NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0591-13T2
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. April 6, 2016
APPELLATE DIVISION EBONEE R. WILLIAMS, a/k/a EBONY WILLIAMS, a/k/a FELTON N. WILLIAMS, a/k/a ABONEE WILLIAMS, a/k/a EBONEE ROSE WILLIAMS, a/k/a EEBONY WILLIAMS,
Defendant-Appellant.
____________________________________
Submitted October 20, 2015 – Decided April 6, 2016
Before Judges Reisner, Leone and Whipple.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-08-1194.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Miriam Acevedo, Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
LEONE, J.A.D. Defendant Ebonee R. Williams appeals from her conviction
for drug offenses. Her principal challenge is to the ruling
that her formal statement during plea negotiations could be used
to impeach her if she testified. We hold that N.J.R.E. 410
generally prohibits the use of any statement made during plea
negotiations to impeach the person making the statement, but
that a defendant can waive that protection under appropriate
circumstances. We affirm, subject to a remand for a hearing to
determine if defendant waived that protection by agreeing her
statement could be used against her at trial. We reject her
other claims.
I.
On May 13, 2011, New Brunswick Police Department officers
executed a search warrant at an apartment on Livingston Avenue.
In the apartment, the officers found defendant. They located
mail addressed to both defendant and co-defendant Raymond Davila
bearing the apartment's address. In the kitchen stove, the
officers found three "bricks" of heroin, each containing 150
bags. In a bedroom containing women's clothing and shoes, the
officers found: seven "decks" of heroin on a television stand;
two "bundles" containing twenty bags of heroin on top of the
dresser; and one clear bag of about twelve grams of cocaine in a
dresser drawer. Also in the bedroom, the officers found
2 A-0591-13T2 defendant's purse, which contained her identification, empty
packets of heroin, and other drug paraphernalia. The officers
also discovered a loaded shotgun under a mattress and a loaded
handgun in the bedroom.
Defendant and Davila were charged with possession of the
items found in the Livingston apartment. After a six-day trial,
defendant and Davila were both convicted of conspiracy under
N.J.S.A. 2C:5-2 to possess a controlled dangerous substance
(CDS) with intent to distribute in violation of N.J.S.A. 2C:35-
5(a)(1), (b)(3); possession of heroin, N.J.S.A. 2C:35-10(a)(1);
and possession of cocaine, N.J.S.A. 2C:35-10(a)(1). Defendant
was also convicted of possession of heroin with intent to
distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3); and possession of
heroin with intent to distribute within 1000 feet of a school,
N.J.S.A. 2C:35-7.1 For these third-degree offenses, the trial
court sentenced defendant to a total of three years in prison
with one-and-one-half years of parole ineligibility.
Defendant appeals from her judgment of conviction dated
June 11, 2013, raising the following arguments:
1 Davila was acquitted of those crimes. Both defendant and Davila were acquitted of possession of cocaine with intent to distribute; possession of cocaine with intent to distribute within 1000 feet of a school; possession of firearms while in the course of committing a drug distribution offense; unlawful possession of a handgun; and possession of a sawed-off shotgun.
3 A-0591-13T2 POINT I - THE TRIAL COURT ERRONEOUSLY RULED THAT THE DEFENDANT'S STATEMENT – MADE AS PART OF A PLEA AGREEMENT THAT WAS WITHDRAWN BY THE STATE – WAS ADMISSIBLE TO IMPEACH HER CREDIBILITY.
POINT II - THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED.
A. THE DEFENDANT'S PRETRIAL MOTION TO DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED.
B. THE MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
POINT III - THE TRIAL COURT FAILED TO INSTRUCT THE JURORS ON ALL THE ESSENTIAL ELEMENTS OF THE OFFENSE OF POSSESSION OF CDS WITH THE INTENT TO DISTRIBUTE.
POINT IV - THE DISCLOSURE OF THE IDENTITY OF THE CONFIDENTIAL INFORMANT WAS ESSENTIAL FOR A FAIR DETERMINATION OF THE ISSUES.
POINT V - THE STATE FAILED TO ESTABLISH THE CHAIN OF CUSTODY OF THE EVIDENCE.
POINT VI - THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ISSUANCE OF A SEARCH WARRANT WITHOUT PROBABLE CAUSE.
II.
The first issue concerns whether defendant's formal
statement to the Middlesex County Prosecutor's Office (MCPO)
could be used to impeach her if she took the stand at trial. We
must hew to our standard of review. "'[C]onsiderable latitude
is afforded a trial court in determining whether to admit
4 A-0591-13T2 evidence, and that determination will be reversed only if it
constitutes an abuse of discretion.'" State v. Kuropchak, 221
N.J. 368, 385 (2015) (citation omitted). "But evidentiary
rulings that undermine confidence in the validity of the
conviction or misapply the law are subject to reversal." State
v. Weaver, 219 N.J. 131, 149 (2014).
Defendant applied pre-indictment for admission to Drug
Court. She was tentatively accepted on the condition that she
give a truthful, formal statement about the involvement of her
co-defendants Davila, Justin Jenkins, and Llamar Jenkins.2
Defendant voluntarily appeared with her attorney for a
videotaped interview. Defendant signed a form advising her of
her Miranda rights.3 The MCPO investigator also advised
defendant orally of her Miranda rights, which defendant said she
understood. In particular, defendant said she understood that
"if you decide to make any statement, you must understand that
it may later be used against you in the event of a trial."
2 Because they share a last name, we will refer to Justin and Llamar by their first names. The indictment charged Justin and Llamar with the same crimes as defendant and Davila. Llamar was also charged with resisting arrest and obstructing justice during the search. They separately pled guilty to conspiracy to distribute CDS. 3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
5 A-0591-13T2 During the interview, the investigator and defendant's
counsel both questioned defendant. Defendant stated as follows.
She resided in the Livingston Avenue apartment with Davila, the
father of her son. Her nephew Llamar visited the apartment, and
her nephew Justin stayed in the apartment most of the time. She
and Davila were staying in the living room, and Justin was the
only person living in the bedroom prior to the search. It was
Justin who had access to the bedroom, kept his possessions in
the bedroom, and used the dresser. The guns belonged to Justin,
and the drugs belonged to Justin, Llamar, or Davila, all of whom
were selling drugs.
In the interview, defendant initially said she was unaware
of any drugs in the apartment or drug sales from the apartment.
Later in the interview, she stated that, as a heroin addict, she
knew there was heroin in the apartment for her use, which she
got from Davila. She also said that Justin and Llamar were
involved in the distribution of drugs from the apartment, and
that she knew Justin had drugs in the apartment, but that she
was just a "user" and had no involvement in the drug
distribution.
The trial prosecutor determined that defendant's formal
statement did not sufficiently implicate her co-defendants, so
the State's "drug court plea offer was withdrawn." Later, the
6 A-0591-13T2 prosecutor gave notice that if defendant took the witness stand,
he would move to use "her attempted guilty plea against her for
impeachment purposes." The trial court ruled the State could
not use the formal statement affirmatively in its case-in-chief,
but could use it for impeachment if defendant took the stand and
testified contrary to her formal statement.
Defendant argues this ruling conflicted with N.J.R.E. 410.
N.J.R.E. 410 provides:
Except as otherwise provided in this rule, evidence of a plea of guilty which was later withdrawn, of any statement made in the course of that plea proceeding, and of any statement made during plea negotiations when either no guilty plea resulted or a guilty plea was later withdrawn, is not admissible in any civil or criminal proceeding against the person who made the plea or statement or who was the subject of the plea negotiations. However, such a statement is admissible (1) in any proceeding in which another statement made in the course of the same plea or plea discussions has been introduced and the statement should in fairness be considered contemporaneously with it, or (2) in a criminal proceeding for perjury, false statement, or other similar offense, if the statement was made by the defendant under oath, on the record, and in the presence of counsel.
[N.J.R.E. 410 (emphasis added).]
On its face, N.J.R.E. 410 precludes the admission of
evidence of a statement made during plea negotiations, absent
exceptions not applicable here. See State v. Williams, 184 N.J.
7 A-0591-13T2 432, 449 (2005) (noting that "most statements made during
criminal plea negotiations" under N.J.R.E. 410 "are generally
inadmissible in subsequent proceedings").
The drafters of N.J.R.E. 410 stated that it "generally
follows Fed. R. Evid. 410" (eff. 1980) [hereinafter the Federal
Rule]. Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, 1991 Supreme Court Committee Comment on N.J.R.E. 410
(2015) [hereinafter Committee Comment]. The pertinent language
in N.J.R.E. 410 is essentially the same as in the Federal Rule.4
By following the Federal Rule, the drafters "expand[ed] the
exclusion to include not only an accused's offer to plead guilty
but also any statements made during plea negotiations," and
"effectively supersede[d]" our holding in State v. Boyle, 198
4 In 1991, the Federal Rule provided, in pertinent part:
Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: . . . (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
[Fed. R. Evid. 410 (eff. 1980) (emphasis added).]
The Federal Rule still provides that "evidence of the following is not admissible[:] . . . (4) a statement made during plea discussions[.]" Fed. R. Evid. 410 (eff. 2011).
8 A-0591-13T2 N.J. Super. 64 (App. Div. 1984). Committee Comment, supra;
accord State v. Brabham, 413 N.J. Super. 196, 207-08 (App.
Div.), certif. denied, 203 N.J. 440 (2010); State v. Malik-
Ismail, 292 N.J. Super. 590, 595 (App. Div. 1996). In Boyle, we
refused to follow the Federal Rule and instead held that the
former New Jersey rule did "not prohibit introduction of the
accused's voluntary statements made during the plea negotiation
process." Boyle, supra, 198 N.J. Super. at 68-73 (interpreting
Evid. R. 52(2)).
N.J.R.E. 410 adopted the Federal Rule's rationale that "for
'plea bargaining to work effectively and fairly, a defendant
must be free to negotiate without fear that his statements will
later be used against him.'" Brabham, supra, 413 N.J. Super. at
208 (quoting Boyle, supra, 198 N.J. Super. at 69 (quoting United
States v. Herman, 544 F.2d 791, 796 (5th Cir. 1977))). We have
applied N.J.R.E. 410 to bar admission "in the State's main case"
of statements made by defendants during plea negotiations.
Malik-Ismail, supra, 292 N.J. Super. at 595; accord Brabham,
supra, 413 N.J. Super. at 200, 209-10. No New Jersey case has
resolved whether such statements can be used to impeach a
defendant's trial testimony. Cf. State v. Mustaro, 411 N.J.
Super. 91, 98 n.3 (App. Div. 2009).
9 A-0591-13T2 In deciding that issue, we consider case law under "the
source rule of N.J.R.E. 410," namely the Federal Rule. Malik-
Ismail, supra, 292 N.J. Super. at 597. The Courts of Appeals
had long ruled that "[t]he legislative history of these Rules is
quite clear that plea negotiation statements are not admissible
to impeach a defendant." United States v. Mezzanatto, 998 F.2d
1452, 1454 (9th Cir. 1993), rev'd on other grounds, 513 U.S.
196, 115 S. Ct. 797, 130 L. Ed. 2d 697 (1995); accord, e.g.,
United States v. Acosta-Ballardo, 8 F.3d 1532, 1535 (10th Cir.
1993); United States v. Lawson, 683 F.2d 688, 692 (2d Cir.
1982). The United States Supreme Court, addressing both the
Federal Rule and Fed. R. Crim. P. 11(e)(6) in Mezzanatto,
"certainly agree[d] that the Rules give a defendant the right
not to be impeached by statements made during plea discussions."
United States v. Mezzanatto, 513 U.S. 196, 200 n.2, 115 S. Ct.
797, 801 n.2, 130 L. Ed. 2d 697, 703 n.2 (1995).
Other States have followed the federal courts and "have
declined to fashion a general impeachment exception" to their
versions of the Federal Rule. See State v. Amidon, 967 A.2d
1126, 1134-35 (Vt. 2008) (listing cases). Given that N.J.R.E.
410 "was patterned after Fed. R. Evid. 410," we are similarly
persuaded by the "history of the federal rule." State v.
Rodriguez, 280 N.J. Super. 590, 597 (App. Div. 1995). Such a
10 A-0591-13T2 reading accords with the above-stated rationale of both N.J.R.E.
410 and the Federal Rule, and "return[s] the parties to the
position they were in at the beginning of the" plea
negotiations. State v. Pennington, 154 N.J. 344, 362 (1998)
(quoting State v. Barboza, 115 N.J. 415, 427 (1989)). Thus, we
hold that N.J.R.E. 410 generally prohibits the use of any
statement made during plea negotiations to impeach the person
making the statement.
However, the United States Supreme Court in Mezzanatto went
on to consider whether a defendant could waive the protections
of the Federal Rule. We were careful in Brabham, supra, to note
that "[n]either officer testified that defendant was told that
what he said would be used against him." 413 N.J. Super. at
204. "Without any evidence that defendant was informed that the
officers and the assistant prosecutor attended the meeting to
collect incriminating statements to be used against defendant at
trial, the facts . . . required exclusion of the statements
pursuant to N.J.R.E. 410." Id. at 208. We thus consider the
resolution of that issue under the Federal Rule.
The United States Supreme Court in Mezzanatto, supra, ruled
that the protections of the Federal Rule may be waived by a
defendant. 513 U.S. at 197, 115 S. Ct. at 800, 130 L. Ed. 2d at
702. The Court stressed that "[a] criminal defendant may
11 A-0591-13T2 knowingly and voluntarily waive many of the most fundamental
protections afforded by the Constitution," as well as the
protection of statutes and procedural rules. Id. at 201-02, 115
S. Ct. at 801-02, 130 L. Ed. 2d at 704. This "presumption of
waivability" also applies to evidentiary rules, and the parties'
"agreements to waive evidentiary rules are generally enforceable
even over a party's subsequent objections." Id. at 202, 115 S.
Ct. at 802, 130 L. Ed. 2d at 704-05. The Court concluded that,
"like other evidentiary privileges, [the Federal Rule] may be
waived or varied at the defendant's request." Id. at 205, 115
S. Ct. at 803-04, 130 L. Ed. 2d at 707.
The Court in Mezzanatto found that waiving the Federal
Rule's protections did not impair the reliability of the fact-
finding process. Indeed, "[t]he admission of plea statements
for impeachment purposes enhances the truth-seeking function of
trials and will result in more accurate verdicts." Id. at 204,
115 S. Ct. at 803, 130 L. Ed. 2d at 706.
The Court also found "no basis for concluding that waiver
will interfere with the Rules' goal of encouraging plea
bargaining." Id. at 207, 115 S. Ct. at 804, 130 L. Ed. 2d at
707. "[I]f the prosecutor is interested in 'buying' the
reliability assurance that accompanies a waiver agreement, then
precluding waiver can only stifle the market for plea bargains."
12 A-0591-13T2 Id. at 208, 115 S. Ct. at 805, 130 L. Ed. 2d at 708. "A sounder
way to encourage settlement is to permit the interested parties
to enter into knowing and voluntary negotiations without any
arbitrary limits on their bargaining chips." Ibid.
Accordingly, the United States Supreme Court in Mezzanatto
held that, "absent some affirmative indication that the
agreement was entered into unknowingly or involuntarily, an
agreement to waive the exclusionary provisions of the plea-
statement Rules is valid and enforceable." Id. at 210, 115 S.
Ct. at 806, 130 L. Ed. 2d at 710.
Most State courts which have addressed the issue have found
the reasoning of Mezzanatto persuasive in interpreting their own
versions of the Federal Rule, and have ruled that defendants can
waive their rules' protections. See, e.g., State v. Campoy, 207
P.3d 792, 803 (Ariz. Ct. App. 2009); People v. Stevens, 610
N.W.2d 881, 885-88 (Mich.), cert. denied, 531 U.S. 902, 121 S.
Ct. 240, 148 L. Ed. 2d 172 (2000); State v. Blom, 682 N.W.2d
578, 617 (Minn. 2004); Commonwealth v. Widmer, 120 A.3d 1023,
1027-28 (Pa. Super. Ct. 2015); State v. Wills, 700 S.E.2d 266,
268-69 (S.C. Ct. App. 2010), aff'd, 762 S.E.2d 3, 4 (S.C. 2014).5
5 Cf. State v. Pitt, 891 A.2d 312, 326 (Md. 2006) (distinguishing Mezzanatto because in Pitt the defendant's statements were used in the prosecution's case-in-chief, and noting that applying Mezzanatto "would undermine" prior Maryland case law holding (continued)
13 A-0591-13T2 We believe Mezzanatto's persuasive reasoning is equally
applicable to N.J.R.E. 410. Accordingly, we hold that a
defendant can waive N.J.R.E. 410's protection against the use of
any statement made during plea negotiations to impeach the
person making the statement, and that such a waiver is valid and
enforceable absent an affirmative indication that the waiver was
entered into unknowingly or involuntarily.6
The Court in Mezzanatto, supra, found waiver where the
prosecutor informed the defendant "that any statements he made
during the meeting could be used to impeach any contradictory
testimony he might give at trial if the case proceeded that
far," and the defendant after conferring with counsel "agreed to
proceed under the prosecutor's terms." 513 U.S. at 198, 115 S.
Ct. at 800, 130 L. Ed. 2d at 702. Other courts have held that
(continued) that admissibility turns on whether it was the defendant or the State that "rescinded or breached the plea agreement"). 6 Defendant also cites Rule 3:9-2, which provides: "If a plea of guilty is refused, no admission made by the defendant shall be admissible in evidence against the defendant at trial." However, Rule 3:9-2 protects "admissions made in a prior plea proceeding." Barboza, supra, 115 N.J. at 423. It is N.J.R.E. 410 which protects out-of-court "statement[s] made during plea negotiations." Ibid.; see Pressler & Verniero, Current N.J. Court Rules, comment 1.5.1 on R. 3:9-2 (2016). To the extent that Rule 3:9-2 applies to such out-of-court statements, the reasoning of Mezzanatto would be equally applicable. See Mezzanatto, supra, 513 U.S. at 200-06, 115 S. Ct. at 801-04, 130 L. Ed. 2d at 703-07 (applying its reasoning to Fed. R. Crim. P. 11(e)(6)).
14 A-0591-13T2 when defendants are warned during plea negotiations that
anything they say may be used against them at trial, and the
defendants, with that understanding, proceed to make statements,
there is a waiver under Mezzanatto. See, e.g., United States v.
Sylvester, 583 F.3d 285, 287-94 (5th Cir. 2009), cert. denied,
559 U.S. 916, 130 S. Ct. 1313, 175 L. Ed. 2d 1096 (2010);
Campoy, supra, 207 P.3d at 796, 802; Stevens, supra, 610 N.W.2d
at 883, 888; Widmer, supra, 120 A.3d at 1025, 1027-28; Wills,
supra, 700 S.E.2d at 267, 269, aff'd, 762 S.E.2d at 4.7 We agree
that the giving of such a warning can give rise to a waiver if
the defendant, with that understanding, proceeds to give a
statement.8
7 These cases also find that a waiver after such a warning enables the prosecution to use the defendant's statements in its case-in-chief. Ibid.; see also United States v. Mitchell, 633 F.3d 997, 1004-06 (10th Cir. 2011); United States v. Hardwick, 544 F.3d 565, 569-70 (3d Cir. 2008). We need not reach that question, as the State requested and the trial court granted only use of the statement for impeachment. See Mezzanatto, supra, 513 U.S. at 211, 115 S. Ct. at 806, 130 L. Ed. 2d at 710 (Ginsburg, J., concurring) ("As the Government has not sought such a waiver, we do not here explore this question."). 8 As in Mezzanatto, such a warning may be sufficient even if it does not explicitly mention Rule 410. See United States v. Young, 223 F.3d 905, 911 (8th Cir. 2000), cert. denied, 531 U.S. 1168, 121 S. Ct. 1133, 148 L. Ed. 2d 999 (2001); Stevens, supra, 610 N.W.2d at 888; cf. State v. Hinton, 42 S.W.3d 113, 124-26 (Tenn. Crim. App. 2000) (finding Miranda warnings were insufficient because they did not mention Tennessee's version of the Federal Rule). However, a written proffer agreement explicitly waiving N.J.R.E. 410 may enhance the clarity and (continued)
15 A-0591-13T2 Defendant makes three arguments why such impeachment should
not be allowed. First, she contends that allowing impeachment
will discourage plea bargaining. However, "[p]lea bargaining
has become firmly institutionalized in this State." State v.
Means, 191 N.J. 610, 618 (2007) (quoting State v. Taylor, 80
N.J. 353, 360-61 (1979)). As in the federal system, "the vast
majority of all cases are resolved through plea agreements with
the State." State v. Munroe, 210 N.J. 429, 447-48 (2012). As
explained in Mezzanatto, supra, "there is no reason to believe
that allowing negotiation as to waiver of the plea-statement
Rules will bring plea bargaining to a grinding halt; it may well
have the opposite effect." 513 U.S. at 209, 115 S. Ct. at 805,
130 L. Ed. 2d at 708-09. Indeed, plea bargaining is flourishing
in the federal courts since Mezzanatto. See Lafler v. Cooper,
__ U.S. __, __, 132 S. Ct. 1376, 1388, 182 L. Ed. 2d 398, 411
(2012) ("Ninety-seven percent of federal convictions . . . are
the result of guilty pleas").
Moreover, waiver can occur only if both parties agree. If
the parties have goals that can be "gained only by preserving
(continued) enforceability of a waiver. See State v. Diorio, 422 N.J. Super. 445, 460 (App. Div. 2011) (quoting a proffer agreement in which the defendant "knowingly and voluntarily waives any right [the defendant] has pursuant to N.J.R.E. 410"), aff'd in part, rev'd in part on other grounds, 216 N.J. 598, 609-10 n.4 (2014).
16 A-0591-13T2 the inadmissibility of plea statements, they will agree to leave
intact the exclusionary provisions of the plea-statement Rules."
Mezzanatto, supra, 513 U.S. at 208, 115 S. Ct. at 805, 130 L.
Ed. 2d at 708.
Second, defendant argues such impeachment is unnecessary
and should not be allowed because N.J.R.E. 410 makes a
defendant's statements during plea negotiations admissible "in a
criminal proceeding for perjury." However, the Court in
Mezzanatto, supra, allowed waiver and impeachment even though
the Federal Rule similarly made such statements admissible "in a
criminal proceeding for perjury." 513 U.S. at 200 n.1, 115 S.
Ct. at 801 n.1, 130 L. Ed. 2d at 703 n.1 (quoting Fed. R. Evid.
410 (eff. 1980)). The Court stressed that using such statements
for impeachment preserved the integrity of the verdict and the
trial process. Id. at 204, 115 S. Ct. at 803, 130 L. Ed. 2d at
70. If "the defendant has made a false statement, either to the
prosecutor during the plea discussion or to the jury at trial[,]
making the jury aware of the inconsistency will tend to increase
the reliability of the verdict without risking institutional
harm to the [trial] courts." Id. at 205, 115 S. Ct. at 803, 130
L. Ed. 2d at 706; see also State v. Hawkins, 316 N.J. Super. 74,
82 (App. Div. 1998) (finding it reasonable to relax N.J.R.E. 410
at sentencing "to rebut a contrary factual contention expressly
17 A-0591-13T2 or inferentially raised" by the defendant), certif. denied, 162
N.J. 489 (1999).
Moreover, allowing such impeachment is supported by the
rulings of both our Supreme Court and the United States Supreme
Court permitting the use of even constitutionally-inadmissible
statements to impeach defendants' trial testimony. The United
States Supreme Court in Harris v. New York, 401 U.S. 222, 91 S.
Ct. 643, 28 L. Ed. 2d 1 (1971), and its progeny, has long
authorized such impeachment in order "'to prevent perjury and to
assure the integrity of the trial process.'" Kansas v. Ventris,
556 U.S. 586, 593, 129 S. Ct. 1841, 1846, 173 L. Ed. 2d 801, 808
(2009) (citation omitted). Our Supreme Court has repeatedly
agreed. See, e.g., State v. Francis, 191 N.J. 571, 594-95
(2007); State v. Harris, 181 N.J. 391, 439-40 (2004), cert.
denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898
(2005); State v. Burris, 145 N.J. 509, 521-25 (1996); State v.
Irving, 114 N.J. 427, 438-39 (1989); State v. Miller, 67 N.J.
229, 232-34 (1975). Those cases emphasized that
"'inadmissibility would pervert the constitutional right into a
right to falsify free from the embarrassment of impeachment
evidence from the defendant's own mouth.'" Burris, supra, 145
N.J. at 523 (quoting Oregon v. Hass, 420 U.S. 714, 723, 95 S.
Ct. 1215, 1223, 43 L. Ed. 2d 570, 578 (1975)).
18 A-0591-13T2 The trial court relied on the Harris line of cases,
including Burris and Ventris, to create an impeachment exception
to N.J.R.E. 410. As stated above, however, N.J.R.E. 410 does
not permit a defendant's statements during plea negotiations to
be used for impeachment, unless the defendant waives the
protections of the rule. See also State v. Boone, 66 N.J. 38,
46-49 (1974) (declining to extend Harris and rejecting "the view
that withdrawn pleas are admissible to impeach the credibility
of the defendant who elects to testify at his trial"). Thus, we
cannot affirm based on the grounds adopted by the trial court.
It is well-established that a reviewing court can affirm a
decision on different grounds than those authorities offered by
the court being reviewed. See, e.g., Shim v. Rutgers, 191 N.J.
374, 378 (2007); State v. Nellom, 178 N.J. 192, 196 (2003); Isko
v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968); see
State v. McLaughlin, 205 N.J. 185, 194-95 (2011). As stated
above, waiver under Mezzanatto provides an alternate basis for
affirmance.
Here, we believe it is appropriate to remand to allow the
trial court and the parties to address in the first instance
whether defendant waived the protection against having her
formal statement used for impeachment, as provided by N.J.R.E.
410. See generally State v. Puryear, 441 N.J. Super. 280, 297,
19 A-0591-13T2 299 (App. Div. 2015) ("the question of whether Miranda rights
are knowingly, intelligently and voluntarily waived is a fact-
specific analysis," and appellate courts defer to trial courts'
factual findings). Thus, we remand for a hearing conducted "in
light of the principles to which we have adverted." Shim,
supra, 191 N.J. at 392.
On remand, the trial court shall consider if defendant made
a knowing and voluntary waiver of the protection against having
her formal statement used against her at trial for impeachment.
The court shall consider whether defendant had the benefit of
advice of counsel, as in Mezzanatto.9 If the court determines
that defendant did not waive that protection, it shall consider
whether its earlier ruling that defendant could be impeached
with her formal statement was harmless under R. 2:10-2.
Defendant claims she did not testify after that ruling
because her formal statement was highly prejudicial. Our
Supreme Court has recognized "the difficulty of characterizing
as harmless a trial court's error in ruling that the defendant's
prior convictions may be used for impeachment purposes" when
that ruling causes a defendant not to testify. State v.
Whitehead, 104 N.J. 353, 359 (1986). Our Court noted that "the
9 Here, we are not called upon to address a waiver agreement entered into without the advice of counsel.
20 A-0591-13T2 United States Supreme Court has stated that almost any error
would result in automatic reversal because 'the appellate court
could not logically term "harmless" an error that presumptively
kept the defendant from testifying.'" Ibid. (quoting Luce v.
United States, 469 U.S. 38, 42, 105 S. Ct. 460, 463-64, 83 L.
Ed. 2d 443, 448 (1984)); see also State v. Singleton, 308 N.J.
Super. 407, 413-14 (App. Div. 1998) (finding plain error). The
trial court should apply the same principles here.
[At the direction of the court, the published version of this opinion omits Part III (which upholds the denial of defendant's motion to dismiss the indictment), Part IV (which upholds the denial of her motion for acquittal and rejects her challenge to the chain of custody), Part V (which rejects her challenge to the jury instruction), Part VI (which upholds the denial of her motion to suppress), and Part VII (which upholds the denial of her request to reveal the identity of the confidential informant). See R. 1:36-3.]
Accordingly, we affirm the judgment of conviction, subject
to a remand for a hearing on whether defendant waived her right
to keep her formal statement from being used for impeachment.
We reject defendant's other arguments. We do not retain
jurisdiction.
21 A-0591-13T2