STATE OF NEW JERSEY VS. BARTHOLOMEW P. MCINERNEY(08-10-2334, MIDDLESEX COUNTY AND STATEWIDE) , 450 N.J. Super. 509 ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0545-16T4
STATE OF NEW JERSEY,
Plaintiff-Appellant,
APPROVED FOR PUBLICATION
v.
June 9, 2017
BARTHOLOMEW P. MCINERNEY, APPELLATE DIVISION
Defendant-Respondent.
Argued February 1, 2017 – Decided June 9, 2017
Before Judges Alvarez, Accurso, and Manahan.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment No. 08-10-2334.
Monica do Outeiro, Assistant Prosecutor,
argued the cause for appellant (Christopher
J. Gramiccioni, Monmouth County Prosecutor,
attorney; Ms. do Outeiro, of counsel and on
the brief).
Edward C. Bertucio argued the cause for
respondent (Hobbie, Corrigan & Bertucio,
P.C., attorneys; Mr. Bertucio, of counsel
and on the brief; Elyse S. Schindel, on the
brief).
The opinion of the court was delivered by
ALVAREZ, P.J.A.D.
Defendant Bartholomew McInerney, a former high school
baseball coach, was convicted by a jury of ten counts of second-
degree endangering the welfare of a child, N.J.S.A. 2C:24-4.
State v. McInerney, 428 N.J. Super. 432, 434 (App. Div. 2012),
certif. denied, 214 N.J. 175 (2013). The convictions were later
reversed because of error in the jury instructions. Id. at 444-
50.
On the eve of the retrial, the State was granted leave to
appeal the Law Division judge's September 27, 2016 ruling that
would have allowed defendant to introduce as evidence his own
testimony from the previous trial. The judge's decision was
based on his conclusion that defendant's election not to testify
made him an unavailable witness within the meaning of N.J.R.E.
804(a)(1), an exception to the hearsay rule. We disagree and
now reverse.
Before the retrial, the State had disclosed its intention
to introduce defendant's prior testimony during its case-in-
chief, subject to some redactions. The judge ordered that both
sides could introduce portions of defendant's testimony. When
the State subsequently advised it would not proffer any of
defendant's prior testimony, it also sought to have the judge
bar defendant from doing so. The judge refused.
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The judge viewed defendant's exercise of his Fifth
Amendment right to remain silent as the exercise of a privilege
recognized by N.J.R.E. 804(a)(1). "[T]he ground of privilege"
may render a witness unavailable, thereby making the witness's
prior testimony admissible. See N.J.R.E. 804(a)(1) and
804(b)(1)(A). Thus the judge relied upon the language of the
rule in addition to his reading of State v. Wilson, 57 N.J. 39
(1970), and State v. Farquharson, 321 N.J. Super. 117 (App.
Div.), certif. denied, 162 N.J. 129 (1999).
I.
We review evidentiary rulings deferentially, employing an
abuse of discretion standard. State ex rel. A.B., 219 N.J. 542,
554 (2014). Such rulings are upheld unless "there has been a
clear error of judgment." State v. J.A.C., 210 N.J. 281, 295
(2012). We do not substitute our judgment for that of the trial
court unless the evidentiary ruling "was so wide of the mark
that a manifest denial of justice resulted." State v. Perry,
225 N.J. 222, 232 (2016) (quoting State v. Kelly, 97 N.J. 178
(1984)). The ruling must be consistent, however, with
applicable law. State v. Belliard, 415 N.J. Super. 51, 87 (App.
Div. 2010), certif. denied, 205 N.J. 81 (2011).
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II.
The State argues that a defendant who exercises his Fifth
Amendment privilege while simultaneously being the proponent of
the evidence, that evidence being his own prior testimony,
cannot rely on N.J.R.E. 804(a)(1)'s unavailability exception to
the hearsay rule. Defendant responds that the prior testimony
is not even hearsay because it is literally "not an out-of-court
statement," but rather, "previous in[-]court trial testimony
that was made under oath and subject to full cross-examination."
The rule defines "unavailability," and enumerates the types
of hearsay statements that may be admissible when the declarant
is unavailable. N.J.R.E. 804. Included in the definition of
"unavailable" is a declarant who "is exempted by ruling of the
court on the ground of privilege from testifying concerning the
subject matter of the statement." N.J.R.E. 804(a)(1). Among
the categories of statements that "are not excluded by the
hearsay rule if the declarant is unavailable as a witness" is
"[t]estimony given by a witness at a prior trial of the same or
a different matter, . . . if the party against whom the
testimony is now offered had an opportunity and similar motive
in the prior trial, hearing or proceeding to develop the
testimony by examination or cross-examination." N.J.R.E.
804(b)(1)(A).
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The State's argument rests on Rule 804(a)'s preliminary
paragraph, which carves out from the definition of
"unavailable," those declarants whose "unavailability has been
procured or wrongfully caused by the proponent of declarant's
statement for the purpose of preventing declarant from attending
or testifying." N.J.R.E. 804(a). We believe that a defendant's
invocation of his right not to testify falls squarely within the
parameters of this exception. A declarant is not unavailable
when he is asserting his own Fifth Amendment privilege.
In 1993, New Jersey's Rules of Evidence expanded to include
the exercise of a privilege within the definition of
"unavailable." See Biunno, Weissbard & Zegas, Current N.J.
Rules of Evidence, 1991 Supreme Court Committee Comment on
N.J.R.E. 804(a) (2016); N.J.S.A. 2A:84A Appendix A.1 But nothing
in the amendment conferred upon a criminal defendant the ability
to introduce his own prior testimony by invoking his right to
remain silent at a subsequent trial.
To the contrary, the current definition of "unavailable" in
N.J.R.E. 804(a) excludes witnesses whose unavailability is
caused by the proponent of the statement, as did the definition
1
By order of Chief Justice Robert N. Wilentz, dated September
15, 1992, the recommendations of the 1991 Supreme Court
Committee on the Rules of Evidence were adopted to be effective
July 1, 1993. N.J.S.A. 2A:84A Appendix A.
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in the 1967 Rules of Evidence. The earlier Evidence Rule 62(6)
limited the definition of an "Unavailable witness" as follows:
"A witness is not unavailable when the condition was brought
about by the procurement, wrongdoing or culpable neglect of the
party offering his statement." Thus, when the proponent
procured the witness's unavailability, the hearsay statement was
nonetheless inadmissible.
Although New Jersey has no published case regarding whether
the invocation of the right to remain silent makes a defendant
unavailable for purposes of N.J.R.E. 804(a), numerous other
jurisdictions with similar hearsay rules have considered the
issue and concluded that it does not. Unsurprisingly, Federal
Rule of Evidence 804(a), in language like our N.J.R.E. 804,
limits the criteria for witness unavailability as follows:
"this subdivision (a) does not apply if the statement's
proponent procured or wrongfully caused the declarant's
unavailability as a witness in order to prevent the declarant
from attending or testifying."2
The federal courts have consistently interpreted this
provision as preventing a defendant who invokes his Fifth
2
Prior to 2011, this sentence read: "A declarant is not
unavailable as a witness if exemption, refusal, claim of lack of
memory, inability, or absence is due to the procurement or
wrongdoing of the proponent of a statement for the purpose of
preventing the witness from attending or testifying."
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Amendment right against self-incrimination from offering his own
testimony from a previous trial as part of his defense. A
criminal defendant who invokes his Fifth Amendment privilege
renders himself unavailable to any other party and leaves others
powerless to compel his testimony. United States v. Bollin, 264
F.3d 391, 413 (4th Cir.), cert. denied, 534 U.S. 935, 122 S. Ct.
303, 151 L. Ed. 2d 225 (2001); United States v. Peterson, 100
F.3d 7, 13 (2d Cir. 1996). Although a defendant who has invoked
that privilege is unavailable to any other party, he is not
unavailable to himself. Peterson, supra, 100 F.3d at 13. Nor
can the proponent who seeks to admit a declarant's prior
testimony "create the condition of unavailability and then
benefit therefrom." United States v. Kimball, 15 F.3d 54, 55-56
(5th Cir.), cert. denied, 513 U.S. 999, 115 S. Ct. 507, 130 L.
Ed. 2d 415 (1994).
The rule "was designed to ensure one access to testimony
where, by the actions of the opponent, or at least through no
fault of the testimony's proponent, a desired witness becomes
unavailable." Id. at 56. It is not intended to be used by a
party who creates his own unavailability through the invocation
of his privilege against self-incrimination. Ibid. In other
words, the obligation to protect a defendant's invocation of his
Fifth Amendment rights cannot overwhelm the "basic rule of our
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adversary system" that a defendant who seeks to testify and
offer exculpatory statements must face cross-examination. Ibid.
The concerns of the federal courts are echoed by state
courts that have considered the issue. For example, the Texas
hearsay rules incorporate an exception to the definition of
"unavailable" that contains language similar to the New Jersey
rules. See Tex. R. Crim. Evid. 804(a) (stating that a declarant
is not unavailable as a witness if "the statement's proponent
procured or wrongfully caused the declarant's unavailability as
a witness in order to prevent the declarant from attending or
testifying.").
Affirming a trial court's denial of a defendant's proffer
of his own testimony from a pretrial hearing at his plenary
trial, the Texas Court of Criminal Appeals explained: "By
invoking his Fifth Amendment privilege, appellant procured this
exemption for the purpose of preventing himself from testifying
as a witness. And appellant was the proponent of his prior
testimony. Therefore, under the plain language of the rule,
appellant was not unavailable." Davis v. Texas, 961 S.W.2d 156,
156-57 (Tex. Crim. App. 1998) (applying similar language from
the previous version of the rule); see also Castro v. Texas, 914
S.W.2d 159, 163 (Tex. App. 1995) (holding that the defendant's
testimony from a prior trial was inadmissible hearsay when
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offered by the defendant who invoked his right not to testify at
the trial; a court is not required to permit a defendant "to
offer self-serving evidence to the jury without facing cross-
examination by the State.").
Massachusetts and New York have reached the same
conclusion. See Massachusetts v. Labelle, 856 N.E.2d 876, 878
(Mass. App. Ct.), review denied, 859 N.E.2d 432 (Mass. 2006)
("The defendant, having made himself 'unavailable' at trial by
invoking his privilege under the Fifth Amendment to the United
States Constitution against self-incrimination, could not claim
his prior testimony was excepted from the hearsay rule."); New
York v. Sibadan, 671 N.Y.S.2d 1, 7 (N.Y. App. Div.), appeal
denied, 699 N.E.2d 451 (N.Y. 1998) ("[A] criminal defendant may
not create his unavailability by invoking his privilege against
self-incrimination, and then seek to benefit therefrom by
introducing his own prior hearsay statements not subject to
cross-examination.").
Similarly, the Virginia Court of Appeals has held that a
criminal defendant who invokes his right not to testify at trial
is not unavailable for purposes of the statement-against-
interest exception. Bailey v. Virginia, 749 S.E.2d 544, 548
(Va. Ct. App. 2013). The defendant in Bailey was barred from
introducing his girlfriend's testimony regarding self-serving
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statements he had made to her supporting his theory of the case,
which was that he had not robbed the victim but only taken money
the victim owed him during a drug deal. Id. at 546-49. The
court refused to "interpret the hearsay rule to allow a
defendant to invoke his Fifth Amendment right not to testify as
a shield to protect and insulate him against cross-examination
only to simultaneously employ that right as a sword to obtain
the admission of his alleged extrajudicial prior self-serving
hearsay statements." Id. at 548.
III.
The only published New Jersey case that touches upon a
defendant's use of his prior testimony at a retrial, albeit
decided under the former Rules of Evidence, is State v. Pacheco,
106 N.J. Super. 173, 176-77 (App. Div.), aff'd, 54 N.J. 579
(1969), cert. denied, 400 U.S. 834, 91 S. Ct. 68, 27 L. Ed. 2d
65 (1970). The case does not support the admission of this
defendant's prior testimony.
In Pacheco, the otherwise-competent defendant claimed he
had lost all memory regarding the crime as a result of electro-
shock therapy administered in the interim between the first and
second trials. Id. at 176. His "principal ground of appeal"
was that his total lack of recall made it impossible for him to
"prepare a defense with counsel -- an asserted denial of due
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process." Ibid. We held that "the availability to defense
counsel of the transcript of defendant's testimony at the first
trial, and defendant's right to offer it in his defense in view
of his present amnesia," since he was otherwise competent, meant
his due process rights were satisfied and he could be fairly
tried. Id. at 177. We affirmed the trial judge's decision
allowing the defendant to read his testimony to the jury, in
accord with former Evidence Rule 63(3)(a)(ii), because his
condition was involuntary. Id. at 177.
In line with Pacheco, the current rule recognizes the
admissibility of a declarant's statements if he or she
"testifies to a lack of memory of the subject matter."
N.J.R.E. 804(a)(3). Pacheco's amnesia, which effectively
rendered him unavailable because he had no memory of the
incident, is nonetheless factually distinguishable from a
defendant who makes himself unavailable due to the exercise of a
privilege.
Nor is the admission of defendant's testimony under
N.J.R.E. 804 supported by the two cases the trial judge cited.
In both, a defendant who had testified in the first trial
elected not to testify during the second but the State, rather
than the defendant, was the proponent of the evidence. Wilson,
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supra, 57 N.J. at 45; Farquharson, supra, 321 N.J. Super. at
120.
In Farquharson, the State read to the jury the defendant's
unredacted testimony from the first trial, including questioning
about his criminal conviction history. Farquharson, supra, 321
N.J. Super. at 120. We concluded that, although the prior
testimony was admissible under the hearsay exceptions for the
statement of a party opponent under N.J.R.E. 803(b)(1), and the
prior testimony of an unavailable witness in N.J.R.E. 804(b)(1),
the inclusion of the defendant's prior criminal history violated
his constitutional right not to testify. Id. at 120-21.
Like Farquharson, Wilson focused on the admissibility of a
defendant's earlier testimony when the State, not the defendant,
is the proponent of the evidence. Wilson, supra, 57 N.J. at 45-
46. Wilson was decided under the 1967 Rules of Evidence, before
the evidence rules were amended to make the exercise of a
privilege a circumstance rendering a witness unavailable. Id.
at 47-48. The Court observed:
[T]here is no real difference between
inculpatory statements made at a prior trial
and voluntary confessions. If anything, the
former are more reliable than the latter
since they are made under oath in the
solemnity of the courtroom before judge and
jury and in the presence of [a defendant's]
own counsel.
[Id. at 48.]
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Wilson drew the clear parallel between the admission of a
confession and a defendant's prior testimony. In Wilson and
Farquharson, the State sought to convict a defendant using his
own words, a classic exception to the hearsay rule. Thus none
of the published cases support a defendant's use of his
testimony in a subsequent trial if he elects not to testify.
See Belliard, supra, 415 N.J. Super. at 87 ("We review a trial
judge's evidentiary determinations under an abuse of discretion
standard, provided that the judge's rulings are not inconsistent
with applicable law.") (emphasis added).
IV.
Finally, defendant's contention that his testimony at the
first trial is not hearsay lacks merit. Hearsay "is a
statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth
of the matter asserted." N.J.R.E. 801(c) (emphasis added).
Defendant's prior testimony is an out-of-court statement because
it was not made while testifying at the retrial.
Defendant's suggested interpretation of the language of
N.J.R.E. 801(c) would mean that any trial testimony, subjected
to cross-examination, is not hearsay. That is not the law.
Such an interpretation would render meaningless the exception to
the hearsay rule found in N.J.R.E. 804(b)(1)(a).
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Defendant's decision not to testify during his retrial is
his alone and must be scrupulously honored. See State v.
Kucinski, 227 N.J. 603, 616-17 (2017). That does not mean,
however, that by the mere exercise of this right he leapfrogs
over the Rules of Evidence. A defendant does not make himself
"unavailable" within the meaning of N.J.R.E. 804(a) if he
chooses to remain silent.
Reversed.
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