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State v. Scott

Supreme Court of New Jersey

June 28, 2017

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
THOMAS L. SCOTT (a/k/a JAMES LONGENBERGER, and CHRISTOPHER TUREAUD), Defendant-Appellant.

          Argued February 27, 2017

         On certification to the Superior Court, Appellate Division.

          Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney) .

          Ian D. Brater, Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Ian D. Brater, of counsel and on the brief, and Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief) .

          TIMPONE, J., writing for the Court.

         This appeal raises the issue of whether a defendant's mother, who purportedly lied to law enforcement officers twice in the past in order to assist her son in evading prosecution, may be cross-examined on those prior instances as evidence of her bias.

         On November 27, 2012, Lauren Halbersberg, defendant's friend, and Jordan Scott, defendant's cousin and known drug user, were at defendant Thomas L. Scott's apartment. According to Halbersberg, Darlene Barbella, defendant's mother, visited defendant's apartment and noticed two packets of heroin lying on a table in the living room. She took the packets, placed them in the pocket of a pair of jeans that were lying on the couch next to Jordan, and returned the jeans to the couch. Halbersberg added that, during this time, defendant prepared to shower, lacking any knowledge of the heroin placement. After showering, defendant retrieved from the couch the jeans now containing two packets of heroin and put them on. Defendant left shortly thereafter. Halbersberg concluded by testifying that because of the "commotion, " she failed to warn him of the heroin in his jeans.

         Detective Zotti observed defendant leave his apartment. Zotti knew defendant from previous arrests. Zotti approached defendant and started a conversation. In the meantime, dispatch advised Zotti of an active arrest warrant for defendant. Zotti made the arrest, conducting a search incident to the arrest, which yielded the two packets of heroin. While being escorted to a patrol car, defendant uttered, "I did not know that the heroin was in my pocket, I have not worn these pants in weeks, I would have eaten it, if I had known I had it on me."

         A grand jury indicted defendant for third-degree possession of heroin. Defendant filed a motion in limine, seeking a preliminary ruling on the admissibility of the testimony of his mother, Barbella, from an interview she gave to an investigator for the public defender's office a little over a year after the incident.

         During that interview, Barbella noted that Jordan was lying on the couch and that she spotted the packets of heroin and put them into the front pocket of the jeans lying on the couch right next to Jordan. Because of their proximity to Jordan, Barbella assumed the jeans were his. Barbella further stated that Jordan returned to her home later that day banging on the side door, shouting, "Tommy got arrested .... Tommy's got my drugs and money."

         In response, the State sought to introduce evidence that, in two previous instances, Barbella lied to officers in order to "cover up" for defendant. As the State recounted the first instance, Barbella told officers that defendant was not home, but they later entered the house and found defendant. In the second instance, Barbella allegedly gave a written statement to police regarding defendant's involvement in a burglary, which she later admitted was false.

         After hearing arguments from both parties, the trial court ruled that the State's evidence regarding "Ms. Barbella['s] . .. propensity to cover up her son's wrongdoings" was "highly relevant" and therefore "admissible both on cross examination and on rebuttal if she elects to take the stand." The defense made no further objections to the ruling. Instead, defendant made a tactical decision not to call Barbella and called Halbersberg, who gave testimony strikingly similar to that expected from Barbella. Defendant was convicted as charged.

         The Appellate Division affirmed the trial court's in limine ruling. The panel held that the evidence was admissible to impeach Barbella through bias-a position adopted by the State for the first time on appeal. Alternatively, the panel reasoned that any error was harmless on two fronts: (1) Barbella's testimony was cumulative of Halbersberg's; and (2) the State could have presented the same bias argument through evidence of familial relationship alone. The Court granted defendant's petition for certification. 227 N.J. 22 (2016).

         HELD: The evidence proffered by the State goes far afield of a proper bias inquiry. The evidence is inadmissible under the dictates of New Jersey Rules of Evidence 403 and 608, which govern admissibility of prior bad acts and character evidence for truthfulness. That error prevented defendant from fully developing his defense at trial and deprived the jury of key witness testimony. Exclusion of testimony central to a defendant's claim or defense, if otherwise admissible, cannot be held to be harmless error.

         1. As a preliminary question, the Court discusses whether the State was permitted to raise a different justification for admissibility on appeal. Because the current record is not "barren of facts that would shed light on [the] issue, " State v. Witt, 223 N.J. 409');">223 N.J. 409, 418 (2015), it is appropriate to review the bias argument, (pp. 10-12)

         2. New Jersey's Rules of Evidence preclude the use of specific instances of conduct to attack the credibility of a witness, N.J.R.E. 405, unless the prior act was a "false accusation against any person of a crime similar to the crime with which defendant is charged, " N.J.R.E. 608. The Rules do not explicitly discuss bias as a permissible means of impeachment; however, this Court has long found the use of bias to attack a witness's credibility proper. Where a party seeks to demonstrate bias, it may do so by introducing extrinsic evidence, (pp. 13-15)

         3. The query, as it relates to bias, is "the relationship between a [defendant] and a witness." United State v. Abel, 469 U.S. 45, 52 (1984). The relationship between defendant and Barbella could have been probed by eliciting the fact that Barbella was defendant's mother or asking whether she would lie to protect her son. That is the permissible limit of the State's inquiry into her bias. The only other reason for which the State could have proffered the prior-acts testimony is to show Barbella's character for untruthfulness. Even if Rule 608 did not specifically bar the proffered evidence, its probative value was substantially outweighed by its prejudicial nature. The trial court abused its discretion in ruling that the proposed impeachment testimony was admissible against Barbella. (pp. 15-17)

         4. Although the prior-bad acts evidence was ultimately not admitted, defendant paid a significant price to keep it out. The evidentiary error here deprived the jury of the opportunity to evaluate Barbella's tone, manner, and body language, and accordingly, to assess her credibility. An error resulting in the jury's inability to assess the credibility of the defense's key witness is ordinarily not harmless. Nor is Barbella's testimony merely cumulative. Rather, it is corroborative. Both testimonies are critical to the defense; the synergy of the two make the theory significantly more plausible. The trial court's in limine ruling altered defendant's trial strategy, precluding him from presenting-and the jury from assessing-a key witness. The error was harmful, (pp. 17-20)

         The judgment of the Appellate Division is REVERSED and the matter is remanded for a new trial.

         CHIEF JUSTICE RABNER, CONCURRING, notes that most modern courts follow the common law tradition and permit questioning about specific instances of conduct that are probative of a witness's character for truthfulness and opines that it is time to consider whether Rule 608 should be revised to allow cross-examination, in a controlled fashion, into specific instances of conduct that are probative of the witness's character for truthfulness.

         JUSTICE ALBIN, CONCURRING, writes separately to address the proposal that New Jersey should align N.J.R.E. 608 with its federal counterpart. That would allow the use of specific instances of untruthfulness to impeach a witness's character for veracity and would also encourage parties to forage for impeachment evidence, in Justice Albin's view. Justice Albin sees no sound justification for abandoning New Jersey's common-law rule.

         JUSTICE PATTERSON, CONCURRING IN PART AND DISSENTING IN PART, agrees that the trial court's ruling was error but parts company with the majority with respect to the question of harmless error. According to Justice Patterson, Barbella's testimony would not have afforded defendant a trial strategy that was unavailable to him in her absence. The strategy was employed-and it failed. Barbella's testimony would have undermined an already farfetched theory and done the defense more harm than good, in Justice Patterson's view.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and ALBIN join in JUSTICE TIMPONE's opinion. CHIEF JUSTICE RABNER filed a separate, concurring opinion, in which JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join. JUSTICE ALBIN filed a separate, concurring opinion, in which JUSTICE LaVECCHIA joins. JUSTICE PATTERSON filed a separate, partially concurring and partially dissenting opinion, in which JUSTICES FERNANDEZ-VINA and SOLOMON join.

          TIMPONE JUSTICE

         This appeal raises the issue of whether a defendant's mother, who purportedly lied to law enforcement officers twice in the past in order to assist her son in evading prosecution, may be cross-examined on those prior instances as evidence of her bias.

         Defendant Thomas Scott was charged with possession of heroin. He argued that he did not knowingly possess the heroin because someone else placed it in his jeans pocket before he put them on. In support, defendant sought to call his mother, Darlene Barbella, to testify that she found the heroin in defendant's apartment in close proximity to defendant's cousin and known drug user, Jordan Scott, and that she placed the heroin in the pocket of a pair of jeans she believed belonged to Jordan.

         Defendant filed a motion in limine, seeking a preliminary ruling on the admissibility of certain evidence, including Barbella's testimony. In response, the State sought to introduce evidence of two prior occasions on which Barbella allegedly lied to police to cover for her son, defendant. The trial court ruled the State's impeachment evidence admissible. Defendant chose not to call Barbella at trial, instead calling Lauren Halbersberg, defendant's friend, to testify to the same events. The Appellate Division affirmed the trial court's determination that the evidence was admissible based upon the State's harmless error and bias arguments.

         We find that the evidence proffered by the State goes far afield of a proper bias inquiry into Barbella's relationship with defendant. The evidence is inadmissible under the dictates of New Jersey Rules of Evidence 403 and 608, which govern admissibility of prior bad acts and character evidence for truthfulness. That error prevented defendant from fully developing his defense at trial and deprived the jury of key witness testimony. Accordingly, we reverse the Appellate Division's findings that the trial court's error was harmless and that bias supported the trial court's admissibility ruling.

         I.

         We glean the relevant facts from the trial testimony. On November 27, 2012, Halbersberg and Jordan were at defendant's home, a second-floor apartment in a duplex in Long Branch. Barbella owned the duplex and lived in the first-floor apartment.

         According to Halbersberg, Barbella visited defendant's apartment twice that day. During the second visit, Barbella noticed two packets of heroin lying on a table in the living room. She took the packets, placed them in the pocket of a pair of jeans that were lying on the couch next to Jordan, and returned the jeans to the couch. Halbersberg added that, during this time, defendant prepared to take a shower, lacking any knowledge of the heroin placement.

         After showering, defendant retrieved from the couch the jeans now containing two packets of heroin, took them into the bathroom, and put them on. Defendant left shortly thereafter, when a friend picked him up at the apartment. Halbersberg concluded by testifying that because of the "commotion, " she failed to warn him of the heroin in his jeans.

         Detective Zotti of the Long Branch police department observed defendant leave his apartment and get into the front-passenger seat of a vehicle. Zotti knew defendant from previous arrests. He asked his dispatcher to perform a warrant check on defendant while he began following defendant in the vehicle. Defendant was driven a short distance; the vehicle stopped, and defendant exited. Zotti approached defendant and started a conversation. In the meantime, dispatch advised Zotti of an active arrest warrant for defendant. Zotti made the arrest, conducting a search incident to the arrest, which yielded the two packets of heroin. While being escorted to a patrol car, defendant uttered, "I did not know that the heroin was in my pocket, I have not worn these pants in weeks, I would have eaten it, if I had known I had it on me."

         A Monmouth County grand jury indicted defendant for third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). In preparation for trial, defendant filed a motion in limine, seeking a preliminary ruling on the admissibility of certain testimony. Specifically, defendant successfully sought introduction of his out-of-court statements to the police regarding his claimed ignorance of the heroin in his jeans. Defendant also sought to introduce the testimony of his mother, Barbella, based on an interview she gave to an investigator for the public defender's office a little over a year after the incident.

         During that interview, Barbella recounted her visit to the apartment while defendant was in the shower. She noted that Jordan was lying on the couch "semi-conscious, " appearing to be "heavily under the influence of drugs, " and that she told him to get out of her house. She then spotted the packets of heroin and put them into the front pocket of the jeans lying on the couch right next to Jordan. Because of their proximity to Jordan, Barbella assumed the jeans were his. Barbella further stated that Jordan returned to her home later that day banging on the side door, shouting, "Tommy got arrested .... Tommy's got my drugs and money."

         In response, the State sought to introduce evidence that, in two previous instances, Barbella lied to officers in order to "cover up" for defendant. As the State recounted the first instance, officers saw defendant working on a car in his driveway. As they approached, defendant quickly retreated into the garage and shut the door. When the officers confronted Barbella about defendant's whereabouts, she told them that he was not home. In response to an unrelated medical emergency, officers later entered the house and found defendant inside. In the second instance, Barbella allegedly gave a written statement to police regarding defendant's involvement in a burglary, which she later admitted was false.

         Defendant argued the inadmissibility of Barbella's prior false statements to police pursuant to N.J.R.E. 404(b). Defendant claimed the State compounded the problem by failing to move for a Cofield hearing to determine admissibility under Rule 404(b) . See State v. Cofield, 127 N.J. 328 (1992) . The State countered that the evidence very belatedly came into its possession; it raised the issue as soon as practicable and, most importantly, the evidence satisfied the Cofield test.

         After hearing arguments from both parties, the trial court ruled that the State's evidence regarding "Ms. Barbella['s] . . . propensity to cover up her son's wrongdoings" was "highly relevant" and therefore "admissible both on cross examination and on rebuttal if she elects to take the stand." In examining the arguments under the rules of evidence, the court reasoned that

[t]his really isn't 404(b). It's more in the nature of Rule 608, which says the credibility of a witness in a criminal case may be attacked by evidence that the witness made a prior false accusation against any person of a crime similar to the crime with which the defendant is charged if the Judge preliminarily determines, by a hearing pursuant to Rule 104, that the witness knowingly made a prior false accusation.
This is not a case where she made a prior false accusation. It's just the opposite. She gave false information to the police trying to exonerate her son. And 104(a) basically says that when you're dealing with issues of this nature, the Judge makes a determination but he does not have to apply strictly the rules of evidence.

         The defense made no further objections to the ruling. Instead, defendant made a tactical decision not to call Barbella. As a substitute, defendant called Halbersberg, who gave testimony strikingly similar to that expected from Barbella.

         Defendant was convicted as charged and, based upon a balancing of the aggravating and mitigating factors in N.J.S.A. 2C:44-1, was sentenced to a five-year custodial term with two-and-a-half years of parole ineligibility.

         The Appellate Division affirmed the trial court's in limine ruling. The panel confirmed the trial court's rejection of N.J.R.E. 404(b) as a ground for admissibility, in addition to finding the evidence inadmissible under N.J.R.E. 608. The panel also faulted the trial court for relying on Rule 104(a) to avoid strict compliance with the rules of evidence. The panel, nevertheless, held that the evidence was admissible to impeach Barbella through bias -- a position adopted by the State for the first time on appeal. Alternatively, the panel reasoned that any error was harmless on two fronts: (1) Barbella's testimony was cumulative of Halbersberg's, which the jury found unpersuasive; and (2) the State could have presented the same bias argument through evidence of Barbella and defendant's familial relationship alone. We granted defendant's petition for certification. 227 N.J. 22 (2016).

         II.

         A.

         Defendant submits that the trial court appropriately cited N.J.R.E. 608 -- governing impeachment of a witness -- but ultimately misapplied it. According to defendant, Rule 608 specifically prohibits the admission of prior bad acts where they do not relate to a prior conviction or prior false accusation. The preliminary determination that the State would be permitted to cross-examine Barbella on her prior bad acts, defendant contends, violated his federal Fourteenth and Sixth Amendment rights, as well as the corresponding state-constitutional rights.

         The violations were compounded, defendant asserts, when the Appellate Division: (1) wrongfully entertained the State's "new-on-appeal bias argument, " in violation of State v. Witt, 223 N.J. 409');">223 N.J. 409, 418-19 (2015); (2) incorrectly interpreted case law on bias in a manner inconsistent with Rule 608(a); (3) improperly admitted the prior bad acts without conducting a Rule 404(b) hearing, diverging from the holding in Cofield, supra, 127 N.J. at 338-42; and (4) improperly found that the errors were harmless.

         B.

         The State counters that the Appellate Division's consideration of the bias argument is consonant with Witt because the admissibility of the impeachment was contested at trial, leaving a fulsome record sufficient to resolve the legal issue on appeal. Next, relying heavily on the United States Supreme Court's opinion in United State v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984), the State submits that proving bias by specific acts is consistent with the strictures of N.J.R.E. 608.

         Even if the trial court's ruling were in error, the State submits, the error was harmless because: (1) defendant's theory of the case was "inherently implausible" and cumulative testimony would not have altered the theory's plausibility; (2) Barbella's proffered testimony corroborated only a small portion of Halbersberg's testimony, each of which was partially inconsistent with the other; and (3) if Barbella's testimony were permitted, there is not a "reasonable probability the verdict would be any different."

         III.

         "[T]he decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). We therefore apply a deferential standard in reviewing a trial court's evidentiary rulings and uphold its determinations "absent a showing of an abuse of discretion." State v. Perry, 225 N.J. 222, 233 (2016) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). A reviewing court must not "substitute its own judgment for that of the trial court" unless there was a "clear error in judgment" -- a ruling "so wide of ...


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