NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5386-13T3
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION Plaintiff-Respondent, January 30, 2017 v. APPELLATE DIVISION
AMIE MARROCCELLI a/k/a ANNIE M. MARROCCELLI,
Defendant-Appellant. ________________________________
Telephonically Argued January 11, 2017 – Decided January 30, 2017
Before Judges Sabatino, Nugent and Haas.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 11-06-0380.
Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Kirsch, of counsel and on the brief).
Merrill M. Mezzacappa, Assistant Prosecutor, argued the cause for respondent (Michael H. Robertson, Somerset County Prosecutor, attorney; James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
HAAS, J.A.D. On June 16, 2011, a Somerset County grand jury returned an
indictment charging defendant Amie Marroccelli with one count of
second-degree vehicular homicide, N.J.S.A. 2C:11-5(b)(1).1 Prior
to trial, the State made a number of pretrial applications,
including a motion to preclude defendant from introducing
evidence that it was her habit to never drive in the left lane
of a three-lane highway or to exceed the speed limit. On July
3, 2013, the trial judge granted the State's motion and excluded
this evidence.
In March 2014, the matter proceeded to trial before a jury.
During the trial, the trial judge granted the State's motion to
preclude defendant from introducing a note in evidence that she
alleged her husband had written in which he stated that he was
driving the car at the time of the accident that caused the
victim's death.
At the conclusion of the trial, the jury found defendant
guilty of second-degree vehicular homicide. The trial judge
denied defendant's motion for a new trial. On May 23, 2014, the
judge sentenced defendant to seven years in prison, subject to
an 85% period of parole ineligibility pursuant to the No Early
1 At the time of her arrest, the police cited defendant for driving while intoxicated ("DWI"), N.J.S.A. 39:4-50, and making an unsafe lane change, N.J.S.A. 39:4-88(b).
2 A-5386-13T3 Release Act, N.J.S.A. 2C:43-7.2, and three years of parole
supervision upon her release.2 This appeal followed.3
On appeal, defendant raises the following contentions:
POINT I
WHEN DEFENDANT PROFFERED A HANDWRITTEN CONFESSION NOTE FROM HER HUSBAND, WHICH CLAIMED THAT HE, NOT SHE, WAS THE DRIVER OF THE CAR ON THE NIGHT IN QUESTION, THE JUDGE IMPROPERLY EXCLUDED THAT NOTE FROM EVIDENCE.
POINT II
THE JUDGE IMPROPERLY EXCLUDED EVIDENCE THAT DEFENDANT PROFFERED OF HER DRIVING HABITS ON THE ERRONEOUS THEORY THAT, WHILE IT WAS COMPETENT EVIDENCE OF HABIT, IT WAS INADMISSIBLE BECAUSE DEFENDANT WAS DENYING BEING THE DRIVER OF THE CAR ON THE NIGHT IN QUESTION.
POINT III
IN BOTH CROSS-EXAMINATION OF THE DEFENDANT AND IN HER SUMMATION, THE ASSISTANT PROSECUTOR IMPROPERLY USED EVIDENCE OF SPECIFIC INSTANCES OF CONDUCT TO PROVE A CHARACTER TRAIT OF THE DEFENDANT, IN DIRECT VIOLATION OF N.J.R.E. 608(a) AND 405(a). (NOT RAISED BELOW).
2 At sentencing, the judge also found defendant guilty of both motor vehicle violations and imposed appropriate fines and penalties. 3 In September 2014, the trial court granted defendant's application for bail pending appeal and she was released from prison after serving approximately 100 days of her sentence.
3 A-5386-13T3 POINT IV
EVEN IF ANY ONE OF THE COMPLAINED-OF ERRORS WOULD BE INSUFFICIENT TO WARRANT REVERSAL, THE CUMULATIVE EFFECT OF THOSE ERRORS WAS TO DENY DEFENDANT DUE PROCESS AND A FAIR TRIAL.
After reviewing the record in light of the contentions
advanced on appeal, we reverse and remand for further
proceedings.
I.
The primary issue at trial was whether defendant was
driving her car on I-78 in Somerset County on the night it
struck a vehicle driven by the victim. The State presented the
following proofs during the trial.
On October 10, 2010, defendant and her husband, Jason
Bradbury, were in a white BMW registered to defendant. The
couple were returning home after attending the wedding of
defendant's employer's child. At approximately 8:00 p.m., the
only witness to the incident ("the witness") was driving a truck
in the center lane of the three-lane highway. The victim's car
was also in the center lane, about six car lengths ahead of the
witness. Although it was dark, the weather was clear,
visibility was good, and traffic was moderately heavy.
The witness testified that a "white vehicle" driving in the
left lane passed the witness's car and came alongside the
victim's car. That vehicle was later identified as defendant's
4 A-5386-13T3 BMW. After about two seconds, the BMW suddenly swerved into the
center lane, and the passenger side of the BMW struck the
driver's side of the victim's car, forcing both vehicles off the
road. The witness stated that the BMW did not use a turn signal
when it changed lanes and was travelling approximately seventy-
five to eighty miles per hour when it passed him.
The witness did not stay at the scene, but contacted the
police three days later and gave a sworn statement concerning
his observations. At trial, the witness testified that he did
not see whether a man or woman was driving the BMW. However, he
admitted that he referred to the BMW's driver as "that guy" a
number of times in his statement to the police. He also told
the police that the accident was "bizarre," as if "something"
happened to cause the BMW to suddenly change lanes, "like a
child jerking the steering wheel, or . . . somebody dropped a
cigarette in their lap."
The victim's car crashed in a "clump of trees" just before
an entrance ramp. The BMW came to a rest down a hill in a
"wooded marshy-type area" on the other side of the entrance
ramp.
At approximately 8:06 p.m., Trooper John Mucksavage arrived
at the accident scene. The trooper found that the victim was
unconscious and called for an ambulance, which arrived at about
5 A-5386-13T3 8:14 p.m. Shortly thereafter, a helicopter was summoned to
airlift the victim to a hospital. The parties stipulated that
the victim died the next day of a brain hemorrhage caused by a
blunt-impact injury.
About ten minutes after arriving at the scene, Trooper
Mucksavage noticed defendant and Bradbury standing together on
the side of the road. Because he was assisting the victim, the
trooper did not talk to the couple for another ten minutes.
At that point, defendant told the trooper that she had been
driving the BMW in the right lane of I-78 at the time of the
crash. According to defendant, Bradbury was sleeping in the
passenger seat. Defendant told the trooper that she thought she
saw a deer that "looked like a dog" in the road ahead of her and
swerved to the right to avoid it and ended up down the hill in a
ditch. Defendant stated she did not remember seeing the
victim's car or hitting it.
Trooper Mucksavage examined both vehicles and concluded
that the damage to the passenger side of the BMW matched the
damage to the driver's side of the victim's car. Therefore, the
trooper was skeptical of defendant's account of the accident.
However, defendant continued to insist she was driving in the
right lane at the time of the accident and did not remember
striking the victim's car.
6 A-5386-13T3 During his conversation with defendant, Trooper Mucksavage
observed that defendant smelled of alcohol, her eyelids were
droopy, and she had bloodshot eyes. The trooper also testified
that defendant's mood changed from sad to happy and from calm to
excited during the time he spent with her. Defendant told the
trooper that she had been at a wedding reception and drank "a
glass of wine and half of an apple martini." The trooper also
testified that Bradbury was "obviously intoxicated,"
"disheveled," had "trouble standing at times," and smelled of
alcohol.
Defendant was barefoot when Trooper Mucksavage spoke to
her. Defendant told the trooper that she never wore heels when
driving and had changed to flip-flops. However, she stated she
lost the flip-flops while walking in the marshy area at the
crash site. The trooper testified that a pair of high heels
were found on the passenger side floor of the BMW. Defendant
told the trooper that the driver's side door would not open
after the accident and she had to exit the BMW through the
passenger door.
Around 10:00 p.m., the trooper administered field sobriety
tests to defendant and she failed them. The trooper then
arrested defendant and took her to a hospital for a blood test.
Defendant's blood alcohol content ("BAC") was measured at .087%,
7 A-5386-13T3 which was over the legal limit. At trial, a State expert used
extrapolation analysis and estimated that defendant's BAC at the
time of the crash was 0.14%.
The State's accident-reconstruction expert opined that the
BMW moved from the left lane into the center lane, and struck
the victim's car, causing both vehicles to go "off the roadway
to the right and then down the grass embankment" after which the
victim's car hit a cluster of trees. Most of the damage to the
victim's car was caused by it striking the trees, rather than
from the BMW striking it. The expert also found a pair of
women's high-heeled shoes on the passenger side floor of the
BMW. The expert determined that the driver's side seat of the
BMW was pushed forward toward the steering wheel so far that, at
6'1" tall – about the same height as Bradbury – the expert could
not get into the seat.
The State presented three other witnesses -- defendant's
employer, an insurance adjuster, and defendant's doctor -- who
stated that defendant told them she was driving at the time of
the accident and crashed when she swerved to avoid a deer. The
State also introduced a note defendant wrote to the victim's
mother after a court appearance. In the note, defendant thanked
the mother for giving her a "kind gaze" in court, and told her
8 A-5386-13T3 that "the depth of [defendant's] guilt was immeasurable" because
defendant "saw a deer" and "jolted the wheel."
After the State rested, defendant took the stand and told
the jury that all of her statements about driving the car were
part of a plan she and Bradbury concocted to falsely place the
blame on her for the accident.4
Defendant explained that she met Bradbury in September
2009, and that they were engaged in April 2010 and married two
months before the October 2010 car accident. This was
defendant's first marriage, at age thirty-seven. Bradbury had
custody of a child from a prior marriage.
Defendant stated that Bradbury drove the BMW to the wedding
on the night of the accident. At the wedding reception,
defendant stated she had a glass of wine and half an apple
martini. The couple left the reception at around 7:00 p.m.
Defendant testified that Bradbury was again driving the car. On
the way home, Bradbury stopped the car and, at his behest, the
couple had sex in the car for fifteen minutes before resuming
the drive home, again with Bradbury driving.
4 The trial judge conducted a pretrial conference immediately prior to jury selection. During that conference, Bradbury testified that he would invoke his Fifth Amendment right against self-incrimination if he were called by the State to testify at trial. After hearing this testimony, the judge rejected the State's challenge to the validity of Bradbury's invocation of the privilege.
9 A-5386-13T3 Defendant stated that she was in the passenger seat,
staring straight ahead, when she saw "something come in front of
the car." Defendant let out a gasp and threw out her hands,
thinking it was a dog. Later, defendant stated that Bradbury
told her that she also grabbed him. Defendant said that the
next thing she knew, the car had gone off the road, and ended up
in an area full of "deep mud," bushes and trees.
Immediately after the BMW came to a rest, defendant
testified that Bradbury became aggressive and yelled at her that
it was her fault that the car left the road. Bradbury told
defendant that he already had one DWI conviction and could not
risk getting a second because he might lose custody of his child
to his ex-wife. Therefore, Bradbury began pressuring defendant
to claim that she was driving at the time of the accident.
Believing she was not over the legal limit, and feeling
responsible for the accident because Bradbury claimed she
grabbed him, defendant agreed with Bradbury's plan. At that
time, defendant stated that neither she nor Bradbury knew that
the BMW had struck another car or that anyone had been injured.
Defendant testified that after Bradbury called 911, she and
Bradbury switched positions in the car. Before moving to the
driver's seat, defendant took off her high-heel shoes to avoid
injuring Bradbury as she climbed over him. Defendant stated
10 A-5386-13T3 that when she was in the driver's seat, she adjusted the seat
forward, and moved the mirrors to make it look like she had been
driving. Because she never drove a car while wearing heels,
defendant next asked Bradbury to get her flip-flops out of the
trunk and to put her heels there. Although Bradbury got the
flip-flops, he neglected to put the heels in the trunk. As soon
as defendant climbed out of the passenger side door, she lost
the flip-flops in the mud.
When Trooper Mucksavage arrived at the scene, defendant did
most of the talking and consistently told him that she had been
driving. When the trooper asked what lane defendant was in when
she left the road, defendant replied that she was in the right
lane because "[t]hat's where I drive" and this was "an automatic
response." At that time, defendant stated she was still not
aware that another car had been involved in the accident or that
the victim's car had been struck on its driver's side.
According to defendant, at the hospital, and in her later
conversations with her doctor, the insurance adjuster, her
employer, and her parents, she continued to stick to the false
story she and Bradbury created about the accident. However,
defendant testified that after learning in March 2011 that she
was going to be charged for causing the victim's death, she
confronted Bradbury and told him that he needed "to tell the
11 A-5386-13T3 truth." Bradbury refused and continued to insist that the
accident was defendant's fault and that he was afraid he would
lose custody of his child if he came forward. Defendant stated
that the couple's relationship deteriorated and they later
separated.
Thereafter, defendant told her family and friends that she
was not driving at the time of the accident. At trial,
defendant's father and two of defendant's friends testified that
defendant had the habit of never driving when she had consumed
alcohol, and that her character was one of cautiousness and non-
recklessness.
II.
In Point I of her brief, defendant argues that the trial
judge mistakenly exercised his discretion by barring her from
introducing a handwritten note in which Bradbury confessed to
driving the car. Prior to granting the State's motion to
exclude the note, the judge conducted a Rule 104 hearing from
which we derive the following facts.
Defendant stated that on March 29, 2011, she received a
telephone call informing her she was going to be charged and
that she needed to turn herself in. She did so the next day.
At that point, defendant told Bradbury, "[w]e need to tell the
12 A-5386-13T3 truth." Defendant asked Bradbury to "come forward," but he
refused.
In the days that followed, the couple continued to argue
and, according to defendant, things came to a head during the
early morning hours of April 5, 2011. Defendant described the
argument as follows:
I said he needs to come in with me. We need to tell the truth. Even if he believes that I was the cause, that's okay. Just say I was the cause, but you have to tell the truth that you're the driver.
He won't do it. He said he won't lose his [child]. He can't do that for me, but he'll write me a letter just to prove to me that, to calm me down basically. He wanted to give me something to calm me down.
Defendant testified that she watched as Bradbury wrote out
a note by hand and signed it in her presence. The note stated:
To Whom it May Concern;
I, Jason Bradbury, was driving the car at the time of the accident on 10-10-10. [Defendant] was not driving.
Jason Bradbury
2:32 AM 4-5-11
Defendant stated that she told Bradbury that the note "wasn't
good enough" because he needed to come forward and personally
tell the truth to the authorities.
13 A-5386-13T3 Defendant then went to the upstairs bedroom and locked the
door. The next morning, defendant woke up and found that
Bradbury had taped the note to the bedroom door. The note she
presented at the Rule 104 hearing still had tape on it.
Defendant testified that she did not consider giving
Bradbury's note to the authorities because she "didn't think
[the note] was good enough" in light of the fact that Bradbury
was still refusing to personally go to the police or the
prosecutor. Defendant stated that she held onto the note for "a
long time." In July 2012, defendant told her attorney that she
had the note and the attorney advised the prosecutor. Thus, the
State had a copy of the note approximately eighteen months prior
to the trial. Defendant stated that after meeting with her
attorney, she put the original note in an envelope and gave it
to a friend to hold for her.
In a brief oral decision following the Rule 104 hearing,
the trial judge found that the note, if authentic, was a
statement that subjected Bradbury to criminal liability and,
therefore, fell under the hearsay exception for statements
against interest set forth in N.J.R.E. 803(c)(25). However, the
judge stated that defendant was the only witness at the Rule 104
hearing concerning the authenticity of the note and, therefore,
he did "not have the benefit of handwriting analysis, known
14 A-5386-13T3 exemplars of handwriting, signatures of . . . Bradbury from
known reliable sources, or any other means or method by which to
support the assertion that the note is authentic[] and,
therefore, trustworthy."
The judge also found that defendant never gave the note to
the police or the prosecutor's office "because it wasn't good
enough." The judge further observed that the note
was, under any application of law or logic, better than the circumstance in which she found herself charged with a second[-]degree crime, and it is, and to say that it was not produced for who knows how many months after April [2011 until July 2012] . . . to say that it wasn't produced, it wasn't made known in an effort at least to begin the exculpation process is a statement which is simply not worthy of belief.
In denying defendant's subsequent motion for a new trial on
the ground that the note had incorrectly been excluded from
evidence, the trial judge reiterated that while the note was
"clearly exculpatory [of defendant] and clearly exposes Jason
Bradbury to penal consequence, that does not obviate the
necessity for the court to find that the statement is
sufficiently authenticated so as to be reliable as being the
product of [Bradbury's] hand." Once again, the judge observed
that defendant did not present any handwriting experts to
support her claim that Bradbury wrote the note. He also found
that based on defendant's prior statements to the police and
15 A-5386-13T3 others that she was the driver, he did not believe defendant's
claim that Bradbury wrote the note. Therefore, the judge denied
defendant's motion for a new trial.
On appeal, defendant contends that although the trial judge
correctly found that the note subjected Bradbury to criminal
liability and therefore fell under the hearsay exception set
forth in N.J.R.E. 803(c)(25), he incorrectly ruled that
defendant did not properly authenticate the note. Defendant
argues that because she observed Bradbury as he wrote the note
and was also familiar with his handwriting, this was sufficient
to establish a prima facie showing of the note's authenticity.
Thus, defendant asserts that the note should have been submitted
to the jury for a closer examination and an ultimate
determination of its authenticity. By excluding the note from
evidence, defendant contends that the judge "usurped the
credibility-determination role of the jury." We agree with
defendant's contentions.
Established precedents guide our task on appeal. We review
a trial court's evidentiary rulings for abuse of discretion.
State v. Nantambu, 221 N.J. 390, 402 (2015). Consequently,
these rulings will not be overturned unless a manifest injustice
has occurred. State v. J.D., 211 N.J. 344, 354 (2012).
However, "[t]o the extent [a] defendant's argument . . . raises
16 A-5386-13T3 a question of law, . . . our review is de novo and plenary."
Ibid.
We begin by stating our agreement with the trial judge that
the information in the note "tended to subject [Bradbury] to
. . . criminal liability," and was therefore admissible as a
statement against interest under N.J.R.E. 803(c)(25). "The
statement-against-interest exception [to the hearsay rule] is
based on the theory that, by human nature, individuals will
neither assert, concede, nor admit to facts that would affect
them unfavorably. Consequently, statements that so disserve the
declarant are deemed inherently trustworthy and reliable."
State v. Williams, 169 N.J. 349, 358-59 (2001) (quoting State v.
White, 158 N.J. 230, 238 (1999)). Thus, "[t]he law of evidence
recognizes that a statement in which a party confesses to having
committed a crime subjects the declarant to criminal liability,
and therefore constitutes a statement against interest." State
v. Cope, 224 N.J. 530, 554 (2016) (quoting White, supra, 158
N.J. at 238).
The ultimate issue of criminal liability in this case
hinged on whether defendant or Bradbury was driving the BMW at
the time it struck the victim's car. By stating in the note
that he "was driving the car at the time of the accident on"
October 10, 2010 and that defendant "was not driving[,]" and
17 A-5386-13T3 assuming the authenticity of the note, Bradbury clearly placed
himself in jeopardy of a criminal charge, including vehicular
homicide.5 Thus, Bradbury's statement in the note was not
inadmissible hearsay under N.J.R.E. 803(c)(25).
Of course, a writing must be properly authenticated before
it is admitted into evidence. State v. Hannah, ___ N.J. Super.
___ (App. Div. 2016) (slip op. at 12). However, the burden of
establishing a prima facie showing of authenticity "was not
designed to be onerous." Id. at 13 (quoting State v. Hockett,
443 N.J. Super. 605, 613 (App. Div.), certif. denied, ___ N.J.
___ (2016)). N.J.R.E. 901 states that "[t]he requirement of
authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a
finding that the matter is what its proponent claims." Thus,
"[a]uthentication 'does not require absolute certainty or
conclusive proof[.]'" Hannah, supra, (slip op. at 12-13)
(quoting State v. Tormasi, 443 N.J. Super. 145, 155 (App. Div.
2015)). Instead, "only 'a prima facie showing of authenticity'
is required." Ibid. (quoting Tormasi, supra, 443 N.J. Super. at
155).
5 Although Bradbury's BAC was not tested, Trooper Mucksavage testified that Bradbury was "obviously intoxicated."
18 A-5386-13T3 Here, the trial judge concluded that defendant failed to
demonstrate the authenticity of the note, in part, because
defendant did not produce a handwriting expert, "known exemplars
of [Bradbury's] handwriting, signatures of . . . Bradbury from
known reliable sources, or any other means or method by which to
therefore, trustworthy." However, it is well-established that a
witness who has "seen the person write, or by correspondence and
other business transactions with him obtained personal knowledge
of the party's handwriting," may authenticate a document written
by that person. Storm v. Hansen, 41 N.J. Super. 249, 254 (App.
Div. 1956) (citing Wilson v. Clear, 85 N.J.L. 474, 475-76 (Sup.
Ct. 1914)).
Thus, contrary to the trial judge's finding, defendant was
not required to submit corroborating evidence or a handwriting
expert to support her direct testimony that she observed
Bradbury write and sign the note in her presence. Defendant,
who was married to Bradbury, was also familiar with his
handwriting. This testimony was sufficient to satisfy
defendant's burden of making a prima facie showing of
authenticity under N.J.R.E. 901. Therefore, we conclude that
the judge incorrectly excluded the note based upon his belief
19 A-5386-13T3 that additional corroborating evidence was necessary to
authenticate the document.
We also believe that the trial judge mistakenly barred the
note from evidence based on his finding that defendant's claim
that Bradbury authored it was not credible under all the
circumstances of this case. The judge concluded that
defendant's testimony "attributing the source of [the] note and
its authorship to . . . Bradbury [was] not worthy of belief"
because defendant did not immediately turn over the note to her
attorney, the police, or the prosecutor's office after Bradbury
allegedly wrote it. The judge also stated that defendant had an
"interest in exculpating herself from the State Prison term she
most certainly would expect if she was convicted." In addition,
the judge found that defendant's account concerning the note was
inconsistent with the State's proofs, which included defendant's
prior admissions to the police, her doctor, insurance agent,
employer, and parents that she was driving the BMW at the time
of the crash.
However, as we have stated on a number of occasions,
"'[c]ourts are inclined to assess their role in authentication
as that of a screening process[,]' and 'will admit as genuine
writings which have been proved prima facie genuine . . .
leaving to the jury more intense review of the documents.'"
20 A-5386-13T3 Hannah, supra, (slip op. at 13) (second alteration in original)
(emphasis added) (quoting Konop v. Rosen, 425 N.J. Super. 391,
411 (App. Div. 2012)). The judge departed from this well-
established rule in this case. In doing so, he made credibility
determinations concerning the ultimate fact at issue in the
trial, a determination that we have consistently held is within
the jury's, rather than the judge's, province.
Our decision in Konop is instructive on this point. In
that case, the plaintiff "suffered a perforated colon during a
colonoscopy performed by" the defendant. Supra, 425 N.J. Super.
at 397. In the medical malpractice case that followed, the
plaintiff sought to introduce a consultation report prepared by
a resident who examined the plaintiff in the emergency room.
Id. at 397-98. The resident included a notation in the report
stating that during the colonoscopy, the plaintiff was "moving
too much" and that the defendant called for a surgical consult
while "performing" the procedure. Id. at 400.
At his deposition, the resident could not recall speaking
to the defendant in the emergency room, and stated that he often
obtained the information for his reports from his supervisors.
Id. at 399. The defendant denied making the statement. Id. at
400. The plaintiff's expert exclusively relied upon the
notation in the resident's report to support his conclusion that
21 A-5386-13T3 the defendant deviated from accepted medical standards in her
treatment of the plaintiff. Id. at 397.
The trial judge granted the defendant's motion to exclude
the notation from the consultation report because the plaintiff
did not conclusively establish to the judge's satisfaction that
the defendant made the statement. Id. at 401. Therefore, the
plaintiff's expert's opinion no longer had any support in the
record and the judge granted the defendant's motion for summary
judgment. Ibid.
On appeal, we found that the question of whether the
defendant made the statement contained in the report was a
factual question for the jury, rather than the trial judge. Id.
at 421-22.6 In his comprehensive decision, our colleague Judge
Carmen Messano conducted a thorough review of the case law from
which he distilled specific procedures that a trial court should
follow in determining whether a disputed statement in a document
should be submitted to the jury for its review or excluded based
upon the judge's personal determination of its trustworthiness.
In Konop, Judge Messano concluded that where there is a
"condition precedent to admissibility," such as the authenticity
of a document, "the judicial function is limited. The judge
6 We determined that if the jury found that the defendant made the statement, it would be admissible as a statement of a party- opponent under N.J.R.E. 803(b)(1). Id. at 407.
22 A-5386-13T3 does not determine whether the proponent has incontrovertibly
proven the 'condition.' The exercise of judicial discretion
requires only a determination that there exists sufficient
evidence for the jury to decide the condition in favor of the
proponent of the evidence." Id. at 413. Although the
authenticity of the consultation report was not at issue in
Konop, the single issue in dispute was similar to that involved
in the present case. In Konop, the sole question was whether
the defendant made the statement that was included in the
report. Id. at 409. Here, the ultimate issue in dispute was
whether Bradbury wrote the note admitting he was driving at the
time of the accident.
Judge Messano concluded that "when the 'condition' for
admissibility is purely a factual determination as to whether
the hearsay statement was made . . . , the issue should be
submitted to the jury to determine whether the condition was
fulfilled." Id. at 420. Adherence to this rule is especially
important "when the disputed fact 'is so closely tied to an
ultimate issue in the case.'" Ibid. (quoting Forbis v.
McGinty, 292 F. Supp. 2d 160, 162 n.2 (D.Me. 2003)). The judge
further stated that
in deciding whether to submit the issue to the jury, the exercise of judicial discretion under N.J.R.E. 104(a) is limited to whether the proponent adduced sufficient
23 A-5386-13T3 evidence, direct and circumstantial, to permit a reasonable jury to conclude by a preponderance of the evidence that the fact was proven. If so, the evidence should be admitted, and the jury should be instructed that it only may consider the evidence if it concludes the contested fact is true.
[Ibid.]
Although Konop was a civil case, Judge Messano noted that
this standard was particularly appropriate in a criminal case because "to deny the jury the possibility of making a particular fact- finding simply because the court would determine the fact otherwise might in criminal cases deprive a defendant of his Sixth Amendment right to have his case tried to a jury."
[Id. at 417 (quoting United States. v. Barletta, 652 F.2d 218, 219 (1st Cir. 1981)).]
Accordingly, we have subsequently applied the Konop rule in
criminal cases involving the authentication of documents and
other tangible evidence.
For example, in Hockett, a trial judge excluded several
photographs from evidence because he did not believe that the
authenticating witness was credible. Supra, 443 N.J. Super. at
613. We reversed and remanded for a new trial. Id. at 609.
Citing Konop, we held that
even if there was some legitimate reason for questioning the witness's veracity about what the photographs depicted, the better course was for the judge, in his gatekeeping role, to acknowledge the photographs
24 A-5386-13T3 appeared to be what they purported to be and leave for the factfinder a "more intense review" of the photographs and the credibility of the authenticating witness.
[Id. at 614-15 (citing Konop, supra, 425 N.J. Super. at 411.]
Similarly, in Tormasi, the trial judge at a post-conviction
relief hearing precluded the defendant from introducing an
"affidavit" purportedly written by the defendant's father in
which the father confessed to committing the murder for which
the defendant was convicted. Supra, 443 N.J. Super. at 150.
The judge found that the document was inadmissible because it
"'was not hand-written, not signed, and there is no way of
authenticating it[.]'" Ibid. However, the defendant had
presented the testimony of his siblings, who both claimed that
they spoke to their father about the affidavit in the past and
he acknowledged writing it. Id. at 154-55.
As in the cases discussed above, we noted that the
defendant had presented sufficient evidence to support a finding
that the document was authentic. Id. at 155-56. Once that
burden was met, we held that
the judge was obliged to acknowledge the statement appeared to be what it purported to be and leave for the factfinder "more intense review of the document[]," . . . and a weighing of the testimony of the
25 A-5386-13T3 percipient witnesses.[7] Because the judge did not apply this authentication method, we are compelled to remand.
[Id. at 156 (alteration in original) (quoting Konop, supra, 425 N.J. Super. at 411).]
Under those circumstances, which involved a bench trial, we
found that the judge should have admitted the document into
evidence and then, in his dual role as the factfinder,
considered whether the document and all other evidence warranted
the relief requested by the party. Id. at 157.
Applying these principles in this case, we conclude that
defendant presented sufficient evidence, through her testimony
that she saw Bradbury write the note and was familiar with his
handwriting, to meet her burden of establishing a prima facie
case of authenticity with regard to the note. Therefore, the
trial judge should have admitted the note into evidence and
7 We acknowledge that there is a brief statement in Tormasi indicating that "a judge in his [or her] gatekeeping role . . . may to some degree, consider the credibility of the authenticating witnesses." Id. at 156. Although the court cited Konop, supra, 425 N.J. Super. at 411, to buttress this statement, we fail to discern support for this proposition in Judge Messano's opinion in Konop which, as discussed above, plainly held that questions of credibility are best left to the jury, particularly in criminal cases. However, we further note that in Tormasi, the trial judge conducted a bench trial and, therefore, was required to make rulings as to both the authenticity of evidence and the credibility of the witnesses. This, we believe, explains the Tormasi court's reference to credibility determinations quoted above.
26 A-5386-13T3 given the jury the opportunity to subject it and defendant's
testimony to "more intense review."
We reject the State's argument that the trial judge's
mistake in displacing the jury's role in determining defendant's
credibility was "harmless error" under the circumstances of this
case. As our Supreme Court recently reiterated in State v.
J.R., ___ N.J. ___ (2017),
An error will not lead to reversal unless it is "clearly capable of producing an unjust result." R. 2:10-2. Thus, even though an alleged error was brought to the trial judge's attention, it will not be grounds for reversal if it was "harmless error." State v. Macon, 57 N.J. 325, 337-38 (1971).
An evidentiary error will not be found "harmless" if there is a reasonable doubt as to whether the error contributed to the verdict. State v. McLaughlin, 205 N.J. 185, 211-12 (2011) (citing Macon, supra, 57 N.J. at 338). The prospect that the error gave rise to an unjust result "must be real [and] sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." State v. Lazo, 209 N.J. 9, 26 (2012) (second alteration in original) (quoting [State v.] R.B., . . . 183 N.J. [308,] 330 [2005]). As the Court noted in [State v.] W.B., . . . "[c]onvictions after a fair trial, based on strong evidence proving guilt beyond a reasonable doubt, should not be reversed because of a technical or evidentiary error that cannot have truly prejudiced the defendant or affected the end result." 205 N.J. [588,] 614 [(2011)].
[(slip op. at 29).]
27 A-5386-13T3 A defendant "has the right to introduce evidence that
someone else committed the crime for the purpose of raising
doubt about his [or her] own guilt." Cope, supra, 224 N.J. at
552 (citing State v. Koedatich (Koedatich II), 112 N.J. 225,
297, 299 (1988)). "A confession by another is of such probative
importance in a criminal trial that its exclusion . . . has been
held a denial of the defendant's due-process right to a fair
trial." Id. at 554 (quoting State v. Jamison, 64 N.J. 363, 378
(1974)). Thus, "[a] court cannot bar the admissibility of
third-party guilt evidence that 'has a tendency to endanger
reasonable doubt with respect to an essential feature of the
State's case.'" Id. at 552 (quoting State v. Fortin (Fortin
II), 178 N.J. 540, 591 (2004)).
Here, the trial court's erroneous evidential ruling kept
from the jury the only tangible, corroborative evidence
defendant had concerning her claim that Bradbury was driving the
car on the evening of the accident and, therefore, was
responsible for causing the victim's death. The exclusion of
the note clearly harmed defendant's defense because if the note
were found to be authentic by the jury, it would have strongly
supported defendant's testimony that she initially lied to the
police and others in order to keep her husband from being
arrested for another DWI.
28 A-5386-13T3 While the State correctly points out that defendant
consistently claimed she was driving the BMW prior to giving the
note to her attorney and the prosecution eighteen months before
the trial, the State's evidence was likewise totally dependent
on whether the jury found defendant's earlier admissions to be
credible. Because the note clearly went to the ultimate issue
of whether defendant or Bradbury was driving the BMW, we
conclude that the judge's error in excluding this evidence was
"clearly capable of producing an unjust result." Ibid.
Therefore, we reverse defendant's conviction and remand for
further proceedings.
III.
Although we have determined that this matter must be
remanded for a new trial or other proceeding, we briefly address
defendant's remaining contentions on appeal. In Point II of her
brief, defendant asserts that the trial judge mistakenly
exercised his discretion by preventing her from presenting
evidence concerning her driving habits to support her claim that
she was not driving the BMW at the time of the accident. Again,
we agree.
N.J.R.E. 406(a) states: "Evidence, whether corroborated or
not, of habit or routine practice is admissible to prove that on
a specific occasion a person . . . acted in conformity with the
29 A-5386-13T3 habit or routine practice." Before trial, defendant proffered
three witnesses -- defendant's father and two of her friends --
to demonstrate three aspects of her driving habits: (1) that
she never drives in the left lane of a three-lane highway; (2)
does not drive in excess of the speed limit; and (3) never
drives after drinking alcohol. The State objected and filed a
pre-trial motion to bar defendant's witnesses from providing
this testimony.
In granting the State's motion to preclude the admission of
testimony concerning defendant's habits of never driving in the
left lane of a three-lane highway or over the speed limit, the
judge focused on the "acted in conformity with" language of
N.J.R.E. 406(a). Because defendant now denied that she was the
driver of the BMW, the judge concluded that the proffered
testimony would not demonstrate that she "acted in conformity
with" her driving habits on the night of the accident. In
further explaining his reasoning, the judge stated:
It seems to this [c]ourt that one cannot act in conformity with a habit if one is not engaged in the activity to which the habit applies: that is to say, that it cannot be said, at least as to [defendant's] habit of not driving in the left lane on a three-lane highway and never exceeding the speed limit, that she acted in conformity with those habits on October 10, 2010, if she wasn't engaged in the conduct to which the habits apply; that is, she was not driving the automobile.
30 A-5386-13T3 Somewhat contradictorily, however, the judge permitted defendant
to present evidence at trial concerning her habit of never
driving if she has been drinking.
We are satisfied that the trial judge took too restrictive
a view of N.J.R.E. 406(a) by reading it to mean that habit
evidence cannot be used to "prove a negative," i.e., that
defendant was not driving. The purpose of habit evidence is to
show the "person's regular practice of responding to a
particular kind of situation with a specific type of conduct."
State v. Kately, 270 N.J. Super. 356, 362 (App. Div. 1994). In
this case, defendant sought to establish her regular practice
that if she is in a car that is speeding in the left lane of a
three-lane highway, she is never the driver because she never
drives in that lane and never exceeds the speed limit. Thus,
defendant's proffer was clearly within the intendment of the
rule and the judge erred by barring the jury from considering
In Point III of her brief, defendant argues for the first
time on appeal that the assistant prosecutor improperly referred
to "evidence of specific instances of conduct" by defendant that
were "not the subject of a conviction" to attempt "to prove a
character trait of . . . defendant" in violation of N.J.R.E.
608(a) and N.J.R.E. 405(a). Specifically, the prosecutor
31 A-5386-13T3 asserted that because defendant demonstrated that she could be
"assertive" on other occasions, this disproved her contention
that she meekly acceded to Bradbury's request that she take the
blame for the accident. Defendant did not object when the
prosecutor introduced this subject during her cross-examination
of defendant and during her closing summation to the jury.
We generally "decline to consider questions or issues not
properly presented to the trial court . . . unless the questions
so raised on appeal go to the jurisdiction of the trial court or
concern matters of great public interest." State v. Robinson,
200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indemn. Ins. Co.,
62 N.J. 229, 234 (1973). Because we are remanding this matter,
defendant will have the opportunity to raise an appropriate,
timely objection should this issue arise in a new trial or other
proceeding. Therefore, it is not necessary to consider
defendant's argument at this time. Ibid.
Finally, in Point IV, defendant argues that if any of the
trial judge's errors are insufficient by themselves to warrant a
reversal, the cumulative effect of those errors casts sufficient
doubt on the verdict to require reversal. As discussed above,
we have determined that defendant's conviction must be reversed
and the matter remanded for further proceedings, including a new
trial if necessary. Therefore, defendant's contention is moot.
32 A-5386-13T3 Reversed and remanded. We do not retain jurisdiction.
33 A-5386-13T3