How to Win Your Criminal Appeal: N.J. Criminal Law Appellate Practice
VINCENT J. SANZONE, JR., ESQ.
P.O. BOX 261
277 NORTH BROAD STREE, 2ND FLOOR
ELIZABETH, NEW JERSEY 07207
(908) 354-7006
Attorney for Robert Dugo
_____________________ NEW JERSEY SUPERIOR COURT
STATE OF NEW JERSEY : APPELLATE DIVISION
:
Plaintiff, : DOCKET NO. A-004398-02T1
vs. : CRIMINAL ACTION
:
ROBERT DUGO : On Appeal from a Judgment of
: Conviction, Superior Court Law
Defendant : Division, Bergen County
_____________________
Trial Judge: Hon. Patrick J. Roma, JSC
BRIEF AND APPENDIX FOR DEFENDANT-APPELLANT
On the Brief
Vincent J. Sanzone, Jr., Esq.
P.O. Box 261
277 North Broad Street
Elizabeth, New Jersey 07207
(908) 354-7006
CriminalDefenseNJ.com
CONFINED
TABLE OF CONTENTS
Table of Transcript Citations ................... 4
Table of Cases .................................. 5
Procedural History .............................. 8
Statement of Facts .............................. 9
Legal Argument ................................. 13
Point I THE POLICE REPORT AND GRAND JURY
TESTIMONY OF OFFICER REYNOLDS WAS NOT
HEARSAY AND THE DEFENDANT SHOULD HAVE
BEEN PERMITTED TO CROSS-EXAMINE THE
STATE’S WITNESSES ON SAID REPORT
AND GRAND JURY TESTIMONY ........... 13
Point II OFFICER REYNOLDS’ POLICE REPORT WAS
NOT HEARSAY AND THE TRIAL COURT’S
REFUSAL TO ALLOW DEFENSE COUNSEL TO
CROSS-EXAMINE THE STATE’S WITNESSES
ON SAIDREPORT WAS REVERSAL ERROR ... 26
Point III THE CHARGE GIVEN THE JURY REGARDING
SECOND DEGREE ELUDING WAS FLAWED AND
COMPROMISED THE JURY’S VERDICT ..... 29
Point IV THE TRIAL COURT ERRED IN SENTENCING
THE DEFENDANT TO TWO YEARS OF PAROLE
INELIGIBILITY ..................... 32
Point V DEFENDANT WAS DENIED A FAIR TRIAL
SINCE TRIAL COUNSEL DID NOT MEET THE
MINIMAL STANDARDS OF COMPETENT
COUNSEL ........................... 38
Conclusion ..................................... 46
INDEX TO APPENDIX
Indictment ............................ Da1 to Da2
Judgment of Conviction ................ Da3 to Da4
Notice of Appeal ...................... Da5 to Da6
Grand Jury Transcripts ................ Da7 to Da 15
Officer Reynolds Police Report ........ Da 16
TABLE OF TRANSCRIPT CITATIONS
1T represents the proceedings on October 8, 2002
2T represents the proceedings on October 9, 2002
3T represents the proceedings on October 10, 2002
4T represents the proceedings on October 16, 2002
5T represents the proceedings on October 17, 2002
6T represents the proceedings on October 22, 2002
7T represents the proceedings on March 21, 2003
TABLE OF CASES
STATE CASES
Hill v. N.J. Dept. of Corrs., 342 N.J. Super. 273
(App. Div. 2001),certif. Denied, 171 N.J. 338 (2002) ......... 22
Polistina v. Polistina, 183 N.J. Super. 291 (App. Div. 1982) . 24
Trenton Passenger Ry. Co. v. Cooper, 60 N.J.L. 219
(E.&E. 1987)............................................. 24
State v. Biddle, 150 N.J. Super 180 (App. Div.) certif. Den.
75 N.J. 542 (1977) ........................................... 18
State v. Bunyan, 691 N.J. Super. 417
(App. Div. 1997) .................................. 19, 20, 23, 24
State v. Carey, 168 N.J. 413, 425 (2001) ...................... 34
State v. Feaster, 156 N.J. 1, 82, 716 A.2d 395 (1998) ......... 26
State v. Nataluk, 316 N.J. Super. 336 (App. Div. 1998) ....... 35
State v. Garfole, 76 N.J. 445, 453, 388 A.2d 587 (1978) ....... 27
State v. Hodge, 95 N.J. 369 1984) ............................. 32
State v. Knight, 145 N.J. 233, 251 (1995) ................. 30, 31
State v. Kruse, 105 N.J. 354, 362 (1987) ...................... 33
State v. Lark, 117 N.J. 331, 567 A.2d 197 (1989) ............. 30
State v. Lungsford, 167 N.J. Super. 296 (App. Div. 1979) .. 18, 19
State v. Macon, 57 N.J. 325, 335; 273 A.2d 1 (1971) ........... 29
State v. Mays, 321 N.J. Super. 619
729 A.2d 1074 (App. Div. 1999) ................................ 26
State v. Moore, 358 N.J. Super. 241
817 A.2d 419 (App. Div. 2003) ................................ 29
State v. Phelps, 96 N.J. 500, 508, 476 A.2d 1199 (1984) ....... 17
State v. Pineda, 119 N.J. 621 (1990) .......................... 34
State v. Roth, 95 N.J. 334 (1984) ............................. 32
State v. Williams, 169 N.J. 349; 777 A.2d 919 (2001) ...... 27, 28
State v. White, 158 N.J. 230 (1999)............................ 27
FEDERAL CASES
Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038,
1049,35 L. Ed.2d 297, 312-313 (1973) ......................... 20
Smith v. Wainwright, 799 F.2d 1442 (11th Cir. 1986) ........... 44
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052
80 L. Ed. 2d 674 (1984) .................................... 41, 43
Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070
103 L. Ed. 2d 334, 349 (1989) .................................. 30
Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495,
146 L.Ed. 2d 389 (2000) ........................................ 43
STATUTES AND RULES CITED
N.J.S.A.:29-2b ......................................... 16, 29, 35
N.J.S.A. 2C:44-1f .............................................. 32
N.J.S.A. 2C:43-6(b) ........................................ 32, 33
N.J.S.A. 2C:43-6b .............................................. 33
N.J.S.A. 2C:44-1a(1) ........................................... 33
N.J.R.E. 801(d) ................................................ 18
N.J.R.E. 802 ................................................... 17
N.J.R.E. 803(c)(6).......................................... 17, 19
N.J.R.E. 804(b)(6) ......................................... 19, 23
N.J.R.E. 804(b)(1) ............................................ 25
N.J.R.E. 503 ................................................... 36
N.J.R.E. 803(c)(1) ............................................. 24
OTHER AUTHORTIES
New Jersey Trial & Evidence, ICLE, “You Say, We Say,
Hearsay, An Intro. To Hearsay Evidence”, Green Camp; Mitchell,
p. 10-8. (2003) ............................................ 21, 23
Cross-Examination: Science and Techniques, Pozner & Dodd,
The Michie Co., 1993, Page 1. .................................. 22
Biunno, 2001 N.J. Rules of Evidence,
Comment 2 to N.J.R.E. 804(b)(1) (Gann) ......................... 25
Biunno, 2001 N.J. Rules of Evidence,
Table of Disposition, Page 973 (Gann) ......................... 18
PROCEDURAL HISTORY
Bergen County Indictment 01-05-01315-I charged the defendant with 2nd degree eluding of a police officer, N.J.S.A. 2C:29-2b. Defendant plead not guilty to this charge and a trial was held on the 8th, 9th, 10th, 16th, and 17th of October, 2002. The matter was tried before the Honorable Patrick J. Roma and a Jury. Defendant was found not guilty of 2nd degree eluding, but found guilty of the lesser 3rd degree eluding. Defendant was sentenced on March 21, 2003 to four years imprisonment, with a period of parole ineligibility of two years. (Da3 to Da4) A timely notice of Appeal was filed on April 28, 2003. (Da5 to Da 6)
The Defendant filed a motion for bail pending appeal with the Trial Court which was denied on August 7, 2003.
STATEMENT OF FACTS
According to the state’s proofs, on January 26, 2001 at approximately 5:00 P.M., Port Authority Police Officer Richard Beatty, was monitoring E-Z Pass lane 62, of the New Jersey sideof the George Washington Bridge. (2T 168-14)
Officer Beatty observed the Defendant proceeding through the E-Z Pass lane, and observed the toll sign flash, “unpaid”. Officer Beatty than radioed to Port Authority Police Officer Meyer, who was stationed in the coned catch area, that a black Cadillac Seville, four door, with the license plate down, went through the toll unpaid. Officer Beatty testified that he could not identify the person driving the Cadillac Seville. (2T 21-7 to 23-19)
Officer Meyer, assigned as a “catcher”, in the coned area, hearing Officer Beatty’s radio transmission, observed the black Cadillac Seville approaching his area, made eye contact with the Defendant, and motioned him to pull over to the right. The Defendant proceeded pass Officer Meyer, and Port Authority Police Officer Bruce Reynolds who was also in the catch area. Officer Meyer stated that he saw Officer Reynolds attempt to stop the Defendant verbally as well with his hands. Officer Meyer saw Officer Reynolds jump back as the Defendant’s vehicle passed him. (2T 157-8 to 164-7); (3T 74-2 to 21) Officer Meyer’s testified that the Defendant was driving between the marked cones when he passed him, which were only approximately eight to ten feet in width. (2T 207-25 to 208-1); (2T 216-24 to 217-10) Further, he testified that he gave the Defendant a verbal command to stop as well as the “universal” hand signal to stop. (3T 61-10 to 13) However, Officer Meyer did concede that he could not determine whether the Defendant heard his verbal command to stop. (3T 67-12 to 14) Port Authority Officer, Sergeant Joseph King testified that he was the tour officer and in charge of the E-Z Pass detail. He testified that he heard Officer Beatty’s transmission regarding a black Cadillac Seville passing the E-Z Pass without registering paid, and saw Officer Meyer and Reynolds attempt to stop Defendant’s vehicle with verbal and hand signals. Further, he stated that Officer Reynolds was forced to jump out of the way of Defendant’s vehicle so that he was not hit. (3T 109-10 to 111-10)
The last witness for the state was Port Authority Police Officer, Michael Simons. Officer Simons was assigned to the position as the driver of the “chase vehicle.” Based on the radio transmission he gave chase to the Defendant’s vehicle. (4T 20-2 to 13) Officer Simons testified that he gave instructions for the Defendant to stop, three times with his “PA” system, but the Defendant refused to stop his vehicle, at which time Officer Simons forced the Defendant’s vehicle, about one-quarter of a mile into the tunnel, into the first cut off, or turn-around on the bridge. (4T 25-2 to 26-6); (4T 28-5 to 19) The Defendant’s vehicle than made a hard left hand turn into the turn off and his vehicle than faced northbound. (4T 30-11 to 19) Officer Simons than waited for his back-up officers to arrive, atwhich time they approached the Defendant’s vehicle, and orderedthe Defendant to put the vehicle in park, turn the vehicle off, and place his hands on the steering wheel. (4T 33-17 to 20) TheDefendant was than ordered out of the vehicle and told to place his hands on the roof of his vehicle, and given a pat down. (4T 34-8 to 13) Officer Simons suspecting that the Defendant was under the influence of alcohol and/or narcotics, administered the defendant Mental-physical tests, to wit; reciting of the alphabet and feet together head back for thirty seconds tests. (4T 36-5 to 13) Officer Simons asked the Defendant if he had taken anything, and the Defendant stated that he had taken a couple of Xanaxs, which the Defendant had a prescription for. (4T 38-22); (4T 40-19) Based on the fact that the Defendant failed the psycho-physicals, and admitted that he had taken Xanax, the defendant was placed under arrest, not for eluding, but for DWI. (4T 38-24 to 39-7)
Defense counsel did not call any witnesses or request anyevidence to be submitted to the jury. (4T 198-5)
LEGAL ARGUMENT
POINT ONE
THE POLICE REPORT AND GRAND JURY TESTIMONY OF OFFICER REYNOLDS WAS
NOT HEARSAY AND THE DEFENDANT SHOULD HAVE BEEN ALLOWED
TO CROSS-EXAMINE THE STATE’S WITNESSES ON SAID REPORT AND
GRAND JURY TESTIMONY
In this case the only police report that was prepared was that of Officer Reynolds who was deceased at the time of trial. All of the police officers that testified for the state contradicted the report of Officer Reynolds in many key areas.
Specifically, Officer Reynolds wrote in his police report the day of the incident:
The undersigned officer [Reynolds] also gave the operator
[Defendant] hand signals and verbal commands to pull over.
The operator of the vehicle drove around the undersigned
officer [Reynolds] and P.O. Meier and then dorove [sic]
around Sgt. King and continued east bound onto the lower
level. (Officer Reynolds report attached hereto and marked as “Da-16”)
Specifically, in conflict with the testifying officers, the report of Officer Reynolds did not state that he had to jump away from the Defendant’s vehicle while the Defendant’s vehicle approached him head on. Throughout the trial, defendant’s trial counsel, attempted to cross-examine the testifying officers regarding this conflict, but was unable to do so, because of the Trial Court’s ruling that Officer Reynolds report was hearsay. (3T 47-13 to 23)
Specifically, When defense counsel attempted to question Officer Meyer’s as to why Officer Reynolds' police report did not mention that Officer Reynolds had to “jump away” from the Defendant’s vehicle, the state objected to the question on hearsay grounds, which was sustained by the Trial Court. (3T 25-22 to 26-9); (3T 47-13 to 48-6)
After a side bar was held, the Trial Court reversed its position and allowed defense counsel to ask the following question regarding Officer Reynolds’ report to Officer Meyer: (3T 97-6 to 15)
Q. Officer, do you recall I showed you what has been marked as D-2 for identification purposes only?
A. Yes.
Q. Okay. And that’s Officer Reynolds’ report?
A. That’s correct.
Q. Okay, Isn’t it true, Officer, that there’s no reference in Officer Reynolds’ report to him jumping out of the way?
A. That’s correct.
On October 16, 2002, six days later the Trial Court reversed its ruling and held that that question was improper and gave the following instructions to the jury:
I’m going to give you an instruction as I had before.
Yesterday, you heard the testimony – yesterday actually and today of Officer Meyers (sic). And specifically, it was a response where he was shown an exhibit and asked whether there was any reference in the report to Officer Reynolds jumping out of the way.
Okay. Specifically, that response will be stricken, and you will not use that in your deliberations? Do you understand that? (3T 161-25 to 162-8)
Again, during the cross-examination of Sergeant King, defense counsel was not allowed to question Sgt. King that Officer Reynolds in his report never stated that he had to “jump out of the way” of the Defendant’s vehicle. (3T 151-7 to 13)
Accordingly, in this case, the Jury never heard that according to Officer Reynolds, the only officer to directly confront the defendant while he passed the E-Z pass lanes, that he never had to jump away from the Defendant’s vehicle.
Not knowing these facts as observed by Officer Reynolds the
jury had no reason to find reasonable doubt in the testimony of the other officers, and the jury under these facts could conclude that the Defendant was guilty of N.J.S.A. 2C:29-2b which states:
Any person, while operating a motor vehicle on any street …
who knowing flees or attempts to elude any police or law
enforcement officer after having received any signal from
such officer to bring the vehicle or vessel to a full stop
commits a crime of the third degree; except that, a person is guilty
of a crime of the second degree if the flight or attempted to elude
creates a risk of death or injury to any person.
Likewise, when Officer Reynolds testified before the grand
jury, he did not testify that he had to “jump out of the way” of the defendant’s vehicle. Rather, he stated before the grand jury:
A. I attempt [sic] to stop the vehicle with hand signals and also verbally shouted for him to pull over. The vehicle
didn’t pull over. He drove around me to a point that I had to step out of the way … And so the individual
[defendant] slammed on his brakes, made a turn into
the cut. And westbound traffic was flowing, but heavy.
Q. Okay. Now when he gets stopped by the oncoming traffic, you and other officers exit your cars and instructed him to get out of his car. Is that correct:
A. Yes.[1] (Da7)
Of course hearsay is generally inadmissible, N.J.S.E. 802,
unless it falls within one of the hearsay exceptions. State v. Phelps, 96 N.J. 500, 508, 476 A.2d 1199 (1984). In this case it is respectfully submitted that Officer Reynolds’ report was admissible under a number of hearsay exceptions, and should have been admitted.
Evidence Rule 803(c)(6) provides:
Records of regularly conducted activitiy. A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information
supplied by such a person, if the writing or other
record was made in the regular course of business and it was the regular practice of that business to make it unless the sources of information or the method, purpose or circumstances or preparation indicate that it is not trustworthy.
Traditionally, this exception to the hearsay rule was referred to as the “shop keepers” rule and was limited in scope to commercial business records. However, now it is well settled that this exception also applies to police reports and records. State v. Lungsford, 167 N.J. Super. 296 (App. Div. 1979); State v. Biddle, 150 N.J. Super 180 (App. Div.) certif. Den. 75 N.J. 542 (1977)[2]
Although it is well settled that “citizen” statements contained in these police reports are almost always held to be hearsay, the statements of the police officer preparing the report, “with actual knowledge … made in the regular course of business” … [unless] circumstances of preparation indicate that it is not trustworthy” is not hearsay. N.J.R.E. 803(c)(6).
Specifically, in State v. Lungsford, [3] the issue that was decided by this Court was whether the information contained in a police report by an individual who claimed that his automobile was stolen should have been admitted to the jury to prove that in fact his vehicle was stolen. In Lungsford, this Court ruled that citizen statements contained in police reports are almost universally held to be inadmissible. However, the distinction between this case and Lungsford, is that Officer Reynolds prepared a report, and testified before the grand jury, not as a citizen, but as a professional police officers, and hence, the report and grand jury testimony was admissible under Evid. R. 803(c)(6).
In State v. Bunyan, 691 N.J. Super. 417 (App. Div. 1997), which like Lungsford, supports the Defendant’s position by holding that a defendant in a post-conviction proceedings is entitled to a hearing as to the reliability of a deceased witnesses statement pursuant to Rule 804(b)(6).
In support of its decision the appellate division said the following:
The United States Supreme Court in Chambers v.
Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L. Ed.2d 297, 312-313 (1973), has made clear that there are situations in which a defendant’s Sixth Amendment right to present evidence in his defense must take precedence, as a matter of due process of law, over the mechanistic application of a state’s hearsay rules.
Thus, as Justice Powell explained:
Few rights are more fundamental than that of an accused to
present witnesses in his own defense [citations omitted] In the exercise of this right, the accused, as is required of the State, must comply with established rules or procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. Although perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy have long existed. The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That
testimony also was critical to Chambers’ defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice. State v. Bunyan, at 475.
Therefore, without argument, both the report and grand jury testimony of Officer Reynolds were admissible. However, assuming, arguendo, that those items were hearsay, and no hearsay exception could be found, the Defendant, nonetheless had the right to waive his right to present evidence that he cannot cross-examine.
Because trial counsel was unable to cross-examine the state’s witnesses through the use of Officer Reynolds’ report, the Defendant was unable to effectively cross-examine the state’s witnesses, and hence, the Defendant was denied a fair trial since and his Sixth Amendment right to confront the witnesses against him was destroyed. In the alternative, it is equally well settled that the Sixth Amendment to the United States Constitution provides that a defendant in a criminal case has the right “to be confronted with the witnesses against him.” Article 1, Section 10 of our state Constitution provides that same right. Accordingly, because the confrontation clause is the defendant’s right, he can waive that right. “The burden is to either establish that the offered evidence is admissible under an appropriate exception to the hearsay prohibition or obtain an affirmative waiver from the defendant of the right of confrontation.” New Jersey Trial & Evidence, ICLE, “You Say, We Say, Hearsay, An Intro. To Hearsay Evidence”, Green & Mitchell, p. 10-8. (2003) In this case it is without argument that defense counsel attempted to cross-examine the state’s witnesses with officer Reynolds report.
As one legal scholar has noted: “The purpose of trial is the discovery of truth. Cross-examination is the best engine for the discovery of truth; Therefore, the purpose of trial is cross-examination.” Cross-Examination: Science and Techniques, Pozner & Dodd, The Michie Co., 1993, p. 1. Of course, the right is so important that it was incorporated into the confrontation clause of the Sixth Amendment to the United States Constitution.
In the final analysis it is the only way that this Defendant could show that direct testimony of the state’s witnesses is exaggerated and/or false, without taking the stand himself, was through Officer Reynolds’ report and grand jury testimony.
Accordingly, because trial counsel throughout the trial attempted to cross-examine the state witnesses with the police report, the plain error rule pursuant to R. 2: 10-2 is not applicable. Hill v. N.J. Dept. of Corrs., 342 N.J. Super. 273 (App. Div. 2001), certif. Denied, 171 N.J. 338 (2002)
As one legal commentator has stated, “The hearsay rules should not be applied “mechanistically” to defeat the ends of justice since an accused has a fundamental right to present witnesses in his own behalf”. New Jersey Trial & Evidence, ICLE, “You Say, We Say, Hearsay, An Intro. To Hearsay Evidence”, Green & Mitchell, p. 10-6. (2003)
The police report and grand jury testimony of Officer Reynolds was likewise admissible pursuant to N.J.R.E. 804(b)(6), “Trustworthy statement by deceased declarant”, since the police report written shortly after the incident has sufficient indicia of truthfulness.
N.J.R.E. 804(b)(6) states:
Trustworthy statements by deceased declarants. In a civil
proceeding, a statement made by a person unavailable as a
witness because of death if the statement was made in good
faith upon declarant’s personal knowledge in circumstances
indicating that it is trustworthy.
In State v. Bunyan, 154 N.J. 261, 270-271 (1998) the court held that the rule also applies to criminal cases when the hearsay evidence is offered by the defendant and the evidence is necessary to insure that the defendant receives a fair trial. In Bunyan, 154 at 270-271 the court held that this rule exemption should not be restricted to civil cases, when the defendant in a criminal case offers the evidence, and his right to a fair trial is jeopardized if the civil limitation is not relaxed.
In this case, the report of Officer Reynolds was essential to refute the testimony of the other officers whom all viewed defendant’s vehicle pass Officer Reynolds at some distance away.
Likewise, the police report would be admissible pursuant to R. 803(c)(1), Present sense impression:
A statement of observation, description or explanation of an
event or condition made while or immediately after the
declarant was perceiving the event or condition and without
opportunity to deliberate or fabricate.
This hearsay exception is not dependant on the declarant’s availability, and has a long long history in New Jersey dating back to the seminal case, Trenton Passenger Ry. Co. v. Cooper, 60 N.J.L. 219 (E.&E. 1987); Polistina v. Polistina, 183 N.J. Super. 291 (App. Div. 1982)
In this case, the report of Officer Reynolds was prepared shortly after the incident, and the Jury should have heard that officer Reynolds never in his report mentioned that he had to “jump out of the way” of the defendant’s vehicle, but rather that the defendant “drove around” Officer Reynolds.
Likewise, Reynolds grand jury testimony would be admissible
pursuant to R. 804(b)(1), Testimony in Prior Proceedings. Although it is well settled that the state may not introduce the grand jury testimony of an unavailable witness against the defendant at trial, “There is no similar blanket restriction on the defendant’s introduction of prior grand jury testimony under this rule.” Biunno, Current N.J. Rules of Evidence, Comment 2 to N.J.R.E. 804(b)(1) (Gann).
POINT TWO
OFFICER REYNOLDS’ POLICE REPORT WAS NOT HEARSAY AND THE TRIAL
COURT’S REFUSAL TO ALLOW DEFENSE COUNSEL TO CROSS-
EXAMINE THE STATE’S WITNSSES ON SAID REPORT
WAS REVERSAL ERROR
It is respectfully submitted that the Trial Court made evidentiary trial errors which require a new trial.
It is well settled that a Trial Court has "considerable latitude regarding the admission of evidence," and is to be reversed only if the court abused its discretion. State v. Feaster, 156 N.J. 1, 82, 716 A.2d 395 (1998)
The failure of the Trial Court to allow cross-examination of state’s witnesses with Officer Reynolds’s report constituted plain error, that is, error producing and unjust result. State v. Mays, 321 N.J. Super. 619, 729 A.2d 1074 (App. Div. 1999) Rule 2:10-2 provides that this Court shall not disregard a trial error when it has been shown to “clearly capable of producing an unjust result.”
It is respectfully submitted that the Trial Court’s refusal to allow the defense to fully cross-examine the state police witnesses with officer Reynolds report was not harmless error, but in fact, reversible error.
In State v. Williams, 169 N.J. 349; 777 A.2d 919 (2001), our Supreme Court held that the trial court’s refusal to allow an out of court statement of a desceased person, unavailable to testify at trial, regarding his declaration against interest that he shot the murder victims, was reversible error. The court quoting State v. White, 158 N.J. 230, 247-48 (1999), held: “An error is harmless unless there is a reasonable doubt that the error contributed to the verdict.” In this case the Defendant did not receive a fair trial since the Defendant had no way of refuting the testimony of the state’s
police witnesses, all testifying that Officer Reynolds was forced to “jump out of the way”, when the officer attempted to hail the Defendant’s vehicle down.
Accordingly, this Defendant had the absolute right to “advance in his defense any evidence which may rationally tend to refute his guilt or buttress his innocence of the charge made.” State v. Garfole, 76 N.J. 445, 453, 388 A.2d 587 (1978)
Accordingly, it is respectfully submitted that those facts not learned by the Jury, “may have affected the jury’s view of the evidence” against the Defendant. State v. Williams, 169 N.J. at 361.
POINT THREE
THE CHARGE GIVEN THE JURY REGARDING SECOND
DEGREE ELUDING WAS FLAWED AND COMPROMISED
THE JURY’S VERDICT
In this case the Trial Court instructed the jury that the enhanced element of eluding, making it a 2nd degree crime, would be satisfied if the Defendant placed anyone at risk including the Defendant himself. (5T 50-22 to 25) Most recently in State v. Moore, 358 N.J. Super. 241; 817 A.2d 419 (App. Div. 2003), a case decided after the instant case, this Court ruled that the language in N.J.S.A. 2C:29-2b, stating: “if the flight or attempt to elude creates a risk of death or injury to any person”, does not include the defendant.
Notwithstanding that the Jury did not find the defendant guilty of 2nd degree eluding, the flawed jury instructions contributed to a compromised verdict, of guilt for the 3rd degree charge. Whether an error in the jury instructions is reason for reversal depends on the degree of probability that it led to an unjust verdict. State v. Macon, 57 N.J. 325, 335; 273 A.2d 1 (1971)
Therefore, the only issue remaining is whether this Court
should give retroactive effect to this Court’s decision in Moore and whether the flawed instruction caused an unjust verdict.
In State v. Lark, 117 N.J. 331, 567 A.2d 197 (1989) the court held that a "case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government … [or] if the result was not dictated by precedent existing at the time the defendant's conviction became final.” State v. Lark, 117 N.J. at 339. rk, supra, 117 N.J. at 339 (quoting Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070, 103 L. Ed. 2d 334, 349 (1989) Moreover, Lark held that a decision involving an "accepted legal principle" announces a new rule for retroactivity purposes so long as the decision's application of that general principle is "sufficiently novel and unanticipated." State v. Knight, 145 N.J. 233, 251 (1995)
If a “new rule” is at issue, as is the case in the instant case, three factors are considered to determine whether the “new rule” should have retroactive effect:
(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice. [citations omitted] Although those three factors have received detailed attention in our retroactivity case law, our
cases also indicate that the retroactivity determination often turns more generally on "the court's view of what is just and consonant with public policy in the particular situation presented. State v. Knight, 145 N.J. 233, 251 (1995)
In this case, the Trial Court’s jury instruction regarding the Defendant placing himself at risk for injury, and “substantially impaired the reliability of the truth-finding process, the interest in obtaining accurate verdicts may suggest that the new rule be given complete retroactive effect.” State v. Knight, 145 N.J. at 251
Because of the Trial Court’s second degree eluding charge, the Jury was unaware that the actions of the Defendant, in placing himself at risk, should not have been a factor in their deliberations. Therefore, that factor compromised and clouded the rest of their deliberations, for the eventual compromised verdict of the third degree eluding.
POINT FOUR
THE TRIAL COURT ERRED IN SENTENCING
THE DEFENDANT TO TWO YEARS OF PAROLE
INELIGIBILITY
The scope of appellate review of sentencing decisions under the Code was announced in State v. Roth, 95 N.J. 334 (1984) and State v. Hodge, 95 N.J. 369 (1984). The holding in Roth summarized the court's function on appellate review:
In sum, then, appellate review of a sentencing decision calls for us to determine, first, whether the correct sentencing guidelines, or in this case, presumptions, have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. Roth, 95 N.J. at 365-366.
The defendant was convicted of a third degree crime and sentenced to the presumptive term of four years pursuant to N.J.S.A. 2C:44-1f.
However, the Trial Court, in spite of the sentencing the
defendant to the presumptive sentence, decided to impose a two year period of parole ineligibility pursuant to N.J.S.A. 2C:43-6b.
In this case the Trial Court used the language of N.J.S.A. 2C:43-6b, and held:
I do not find a single mitigating factor. I am going to impose a term of four years in State Prison, and I am going to find that the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors. I am going to impose a parole disqualified of two years. (7T 90-21 to 91-1)
We know the law:
“Hence, we expect it will be a rare case in which the sentencing court imposes a period of parole ineligibility on top of a presumptive sentence … [and] that such ineligibility will be imposed but rarely when the court has imposed the presumptive sentence. State v. Kruse, 105 N.J. 354, 362 (1987)
Before the Trial Court can impose a period of parole ineligibility it must set forth on the record the all of the valid aggravating factors, and compare them to the mitigating factors, if any, and find that it is clearly convinced that the aggravating factors outweigh the mitigating factors.
In this case the Trial Court erred by double counting the aggravating factor, N.J.S.A. 2C:44-1a(1), “the nature and circumstances of the offense”, when it held:
Given the nature of the offense, we’re talking about going through
and E-Z Pass on the George Washington Bridge, a place where there
is a lot of traffic, a place where we had police officers on duty …
I’ve looked over my notes. There are at least two or three officers
that had to get out of the way who somehow felt that they would be
at risk. I’m concerned that given the nature of this offense and the
offense, people could have been put in harm’s way. And were able
to remove themselves, it is perhaps a saving grace that no one was,
in fact, injured. (7T 83-13 to 84-7)
The law is clear and well settled that a sentencing court cannot take
into consideration factors which the legislature has already taken
into consideration in the grading of the offense. State v. Pineda, 119
N.J. 621 (1990); State v. Carey, 168 N.J. 413, 425 (2001). Furthermore,
the nature and circumstances of the offense can only be applied for things
that actually occurred in the commission of the crime, and not as the Trial
Court held, “people could have been put in harm’s way.” Furthermore, and
most importantly, the Jury found that the defendant’s conduct did not
“create a risk of death or injury to any person,” an element which grades
the offense to second degree eluding, and accordingly, found him not guilty
of second degree eluding.
N.J.S.A. 2C:29-2b. Additionally in State v. Nataluk, 316 N.J. Super. 336, 350 (App. Div. 1998), it was held that police involvement cannot be an aggravating factor in sentencing for eluding a police officer. The Trial Court additionally found that the defendant was a risk to commit another offense, and that was based on the Defendant’s motor vehicle record and questions asked of the Defendant by the trial court at sentencing, when the Trial Court ruled:
The risk to commit another offense, I’ve looked over – this is One of
the reasons why the motor vehicle abstract is important. I look over the
motor vehicle abstract, and I see various types of motor vehicle
offenses. By the defendant’s own admission, he would lie, I mean, he
used the word lie, to state [sic] authorities in order to obtain a
license … If it were not for the fact that the Court asked a question
about multiple names and the multiple Social Security Numbers, perhaps
I would not have gotten a response. But I think that’s a factor that
the Court has to take into account in terms of the risk to commit
another offense. (7T 84-12 to 85-3)
Although some trial judges in this state question defendants at
sentencing, it is unlawful and should not be permitted because it is contrary
to the United States and New Jersey Constitutions. The Fifth Amendment to
the U.S. Constitution protects the accused right not to be a witness
against himself. This is codified in N.J.R.E. 503 which allows the Defendant
to remain silent and refuse to answer questions posed by a trial court. In
this case, the Trial Court asked many questions of the Defendant, without
advising him, that he had the right to remain silent and had the right not to
answer any of the questions. Further, the Trial Court used those answers to
find that the Defendant was at risk to commit another offense. Further, prior
to the interrogation of the Defendant, the Trial Court stated to the
defendant, “Okay, Mr. Dugo, this is your opportunity to make a statement
[emphasis supplied] before I proceed with sentencing.” (T7 64-7 to 9)
Specifically, the court questioned the Defendant regarding the following
areas: (1) regarding prior child support arrearages for his now majority
age children; (2) use of alias; and, (3) driving abstract. One of the
questions asked of the Defendant was, “Did you obtain a license in any other
state?” In which the Defendant said he had obtained a Florida and New Jersey
license under different socil security numbers, when he was eighteen and
twenty-six years of age, and that he lied to obtain said drivers licenses.
(7T76-24 to 79-17)
It is respectfully submitted that the Trial Court should not have used the
Defendant’s opportunity to give a statement, turn it into an interrogation
session of the Defendant, and than used those answers against the Defendant.
Accordingly, it is respectfully submitted that the Trial Court, if not explicitly, implicitly used this information against the Defendant when he sentenced the Defendant to two year parole ineligibility, and the two year parole disqualification should not have been imposed for this third degree crime.
POINT FIVE
DEFENDANT WAS DENIED A FAIR TRIAL
BECAUSE TRIAL COUNSEL DID NOT
MEET THE TRIAL COUNSEL DID NOT MEET
THE MINIMUAL STANDARDS OF
COMPETENT COUNSEL
The Trial Court ruled that Officer Reynolds report could come in under the business records exemption to the hearsay rule, and made the following ruling regarding the admission of Officer Reynolds report.
So there’ll be no questions asked of this witness with
respect to the report. You’re free to make arrangements to – if the Prosecutor does not agree to subpoena the custodian of records of the Fort Lee Police Department to make arrangements on your side of the case in order to admit either the full report or redacted version of the report. (3T 151-7 to 12)
Trial counsel was so deficient and incompetent that he rested without ever requesting that Officer Reynolds report be admitted, and read to the Jury as per the Trial Court’s ruling. Prior to that ruling defense counsel had continually throughout the trial attempted to cross-examine the state’s witnesses on Officer Reynolds’ report, arguing that Officer Reynolds’ report was not hearsay, but was an “adoptive admission” and “witness unavailability” exception to the hearsay rule. (3T 142-16 to 149-10) Remarkably, after receiving a favorable ruling from the Trial Court, defense counsel, made the following unintelligent statement:
Mr. Silvera: I don’t – I don’t quite get what the Court is saying.
The Court: You don’t get what I just said?
Mr. Silvera: Judge, no. I can produce exhibits during the State’s case in chief.
The Court: Well—
Mr. Silvera: The rule of evidence allows me to do that.
Ms. Frisica: The Judge is saying you can call the
custodian of records and try and offer it as a business record.
Mr. Silvera: But, Judge, but it’s not a business record. It is not a business record, and that’s a reason why the police statements are hearsay and they’re not allowed to be admitted in front of the jury. (3T 152-3 to 18)
Based on the request of defense counsel, and the urging of the prosecutor, the Trial Court, than decided to change its ruling regarding the Trial Court permitting Officer Meyer to testify under cross-examination admit that Officer Reynolds report did not mention that he had to jump away from the Defendant’s vehicle when he ruled:
I would instruct the jury to disregard the response of
Officer Meyers with respect to his statement that there was no indication in Officer Reynolds’ report of him jumping out of the way. (3T 157-2 to 6)
Based on that ruling defense counsel than argues that he would lose credibility with the Jury if the court instructs the Jury to disregard Officer Meyer's testimony regarding that issue. (3T 157-7 to 159-10) In the attempt to again help defense counsel the trial court, again recites its previous ruling:
Mr. Silvera, perhaps I didn’t make myself clear, but I
indicated that during your side of the case if you chose to do so you have a report which has been marked as D-2.
If the prosecutor did not agree, you could get the
custodian of records to have the report properly
authenticated. And within that report, the information that you are attempting to adduce would be the same information, the absence of the jumping out of the way. You would have that opportunity.
There’s no prejudice to you. (3T 159-11 to 20)
Again, trial counsel’s ineffectiveness and incompetence is exhibited when he states to the court:
Mr. Silvera: -- keeps saying I’m trying to admit the
report. That – All I’m trying to do is to have it marked as an Exhibit.
The Court: The report could be in a redacted form.
Mr. Silvera: But I’m not trying to admit the report, Judge.
And once again, and Judge, I hate to keep going over
this. (3T 160-11 to 18)
When the Jury was called back in the trial court gave the
following instructions:
I’m going to give you an instruction as I had before.
Yesterday, you heard the testimony – yesterday actually and today of Officer Meyers And specifically, it was a response where he was shown an exhibit and asked whether there was any reference in the report to Officer Reynolds jumping out of the way. Okay. Specifically, that response will be stricken, and you will not use that in your deliberations? Do you understand that? (3T 161-25 to 162-8)
We know the rule. The Sixth Amendment to the United States
Constitution states that “the accused shall have the Assistance of Counsel for his defense”, and our Supreme Court has defined “assistance”, as “effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984) In Strickland, the Defendant must show that trial counsel’s performance was so deficient that his performance deprived the Defendant of his Sixth Amendment to “effective assistance of counsel.”
In this case the colloquy between defense counsel and the Trial Court, shows without any doubt, that defense counsel’s level of competency was so deficient that he did not render “effective assistance of counsel” to the Defendant. During the cross-examination of Officer Beatty and Meyer, defense counsel attempted to elicit the admission from these officers that Officer Reynolds police report made no mention that Officer Reynolds had to jump out of the way of the Defendant’s vehicle. After receiving a favorable ruling from the court, defense
counsel reversed his own position, argues against the admission claiming that police reports are not admissible as hearsay. Of course, the prosecutor interested in keeping that piece of inconsistent evidence from the jury, the Trial Court was bullied into instructing the Jury that the testimony of Officer Meyer regarding the report of Officer Reynolds be stricken. Notwithstanding, that ruling, the Trial Court over and over again explained to defense counsel, that he could still have the police report read to the jury in the defense counsel’s case in chief. From the colloquy, it is clear that defense counsel still did not understand the court’s ruling, even after the court explained it to him four times.
The second part of the Strickland test is that, but for, defense counsel’s deficient performance the outcome of the trial would have been different. In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed. 2d 389 (2000) held, that this Defendant must show that he was prejudiced by defense counsel performance, and there is a “reasonable probability” that, but for counsel’s unprofessional errors, the result would be different. The court went on, that a reasonable probability is a probability sufficient to undermine the confidence of the outcome. Williams v. Taylor, 529 U.S. 390-91. Further, “[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record of support.” Strickland v. Washington, 466 U.S. at 687.
It is without dispute that the evidence against the Defendant was tenuous and based only on the subjective, not objective, observations of the testifying police officers. Therefore, viewed in that light, both of the Strickland standards are met here.
In Smith v. Wainwright, 799 F.2d 1442, 1443-1444 (11th Cir.
1986) held that a failure to elicit prior inconsistent statements of a witness constituted ineffective assistance of counsel. Moreover, defense counsel was clearly deficient by failing to have the grand jury transcripts read to the Jury in his case-in-chief, which too, would be admissible under the circumstances.
Accordingly, it is respectfully submitted, that all of the errors set forth by defense counsel supra, show, without any doubt, that defense counsel errors undermined the confidence of the outcome of this trial, since the Jury never had any evidence, before them, that would give them any reasonable doubt regarding the Defendant’s innocence. It wasn’t that the evidence wasn’t there, it was that defense counsel did not have the required skill, knowledge and competence to present it to them, so that the Jury could have heard a complete picture of all the evidence in this case. Further, because of the Trial Court’s reversal regarding the cross-examination of the police officers with the Reynolds report, it is highly likely that defense counsel lost all credibility with the Jury,
making any of his arguments to the Jury regarding reasonable doubt as to the Defendant’s innocence worthless and of no effect.
The case at bar is a text book example of the frightening, but very real chance that Mr. Dugo has been wrongfully convicted and sent to prison.
CONCLUSION
Based on the above mentioned facts and law, Defendant Robert
Dugo asks this Court to reverse the Judgment of Conviction entered in this matter and acquit the Defendant of 3rd degree eluding. If such Relief is not granted, Defendant asks that a new trial on 3rd degree eluding be granted. If such relief is not granted, Defendant asks that the sentence be reversed and that he be re-sentenced.
Respectfully submitted,
___
Vincent J. Sanzone, Jr.
Dated: September 18, 2003
________________________________________
[1] Grand Jury Testimony of Officer Reynolds, Pages 6 & 9.
[2] Rule 801(d) defines business as “includes every kind of business,
institution, association, profession, occupation and calling, whether or not conducted for profit, and also includes activities or governmental agencies.
[3] As the Court is aware, Lungsford was decided under old evidence rule Evid.
R. 63(13), which has now been changed to Evid. R. 803(c)(6). (Biunno, 2001 N.J.
Rules of Evidence, Table of Dispositions, Page 973, (Gann)
Vincent J. Sanzone, Jr., Esq.
YourCivilRights@gmail.com
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