State v. Stewart

179 A.3d 1065, 453 N.J. Super. 55
CourtNew Jersey Superior Court Appellate Division
DecidedJanuary 19, 2018
DocketDOCKET NO. A–0562–17T6
StatusPublished
Cited by8 cases

This text of 179 A.3d 1065 (State v. Stewart) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Stewart, 179 A.3d 1065, 453 N.J. Super. 55 (N.J. Ct. App. 2018).

Opinion

MESSANO, P.J.A.D.

*1067*57This appeal presents an issue of first impression under the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to 2A:162-26 *58(the CJRA). N.J.S.A. 2A:162-19(e)(1) provides that at a pretrial detention hearing, a "defendant has the right to be represented by counsel, and ... shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise." (Emphasis added). We consider whether this provision of the CJRA permits a defendant to subpoena "adverse witnesses," in this case, police officers, to testify at a pretrial detention hearing.

I.

Defendant Dakevis A. Stewart was arrested by members of the Penns Grove Police Department and charged with possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) ; unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) ; possession of a firearm by certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1) ; tampering with physical evidence, N.J.S.A. 2C:28-6(1) ; and resisting arrest by flight, N.J.S.A. 2C:29-2(a)(1).1 At the time, defendant was subject to an order of pre-trial release with certain non-monetary conditions that was entered following a June arrest for possession of a controlled dangerous substance and other offenses.

The following day, the State of New Jersey moved for defendant's pre-trial detention on the new arrest, as well as revocation of his release on the June arrest. At the pretrial detention hearing, the State moved into evidence the complaint-warrant; the Public Safety Assessment (PSA) prepared by Pretrial Services; a Preliminary Law Enforcement Incident Report (PLEIR) and affidavit of probable cause prepared by Patrolman Joseph Johnson; the pretrial release order from the prior arrest; and a pretrial monitoring violation report.

Pretrial Services assigned defendant PSA scores of five for both risk of failure to appear (FTA) and new criminal activity (NCA).

*59There was no New Violent Criminal Activity (NCVA) flag. Pretrial Services recommended against defendant's release.2

The affidavit of probable cause stated that on September 20, 2017, Johnson responded to a report of gunshots in the area of the Penn Village Apartments. As the officer turned onto a street near the apartment complex, he saw a vehicle, coming toward him at high speed. Johnson intercepted the vehicle and its driver, later identified as defendant, exited and ran through a nearby cemetery. Other officers arrived and Johnson advised them of his observations and gave a description of the driver. These officers gave chase and saw defendant throw a handgun to the ground. The gun was retrieved by police, who later learned that defendant was prohibited from possessing a handgun because of his criminal history.

The PLEIR supplied some additional information. Patrolman Tim Haslett "personally observed the offense"; police recorded the statement of a witness on a body camera; defendant appeared to be under the influence of drugs or alcohol at the time and was injured by a police dog *1068after he tried to flee; and a member of the public provided information to the 911 call center. The State advised the judge it would proceed by proffer and argued the evidence established probable cause that defendant had committed the charged offenses.

Defense counsel had served Johnson, who was present, with a subpoena to testify. Counsel argued that N.J.S.A. 2A:162-19(e)(1) permitted defendant to call witnesses at a pretrial detention hearing. He also intended to subpoena four other police officers identified in the arrest report as having supplied information to Johnson for the affidavit.3 Specifically stating that the hearing was *60"at the probable cause stage," the judge preliminarily ruled that defendant could call Johnson and the other officers on the issue of probable cause.

Following a short recess, the State argued that allowing defendant to call the State's witnesses to challenge the factual statements in the affidavit would convert the detention hearing into a "mini-trial." It requested a stay of the proceedings. The judge indicated that she had not realized Johnson was the affiant and concluded that defendant had not proffered any information to challenge Johnson's statements in the affidavit. The judge expressed concern that permitting defendant to attack the credibility of Johnson's statements by calling him as a witness would result in a "mini-trial." However, the judge concluded defendant could challenge probable cause by calling other witnesses who allegedly observed defendant commit the offenses, such as the other four police officers, and ruled defendant could subpoena the officers to testify as to probable cause.4

The judge entered an order permitting defendant "to subpoena the [police] officers at the scene of the incident to testify at the [d]etention [h]earing." She stayed the hearing so the State could seek emergent appellate review. We granted the State's motion for leave to appeal, stayed further proceedings in the Law Division and ordered defendant's continued detention pending our decision. Thereafter, we granted motions filed by the Office of the Attorney General (AG), the Office of the Public Defender (OPD) and the American Civil Liberties Union (ACLU) to appear as amici curiae.

*61II.

Before us, the State argues that despite the plain language of N.J.S.A. 2A:162-19(e)(1), a defendant does not have an absolute right to call potential State's witnesses, referred to as "adverse witnesses," at a pretrial detention hearing. It asserts that we should follow the majority of federal courts, which hold that a defendant may call adverse witnesses at the discretion of the trial court, but only after proffering how the witnesses' testimony will be favorable and material. The State contends this approach preserves defendants' constitutional due process rights and statutory right to "present witnesses" at detention hearings, N.J.S.A. 2A:162-19(e)(1), while preventing those hearings from becoming *1069time-consuming "mini-trials." It also argues that allowing a defendant to call adverse witnesses without limitation, while the State's investigation may be incomplete, "unfairly gives the defendant a record that could potentially be used against [a] witness" at trial. It additionally argues that requiring a proffer from a defendant is "necessary to prevent potential harassment and intimidation of victims and witnesses" soon after a crime is committed.

The AG generally agrees, and asserts a defendant should be permitted to call adverse witnesses only if he or she can by proffer "articulate a good-faith basis for believing that the witness will testify favorably ... on a critical issue related to pretrial detention."

Defendant and the OPD counter by arguing that the plain language of N.J.S.A.

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Cite This Page — Counsel Stack

Bluebook (online)
179 A.3d 1065, 453 N.J. Super. 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stewart-njsuperctappdiv-2018.