October 25, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DAVON CODY, a/k/a CODY DAMON, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-09-0692.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (William A. Guhl, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fuentes and Simonelli.
Following a jury trial, defendant Davon Cody was convicted of second-degree robbery, N.J.S.A. 2C:15-1a(1). The charge stemmed from the robbery of a young woman in a shopping mall parking lot. Because the victim could not identify her attackers, the State's case depended on defendant's alleged confession to the police and the testimony of co-defendant D.P., a juvenile who had been adjudicated delinquent for the same crime.
On appeal, defendant raises the following contentions:
THE TRIAL COURT'S ADMISSION OF TESTIMONY REGARDING DEFENDANT'S PURPORTED INCULPATORY STATEMENT TO POLICE WHEN THE STATE FAILED TO PRESERVE THE RECORDING OF DEFENDANT'S INTERROGATION VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND TO PRESENT A COMPLETE DEFENSE, AND RULES 3:13-3(c)(2) and 3:17.
THE JUDGE'S REMARK THAT "YOU KNOW A STATEMENT WAS MADE AND A STATEMENT WAS RECORDED, " IN RESPONSE TO A JURY QUESTION DURING ITS DELIBERATIONS, CONTRADICTED THE EARLIER CORRECT INSTRUCTION REGARDING DEFENDANT'S ALLEGED ORAL STATEMENTS, VIOLATING DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST., AMENDS. V, VI,  XIV; N.J. CONST. (1947), ART. , [PARAS.] 1, 9 AND 10.) (Not raised Below).
THE ADMISSION OF EVIDENCE THAT [D.P.] HAD ALREADY BEEN ADJUDICATED DELINQUENT OF ROBBERY AS DEFENDANT'S ACCOMPLICE BY ANOTHER FACT-FINDER, COMBINED WITH THE ABSENCE OF A LIMITING INSTRUCTION REGARDING THE PROHIBITED USE OF THIS EVIDENCE AND AN ERRONEOUS INSTRUCTION ON THE PROPER USE OF THE EVIDENCE, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. , [PARAS.] 1, 9, 10. (Not raised Below).
THE TRIAL COURT'S SUA SPONTE CHARGE REGARDING THE BASIS FOR THE ADMISSIBILITY OF TESTIMONY REPEATING THE DESCRIPTIONS THE VICTIM REPORTEDLY GAVE OF THE PERPETRATORS SOON AFTER THE ROBBERY, BUT WHICH SHE FORGOT BY THE TIME OF TRIAL, IMPROPERLY BOLSTERED THE VICTIM'S CREDIBILITY, IN VIOLATION OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST., AMENDS. V, VI,  XIV; N.J. CONST. (1947), ART. , [PARAS.] 1, 9 AND 10.) (Not raised Below).
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
We disagree with defendant's contentions in Points I and IV, but agree with his contentions in Point II and III and reverse and remand for a new trial.
After receiving his Miranda rights at police headquarters, defendant allegedly gave an audio- and video-taped confession. The police subsequently discovered that the confession was not recorded because the video recorder was accidentally set on the wrong channel and recorded the news rather than the interview, and the audio recording was transferred to a computer and then inadvertently erased during a computer software upgrade. The two interviewing detectives took no notes during the interview; however, after discovering what happened to the recordings, one of the detectives wrote a report approximately two weeks after the interview that included a summary of defendant's alleged confession.
Following a Rule 104 hearing, the trial judge permitted the detective to testify at trial about defendant's alleged confession. The judge found the police may have been negligent in failing to preserve the recordings, but there was no evidence of bad faith, conscious wrongdoing, or dishonest purpose or objective.
Before the detective testified, the judge issued a cautionary instruction pursuant to Rule 3:17(e) about defendant's alleged confession, and a final instruction that mirrored Model Jury Charge (Criminal), Statements of Defendants, A. Charge to be Given When State Offers as Direct Evidence of Defendant's Guilt (Approved 11/7/05). Defendant finds no fault with these instructions; rather, he contends in Point I that the State's failure to preserve the recordings violated Rule 3:17 and his due process right to present a complete defense.
"A trial court's ruling on the admissibility of evidence is 'subject to limited appellate scrutiny.'" State v. Buckley, ___ N.J. ___, ___ (2013) (slip op. at 16) (quoting State v. Buda, 195 N.J. 278, 294 (2008)). "We afford considerable deference to a trial court's findings based on the testimony of witnesses." Ibid. "A trial court's 'interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Id. at 17 (quoting State v. Handy, 206 N.J. 39, 45 (2011); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). "To the extent that the trial court's ruling constituted an interpretation of [the law], we review it de novo." Ibid. (citing State v. Mann, 203 N.J. 328, 337 (2010)).
Rule 3:17(a) requires that "all custodial interrogations conducted in a place of detention must be electronically recorded when the person being interrogated is charged with . . . robbery." However, failure to record a custodial interrogation alone does not require suppression of a defendant's statement. State v. Cook, 179 N.J. 533, 559-60 (2004). Failure to record a custodial interrogation "shall be a factor for consideration by the trial court in determining the admissibility of a statement, and by the jury in determining whether the statement was made, and if so, what weight, if any, to give to the statement." R. 3:17(d).
Where there has been suppression, loss or destruction of physical evidence in a criminal case, the court must consider three factors in determining if a due process violation occurred: "(1) whether there was bad faith or connivance on the part of the government; (2) whether the evidence suppressed, lost or destroyed was sufficiently material to the defense; and (3) whether defendant was prejudiced by the loss or destruction of the evidence." State v. Hollander, 201 N.J.Super. 453, 479 (App. Div.) (citations omitted), certif. denied, 101 N.J. 335 (1985); see also State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 1114, 119 S.Ct. 890, 142 L.Ed.2d 788 (1999).
The defendant bears the burden of proving the first Hollander factor. Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S.Ct. 1200, 1202, 157 L.Ed.2d 1060, 1066 (2004). To establish bad faith,
there must be a finding of intention inconsistent with fair play and therefore inconsistent with due process, or an egregious carelessness or prosecutorial excess tantamount to suppression. In the absence of these conditions the right of the public to its day in court in the prosecution of properly found indictments should be forfeited only if otherwise there would be manifest and harmful prejudice to defendant.
[State v. Clark, 347 N.J.Super. 497, 508-09 (App. Div. 2002) (citations omitted).]
This court has suggested that "bad faith" might apply to loss or destruction of evidence that occurred "in a calculated effort to circumvent the disclosure requirements, " as in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963)), or when there was an "allegation of official animus towards" the defendant or "a conscious effort to suppress exculpatory evidence." State v. Serret, 198 N.J.Super. 21, 26 (App. Div. 1984) (quoting California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 2533, 81 L.Ed.2d 413, 421-22 (1984)), certif. denied, 101 N.J. 217 (1985).
The second Hollander factor requires a showing that "the evidence suppressed, lost or destroyed was sufficiently material to the defense." Hollander, supra, 201 N.J.Super. at 479. To be material, the "evidence must both possess an exculpatory value that was apparent before [it] was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Trombetta, supra, 467 U.S. at 489, 104 S.Ct. at 2534, 81 L.Ed.2d at 422; Hollander, supra, 201 N.J.Super. at 479-80. Thus, the defendant must show that the evidence withheld was material exculpatory evidence. State v. Mustaro, 411 N.J.Super. 91, 102 (App. Div. 2009). "Alternatively, if the defendant cannot establish that the now lost evidence had apparent exculpatory value and can show only that the evidence was potentially useful or exculpatory, then the defendant can show a due process violation by establishing that the evidence was destroyed in bad faith." Id. at 103 (citations and internal quotation marks omitted).
The third Hollander factor requires a showing that the defendant was prejudiced by the loss or destruction of the evidence. Hollander, supra, 201 N.J.Super. at 479. "The omitted evidence must be evaluated in the context of the entire record." State v. Washington, 165 N.J.Super. 149, 156 (App. Div. 1979).
Here, there was no evidence that the police acted in bad faith, or intentionally, or acted with egregious carelessness, official animus towards defendant, a calculated effort to circumvent the disclosure requirements, or a conscious effort to suppress exculpatory evidence. The police merely acted negligently with respect to the recordings. Negligence, however, provides no basis for reversal. Id. at 155-56.
Further, defendant has not shown that the lost evidence was material to his defense, much less exculpatory. There was no showing that the putative evidence had exculpatory value, and defendant offered no proof that the outcome of the trial would have been different. Accordingly, the judge properly admitted the detective's testimony about defendant's confession.
The judge gave the jury a final instruction that mirrored Model Jury Charge (Criminal), Statements of Defendants, A. Charge to be Given When State Offers as Direct Evidence of Defendant's Guilt (Approved 11/7/05). During deliberations, the jury requested a re-back of this instruction. The judge properly re-read the instruction, but then added the following comments:
Now, that means that the existence of that rule provides for, and you've heard me use this phrase before, the best evidence. The best evidence of the alleged statement of the defendant would be see it in pictures, see it — hear it in words. Okay. That doesn't mean that everything else or anything else is no good. That just means it's subject to a different level of analysis. Because it comes to you through the recollection of the witness, Detective Rice, who testifies to you about it. Okay. That does not mean if you don't record and you don't preserve it gets thrown out. If that were the rule I would have done that long ago. It wouldn't be before you.
Now you can take those circumstances into consideration in determining whether the statement was actually made and if so whether it was credible. Now as to the first part of that inquiry, whether the statement was made, you know a statement was made and a statement was recorded. But what you know of that statement is based upon the recollection and the recitation of Detective Rice.
Defendant contends for the first time on appeal in Point II that these comments were factually incorrect and highly prejudicial, consequently depriving him of due process and a fair trial. We review this contention under the plain error standard of review. R. 2:10-2; State v. Bunch, 180 N.J. 534, 541 (2004) We must determine whether legal impropriety in the jury charge prejudicially affected defendant's substantial rights and is "sufficiently grievous to justify notice to the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed.2d 797 (1970).
Model Jury Charge (Criminal), Statements of Defendants, A. Charge to be Given When State Offers as Direct Evidence of Defendant's Guilt (Approved 11/7/05) emphasized to the jurors that they could find the failure of the police to record defendant's statement to mean that defendant in fact never made any statement. The judge's second comment erroneously advised the jury that a statement by defendant in fact was made and recorded. The judge's first comment erroneously advised the jury that the fact that the statement was not recorded did not mean is was inadmissible as a matter of law. This expressly violated the clear injunction in N.J.R.E. 104(c), which provides:
Where by virtue of any rule of law a judge is required in a criminal action to make a preliminary determination as to the admissibility of a statement by the defendant, the judge shall hear and determine the question of its admissibility out of the presence of the jury. In such a hearing the rules of evidence shall apply and the burden of persuasion as to the admissibility of the statement is on the prosecution. If the judge admits the statement the jury shall not be informed of the finding that the statement is admissible but shall be instructed to disregard the statement if it finds that it is not credible. If the judge subsequently determines from all of the evidence that the statement is not admissible, the judge shall take appropriate action.
[(Emphasis added.)] We find that these two comments had the clear capacity to produce an unjust result. Although this error alone is sufficient to warrant reversal of defendant's conviction and a remand for a new trial, we will, nevertheless, in the interest of clarity, address the second legally viable basis for reversal raised by defendant in Pont III.
Defendant contends for the first time on appeal in Point III that the judge erred in admitting evidence that D.P. had been adjudicated delinquent of the same robbery without giving Model Jury Charge (Criminal), "Testimony of a Cooperating Co-Defendant or Witness" (2006). We agree.
D.P. was sentenced to probation for his delinquency adjudication and had an open violation of probation at the time of trial. He was involuntarily brought into court by way of a bench warrant. Defendant used D.P.'s testimony from the juvenile hearing to impeach him. In his final instructions, the judge gave Model Jury Charge (Criminal), "Credibility of Witness – Prior Adjudication of Delinquency" (2004).
Evidence of a prior adjudication of delinquency is admissible for the limited purpose of exposing a witness's potential bias, prejudice or interest of a witness. State v. Hare, 139 N.J.Super. 150, 156 (App. Div.), certif. denied, 70 N.J. 525 (1976). Thus, there was no error in admitting D.P's testimony. However, where, such as here, the witness is a co-defendant and his or her testimony is the only real evidence connecting the defendant to the crime, the court must give Model Jury Charge (Criminal), "Testimony of a Cooperating Co-Defendant or Witness" (2006). State v. Murphy, 376 N.J.Super. 114, 122 (App. Div. 2005) (citing State v. Stefanelli, 78 N.J. 418, 434 (1979)). The judge's failure to do so in this case constituted plain error requiring a reversal and remand for a new trial.
Finally, to dispel any implication of error and as a means of guiding the trial court on retrial, we will briefly comment on the trial judge's decision to address the jury, sua sponte, concerning the victim's emotional state and general demeanor at the time she described her attacker. Although prudence favors judicial restraint under these circumstances, we discern no legal basis to conclude the judge committed reversible error.
At trial, the victim could not recall the descriptions of her assailants. However, she had given Lisa Locorriere a description immediately after the attack. Before Locorriere testified, the judge sua sponte commented to the jury that the excited utterance exception to the hearsay rule applied to the description the victim gave to Locorriere. Defendant concedes that the victim's description to Locorriere was admissible pursuant to this exception, but contends for the first time on appeal in Point IV that the judge's instruction improperly bolstered the credibility of the victim's description.
While the judge's comment was unnecessary, it was not capable of producing an unjust result. In addition to Locorriere, two other witnesses testified about the assailants' descriptions. In addition, the judge was permitted to comment on the evidence so long as he clearly and fairly left for the jury's determination all factual issues and ultimate questions of guilt or innocence. State v. Ebron, 122 N.J.Super. 552, 558-59 (App. Div.), certif. denied, 63 N.J. 250 (1973). Here, the judge ultimately charged the jurors that they alone were the fact-finders and judges of witness credibility. Accordingly, there was no error, let alone plain error in the judge's comment.
Because we reverse and remand this matter for a new trial, we need not address defendant's challenge to his sentence in Point V.
Reversed and remanded for a new trial.