 817, the Supreme Court affirmed the conviction over objection that the trial court had violated the defendant's Sixth Amendment right to present exculpatory testimony by a previously undisclosed witness. The Court stated: "The adversary process could not function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments to provide each party with a fair opportunity to assemble and submit evidence to contradict or explain the opponent's case." Id. at 410-11, 108 S. Ct. at 654, 98 L. Ed. 2d at 811. It concluded that the trial court had properly excluded the disputed testimony after considering the competing interests of defendant to present favorable evidence and the prosecution to test the veracity of the proffered testimony. Id. at 412-16, 108 S. Ct. at 655-56, 98 L. Ed. 2d at 813-15.

This case presents similar circumstances. We conclude the trial judge did not abuse his discretion in excluding the testimony of the newly-identified witness. The defense was given ample pretrial opportunity and guidance as to identification of witnesses, there was a risk that the witness's testimony may have been tainted, and the defense made no specific proffer of how the witness would exculpate the juvenile.

Affirmed.


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