September 28, 2016
appeal from the Superior Court of New Jersey, Law Division,
Bergen County, Indictment No. 14-02-0228.
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).
Judges Fuentes, Simonelli and Gooden Brown.
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).
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.The State's first witness, P.K,
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.
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 "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.
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.
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
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.
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
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.
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.
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.
First Day of Trial
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.'"
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?
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.
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.
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
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." 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
DEFENSE COUNSEL: Judge -
THE COURT: I have to talk to the attorneys. (Sidebar with
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
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
[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
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
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
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
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.)
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,
left the club without helping her.
eventually drove to defendant's residence. Defense
counsel asked P.K. what happened when she ...