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State v. Twiggs

Supreme Court of New Jersey

June 19, 2018

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
GARY TWIGGS, Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Appellant-Cross-Respondent,
v.
JAMES E. JONES and LIKISHA JONES, Defendants-Respondents-Cross-Appellants, and GODFREY J. GIBSON, Defendant.

          Argued January 29, 2018

         State of New Jersey v. Gary Twiggs (A-51-16): On appeal from the Superior Court, Appellate Division, whose opinion is reported at 445 N.J. Super. 23 (App. Div. 2016).

         State of New Jersey v. James E. Jones and Likisha Jones (A-63/64/65-16): On certification to the Superior Court, Appellate Division, whose opinion is reported at 445 N.J. Super. 555 (App. Div. 2016).

          Sarah Lichter, Deputy Attorney General, argued the cause for appellant in State of New Jersey v. Gary Twiggs (A-51-16) (Gurbir S. Grewal, Attorney General, attorney; Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).

          Vincent P. Sarubbi argued the cause for respondent in State of New Jersey v. Gary Twiggs (A-51-16) (Archer & Greiner, attorneys; Vincent P. Sarubbi and Bailey E. Axe, on the brief).

          Sarah Lichter, Deputy Attorney General, argued the cause for appellant in State of New Jersey v. James E. Jones and Likisha Jones (A-63/64/65-16) (Gurbir S. Grewal, Attorney General, attorney; Sarah Lichter and Joseph A. Glyn, Deputy Attorney General, of counsel and on the briefs).

          Daniel V. Gautieri, Assistant Deputy Public Defender, argued the cause for respondent James E. Jones in State of New Jersey v. James E. Jones and Likisha Jones (A-63/64/65-16) (Joseph E. Krakora, Public Defender, attorney; Daniel V. Gautieri, of counsel and on the briefs).

          Christopher T. Campbell argued the cause for respondent Likisha Jones in State of New Jersey v. James E. Jones and Likisha Jones A-63/64/65-16) (Law Offices of Christopher T. Campbell, attorneys; Christopher T. Campbell, of counsel and on the briefs).

         TIMPONE, J., writing for the Court.

         The New Jersey Code of Criminal Justice (the Code) contains a tolling provision that delays the start of the clock on the statute of limitations "when the prosecution is supported by physical evidence that identifies the actor by means of DNA testing . . . until the State is in possession of both the physical evidence and the DNA . . . evidence necessary to establish the identification of the actor by means of comparison to the physical evidence." N.J.S.A. 2C:1-6(c). These consolidated appeals hinge on whether the provision applies when a DNA identification does not directly identify the defendant but rather begins an investigative chain that leads to the defendant. A separate issue in State v. Jones is whether the indictment on the conspiracy count survives under a "continuing course of conduct" analysis.

         State v. Twiggs: On June 16, 2009, a detective responded to a robbery call and met with S.T. (the victim) and defendant Gary Twiggs, who stated they had been robbed by a white male wearing a mask, later identified as Dillon Tracy. A police officer took the mask for DNA analysis. In July 2014, police collected DNA from Tracy. His DNA matched the sample found on the mask. Tracy later confessed, implicating Twiggs. Based on Tracy's testimony, police arrested Twiggs for conspiracy and the robbery, and a grand jury returned an indictment. Twiggs moved to dismiss the indictment, arguing that the claim was barred by the general criminal statute of limitations, N.J.S.A. 2C:1-6(b)(1). The State responded that the DNA exception within N.J.S.A. 2C:1-6(c) tolled the statute of limitations. The trial court found the DNA-tolling provision inapplicable and dismissed the indictment. A divided panel of the Appellate Division affirmed. 445 N.J.Super. 23, 36 (App.Div. 2016). The State filed a notice of appeal as of right pursuant to Rule 2:2-1(a)(2).

         State v. Jones: On August 15, 2002, ten-year-old Iyonna Jones found a note from her mother, Elisha Jones -- intended for Iyonna's aunt, Likisha Jones -- explaining that Iyonna's nine-year-old sister, Jon-Niece Jones, had stopped breathing and that Elisha went to "tak[e] care of it." Likisha called her brother, James Jones, telling him that there was a family emergency. James and Iyonna's uncle, Godfrey Gibson, traveled to Elisha's home. Upon their arrival, Elisha packed a plastic bin and garbage bag in the rear of Gibson's car. James, Gibson, and Elisha drove to a wooded area in Upper Freehold, New Jersey. Elisha took the bin into the woods. A few days later at a family meeting, everyone present made a compact to keep the incident secret and to answer any inquiries as to Jon-Niece's whereabouts with "she's with her father." Nearly four months later, Elisha died. Years later, in March 2005, a hunter found a child's skeletal remains. In July 2012, Iyonna provided information relating to the disappearance of Jon-Niece. Law enforcement compared Iyonna's DNA and the DNA of Jon-Niece's father, Jamal Kerse, to the DNA generated from the skeletal remains. In January 2013, a grand jury returned an indictment, charging James, Likisha, and Gibson with third-degree conspiracy, as well as substantive tampering, obstruction, and hindering charges. James and Likisha moved to dismiss the indictment, arguing expiration of the applicable statute of limitations. The trial court denied the motion. The Appellate Division reversed the denial of defendants' motion to dismiss the tampering, obstruction, and hindering charges; affirmed the denial of the motion to dismiss the conspiracy charge; and remanded for resentencing on the conspiracy charge. 445 N.J.Super. 555, 560 (App.Div. 2016). The Court granted the State's petition and defendants' cross-petitions for certification. 230 N.J. 361 (2017); 230 N.J. 374 (2017); 230 N.J. 375 (2017).

         HELD: The DNA-tolling exception applies only when the State obtains DNA evidence that directly matches the defendant to physical evidence of a crime. In Jones, the State presented sufficient evidence of a continuing course of conduct to survive the motion to dismiss.

         1. If the State does not file charges against an individual within the relevant statutory timeframe, the statute of limitations serves as an absolute bar to the prosecution of the offense. The DNA-tolling exception tolls the statute of limitations if the State's prosecution of an individual, "the actor, " is "supported by" DNA evidence that matches, or "identifies, " the actor to physical evidence within its possession. N.J.S.A. 2C:1-6(c). Because of its unique nature, DNA testing has become a widespread and standard practice in identifying criminal perpetrators that courts have accepted as scientifically reliable and admissible in criminal trials against defendants to whom the DNA matched. N.J.S.A. 2C:1-6(c) permits tolling when identification is achieved directly by DNA evidence rather than DNA evidence in addition to other means. It is apparent that the Legislature intended the provision to apply to the sole actor whom the DNA distinctly identifies. (pp. 22-25)

         2. Nothing in the legislative history of the tolling statute calls into question the plain-language reading identified above. Under the State's interpretation, the tolling provision would apply even when the primary evidence used to support its prosecution of a defendant is not the DNA evidence but rather a statement by a third party. Such evidence is the very kind of stale evidence the criminal statutes of limitations operate to guard against. The statute of limitations is not intended to assist the State in its investigations; it is intended to protect a defendant's ability to sustain his or her defense. Unlike other forms of evidence, DNA evidence can never become stale. For the DNA-tolling provision to apply, the State must have DNA evidence that establishes a direct link between physical evidence already within its possession and the defendant it seeks to prosecute. (pp. 26-31)

         3. The DNA evidence obtained from the physical evidence in Jones -- the remains --established no link beyond a familial connection to Iyonna and Kerse. That evidence certainly did not directly implicate defendants as perpetrators of the substantive crimes charged. The implication came only through third-party testimony, which N.J.S.A. 2C:1-6(c) does not operate to preserve. Without the exception, the statute of limitations expired. The judgment of the Appellate Division reversing the trial court's denial of defendants' motion to dismiss the indictment on the substantive charges is affirmed. (pp. 31-32)

         4. In Twiggs, a grand jury indicted Twiggs based primarily on Tracy's confession and his subsequent implication of Twiggs as a co-conspirator in the armed robbery. There exists no direct link between the DNA extracted from the physical evidence and Twiggs. Unless DNA evidence establishes a direct identification to the defendant charged, the mere existence of DNA evidence in a case cannot work to toll general statutes of limitations. The State argues that the reading of the term "defendant" to include principals and accomplices for purposes of the No Early Release Act (NERA) in State v. Rumblin, 166 N.J. 550 (2001), should apply to the DNA-tolling context. NERA uses the term "actor" in a wholly distinct framework to achieve underlying policy goals separate from those of the DNA-tolling provision. NERA is not influenced by stale-evidence concerns because it is triggered only after a defendant's trial or guilty plea. In contrast, the DNA-tolling provision creates an exception at the front end of the judicial process by permitting criminal prosecutions outside of the generally prescribed statute of limitations. The discussion of "actor" in Rumblin to include principals and accomplices under NERA is simply inapplicable to the DNA-tolling provision. In Twiggs, the DNA-tolling exception does not apply. The judgment of the Appellate Division affirming the trial court's dismissal of the indictment against Twiggs is affirmed. (pp. 33-36)

         5. As to the motions to dismiss the conspiracy count of the indictment in Jones, "[c]onspiracy is a continuing course of conduct" that terminates, for statute of limitations purposes, when (1) "the crime or crimes which are its object are committed, " or (2) "the agreement that they be committed is abandoned by the defendant and by those with whom he conspired." N.J.S.A. 2C:5-2(f)(1). In Grunewald v. United States, the Supreme Court stressed a "vital distinction" "between acts of concealment done in furtherance of the main criminal objectives of the conspiracy, " which extend the conspiracy and toll the statute of limitations, and "acts of concealment done after these central objectives have been attained, for the purpose only of covering up after the crime." 353 U.S. 391, 405 (1957). Here, the State presented sufficient evidence to survive defendants' motions to dismiss. The co-conspirators exhibited a continuing course of conduct beginning before and extending beyond Elisha's death. The potential exists that those actions were not merely intended to protect Elisha, but also to insulate from discovery the co-conspirators' roles. Defendants are entitled to challenge the evidence advanced by the State. And, if this case proceeds to trial, defendants would be entitled to a jury charge explaining Grunewald's application. The judgment of the Appellate Division affirming the denial of defendants' motion to dismiss the indictment on the conspiracy charge in Jones is affirmed. (pp. 36-40)

         AFFIRMED.

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

          OPINION

          TIMPONE, JUSTICE

         The New Jersey Code of Criminal Justice (the Code) contains a tolling provision that delays the start of the clock on the statute of limitations "when the prosecution is supported by physical evidence that identifies the actor by means of DNA testing . . . until the State is in possession of both the physical evidence and the DNA . . . evidence necessary to establish the identification of the actor by means of comparison to the physical evidence." N.J.S.A. 2C:1-6(c). These consolidated appeals hinge on the meaning of the term "actor" within that provision and require us to determine whether the provision applies when a DNA identification does not directly identify the defendant but rather begins an investigative chain that leads to the defendant. Because of the common issues in this opinion, we are consolidating these appeals.

         Based on the plain language of N.J.S.A. 2C:1-6(c) and the policy rationale underlying the criminal statute of limitations, we conclude that the DNA-tolling exception applies only when the State obtains DNA evidence that directly matches the defendant to physical evidence of a crime. Because the DNA identifications at issue in these cases did not directly link defendants to the relevant offenses, we affirm the Appellate Division's affirmance of the trial court's dismissal of the indictments against defendant Gary Twiggs in its entirety and against defendants James and Likisha Jones in relevant part.

         A separate issue in State v. Jones is whether the indictment on the conspiracy count survives under a "continuing course of conduct" analysis that would toll the applicable statute of limitations under N.J.S.A. 2C:1-6(c). We agree that the State presented sufficient evidence of a continuing course of conduct to survive the motion to dismiss the indictment, so we also affirm the Appellate Division on that count.

         I.

         A. We derive the facts in State v. Twiggs from pretrial motion practice.

         On June 16, 2009, a detective from the Wildwood Crest Police Department responded to a robbery call. At the scene, the detective met with S.T. (the victim) and defendant Gary Twiggs, who stated they had been robbed of their money and cell phones by a white male wearing a black hoodie, jeans, and a black mask, later identified as Dillon Tracy. S.T. told the detective that after Twiggs pulled up in his vehicle, Tracy approached S.T. from behind, placed a gun in his side, and ordered him into the passenger seat of Twiggs's vehicle. Tracy then demanded their cell phones and money and escaped into a black SUV after both Twiggs and S.T. complied. Police later found a black mask where S.T. said the black SUV had been parked. A police officer took the mask for DNA analysis and later entered the extracted DNA into the Combined DNA Information System (CODIS).

         Twiggs and S.T. submitted to multiple interviews with police. During one interview, S.T. admitted that he met Twiggs on the night of the robbery to sell Twiggs Percocet tablets. S.T. said he believed Twiggs and Tracy were friends and had arranged the robbery. In a later interview, Twiggs claimed he was a victim of the robbery.

         In July 2014, police collected DNA from Tracy after he entered a guilty plea in drug court. His DNA matched the sample found on the mask. Tracy later confessed, implicating Twiggs in the 2009 robbery. In September 2014, based on Tracy's testimony, police arrested Twiggs for conspiracy and the robbery.

         In December 2014, a Cape May Grand Jury returned an indictment, charging Twiggs and Tracy with conspiracy to commit robbery, N.J.S.A. 2C:5-2(a), and robbery, N.J.S.A. 2C:15-1(a). Twiggs moved to dismiss the indictment, arguing that the claim was barred by the general criminal statute of limitations, N.J.S.A. 2C:1-6(b)(1). The State responded that the DNA exception within N.J.S.A. 2C:1-6(c) tolled the statute of limitations.

         The trial court found the DNA-tolling provision inapplicable because the DNA evidence recovered in connection with the offense did not identify Twiggs, but rather Tracy, who in turn implicated Twiggs as an alleged co-conspirator. The court consequently dismissed the indictment, and the State appealed.

         A divided panel of the Appellate Division affirmed. State v. Twiggs, 445 N.J.Super. 23, 36 (App.Div. 2016). The majority held that "the actor" in the DNA-tolling provision "refers to the individual whose DNA is analyzed. It does not apply to a third party identified by that individual." Id. at 25-26. The majority determined that the plain language of the statute "only applies to persons whose DNA directly identifies them as criminal actors, and does not apply to those who are later named by those same criminal actors." Id. at 30. Because the physical evidence recovered and the DNA evidence later obtained did not directly, by itself, implicate Twiggs, the panel found the DNA-tolling provision inapplicable for a prosecution against him. Id. at 31 ("[T]he only evidence that the State derived from the DNA evidence was Tracy's identity, and, subsequently, his confession that he and defendant conspired to commit robbery.").

         The majority considered the DNA-tolling exception's legislative history and rejected the State's argument that our decision in State v. Rumblin, 166 N.J. 550 (2001), supports a broader definition of the term "actor." Id. at 33-34. The Rumblin Court concluded that the term "actor" was synonymous with "principal" and "accomplice" for purposes of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. 166 N.J. at 555-56. The majority in Twiggs distinguished N.J.S.A. 2C:1-6(c)'s use of the term "actor" as different "both syntactically and lexicologically" from NERA's use of the word. 445 N.J.Super. at 35. Focusing, therefore, on the text of the tolling provision, the panel concluded that its "syntactical use of the word 'actor' . . . is more specific than the use of the term in NERA and Rumblin." Id. at 35-36.

         According to the dissent, the "majority opinion's reasoning [cannot square] with the Supreme Court's interpretation of the term 'the actor' in State v. Rumblin." Id. at 37 (Leone, J., dissenting). Judge Leone's primary concern was to avoid an interpretation that "would enable the leaders of conspiracies to evade prosecution under N.J.S.A. 2C:1-6(c) by having the crime committed by minions, who alone could be prosecuted when the minion's DNA is matched." Id. at 46.

         On May 4, 2016, the State filed a notice of appeal as of right pursuant to Rule 2:2-1(a)(2).

         B.

         We glean the following facts from the grand jury proceedings in State v. Jones.

         On August 14, 2002, ten-year-old Iyonna Jones left summer school and went to her aunt Likisha Jones's Manhattan apartment. After she arrived, Iyonna fed her nine-year-old sister, Jon-Niece Jones. Jon-Niece[1] became ill after eating and fell over. When Iyonna picked her up, Jon-Niece made Iyonna promise she would not let her die. Jon-Niece then closed her eyes, and Iyonna carried her to bed.

         In the early morning hours of the next day, Iyonna's and Jon-Niece's mother, Elisha Jones, woke Iyonna and instructed her to get a large garbage bag. Elisha took the garbage bag into Jon-Niece's room while Iyonna went back to sleep. The next morning, Iyonna found a note from Elisha -- intended for Likisha -- explaining that Jon-Niece had stopped breathing and that Elisha went to her Staten Island home to "tak[e] care of it."

         In the meantime, Likisha called her brother, James Jones, telling him that there was a family emergency and instructing him to go immediately to the Manhattan apartment.

         About two days later, Iyonna overheard a phone conversation between Likisha and Elisha, during which Elisha said "she was scared and didn't know what to do" because Jon-Niece was "dead at [her] apartment . . . sitting in a bucket [and] bag, along with cement and gasoline, " and Elisha was contemplating "burn[ing] the apartment down." Likisha told ...


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