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State v. Bitzas

Superior Court of New Jersey, Appellate Division

July 10, 2017

STATE OF NEW JERSEY, Plaintiff-Respondent,

          Argued September 28, 2016

         On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 14-02-0228.

          Moses V. Rambarran argued the cause for appellant (Rambarran Law Firm, attorneys; Mr. Rambarran, of counsel and on the brief).

          Anthony C. Talarico, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney; Mr. Talarico, of counsel and on the brief).

          Before Judges Fuentes, Simonelli and Gooden Brown.


          FUENTES, P.J.A.D.

         A Bergen County grand jury returned an indictment against defendant Konstadin Bitzas, a/k/a Dean Bitzas, charging him with second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count one); third degree terroristic threats, N.J.S.A. 2C:12-3b (count two); fourth degree aggravated assault by pointing a firearm at or in the direction of another, N.J.S.A. 2C:12-1b(4) (count three); fourth degree possession of a handgun following a conviction for possessing a controlled dangerous substance, N.J.S.A. 2C:39-7a (counts four through eight); second degree possession of an assault firearm, N.J.S.A. 2C:39-5f (count nine); and fourth degree possession of a large capacity magazine, N.J.S.A. 2C:39-3j (counts ten and eleven).

         Before the trial began, the judge severed counts four through eight to allow the jury to decide the remaining counts without being influenced by defendant's prior drug-related convictions.[1]The State's first witness, P.K, [2] was a woman who previously had a dating relationship with defendant. She testified about the incident that gave rise to the first three counts of the indictment. P.K. continuously responded to defense counsel's questions in a disruptive manner. She disregarded the prosecutor's instructions, deliberately mentioned extraneous information that was prejudicial to defendant, and walked out of the courtroom during her cross-examination on the first day of trial.

         Although the trial judge issued curative instructions to the jury, P.K.'s obstreperous behavior eventually overwhelmed the proceedings. It soon became clear that the curative instructions could neither counteract the prejudice caused by the witness's misbehavior nor deter her from continuing to disrupt the trial. As a sanction for P.K.'s refusal to adhere to the prosecutor and the court's repeated instructions, the trial judge sua sponte dismissed the first three counts of the indictment[3] "with prejudice." The judge did not consult with the attorneys before taking such an extraordinary action. More importantly, the judge did not identify any legal authority that permits a judge in a criminal trial to unilaterally dismiss a criminal charge "with prejudice" as a sanction for the misconduct of the State's fact witness, or to enter the functional equivalent of a judgment of acquittal before the State has completed presenting its case in chief.

         The judge overruled the State's objection challenging her authority to take this action and denied the State's motion to declare a mistrial. Defense counsel acquiesced to the trial judge's decisions without comment. The State's case then continued with the indictment's remaining counts, which were part of the first phase of a bifurcated trial. The State called a law enforcement witness who testified about the execution of a search warrant on defendant's residence, the seizure of defendant's firearms, and the operability of defendant's weapons.

         The jury found defendant guilty on the three counts of the indictment that charged him with second degree possession of an assault firearm, N.J.S.A. 2C:39-5f; and fourth degree possession of a large capacity magazine, N.J.S.A. 2C:39-3j. The same jury later reconvened in the second phase of the bifurcated trial and convicted defendant on five counts of fourth degree possession of a handgun following a conviction for possessing a controlled dangerous substance, N.J.S.A. 2C:39-7a. The trial court sentenced defendant to an aggregate term of thirteen years, with eight years of parole ineligibility.

         In this appeal, both sides have framed their arguments in a manner that repudiates the positions they advanced before the trial court. Defendant now argues the trial judge abused her discretion in allowing the jury to render a verdict on the remaining counts in the indictment after she dismissed with prejudice the first three counts that involved P.K. as the complaining witness. Defendant claims the judge should have interviewed each juror individually to determine whether any of them had a negative impression of defendant based on P.K.'s extensive testimony portraying him as a "bad person in general." Defendant also argues the judge's curative instructions were insufficient to counteract the prejudice caused by P.K.'s testimony.

         The State similarly abandons the position it adopted before the trial court. In a letter in lieu of a formal brief submitted pursuant to Rule 2:6-2(b), the State now argues the trial judge did not abuse her discretion in denying its motion for a mistrial because defendant was not prejudiced "and the jury was given a sufficient curative instruction."

         Despite the sophistry of the parties' positions, our duty as appellate jurists is to determine whether the magnitude of the trial judge's error is clearly capable of producing an unjust result. R. 2:10-2. We are satisfied the trial judge's decision cannot stand as a matter of law. The testimony of the State's complaining witness is replete with extraneous, highly prejudicial comments about defendant's propensity for violence and alleged use of illicit drugs. After carefully reviewing the record, we are satisfied the trial judge's initial response to the witness's improper commentary was insufficient to counteract its prejudicial effect.

         The trial judge has the ultimate responsibility to manage a trial. When presiding, the judge must impress upon all of the trial's participants that they are expected to behave in a manner that promotes decorum and solemnity. Although a trial is an inherently adversarial proceeding, the attorneys' zeal is circumscribed by the Rules of Professional Conduct and their role as officers of the court. Witnesses, especially those who have been victims of a crime, are understandably emotionally invested in the outcome of the proceedings. It is therefore particularly important for judges to: (1) set clear guidelines on how witnesses should respond to a lawyer's questions; and (2) establish and enforce the boundaries of appropriate behavior. Here, the trial judge erred when she delegated these responsibilities to the prosecutor.

         We also hold the trial judge erred when she denied the State's motion to declare a mistrial after it became apparent that the witness's misconduct had irreparably tainted defendant's right to a fair trial. The judge's decision to dismiss the indictment's first three counts was ineffective in counteracting the prejudice caused by the witness's misconduct. More importantly, a Superior Court judge presiding in a criminal trial has no authority to sua sponte dismiss a count in an indictment as a sanction for a lay witness's misconduct before the State has completed presenting its case in chief.


         The First Day of Trial

         On the first day of trial, the State called P.K. as its first witness. She testified she had "a dating relationship" with defendant that began in August 2012 and ended in a violent confrontation on August 31, 2013. During this period, P.K. saw defendant "on and off" and slept at his house occasionally. In response to the prosecutor's questions, P.K. claimed defendant bragged to his friends about having firearms in the house. She testified defendant even pulled a machine gun out of his mattress and said, "'Look what I got.'"

         According to P.K., the event that gave rise to the first three counts of the indictment occurred on August 31, 2013. She arrived at defendant's house at approximately 10 p.m. P.K. testified the following occurred that night:

PROSECUTOR: [T]ell us what happened when you got to the defendant's house that night[.]
WITNESS: When I got to his house[, ] he let me in through the back, I believe, and he had something - he let out a big puff of smoke and I got into an argument with him. He grabbed my arm. He started hitting me so I tried to call the police. He pulled my phone out. He broke my phone in half, threw it against the dishes, started beating me up, then went into his drawer, the same drawer that he pulled out the gun from last time. I saw him turning to me -DEFENSE COUNSEL: Objection. THE COURT: What's your objection?
DEFENSE COUNSEL: She's talking about something that happened last time.
WITNESS: No, I am not, sir.
DEFENSE COUNSEL: Judge, we went over this numerous times.
THE COURT: The objection is overruled but the way I understood the testimony was about August 31, 2013, correct?
[(Emphasis added).]

         Although the judge overruled defense counsel's objection, the first language we highlighted exemplifies the conduct that later permeated P.K.'s testimony during cross-examination. Although seemingly innocuous, her comment that defendant "let out a big puff of smoke" is actually incendiary. As the trial judge later explained, P.K.'s references to "smoke" were accompanied by a "snorting" pantomime on the witness stand. Taken together, the judge concluded that P.K. wanted the jury to view defendant as a user of illicit drugs.

         The second highlighted portion reveals P.K.'s disruptive tendencies while on the witness stand. As the record shows, P.K. impulsively inserted herself into the colloquy between the judge and defense counsel and personally refuted defense counsel's objection by addressing him directly. These two elements of P.K.'s temperament became the hallmark of her obstreperous demeanor, which escalated out of control during defense counsel's cross-examination.

         When the prosecutor resumed her direct examination, she asked P.K. to continue describing what occurred on the night of August 31, 2013. According to P.K., although defendant had broken her cellphone, she was able to call the police using the home's landline telephone. P.K. testified that when defendant discovered she had called the police, he said: "I will fucking kill you. I swear to God I will fucking kill you. I swear I will kill you for this if you say anything." P.K. testified that when the police arrived, she was "scared" and "didn't say one word." When asked why she was scared, P.K. responded: "I was scared because of the guns, because he beat me[, ] and [because] he told me that he's going to kill me."

         After the police officers arrived, P.K. was transported to a nearby hospital for a head injury that caused lumps. She had visible bruises and abrasions "all over her body." The prosecutor showed P.K. a series of photographs taken the following day, September 1, 2013, which purportedly depicted the injuries she sustained to various parts of her body. P.K. also identified two photographs that she claimed depicted her cellphone, which defendant allegedly "broke . . . in half." A third photograph depicted the wall-mounted landline telephone she used to call the police. The last photograph depicted what P.K described as the "machine gun under [defendant's] bed."[4] Except for the excerpt highlighted above, P.K. completed her testimony on direct examination without incident. P.K.'s disruptive behavior reached a critical point during defense counsel's cross-examination. The first incident occurred when defense counsel questioned P.K. about her trip to Greece to visit defendant's parents in 2012. The following exchange illustrates the problem:

DEFENSE COUNSEL: How long were you in Greece[?]
A. Two weeks. Unbearable weeks. Unbearable. Isolation. One hundred ten degrees. No one, no one else there. Wouldn't talk to me. Spent the whole time ignoring me. It was lovely traveling with him.
DEFENSE COUNSEL: Lovely traveling? When you came back you decided the trip was over?
A. Then he got back with his girlfriend he was with for the whole time I was with him. Her name was [N.M.]. They smoked crack together. That's why he had a problem with our relationship.
THE COURT: I have to talk to the attorneys. (Sidebar with reporter)
THE COURT: [Prosecutor], did you not inform your victim she can't talk about any prior bad acts of the defendant?
PROSECUTOR: I did. He's asking the questions.
THE COURT: You're going to have to talk to her. She should know this. This is like I have to give a limiting instruction.
PROSECUTOR: All right. Perhaps . . . we can break and I can reinforce that. It's 12:30 [p.m.] I can reinforce that.
THE COURT: I want to continue with the case.
DEFENSE COUNSEL: I have to see my son before he goes away for [thirty] days. I don't mind skipping lunch.
THE COURT: We'll continue. I'll give a limiting instruction.
(Sidebar concluded)
[What occurs next is in the presence of the jury.]
THE COURT: [P.K.], can you step outside for a moment[?]
Prosecutor, if you could step outside with her. I just want to give the limiting instruction, [Prosecutor]. Could you step outside with her[?] . . . I want to give the instructions to the jurors. We'll call her back in when we're ready.
PROSECUTOR: All right.
THE COURT: [Addressing the jury]
You heard testimony with regards to some other prior bad activity involving the defendant. I believe the statement . . . was he was using crack cocaine with some other individual by the name of [N.M.]. There's absolutely no evidence of that at all. You're to disregard that completely as though you never heard it. . . . [Y]ou are not at any point in time to inject that in any way into your deliberations. It's as though it never happened. You are to completely disregard it because there's absolutely no evidence of that whatsoever.

         At this point, the record shows P.K. returned to the courtroom, took the witness stand, and resumed with her testimony on cross-examination. Soon thereafter, P.K. testified that she slept at defendant's house after she returned from Greece "because he wouldn't let me leave and go home." Defense counsel stated: "I've known Mr. Bitzas . . . twenty-eight years." Defense counsel's statement prompted an immediate objection from the prosecutor. After sustaining the objection, the judge made the following comments in the jury's presence, which resulted in the following exchange:

THE COURT: Absolutely. [Defense counsel], you're either going to be the attorney or you're going to be the witness. Which is it going to be? Tell me right now before we continue with this trial. You know what the court rules are. You cannot testify on behalf of anyone.
DEFENSE COUNSEL: I'm trying to get the truth. I'm getting less than the truth.
THE COURT: [Defense counsel], I'll see you at sidebar.
[The following colloquy occurred at sidebar.]
THE COURT: What is the circus that's going on in this courtroom? You know that you are not supposed to talk about your personal feelings about the defendant, about whether or not you like him, whether or not he's your good friend for twenty-eight years. If I hear any more about a personal relationship that you have with the defendant you're going to get sanctioned and I'm going to have to declare a mistrial.
DEFENSE COUNSEL: I didn't do it on purpose.
THE COURT: The same thing with the Prosecutor. When you have a domestic violence case[, ] the first thing that you have to do is . . . tell the witnesses you can't talk to them about all the bad things that ever happened with regards to crimes. That's another egregious violation.
PROSECUTOR: I have instructed.
THE COURT: This is like a circus in this courtroom.
PROSECUTOR: I have instructed her. She even -- when we got to the courtroom she said, "But it happened."
I said to her, "It doesn't matter. You're not allowed to talk about [that]." She said, "Okay, okay." I've instructed her.
THE COURT: If she does it again the case is over. It's going to be a dismissal with prejudice if she does it again. Now she's been warned.
PROSECUTOR: I cautioned her.
THE COURT: Like a circus on both sides.
(Sidebar conference concluded.)
[(Emphasis added).]

         Defense counsel resumed his cross-examination by asking P.K. to describe the events that preceded the confrontation in defendant's residence on August 31, 2013. According to P.K., she first met defendant that night at a joint restaurant and bar. She told defendant she was hungry and wanted to eat before consuming any alcoholic beverages. P.K. testified that defendant had finished eating by the time she arrived and ignored her many requests to get something to eat. She nevertheless consumed several alcoholic drinks and soon noticed she was "not sober." Although she asked defendant to drive her home or tow her car, [5] he left the club without helping her.

         P.K. eventually drove to defendant's residence. Defense counsel asked P.K. what happened when she ...

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