STATE OF NEW JERSEY VS. TYWAUN S. HEDGESPETH (16-07-2215 AND 16-07-2216, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0850-18T3
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, AS REDACTED
August 3, 2020
v.
APPELLATE DIVISION
TYWAUN S. HEDGESPETH, a/k/a
TYWAUNE HEDGESPETH,
TYWUAN HEDGESPETH,
TYWAUN HEDGSPETH, and
TAVON JAMES,
Defendant-Appellant.
______________________________
Argued telephonically April 1, 2020 –
Decided August 3, 2020
Before Judges Whipple, Gooden Brown, and Mawla.
On appeal from the Superior Court of New Jersey,
Law Division, Essex County, Indictment Nos. 16-07-
2215 and 16-07-2216.
Whitney Faith Flanagan, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Whitney Faith
Flanagan, of counsel and on the briefs).
Lucille M. Rosano, Special Deputy Attorney General/
Acting Assistant Prosecutor, argued the cause for
respondent (Theodore Stephens II, Acting Essex
County Prosecutor, attorney; Lucille M. Rosano, of
counsel and on the brief).
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
Following a jury trial, defendant was convicted of third-degree
possession of a controlled dangerous substance, N.J.S.A. 2C:35-l0(a); and
second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b).
He subsequently pled guilty to second-degree certain persons not to have
weapons, N.J.S.A. 2C:39-7(b)(1). The convictions stemmed from officers
observing the butt of a handgun in defendant's waistband when he urinated in
an alleyway, as a result of which they searched him and recovered the gun.
During the ensuing search incident to his arrest, the officers also found cocaine
on defendant's person. Defendant's pre-trial motion to suppress the evidence
seized was denied.
On December 1, 2017, defendant was sentenced to an aggregate term of
eight years' imprisonment with a five-year period of parole ineligibility. He
now appeals from the conforming judgment of conviction, raising the
following points for our consideration:
POINT I
THE ERRONEOUS ADMISSION OF
[DEFENDANT]'S TWELVE-YEAR-OLD PRIOR
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CONVICTIONS FOR THIRD[-]DEGREE
OFFENSES REQUIRES REVERSAL.
POINT II
THE CONVICTION SHOULD BE REVERSED
BECAUSE THE TRIAL COURT FAILED TO
ESTABLISH THAT JUROR RACIAL BIAS DID
NOT PREJUDICE DELIBERATIONS.
POINT III
THE ADMISSION OF AN AFFIDAVIT SIGNED BY
A NON-TESTIFYING POLICE OFFICER
VIOLATED THE RULES OF EVIDENCE AND THE
CONFRONTATION CLAUSE OF THE NEW
JERSEY AND FEDERAL CONSTITUTIONS.
POINT IV
THE MOTION COURT ERRED IN DENYING
SUPPRESSION WITHOUT A HEARING WHEN
THERE WERE MATERIAL FACTUAL
[DIFFERENCES] BETWEEN THE STATE AND
DEFENSE VERSIONS OF THE EVENTS LEADING
TO [DEFENDANT]'S ARREST AND SEARCH.
POINT V
THE CUMULATIVE EFFECT OF THE
AFOREMENTIONED ERRORS DENIED
DEFENDANT A FAIR TRIAL. (NOT RAISED
BELOW).
Having considered the arguments and applicable law, we affirm.
A-0850-18T3
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I.
We glean these facts from the trial record. At approximately 12:00 p.m.
on April 21, 2016, while conducting visual surveillance in the area of 310
South 14th Avenue in Newark, "a mixture of residential homes" and
"commercial establishments," Detectives Ozzie Ryals and Ricardo Rickards of
the Essex County Sheriff's Narcotics Bureau observed "four to six unidentified
[B]lack males . . . loitering and lingering" in the area. Ryals testified they
were conducting surveillance because they "had received numerous complaints
from concerned citizens about narcotic[s] activity at that particular location."
Subsequently, the unidentified individuals were joined by an individual later
identified as defendant. When defendant "urinat[ed] on the wall" in "an
alleyway . . . between . . . two buildings," and "was fixing himself and
adjusting his clothes," the officers observed what they "thought [was] the butt
of a gun" located in the "waistband of [defendant's] pants."
Ryals communicated his observations to back-up officers in the area,
including a description of defendant's "approximate height[,] . . . weight," and
"clothing." At approximately 2:00 p.m., at least nine detectives, including
Detectives Angel Colon and Jimmy Bradley, responded to the area. Upon
approaching defendant and identifying himself as a law enforcement officer,
Bradley "grabbed . . . [d]efendant, [and] took him to the ground face down," at
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which point both Bradley and Colon observed a gun in "the rear of
[defendant's] waistband."
After Colon "recovered the weapon," identified as "a Hi-Point .45
caliber handgun," another detective "read . . . [d]efendant his rights and placed
him under arrest." A search of defendant's person incident to his arrest
uncovered fourteen "small Ziploc bags" of suspected cocaine in defendant 's
"front waistband." Later testing by a New Jersey State Police (NJSP) forensic
scientist confirmed that the substance recovered from defendant was cocaine,
and ballistics testing by a detective confirmed that the handgun was operable.
The handgun, as well as the magazine and nine rounds of ammunition
recovered from it, were also processed for fingerprints by a crime scene
investigator (CSI) with negative results.
During the three-day trial conducted from August 8 to 10, 2017, in
addition to Ryals, Colon, the forensic scientist, the ballistics detective, and the
CSI testifying for the State, 1 the Essex County Superior Court Criminal
Division Manager authenticated "a certification of no gun permit," which
attested to the fact that her office "searched [the county's] systems" and "found
1
An Essex County Sheriff's Officer assigned to the jail also testified for the
State, and confirmed that defendant's clothing at the time of his arrest was
"inventoried as part of the processing procedures . . . at the jail," and
"subsequently turned over to the [Essex County Prosecutor's Office (ECPO)]."
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no record [of] gun permits for [defendant]." Additionally, Detective John
Cosgrove, assigned to the Trial Section of the ECPO, authenticated an
"affidavit" prepared by NJSP Detective Brett Bloom, certifying that the NJSP
performed a record check and determined defendant "[did] not have a permit to
carry a firearm on record with the State."
Cosgrove explained in detail the procedure for obtaining record checks
from the NJSP and testified he had requested approximately one thousand
similar record checks during his career. Cosgrove also stated that although he
did "not know which particular trooper did the search," the affidavit in this
case was requested by an investigative aide in his unit. Further, Cosgrove
explained that the difference between the NJSP affidavit and the county
affidavit was the former "searche[d] the State database," while the latter only
"search[ed] the County database."
After the State rested, defendant's motion for a judgment of acquittal, R.
3:18-1, was denied by the trial judge, as was defendant's objection to admitting
his prior convictions for impeachment purposes if he elected to testify pursuant
to State v. Sands, 76 N.J. 127 (1978), and State v. Brunson, 132 N.J. 377(1993). Thereafter, defendant did not testify or present any witnesses on his
own behalf, but, through cross-examination, challenged the State's version of
events by, among other things, pointing out that there were no
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contemporaneous central dispatch recordings referring to a man with a gun to
corroborate the detectives' account. 2 After the jury returned the guilty verdict,
defendant entered a negotiated guilty plea to the certain persons charge
stemming from the same incident but charged in a separate indictment. This
appeal followed.
II.
In Point I, defendant argues the judge "mistakenly ruled that the
prosecutor could use his prior convictions to impeach him" if he elected to
testify by erroneously using "the date that [defendant] completed probation,"
instead of "the date that [he] was convicted of the prior offense," as "th e
triggering date for the remoteness determination." According to defendant,
"[t]his was an incorrect interpretation of the rule, . . . infringed [defendant's]
due process right to testify and deprived him of a fair trial."
At the Sands/Brunson hearing, pursuant to N.J.R.E. 609, the State moved
to introduce for impeachment purposes defendant's two prior drug-related
2
Ryals testified there were three different ways to communicate with other
officers, "recorded" radio calls on the central dispatch channel, unrecorded
calls on a "direct" channel that only "detectives assigned to the Narcotic[s]
Unit" could hear, and "cellphone" calls between the detectives if there was
"too much radio chatter." According to Ryals, because "both [he and
Rickards] were relaying information" to the back-up officers simultaneously,
one of them "us[ed] one channel," and "the other . . . us[ed] the other
[channel]."
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convictions, a 2001 third-degree conviction for which defendant was sentenced
to a three-year term of imprisonment with a one-year parole disqualifier,3 and a
2005 third-degree conviction for which defendant was sentenced to four years'
probation. The State argued that the 2005 conviction was "not remote"
because the probationary disposition "ended in 2009 which [was] less than ten
years ago," and the 2001 conviction was admissible based on the 2005
conviction showing a continuing course of criminal conduct. Defendant
objected, arguing that the convictions were "so remote" that there was "no
reason for [defendant] to be prejudiced by something that he did more than
[twelve] years ago."
The judge accepted the State's argument and admitted the prior
convictions for impeachment purposes, reasoning that they were not "too
remote[] as there ha[d] been a continuing course of conduct." See Sands, 76
N.J. at 145 ("If a person has been convicted of a series of crimes through the
years, then conviction of the earliest crime, although committed many years
before, as well as intervening convictions, should be admissible."). However,
the judge determined that the prior convictions "should be sanitized" since
they were also drug related charges. See Brunson, 132 N.J. at 391 (holding
3
The 2001 conviction encompassed two different third-degree drug offenses
charged in two separate accusations, for which defendant received an
aggregate three-year term of imprisonment with a one-year parole disqualifier.
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that in cases in which a testifying defendant's prior conviction "is the same or
similar to the offense charged, the State may introduce evidence of the
defendant's prior conviction limited to the degree of the crime and the date of
the offense but excluding any evidence of the specific crime of which
defendant was convicted.").
"[W]hether a prior conviction may be admitted into evidence against a
criminal defendant rests within the sound discretion of the trial judge," Sands,
76 N.J. at 144, "whose discretion 'is a broad one.'" State v. Murphy, 412 N.J.
Super. 553, 564 (App. Div. 2010) (quoting Sands, 76 N.J. at 144). "However,
we do not defer to a ruling that is based on a mistaken interpretation of an
evidence rule, or that misapplies the rule." State v. R.J.M., 453 N.J. Super.
261, 266 (App. Div. 2018).
"Under N.J.R.E. 609, there are different standards for admissibility of a
prior criminal conviction for impeachment purposes, depending on whether
'more than ten years have passed' since the defendant's conviction 'or release
from confinement for it, whichever is later.'" Id. at 263-64, 267 (quoting
N.J.R.E. 609(b)(1)). "Pursuant to N.J.R.E. 609(a), a defendant's prior criminal
conviction is admissible for impeachment purposes, unless the defense
establishes, pursuant to N.J.R.E. 403, that its admission will be substantially
more prejudicial than probative." Id. at 266; see N.J.R.E. 609(a). "However,
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N.J.R.E. 609(b)(1) creates a presumption that a conviction more remote than
ten years is inadmissible for impeachment purposes, unless the State carries
the burden of proving 'that its probative value outweighs its prejud icial
effect.'" R.J.M., 453 N.J. Super. at 266-67 (quoting N.J.R.E. 609(b)(1)).
Specifically, pursuant to N.J.R.E. 609(b)(1),
[i]f, on the date the trial begins, more than ten years
have passed since the witness'[s] conviction for a
crime or release from confinement for it, whichever is
later, then evidence of the conviction is admissible
only if the court determines that its probative value
outweighs its prejudicial effect, with the proponent of
that evidence having the burden of proof.
In making that determination, pursuant to N.J.R.E. 609(b)(2), "the court
may consider"
(i) whether there are intervening convictions for
crimes or offenses, and if so, the number, nature, and
seriousness of those crimes or offenses,
(ii) whether the conviction involved a crime of
dishonesty, lack of veracity or fraud,
(iii) how remote the conviction is in time,
(iv) the seriousness of the crime.
[N.J.R.E. 609(b)(2)(i) to (iv).]
"However, making findings as to those four factors is not enough. The
court must then engage in the weighing process under (b)(1), to determine
whether the State has carried its burden of proving that evidence of the remote
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conviction would not be more prejudicial than probative." R.J.M., 453 N.J.
Super. at 270 (citing N.J.R.E. 609(b)(1)). Thus, N.J.R.E. 609(b)(1)
encompasses a more stringent admissibility standard, when more than ten
years have passed since the "conviction" or the defendant's "release from
confinement for it," than N.J.R.E. 609(a), applicable when ten years or less
have passed.
Because "confinement" is not defined in the rule, whether discharge
from probation constitutes "release from confinement" for the purpose of the
ten-year time limit under N.J.R.E. 609(b)(1) is an issue of first impression in
this State. "We interpret an evidence rule, as we would a statute, by first
looking at its plain language." R.J.M., 453 N.J. Super. at 267 (quoting State ex
rel. J.A., 195 N.J. 324, 338 (2008)). "We give 'the terms used . . . their
ordinary and accepted meaning,' and we construe the words in the context in
which they appear." Ibid. (quoting State v. Shelley, 205 N.J. 320, 323 (2011));
see also N.J.S.A. 1:1-1; State v. Regis, 208 N.J. 439, 447 (2011).
"Where the meaning is evident from the plain language, we need not
look further in interpreting the rule." R.J.M., 453 N.J. Super. at 269; see also
State v. Rangel, 213 N.J. 500, 509 (2013) ("If giving an enactment's words
their commonsense and ordinary meaning reveals legislative intent, our
mission is complete."); DiProspero v. Penn, 183 N.J. 477, 492 (2005) ("The
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Legislature's intent is the paramount goal when interpreting a statute and,
generally, the best indicator of that intent is the statutory language.").
However, if the "words 'admit[] to more than one reasonable interpretation,' we
consider external sources in attempting to 'ascertain . . . intent.'" State v.
Clarity, 454 N.J. Super. 603, 607 (App. Div. 2018) (first alteration in original)
(quoting State v. Reiner, 180 N.J. 307, 311 (2004)).
In Clarity, on which defendant heavily relies, we considered whether a
"probationary term imposed for [a defendant's] last prior crime [w]as the
equivalent of 'confinement'" under N.J.S.A. 2C:44-3(a), permitting "imposition
of an extended prison term when the defendant was convicted of at least two
separate prior crimes but only if 'the latest' of those crimes was committed or
the defendant's 'last release from confinement' occurred—'whichever is later'—
within ten years of the charged crime." 454 N.J. Super. at 606, 608. We held
that "an individual serving a probationary term cannot be considered to be
confined within the meaning of N.J.S.A. 2C:44-3(a)," id. at 611 (footnote
omitted), because "[b]eing on probation is not the same as being 'confine[d]'
within the meaning of N.J.S.A. 2C:44-3(a)." Id. at 609 (second alteration in
original).
Acknowledging that "the Legislature did not define the word
'confinement,'" we applied "its 'generally accepted meaning,'" and concluded
A-0850-18T3
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that "[t]he Legislature undoubtedly meant that 'confinement' would not occur
unless the defendant had been deprived of his freedom by governmental
authorities." Id. at 609-10.
The reason for this interpretation seems obvious. The
statute was intended to create the judicial discretion to
impose an extended term on an individual incapable of
living a law-abiding life for a significant period of
time. Our Legislature fixed that period of time at ten
years, thus conveying that an individual who is
capable of residing in our communities for more than
ten years without committing a crime should not be
treated as a persistent offender. The portion of the
statute that views that ten-year period as commencing
from the individual's release from "confinement"
simply deprives that individual of the ability to
illogically argue a preceding ten-year crime-free life
when that individual was only able to remain crime-
free because of imprisonment. [4] An individual on
probation, while living with some limitations, is out in
society and remains capable of committing a crime.
Remaining crime free during the preceding ten
years—even when serving a probationary term during
part or all of that ten years—demonstrates that
individual's ability to lead the ten-year crime-free life
anticipated by our Legislature when enacting N.J.S.A.
2C:44-3(a).
4
On the other hand, the underlying rationale for N.J.R.E. 609 is the belief that
a person who has lived contrary to "the rules of society and the discipline of
the law" by committing crimes should not be able to shield his or her
credibility from the jury and present himself or herself as a law-abiding
individual. State v. Sinclair, 57 N.J. 56, 64 (1970) (quoting State v. Harless
459 P.2d 210, 211 (1969)); see also Sands, 76 N.J. at 145 ("A jury has the right
to weigh whether one who repeatedly refuses to comply with society's rules is
more likely to ignore the oath requiring veracity on the witness stand than a
law abiding citizen.").
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[Id. at 610.]
In State v. Boykins, the issue was whether the defendant, who received a
second extended-term sentence for a crime he committed "while he was on
probation and out on bail awaiting trial" on the offense for which he received
his first extended-term sentence, "was 'in custody' within the meaning of
[N.J.S.A.] 2C:44-5(b) when he committed the second offense" and "thus not
subject to the statute's prohibition against multiple extended terms." 447 N.J.
Super. 213, 214-15, 217-18, 223 (App. Div. 2016). We concluded defendant
committed the second offense "while he was 'in custody' as that term was
understood by the drafters of [N.J.S.A.] 2C:44-5(b), and therefore that his
second extended-term sentence was not illegal." Id. at 217-18.
Unlike Clarity, in Boykins, we rejected the defendant's argument that
being "on probation or on bail" is "contrary to the . . . conventional meaning"
of the term being "'in custody.'" Id. at 220 (quoting N.J.S.A. 2C:44-5(b)). We
explained that "[a]lthough there [was] no disputing that [a] defendant would
not be entitled to jail credit for the time he spent on probation or on bail prior
to his trial" pursuant to Rule 3:21-8, "[j]ust because the phrase 'in custody'
appears in both N.J.S.A. 2C:44-5(b) and in Rule 3:21-8 does not mean it
means the same thing in both texts." Boykins, 447 N.J. Super. at 220; see
State v. DiCarlo, 67 N.J. 321, 325 (1975) (noting "the adventitious occurrence
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of like or similar phrases, or even of similar subject matter, in laws enacted for
wholly different ends will normally not justify applying the rule" of in pari
materia as an aid in statutory construction).
More to the point, in R.J.M., we considered the definition of
confinement in relation to N.J.R.E. 609, but in a different context. There, the
issue was "whether the time period during which a defendant has been civilly
committed pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A.
30:4-27.24 to -27.38, must be included in determining the ten-year time
period" for purposes of N.J.R.E. 609(b)(1). 453 N.J. Super. at 264. "We
h[e]ld that because civil commitment is not confinement 'for' the crime of
which a defendant was convicted, the period of civil commitment must be
included in determining the ten-year time period." Ibid. We noted that
"[t]aken in context, 'confined' clearly refers to the custodial portion of a
defendant's criminal sentence, and is not a more general reference to any
deprivation of physical liberty." Id. at 269.
Federal courts have consistently held that "confinement" in Rule 609(b)
of the Federal Rules of Evidence does not include periods of probation. See
Fed. Rules Evid. 609(b) (providing that "if more than [ten] years have passed
since the witness's conviction or release from confinement for it, whichever is
later," evidence of the conviction is only admissible if "its probative value . . .
A-0850-18T3
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substantially outweighs its prejudicial effect; and . . . the proponent gives an
adverse party reasonable written notice of the intent to use it so that the party
has a fair opportunity to contest its use"). Although N.J.R.E. 609 "departs
significantly from its federal analog," because a "conviction or release from
confinement for it," appears in both rules as the starting point for the
calculation of the ten-year time period, the federal courts' interpretation of
confinement is instructive. State v. Harris, 209 N.J. 431, 442, 444 (2012).
In United States v. Stoltz, the court held consistent with "[its] sister
circuits" that "'confinement' for purposes of the ten-year time limit in Rule
609(b) does not include periods of probation." 683 F.3d 934, 939 (8th Cir.
2012) (quoting United States v. Rogers, 542 F.3d 197, 201 (7th Cir. 2008)).
"Rather, Rule 609(b)'s '[ten-year] clock starts at the witness's release from any
physical confinement, or in the absence of confinement, the date of the
conviction.'" Ibid. (alteration in original) (quoting Rogers, 542 F.3d at 201).
In Rogers, the court specified "Rule 609(b) unambiguously starts the clock at
the date of conviction or release from 'confinement,' without any mention of
periods of probation or parole." 542 F.3d at 200.
In United States v. Daniel, where the court also concluded that
"'confinement' excludes probationary periods," 957 F.2d 162, 168 n.4 (5th Cir.
1992), to support its decision, the court pointed to "the change in the language
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of the rule" from the pre-1972 language "that the ten-year period should run
from 'the expiration of the period of . . . parole, probation, or sentence,'" to the
current amended language "that a conviction is not admissible if more than ten
years have elapsed since 'release from confinement.'" Id. at 168. The court
determined "[t]he change in the language . . . forecloses the interpretation [that
release from confinement includes probation]." Ibid.; see also United States v.
Butch, 48 F. Supp. 2d 453, 465 (D.N.J. 1999) ("In calculating [609(b)'s] ten
year period, the term 'release from confinement' does not include any period of
probation or parole.").
Other states with rules similar to Rule 609(b) of the Federal Rules of
Evidence have followed the lead of the federal courts and held that
confinement does not include that portion of a sentence served while on
probation. See Allen v. State, 687 S.E.2d 799, 803 (Ga. 2010) (holding that
"probation does not qualify as confinement" under Georgia's equivalent of Fed.
Rules Evid. 609(b)); State v. Shands, 817 S.E.2d 524, 533 (S.C. Ct. App.
2018) ("[P]robation and parole do not constitute 'confinement' for the purposes
of Rule 609(b); confinement ends when a defendant is released from actual
imprisonment."); Commonwealth v. Treadwell, 911 A.2d 987, 991 (Pa. Super.
Ct. 2006) ("[W]e agree with the federal courts and our sister states, and
conclude that probation does not qualify as confinement under Pennsylvania
A-0850-18T3
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Rule 609(b)," which "was modeled after and differs only slightly from Federal
Rule of Evidence 609(b)."); State v. Dunlap, 930 P.2d 518, 538 (Ariz. Ct. App.
1996) (holding that "probation is not confinement and does not extend the time
for measuring the ten-year period" of Arizona's Rule 609(b), which "source" is
"the federal rule").
We are persuaded that the plain language of N.J.R.E. 609, coupled with
the construction of identical language by the federal courts and sister states, as
well as our prior interpretation of confinement in both related and unrelated
contexts lead us to conclude that probation does not qualify as confinement
under N.J.R.E. 609(b)(1). As we stated in Clarity, the "generally accepted
meaning [of confinement] requires that the confined individual be 'imprisoned
or restrained,' 'deprive[d] . . . of . . . liberty,' or 'place[d] in prison or jail.'" 454
N.J. Super. at 609 (alterations in original) (first quoting Black's Law
Dictionary 362 (10th ed. 2014), then quoting Ballentine's Law Dictionary 244
(3d ed. 1969)). Although a defendant is not technically a free citizen while on
probation, he or she is no longer confined or imprisoned as required under
N.J.R.E. 609(b)(1).
Here, because more than ten years lapsed between defendant's 2005
conviction and his 2017 trial, and he was not confined while on probation for
the 2005 conviction, both prior convictions were presumptively inadmissible
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and the judge erred in ruling to the contrary. Because the judge erroneously
admitted the convictions under N.J.R.E. 609(a)'s less stringent standard, she
did not consider the N.J.R.E. 609(b)(2) factors and did not analyze the
admissibility of the prior convictions under N.J.R.E. 609(b)(1)'s more stringent
standard. Thus, we conclude the judge's evidentiary ruling constituted a
mistaken exercise of discretion.
Next, we address whether the ruling was harmless error. Rule 2:10-2
directs reviewing courts to disregard "[a]ny error or omission . . . unless it is of
such a nature as to have been clearly capable of producing an unjust result."
"[T]hat rule 'requires that there be "some degree of possibility that [the error]
led to an unjust result."'" State v. Scott, 229 N.J. 469, 484 (2017) (alteration in
original) (quoting State v. R.B., 183 N.J. 308, 330 (2005)). "The possibility
must be real, one sufficient to raise a reasonable doubt as to whether [it] led
the jury to a verdict it otherwise might not have reached." R.B., 183 N.J. at
330 (alteration in original).
While the "[e]xclusion of testimony, . . . which is central to a defendant's
claim or defense, 'if otherwise admissible, cannot be held to be harmless
error,'" when it comes to a defendant's testimony, "we look to evidence outside
of defendant's testimony because it is the 'sort of evidence that a jury naturally
would tend to discount as self-serving.'" Scott, 229 N.J. at 484 (quoting
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Skipper v. South Carolina, 476 U.S. 1, 8 (1986)). Thus, under this standard, if
the evidence is strong, and a limiting instruction is given to mitigate the error,
the error may be harmless.
Here, defendant understandably declined to testify in light of the judge's
ruling that if he did so, the State could impeach him with his prior convictions.
However, the State's evidence was so strong that had defendant testified, there
was no real possibility that the jury would have reached a different result.
While defendant challenged the detectives' credibility, particularly whether
they actually observed a handgun in his waistband, their credibility was
corroborated by the fact that a handgun was, in fact, recovered from that
precise location.
Further, at defendant's request, the judge instructed the jury that it may
not draw any inferences adverse to defendant on the basis of his failure to
testify. See State v. Haley, 295 N.J. Super. 471, 475 (App. Div. 1996)
(holding that the trial judge's failure to instruct the jury that it may not draw an
adverse inference from a defendant's exercise of the right not to testify is an
error of constitutional magnitude which requires reversal of any resulting
conviction). Thus, given the strength of the State's evidence and the limiting
instruction provided by the judge, the erroneous evidentiary ruling was not of
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"such a nature as to have been clearly capable of producing an unjust result."
R. 2:10-2.
In Point III, defendant argues that his conviction for possession of a
handgun without a permit should be reversed because the judge "erred in
admitting the [NJSP no-permit] affidavit of a non-testifying witness" in
violation of "both the New Jersey Rules of Evidence and [his] constitutional
right to confrontation." According to defendant, because the affidavit "was
created by a state trooper in response to a request by the [ECPO]," for "the
express purpose of [defendant's] criminal prosecution," and "was signed by a
state trooper who never testified," the "affidavit was . . . testimonial and not
admissible without the signer's appearance as a witness."
Under N.J.S.A. 2C:39-5(b), the State was required to prove that
defendant was "knowingly . . . in . . . possession [of a] handgun . . . without
first having obtained a permit to carry the same." To meet the "no-permit"
requirement, through the testimony of Detective Cosgrove, the State offered
into evidence an affidavit with a raised seal, signed by NJSP Detective Brett
Bloom of the NJSP Firearms Investigative Unit, notarized on August 1, 2017,
and attesting to the fact that a search of the NJSP database revealed that there
was no permit to carry a firearm issued to defendant on record with the State.
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Defendant objected to the admission of the affidavit "without any witness or
foundation."
The judge acknowledged that the affidavit constituted hearsay, but
qualified for admission under N.J.R.E. 803(c)(7), 5 the exception permitting the
admission of
[e]vidence that a matter is not included in a . . . record
kept in accordance with . . . [N.J.R.E.] 803(c)(6), [6]
when offered to prove the . . . nonexistence of the
matter, if the matter was of a kind of which a . . .
record was regularly made and preserved, unless the
sources of information or other circumstances indicate
that the inference of . . . nonexistence is not
trustworthy.
Additionally, notwithstanding the testimony of Detective Cosgrove, the
judge admitted the affidavit under N.J.R.E. 902, 7 providing that "[e]xtrinsic
evidence of authenticity as a condition precedent to admissibility is not
5
We note that N.J.R.E. 803 has been amended since the trial.
6
N.J.R.E. 803(c)(6) permits the admission of:
[a] statement contained in a writing or other record . . .
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 . . . unless the
sources of information . . . indicate that it is not
trustworthy.
7
We note that N.J.R.E. 902 has also been amended since the trial.
A-0850-18T3
22
required with respect to" a "document purporting to bear a signature affixed in
an official capacity by an officer or employee of the State of New Jersey."
N.J.R.E. 902(a); see also N.J.R.E. 902(k) (providing that "[a] writing asserting
the absence of an official record" authenticated as prescribed under N.J.R.E.
902(a) is a valid self-authenticating document). The judge noted that the
notarized affidavit bore the raised seal of a governmental agency and was
signed by an officer of the NJSP acting in his official capacity as the
supervisor of the Firearms Investigative Unit.
We review "evidentiary rulings" by a trial judge under an "abuse of
discretion" standard. State v. Gorthy, 226 N.J. 516, 539 (2016). "Hearsay is
not admissible except as provided by [the Rules of Evidence] or by other law."
N.J.R.E. 802. Under our evidence rules, the "no-permit" affidavit constitutes
hearsay and is therefore only admissible if an exception to the prohibition
against hearsay applies. Applying these principles, we discern no abuse of
discretion in the judge's application of the hearsay rules to the State's proffer
of the "no-permit" affidavit. The affidavit was properly admitted under
N.J.R.E. 803(c)(7) and N.J.R.E. 902(a) and (k). See State v. Rogers, 177 N.J.
Super. 365, 375 (App. Div. 1981) (allowing an affidavit by a non-testifying
officer of the NJSP Firearms Identification Unit indicating that there was no
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23
record of issuance of, or application for, a permit by the defendant to "negate
the existence of a permit.").
Having concluded that the affidavit is admissible under the hearsay
rules, we must next "address whether [it is] testimonial and thus run[s] afou l of
the Confrontation Clause's guarantee" as "embodied in either the federal or our
State Constitutions." 8 State v. Sweet, 195 N.J. 357, 368, 374 (2007); U.S.
Const. amend. VI; N.J. Const. art. I, ¶ 10. "[I]f it is, then the fact of
admissibility for purposes of the exceptions to the hearsay rules is
insufficient." State v. Chun, 194 N.J. 54, 138-39 (2008). "That is to say, if the
evidence is testimonial, reliability as defined by the exceptions to the hearsay
rules does not equate with, and cannot substitute for, confrontation through
cross-examination." Id. at 139.
"Under the standard set forth in Crawford, a testimonial statement
against a defendant by a non-testifying witness is inadmissible under the
Confrontation Clause unless the witness is unavailable and the defendant had a
prior opportunity to cross-examine him or her." Wilson, 227 N.J. at 545
8
While defendant did not expressly make a Confrontation Clause objection to
the affidavit in the trial court, a defendant is not "require[d] to specifically use
the terms 'Confrontation Clause' or 'Sixth Amendment' or to refer to [Crawford
v. Washington, 541 U.S. 36 (2004)] to preserve a Confrontation Clause
challenge." State v. Wilson, 227 N.J. 534, 543 (2017). Thus, we find the
substance of defendant's objection to be sufficient to raise a Confrontation
Clause challenge.
A-0850-18T3
24
(citing Crawford, 541 U.S. at 59). "The threshold issue is, thus, whether the
proffered statement is 'testimonial' in nature." Ibid. In Crawford, the Court
described the class of testimonial statements covered by the Confrontation
Clause as follows:
Various formulations of this core class of testimonial
statements exist: [ex parte] in-court testimony or its
functional equivalent—that is, material such as
affidavits, custodial examinations, prior testimony that
the defendant was unable to cross-examine, or similar
pretrial statements that declarants would reasonably
expect to be used prosecutorially; extrajudicial
statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior
testimony, or confessions; statements that were made
under circumstances which would lead an objective
witness reasonably to believe that the statement would
be available for use at a later trial.
[541 U.S. at 51-52 (second alteration in original)
(citations and internal quotation marks omitted).]
"Although the Crawford Court refrained from offering a 'comprehensive
definition' of the term," Wilson, 227 N.J. at 545 (citing Crawford, 541 U.S. at
68), in Wilson, our Supreme Court "upheld the primary purpose test originally
announced in [Davis v. Washington, 547 U.S. 813 (2006)] and developed in
pre-[Williams v. Illinois, 567 U.S. 50 (2012)] case law." Wilson, 227 N.J. at
546. Under the primary purpose test, "the question is whether, in light of all
the circumstances the 'primary purpose' of the evidence was to 'create an out -
A-0850-18T3
25
of-court substitute for trial testimony.'" Id. at 547 (alterations omitted)
(quoting Ohio v. Clark, 576 U.S. 237, 245 (2015)).
Although our courts have not applied the "primary purpose" test to a
"no-permit" affidavit to date, the test has been applied in a variety of other
contexts. In Wilson, the Court determined that "the map, prepared and
adopted by a governmental entity" and used in the defendant's drug
distribution related prosecution was not testimonial. 227 N.J. at 549. The
Court acknowledged that the map was "used in criminal prosecutions and was
created, in part, for that purpose." Id. at 551. Nonetheless, the Court
explained that the map "does not conclusively establish . . . guilt," depicted "an
objective measurement that require[d] no 'independent interpretation' of raw
data," and "report[ed] a present fact." Id. at 550-51 (quoting State v. Roach,
219 N.J. 58, 81 (2014)).
Furthermore, the map did not "target a particular person" and "may
exonerate a person charged with violating N.J.S.A. 2C:35-7.1(a)," prohibiting
distribution of a controlled dangerous substance within 500 feet of a public
park. Id. at 551.
Importantly, the map was not created in response to a
criminal event. The map was created years before the
commission of any of the offenses alleged here. When
the map was produced, there was no alleged crime
committed by defendant. Nor was the map created to
A-0850-18T3
26
establish a fact relevant to an ongoing police
investigation.
Therefore, the map was not created for the primary
purpose of "establish[ing] or prov[ing] past events
potentially relevant to later criminal prosecution."
[Ibid. (alterations in original) (quoting State v. Bass,
224 N.J. 285, 314 (2016)).]
See also Bass, 224 N.J. at 317 (finding an autopsy report that had been
prepared by a medical examiner who was deceased at the time of the
defendant's trial was testimonial because its primary purpose was "to establish
facts for later use in the prosecution of [that] case"); Roach, 219 N.J. at 81
(finding that a DNA profile created by a State forensic scientist from machine -
generated data that required "subjective analysis" and "independent
interpretation" of the raw data was testimonial); State v. Michaels, 219 N.J. 1,
9, 44 (2014) (finding that a report signed by a supervisor at a private lab
certifying that the defendant would have been unfit to drive based on the
presence of illegal drugs in his blood was testimonial because its primary
purpose was to serve as a "direct accusation against [the] defendant" in the
ensuing vehicular homicide prosecution); Chun, 194 N.J. at 147 (finding the
printout on which the Alcotest reports its readings measuring a person's blood
alcohol level was not testimonial because the printout "reports a present, and
not a past, piece of information or data," cannot be influenced by the Alcotest
A-0850-18T3
27
operator, "and may as likely generate a result that exonerates the test subject as
convicts him or her").
In Melendez-Diaz v. Massachusetts, the United States Supreme Court
determined that documents attesting to the non-existence of a particular record
(often referred to as Certificates of Nonexistence of a Record or CNRs) "fall
within the 'core class of testimonial statements'" covered by the Confrontation
Clause. 557 U.S. 305, 310 (2009). There, the documents at issue that were
found to be testimonial consisted of notarized certificates prepared by State
analysts "showing the results of the forensic analysis performed" on the
substances seized from the defendant in his drug trafficking prosecution. Id. at
308.
We acknowledge a split among federal and state courts as to whether
certain CNRs are testimonial and thereby subject to the Confrontation Clause.
See, e.g., United States v. Burgos, 539 F.3d 641, 645 (7th Cir. 2008) (finding
that "CNR[s] are nontestimonial business records not subject to the
requirements of the Confrontation Clause under Crawford"); United States v.
Urqhart, 469 F.3d 745, 748-49 (8th Cir. 2006) ("[L]ikening the CNR to a
business record, we follow the lead of our sister circuits and hold that a CNR
is nontestimonial evidence under Crawford."); United States v. Cervantes-
Flores, 421 F.3d 825, 833-34 (9th Cir. 2005) (holding that the CNR, certifying
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28
no record of consent to reenter the United States, belonged to a "class of
records . . . kept in the ordinary course of the [agency's] activities, prior to and
regardless of [the defendant's] prosecution," and was therefore nontestimonial
evidence under Crawford notwithstanding the fact that the CNR was made "at
the request of the prosecutor"). But cf. United States v. Orozco-Acosta, 607
F.3d 1156, 1164 (9th Cir. 2010) (holding that the CNR, certifying no record of
consent for re-admission into the United States, was testimonial but the
violation of the defendant's confrontation right caused by its admission was
harmless error); United States v. Martinez-Rios, 595 F.3d 581, 586 (5th Cir.
2010) (holding that because the CNR, certifying no record of consent to
reapply for admission to the United States, was "exclusively generated for use
at trial" and was used to establish a "fact necessary to convict," it was
testimonial and triggered the Confrontation Clause); Tabaka v. District of
Columbia, 976 A.2d 173, 175-76 (D.C. Cir. 2009) (holding that the CNR
generated by a Department of Motor Vehicle official, certifying no record of
an operator's permit having been issued to the defendant, was testimonial and
improperly admitted without the testimony of the affiant in the defendant's
drunk driving related prosecution); Washington v. State, 18 So. 3d 1221, 1223-
25 (Fla. Dist. Ct. App. 2009) (holding that the CNR prepared by a State
Licensing Board employee, certifying no contractor's license had been issued
A-0850-18T3
29
to the defendant, was testimonial and its admission in the defendant's
prosecution for acting as an unlicensed contractor violated the Confrontation
Clause but "was harmless given the other evidence").
We find the analysis used by the Virginia appellate court in Harris v.
Commonwealth, 673 S.E.2d 483 (Va. App. 2009) instructive. There, the
defendant was convicted of failure to re-register as a sex offender. Id. at 484.
On appeal, he argued the trial court violated the Confrontation Clause by
admitting an affidavit prepared by the "custodian of the records for the
Virginia State Police Sex Offender Registry" attesting to the fact that their
records showed no sex offender registration form on file for the defendant
during the relevant time period. Ibid.In concluding that the affidavit was not testimonial in nature, the court
explained
the affidavit in question here is a document
establishing the existence or absence of some
objective fact, rather than detailing the criminal
wrongdoing of the defendant. It was prepared in a
non-adversarial setting, and is not accusatory. The
affiant simply generated the document from objective
facts already in existence. The sex offender registry is
a neutral repository of information that reflects the
objective results of a search of public records. The
information contained in the affidavit simply
summarizes the official registry of the Department of
State Police . . . .
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[Id. at 487 (citations and internal quotation marks
omitted).]
Likewise, here, the NJSP "no-permit" affidavit is not testimonial. The
affidavit establishes the absence of an objective fact, rather than detailing the
criminal wrongdoing of defendant. It is not accusatory in nature and is
generated from facts already in existence. The information contained in the
affidavit simply summarizes information in the NJSP's official database, which
is a neutral repository for such information. Importantly, the database was not
created in response to a criminal event, or to establish a fact relevant to an
ongoing police investigation. It was created before any alleged crime by
defendant, and could have just as easily generated a response that exonerated
defendant. As in Harris, "while the affidavit may have been prepared with an
eye towards litigation, the underlying records are not prepared in anticipation
of litigation." Id. at 486. Because the affidavit is not testimonial, its
admission without Bloom's testimony did not violate the Confrontation Clause.
[At this court's direction, Parts III, V, and VI of
this opinion, which concern matters not pertinent
to the admission of defendant's prior convictions
for impeachment purposes, or the admission of the
affidavit of a non-testifying police witness, have
been omitted from the published version of this
opinion. R. 1:36-3.]
Affirmed.
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31