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State v. Pinkston

Supreme Court of New Jersey

June 14, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
LEO C. PINKSTON, Defendant-Appellant.

          Argued March 12, 2018

          On appeal from the Superior Court, Appellate Division.

          Thomas R. Ashley argued the cause for appellant (Thomas R. Ashley, on the brief).

          Stephanie Davis Elson, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Stephanie Davis Elson, on the briefs).

          Laura B. Lasota, Assistant Deputy Public Defender, argued the cause for amicus curiae Office of the Public Defender (Joseph E. Krakora, Public Defender, attorney; Laura B. Lasota, of counsel and on the brief).

          Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Edward L. Barocas, Legal Director, attorney; Alexander Shalom, Edward L. Barocas, and Jeanne LoCicero, on the brief).

          Claudia Joy Demitro, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Claudia Joy Demitro, of counsel and on the brief).

         RABNER, C.J., writing for the Court.

         The Criminal Justice Reform Act (CJRA) provides that defendants "shall be afforded an opportunity . . . to present witnesses" at pretrial detention hearings. N.J.S.A. 2A:162-19(e)(1). In this appeal, the Court considers whether the provision allows a defendant to compel an adverse witness to testify at a detention hearing.

         The police spotted defendant Leo Pinkston in a car that matched the general description of a vehicle used in a shooting. The officers "activated their lights and sirens." Defendant allegedly "disregarded" the lights and sirens and drove off. Ultimately, defendant struck another car, and both vehicles collided with a light pole and caught on fire. Defendant was charged with second-degree eluding and second-degree aggravated assault while eluding. Pretrial Services recommended against defendant's release, and the State moved to detain defendant.

         Defense counsel asked for an adjournment to obtain additional discovery and subpoena police officers to testify at the hearing. The trial court denied defendant's request. After it considered the complaint, affidavit of probable cause, Public Safety Assessment, Preliminary Law Enforcement Incident Report, and the arguments of counsel, the court concluded that (a) probable cause existed, and (b) clear and convincing evidence established that defendant should be detained.

         The Appellate Division concluded that, under the circumstances, the trial judge did not mistakenly exercise his discretion in denying defendant's request to call adverse witnesses. The panel affirmed the finding of probable cause and order of detention.

         The Court granted defendant's motion for leave to appeal. 231 N.J. 418 (2017).

         Shortly before this appeal was argued, defendant pled guilty, and the State moved to dismiss as moot. The Court denied the motion because "the appeal raise[d] an issue of public importance that is capable of repetition yet evades review." 232 N.J. 299');">232 N.J. 299 (2018).

         HELD: The CJRA -- like the federal and D.C. laws on which it is based in part -- provides defendants a qualified right to summon adverse witnesses. Before calling an adverse witness, a defendant must proffer how the witness's testimony would tend to negate probable cause or undermine the State's evidence in support of detention in a material way.

         1. The CJRA and case law outline various safeguards that apply to detention hearings. The State must provide discovery before the hearing in accordance with State v. Robinson, 229 N.J. 44, 69-71 (2017). At the hearing, the State must first establish probable cause that the defendant committed the charged offenses, unless a grand jury has already returned an indictment. N.J.S.A. 2A:162-19(e)(2). The State may proceed by proffer to satisfy its burden of proof. See State v. Ingram, 230 N.J. 190, 195 (2017). Defendants have various rights at the hearing: to be represented by counsel, "to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise." N.J.S.A. 2A:162-19(e)(1). To decide if detention is appropriate, "'the court may take into account information' about the nature and circumstances of the offense, the weight of the evidence, the defendant's history and characteristics, the nature of the risk of danger and obstruction the defendant poses, and '[t]he release recommendation of the pretrial services program.'" State v. Mercedes, ___ N.J.___, ___ (2018) (slip op. at 14-15) (citing N.J.S.A. 2A:162-20(a) to (f)). (pp. 8-9)

         2. The text of the Criminal Justice Reform Act follows the federal Bail Reform Act of 1984 and the District of Columbia's statutory scheme for pretrial detention in many respects. The relevant text in all three laws is identical: a defendant "shall be afforded an opportunity . . . to present witnesses." Compare N.J.S.A. 2A:162-19(e)(1), with 18 U.S.C. § 3142(f)(2)(B), and D.C. Code § 23-1322(d)(4). A number of federal courts have followed the reasoning of United States v. Edwards, in which the District of Columbia Court of Appeals interpreted the D.C. Code. 430 A.2d 1321, 1323 (D.C. 1981) (en banc). Relying in part on the statute's legislative history, the court found that a defendant has "only a conditional right to call adverse witnesses." See id. at 1334. The Edwards court concluded that requiring a preliminary proffer about how "a witness' testimony will tend to negate substantial probability that the accused committed the charged offense, is a reasonable limitation on the accused's right to call witnesses" at a pretrial detention hearing. Id. at 1338. Other courts likewise call for some type of preliminary showing before they allow defendants to compel adverse witnesses to testify at detention hearings. (pp. 10-13)

         3. In State v. Stewart, the Appellate Division canvassed the CJRA and relevant case law and concluded that Edwards struck "the proper balance." 453 N.J.Super. 55, 68 (App.Div. 2018). The Appellate Division set forth the following standards. Before a defendant may call an adverse witness "to rebut the State's evidence of probable cause, the judge must first ask for a proffer regarding the witness' anticipated testimony and its relevancy to the issue of probable cause, and how the anticipated testimony negates the State's evidence already adduced at the hearing." Id. at 69. To compel an adverse witness to appear on the issue of detention, "a defendant must make a proffer demonstrating how the anticipated testimony would rebut or diminish the otherwise clear and convincing evidence the State must produce." Id. at 70. In both instances, the trial court has "significant discretion to compel the production of a witness." Id. at 71. (p. 14)

         4. In light of the CJRA's history, the Court agrees with Stewart that the law provides defendants a qualified right to call witnesses at detention hearings. An alternative reading of the statute would have far-reaching consequences. An absolute right would mean that a defendant accused of rape, for example, could compel the victim to testify at a detention hearing in many instances. There is no basis to believe the Legislature had that in mind when it drafted the CJRA. To the contrary, it borrowed language from other laws that stood for a very different approach. (pp. 15-16)

         5. A detention hearing has two components: the State must establish probable cause, unless there is an indictment, see N.J.S.A. 2A:162-19(e)(2), and must present clear and convincing evidence to justify detention, see N.J.S.A. 2A:162-18(a)(1).

a. Decisions about probable cause, both before and after the enactment of the CJRA, have routinely been made without live testimony. Ultimately, the question of probable cause presents judges with but one choice to make: either there is sufficient probable cause to proceed with a case, or there is not. Against that backdrop, as to the issue of probable cause, before being allowed to call an adverse witness, a defendant must proffer how the witness's testimony would tend to negate the State's showing of probable cause.
b. A more flexible standard is needed to decide when a defendant may call an adverse witness to challenge the State's case for detention because that decision is more complex. Both sides have the right to present information about the nature and circumstances of the offense, the weight of the evidence, the nature of the danger to the community, the risk of flight, and the risk of obstruction. Those issues invite qualitative judgments, not "yes" or "no" answers. Before being allowed to call an adverse witness on the issue of detention, a defendant must proffer how the witness's testimony would tend to undermine the State's evidence in support of detention in a material way.

         After weighing a defense proffer, judges have discretion to accept and rely on the proffer, or not, and to compel an adverse witness to appear, or not. See Stewart, 453 N.J.Super. at 71. A judge's decision whether to allow a defendant to compel an adverse witness to testify at a detention hearing is subject to review for abuse of discretion. See State v. S.N., 231 N.J. 497, 500 (2018). Here, because defendant pled guilty, the Court does not review the trial court's decision to detain him pretrial. (pp. 16-20)

         Defendant's appeal is DISMISSED AS MOOT.

          JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER's opinion.

          OPINION

          RABNER, ...


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