NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2820-13T2
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, January 27, 2016 v. APPELLATE DIVISION
KASON D. HOCKETT,
Defendant-Appellant. _____________________________________________________
Submitted September 22, 2015 – Decided January 27, 2016
Before Judges Fisher, Espinosa and Currier.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-08-01376.
Joseph E. Krakora, Public Defender, attorney for appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Rookmin Cecilia Beepat, Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
In this appeal, defendant argues the trial judge erred in
excluding photographs that purported to demonstrate an
eyewitness falsely testified on a collateral issue. The judge's
ruling was based in part on his belief that the defense, or persons sympathetic to the defense, engaged in chicanery to
create or procure the photographs. We find the judge's
speculation about the defense's motives to be irrelevant to the
admissibility of the photographs, and we reverse and remand for
a new trial.
In 2010, defendant was tried on charges of first-degree
murder, N.J.S.A. 2C:11-3, third-degree possession of a weapon
for an unlawful purpose, N.J.S.A. 2C:39-4(d), and fourth-degree
unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5(d),
in connection with the death of Jason Sharpe in Jersey City on
May 13, 2008. At the conclusion of a five-day trial, defendant
was acquitted of murder and the weapons offenses, but convicted
of the lesser-included offense of second-degree reckless
manslaughter, N.J.S.A. 2C:11-4(b)(1), and sentenced to a nine-
year prison term subject to an eighty-five percent period of
parole ineligibility.
In this appeal, defendant argues:
I. THE TRIAL COURT'S EXCLUSION OF PICTURES SHOWING A KEY WITNESS RECENTLY SMOKING DRUGS, CONTRARY TO HER TESTIMONY, MANDATES REVERSAL OF DEFENDANT'S CONVICTION.
II. DEFENDANT'S NEAR MAXIMUM NINE-YEAR SENTENCE OF IMPRISONMENT FOR SECOND-DEGREE MANSLAUGHTER, SUBJECT TO THE 85% NERA PAROLE BAR, WAS EXCESSIVE.
2 A-2820-13T2 Because we agree with the argument contained in Point I, we do
not reach Point II.
In a nutshell, the State presented a simple story to
support its theory that defendant knowingly and purposefully
murdered Sharpe. The State presented evidence that at 6:30
a.m., on May 13, 2008, on Wegman Parkway near Ocean Avenue in
Jersey City, defendant and a companion encountered Sharpe.
According to the State, defendant and Sharpe had some sort of
disagreement, and defendant's companion egged him on until
defendant approached Sharpe and stabbed him in the chest with a
knife, causing Sharpe's death. In its case-in-chief, the State
called police officers who investigated, as well as
toxicologists, but the only witness the State called who claimed
to have seen the stabbing was Martha Rush.1
After the State rested, defendant testified, explaining how
Sharpe had pulled a knife on him and, as he acted in self-
defense, the knife ended up in Sharpe's chest. In short, there
was no dispute that Sharpe died as a result of a knife wound to
the chest and that the stabbing occurred while he and defendant
1 The State also called Sheila Bullock, who was in the vicinity at the time, as she explained, "to cop . . . some drugs." Bullock testified she saw defendant put his arm around Sharpe in what looked to her "like a friendly gesture," but that she thereafter "focus[ed]" her attention "elsewhere," did not see defendant in that area again, and only later noticed that "[i]t looked like" Sharpe was bleeding from his stomach.
3 A-2820-13T2 were engaged in some sort of altercation. The question for the
jury was the degree, if any, to which defendant was culpable.
As a result, Rush's testimony was highly critical.
In delving further into Rush's testimony, we note she had
given prior statements, which contained various inconsistencies,
as the defense pointed out during cross-examination. In the
midst of cross-examining Rush about where the knife came from,
the following occurred:
Q. Do you know if [defendant] was in fear of his life because Jason [Sharpe] had a knife and came after him?
A. Jason didn't have any knife. He didn't have no knife.
Q. And the knife that was used in this case just appeared out of nowhere. You don't remember ever seeing Jason with a knife[?]
A. Jason didn't have no knife.
Q. Were you high that day?
[THE PROSECUTOR]; Objection, Your Honor.
A. No, I just woke up.
THE COURT: Overruled, she answered the question.
A. I don't get high, I been clean since March 23rd, '07.
Q. What about before that?
A. Before that?
Q. Yeah.
4 A-2820-13T2 A. What do you mean before that?
Q. Well, what happened before that?
A. I used to get high. Like I said, I was clean since '07. This happened after I been clean.
Q. This happened in 2008. Now are you saying you don't get high at all?
A. No, I don't.
Q. You don't get high now?
[Emphasis added.]
In light of this testimony, defense counsel requested a
sidebar during which he expressed a desire to introduce during
cross-examination photographs purporting to show the witness
using drugs. The prosecutor objected, asserting there was "no
foundation" for the photographs. The judge barred this
anticipated line of cross-examination because of the need for
"some foundation as to when these [photographs] were taken."
Defense counsel responded he could "have a witness here tomorrow
to testify in terms of who took the picture." The trial was
adjourned for the day.
The next morning, outside the presence of the jury, the
trial judge heard the testimony of Dawanna Williams, who
identified three photographs depicting Rush "smoking coke" that
5 A-2820-13T2 were taken with her camera "two or three days ago." At one
point during the N.J.R.E. 104 hearing, the judge questioned the
witness in a way that revealed his suspicion the photographs
were taken for the sole purpose of aiding the defense:
THE COURT: So you know the defendant's father.
THE WITNESS: Yes.
THE COURT: You took pictures of the only factual witness in his murder case getting high. You gave them to the father, correct?
THE WITNESS: No, it was like a whole crowd of us around and I was showing the pictures around, Your Honor.
THE COURT: Why did you take the pictures?
THE WITNESS: Because I wanted to keep pictures from the – you know, to take with me to have a whole album book that I was going to take with me to [a substance abuse] program, you know, to keep for memories. Because I'm trying to get myself together, Your Honor.
After additional testimony during this hearing, defense counsel
continued to urge the right to use the photographs to impeach
Rush regarding her claim a day earlier that she had not used
drugs since March 23, 2007.
The judge first analyzed the controversy in the following
way:
Mr. Hockett was scheduled for trial on April 27[, 2010]. A good friend of Mr. Hockett's father, this woman, just happens to get high
6 A-2820-13T2 for the second time in three years on the evening of April 27th. Okay? Just happens to have a camera she bought a month ago. Happens to take pictures that night ingest- ing drugs. Happens to get them developed the next day, even though she had the camera for a month. Happens by chance to provide them to her good friend whose son is on trial for murder this week. And just happens to get high with – only for the second time in three years on that night of April 27th, the week of the murder trial.
In response, defense counsel recounted that Rush had testified
"she hadn't taken drugs since 2007," and that the photographs
deeply impacted her credibility because they showed her "getting
high . . . the day before she's about to be a prosecution
witness in a homicide."
As the judge expressed his concern about the defense's
perceived conduct in obtaining the photographs, counsel
persisted that "[t]he pictures are the pictures." He further
argued there was no evidence of a "nefarious" purpose in
obtaining the photographs, to which the judge responded: "it's
so obvious . . . phenomenally obvious." Defense counsel pressed
the point further, rhetorically asking, "[w]hat information do
you have to suggest [Williams] did anything improper or that I
did anything improper introducing those [photographs]?" The
judge responded: "Her demeanor when she testified." After
additional argument, the judge concluded:
7 A-2820-13T2 [t]he fact that Ms. Rush ingested or became high on April 27th, 2010[,] is not relevant at all to this trial as to her observations that took place on May 13th, 2008[.] It is a collateral issue. It just clouds the issue before the jury. It's not relevant in my mind. It's not going to be permitted. And in all due respect, this [c]ourt . . . believes the motives behind those photographs were clearly for litigation purposes for this trial. No doubt in my mind.
For the reasons that follow, we conclude that the judge's ruling
was erroneous and a new trial is required.
I
The judge's reasons for excluding the photographs was
multi-faceted. We discern from the judge's comments three
separate grounds for their exclusion: (a) the judge found the
authenticating witness was not credible; (b) the jury would be
misled or confused by the use of the photographs; and (c) the
photographs were created or procured through unlawful acts or
chicanery.
A
As to the first aspect, we start with the fact that a
photograph is a "writing," N.J.R.E. 801(e), and, therefore, must
be authenticated. See State v. Mays, 321 N.J. Super. 619, 628
(App. Div.), certif. denied, 162 N.J. 132 (1999). Consequently,
a proponent of such evidence is required to make "a prima facie
showing of authenticity." State v. Joseph, 426 N.J. Super. 204,
8 A-2820-13T2 220 (App. Div.) (quoting Mays, supra, 321 N.J. Super. at 628),
certif. denied, 212 N.J. 462 (2012). This burden was not
designed to be onerous. It is enough that the record contains
"evidence sufficient to support a finding that the matter is
what its proponent claims." N.J.R.E. 901. The testimony of a
photographer is unnecessary; "[a]ny person with knowledge of the
facts represented in the photograph may authenticate it."
Joseph, supra, 426 N.J. Super. at 220 (citing State v. Wilson,
135 N.J. 4, 14 (1994)). Here, the defense elicited the
testimony of Williams, who claimed she was present a few days
earlier when the photographs of Rush using drugs were taken by
another friend. N.J.R.E. 901 required nothing more to
authenticate the photographs.
We recognize that, as gatekeeper, the judge has some degree
of latitude when testimony in support of authentication is found
unworthy of credit. See State v. Tormasi, __ N.J. Super. __, __
(App. Div. 2015) (slip op. at 11-14). But the items in question
were photographs, and N.J.R.E. 901 required only the witness's
assertions about the approximate date they were taken, the
identity of the person or persons in the photographs, and the
nature of the conduct depicted. In considering the
authenticating testimony, the judge was not being asked to
accept the truth of the witness's description of something
9 A-2820-13T2 intangible, incorporeal, imprecise or impalpable that might have
warranted some consideration of the witness's credibility. For
example, if Williams had testified only that two nights earlier
she saw Rush using narcotics — but did not have photographs to
support that contention — the judge would have been within his
rights as gatekeeper to preclude that testimony if he found the
witness lacked credibility. But here, Williams was only asked
to authenticate something tangible — photographs that supported
the contention that Rush was not truthful when she claimed she
had not used narcotics since March 23, 2007. Her testimony
about the photographs sufficed to authenticate them. There was
no credibility call to make; as defense counsel put it, "[t]he
pictures are the pictures."
Apparently recognizing this, the prosecution did not argue
the witness's testimony about what the photographs depicted was
not credible; the prosecution argued only that "this type of
testimony will have a highly prejudicial effect, that it will
clearly mislead the jury, [that] it amounts to essentially an
undue consumption of the [c]ourt's time," and that the
photographs were otherwise lacking in probative value. By
failing to otherwise object, the prosecution tacitly
acknowledged the photographs actually depicted what the defense
claimed. That was all N.J.R.E. 901 required.
10 A-2820-13T2 Moreover, 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 appeared to be
what they were purported to be and leave for the factfinder a
"more intense review" of the photographs and the credibility of
the authenticating witness. Biunno, Weissbard & Zegas, Current
N.J. Rules of Evidence, comment 1 on N.J.R.E. 901 (2015), quoted
with approval in Konop v. Rosen, 425 N.J. Super. 391, 411 (App.
Div. 2012). We, thus, conclude that the judge mistakenly
exercised his discretion in finding the photographs were not
sufficiently authenticated.
B
To the extent the evidence ruling was based on N.J.R.E. 403
grounds, we conclude the judge abused his discretion. N.J.R.E.
403(a) permits the exclusion of relevant evidence "if its
probative value is substantially outweighed by the risk of . . .
undue prejudice, confusion of issues, or misleading the jury."
We find no support for the invocation of N.J.R.E. 403(a) as the
means for excluding this evidence.
The evidence was offered for the purpose of challenging
Rush's credibility. Rush testified she had not engaged in the
use of narcotics since March 23, 2007. Had the judge permitted
11 A-2820-13T2 defense counsel's course of attack on Rush's credibility, she
would have been confronted with the photographs and, in some
manner, asked to confirm that she was depicted in the photograph
using drugs and that the event photographed occurred after March
23, 2007. We have no way of knowing what Rush's responses would
have been, but whether she confirmed, denied or explained what
the photographs were claimed to have depicted, the proposed line
of questioning would hardly have been confusing or misleading.
If Rush confirmed what the defense was attempting to show, then
counsel would have been armed with another reason for urging the
jury's rejection of Rush's credibility, in order to create doubt
about her version of what occurred between defendant and Sharpe.
The prosecution could have argued in response, as it argues now,
that Rush's false claim of sobriety was insignificant in the
overall picture or otherwise attempt to mitigate or minimize the
significance of this line of inquiry. This information would
not have been too complicated or confusing for the jury to
handle.2
2 The prosecution also argued that the admission of the photographs and the additional cross-examination of Rush would have unduly delayed the trial or wasted time. N.J.R.E. 403(b). We find no merit in this argument. What little time would have been expended in this regard was a small matter when considering defendant was on trial for first-degree murder.
12 A-2820-13T2 The excluded evidence was relevant, having been made so by
Rush's volunteered assertion that she had not gotten high since
March 23, 2007.3 The evidence provided a basis by which the jury
might doubt the credibility of the only witness who provided
direct evidence that defendant did not act in self-defense; its
exclusion was prejudicial to the defense.
C
Finally, the judge precluded the photographs, and the
cross-examination of Rush based on the photographs, because he
believed the defense acted improperly in obtaining them. At the
outset, we agree, as defendant argued to the trial judge, that
the record does not support a finding that the defense or
persons sympathetic to the defense acted illegally or with a
nefarious intent in procuring this evidence. Even if there was
support for the judge's assumption that the circumstances by
which the photographs were procured were somehow orchestrated
3 The State argues in response to this appeal that N.J.R.E. 608(a) also impedes admission of the photographs. The State did not make this argument at trial, and the judge's ruling did not encompass such a determination. Because of the State's failure to properly preserve this contention, it would be unfair to consider it further on appeal. See State v. Witt, __ N.J. __, __ (2015) (slip op. at 9-10). In any event, we find the argument has no merit because the photographs were not offered for the purpose of suggesting Rush was a drug addict, which might impact her ability to perceive what occurred and relate it to the court. The photographs were intended to demonstrate, pursuant to N.J.R.E. 607, that Rush testified falsely when she claimed she had not used narcotics since March 23, 2007.
13 A-2820-13T2 for the defendant's benefit, the photographs would still be
admissible.
Indeed, on this third facet of the judge's ruling, we start
with a long-established general proposition that – except, of
course, when clashing with Fourth Amendment principles – "the
admissibility of evidence is not affected by the illegality of
the means through which the party has obtained the evidence." 8
Wigmore on Evidence § 2183 (McNaughton rev. 1961), quoted with
approval in Tartaglia v. Paine Webber, Inc., 350 N.J. Super.
142, 151 (App. Div. 2002).4 Our Supreme Court recognized that,
prior to the adoption of the exclusionary rule, evidence seized
by the State through illegal means could be used against the
accused in a criminal prosecution. State v. Macri, 39 N.J. 250,
263-64 (1963); see also Olmstead v. United States, 277 U.S. 438,
467, 48 S. Ct. 564, 569, 72 L. Ed. 944, 951 (1928) (recognizing
the "common law rule is that the admissibility of evidence is
not affected by the illegality of the means by which it was
obtained"). With the advent of the exclusionary rule, the common
law rule was altered — but only through imposition of a
limitation on the use of illegally-obtained evidence by the
4 After the Tartaglia matter was tried and judgment entered, a later unpublished decision by this court relating to other issues was affirmed in part and reversed in part by the Supreme Court. Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81 (2008).
14 A-2820-13T2 prosecution. In other words, the exclusionary rule was designed
"'to deter future unlawful police conduct' by denying the
prosecution the spoils of constitutional violations," State v.
Shaw, 213 N.J. 398, 413 (2012) (emphasis added) (quoting State
v. Evers, 175 N.J. 355, 376 (2003)), and to prevent our courts
from becoming "a forum for evidence procured" through the
State's violation of an individual's constitutional rights,
ibid. (quoting State v. Williams, 192 N.J. 1, 14 (2007)). These
principles impose no impediment to the use of illegally-obtained
evidence by the accused.
Absent application of the exclusionary rule or any other
curb placed on wrongful police conduct, public policy favors the
admission of all probative evidence however obtained. This
policy favors an accused's offer of any relevant evidence, even
if obtained illegally. See, e.g., Burdeau v. McDowell, 256 U.S.
465, 475, 41 S. Ct. 574, 576, 65 L. Ed. 1048, 1051 (1921); State
v. Calcagno, 120 N.J. Super. 536, 537 (App. Div. 1972); People
v. Huang Qike, 700 N.Y.S.2d 640, 644 n.8 (Sup. Ct. 1999), aff’d,
726 N.Y.S.2d 294 (App. Div. 2001). There is no evidence in this
record to suggest the defense acted illegally in the creation or
procuring of the evidence in question, but the evidence would be
admissible even if there was. And it follows from our conclusion
that illegal conduct will not bar admission of evidence offered
15 A-2820-13T2 by an accused, that evidence obtained through less wrongful
means is also admissible.5
Accordingly, we find no relevance in the judge's
supposition that the defense or persons sympathetic to the
defense wrongfully obtained the photographs. Even if stolen,
the photographs would have been admissible. See, e.g., Huang
Qike, supra, 700 N.Y.S.2d at 644 n.8. To be sure, those who
unlawfully or fraudulently create or acquire evidence can be
prosecuted or otherwise held answerable for that conduct; that,
however, has no bearing on the admissibility of the evidence.
Tartaglia, supra, 350 N.J. Super. at 150-51. We conclude the
5 The prosecution's procuring of evidence through the wrongful acts of a private party has not often posed an impediment to admission. See, e.g., Colorado v. Connelly, 479 U.S. 157, 166, 107 S. Ct. 515, 521, 93 L. Ed. 2d 473, 483 (1986); State v. Chen, 208 N.J. 307, 317-18 (2011). Courts have also recognized the prosecution's right to use evidence produced by police lies and trickery. See, e.g., Frazier v. Cupp, 394 U.S. 731, 737-38, 89 S. Ct. 1420, 1424, 22 L. Ed. 2d 684, 692 (1969) (finding a confession to be voluntary and admissible where police lied to defendant that his co-defendant had implicated him); State v. Cooper, 151 N.J. 326, 355-56 (1997) (upholding confession where police wrongly informed defendant he could be facing life in prison rather than a death sentence); see generally State v. Patton, 362 N.J. Super. 16, 28-38 (App. Div.), certif. denied, 178 N.J. 35 (2003). If the prosecution — limited by an overriding duty "to see that justice is done" and to "refrain from improper methods," State v. Frost, 158 N.J. 76, 83 (1999) (internal quotations omitted) — may take advantage of lies, chicanery and other wrongful conduct of law enforcement personnel and private parties, certainly the accused may do the same.
16 A-2820-13T2 judge erred in excluding the photographs and in thereby limiting
the scope of the defense's cross-examination of Rush.
II
The State has not argued harmless error as an alternate
ground for affirming. Notwithstanding the State's waiver in this
regard, we find the doctrine inapplicable for the following
reasons.
Trial judges are entrusted with broad discretion in
determining the proper limits of cross-examination, but "we have
repeatedly expressed our adherence to the critical, and
constitutionally required, role of cross-examination in a
criminal trial." State v. Wormley, 305 N.J. Super. 57, 66 (App.
Div. 1997), certif. denied, 154 N.J. 607 (1998). The right of
cross-examination, often described as "the 'greatest legal
engine ever invented for the discovery of truth,'" California v.
Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d
489, 497 (1970) (quoting 5 Wigmore on Evidence § 1367 (3d ed.
1940)), constitutes "a primary interest" secured by the
Confrontation Clause, Douglas v. Alabama, 380 U.S. 415, 418, 85
S. Ct. 1074, 1076, 13 L. Ed. 2d 934, 937 (1965); see also
Kentucky v. Stincer, 482 U.S. 730, 736, 107 S. Ct. 2658, 2662,
96 L. Ed. 2d 631, 641 (1987); State v. Laboy, 270 N.J. Super.
296, 303 (App. Div. 1994), and critical to "ensuring the
17 A-2820-13T2 integrity of the fact-finding process," Stincer, supra, 482 U.S.
at 736, 107 S. Ct. at 2662, 96 L. Ed. 2d at 641. As we have
recognized:
Cross-examination affords the accused an opportunity to test the recollection and sift the conscience of the witness. It also compels the witness to stand face to face with the jury in order that it may observe him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.
[Laboy, supra, 270 N.J. Super. at 303 (citations omitted).]
Cross-examination necessarily includes the right to impeach or
discredit a witness. Davis v. Alaska, 415 U.S. 308, 316, 94 S.
Ct. 1105, 1110, 39 L. Ed. 2d 347, 353-54 (1974). In considering
a restraint on an accused's right to cross-examine, a court must
recognize that it "does not matter that the likelihood of
defendant's contention 'might be slim.'" Wormley, supra, 305
N.J. Super. at 66 (quoting State v. Crudup, 176 N.J. Super. 215,
221 (App. Div. 1980)); see also State v. Zenquis, 251 N.J.
Super. 358, 367 (App. Div. 1991) (recognizing that "[t]he point
to be stressed is that under our system, a defendant is entitled
to fully test the State's proofs by challenging a witness's
perceptions and his ability to make observations"), aff’d, 131
N.J. 84 (1993).
18 A-2820-13T2 Rush was a critical witness and the judge's ruling limited
the extent to which the defense could challenge her credibility.
The exclusion of the photographs and the limitation on the
defense's cross-examination of Rush — a ruling which infringed
defendant's federal and state confrontation rights — was not
harmless beyond a reasonable doubt. State v. Cabbell, 207 N.J.
311, 338 (2011); State v. Macon, 57 N.J. 325, 338 (1971).
Indeed, even if we view the judge's error as lacking
constitutional stature, we nevertheless conclude in the
circumstances that it had the clear capacity to produce an
unjust result. See R. 2:10-2.
Reversed and remanded for a new trial.
19 A-2820-13T2