STATE OF NEW JERSEY v. MANUEL MORALES

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1521-08T41521-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MANUEL MORALES,

Defendant-Respondent.

__________________________________________

 

Submitted May 6, 2009 - Decided

Before Judges Rodr guez and Waugh.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-08-00789.

Theodore J. Romankow, Union County Prosecutor, attorney for appellant (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

Law Office of Paul Condon, attorneys for respondent (Paul Condon, on the brief).

PER CURIAM

We granted the State's motion for leave to appeal from the granting of a new trial. We affirm pursuant to the procedural safeguards set in State v. Burr, 195 N.J. 119 (2008), which were not followed here.

Following a jury trial, defendant Manuel Morales was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The charges stemmed from alleged sexual acts performed by defendant on K.P., a girl who was then six years old. Before sentencing defendant moved for a new trial. The judge granted the application.

Prior to the commencement of trial, a hearing was conducted concerning the admissibility of a videotaped statement from K.P. In this videotape, K.P. stated that defendant had penetrated her with his penis. She used anatomically correct dolls to demonstrate. The judge ruled the tape admissible pursuant to the "tender-years" exception to the hearsay rule. N.J.R.E. 803(c)(27).

At trial, K.P. did not testify to penetration. Additionally, her mother testified that that K.P. had never told her that defendant penetrated her, nor was there any physical evidence of penetration. The videotape was played for the jury.

During jury deliberations, which occurred after our decision in State v. Burr, 392 N.J. Super. 538 (App. Div. 2007), but before the Supreme Court's decision, the jury requested to review the videotape. The judge indicated that he would grant their request. However, before the tape was replayed, the State brought to the judge's attention our decision in Burr, supra, 392 N.J. Super. at 538. The judge decided to remove the television and VCR from the jury room.

There was a discussion on the record as to the requirements of the Burr holding. The prosecutor suggested that "[w]hat is preferred is to have an attempt to satisfy the jury's request for a video replay, the offering of a reading of a written transcript or inquire as to whether they're seeking something from the video that they can't get back from an impartial recitation of that evidence." The judge called the jury back in. He informed them:

I need you to respond to me [on] the following questions. Number one, are you at a point in your deliberations where you feel that you need to listen to and view the videotape in furtherance of your deliberations. I need you to write that response down for me. And I need to know whether you need and want to view all of the video or a part of the video. If you want to view all of the video, you just tell me that. If you want to view a part or parts of the video, I need you to specify which part or parts.

The jury returned to the jury room and sent a subsequent request to the judge that they wanted to see the video in its entirety. The entire video was played for the jury without a readback of K.P.'s related testimony at trial. Later that same day, the jury returned a verdict finding defendant guilty on all counts.

On June 11, 2008, the Supreme Court decided Burr, supra, 195 N.J. at 119. Defendant moved for a judgment of acquittal or in the alternative a new trial. The judge denied the request for a judgment of acquittal finding "sufficient evidence when [the record] is viewed in its entirety . . . to enable a jury to find guilt beyond a reasonable doubt." However, he did grant the request for a new trial. The State moved for leave to appeal. We granted this request. State v. Manuel Morales, M-1134-08 (App. Div. November 18, 2008).

On appeal, the State contends that "the trial court erred in granting defendant's motion for a new trial." We disagree.

Rule 3:20-1 permits a trial judge to grant a criminal defendant's motion for a new trial, "if required in the interest of justice." "Motions for a new trial are addressed to the sound discretion of the court; and the exercise of the discretion will not be interfered with on appeal unless a clear abuse of it is shown." State v. Levitt, 36 N.J. 266, 272 (1961) (internal quotation marks and citations omitted).

In reviewing a trial court's decision to grant a new trial following a jury verdict, an appellate court must be "guided by essentially the same standard as that controlling the trial judge's review of a jury verdict" and must "weigh heavily" the trial court's views on "credibility of witnesses, their demeanor, and [the trial court's] general 'feel of the case.'" If the trial court acts under a misconception of the applicable law, however, the appellate court need not give such deference.

[State v. Brown, 118 N.J. 595, 604 (1990) (internal citation omitted).]

The first issue we must examine is whether the Burr decision applies retroactively. We conclude that it does.

In reaching the decision to grant defendant's motion for a new trial, the trial judge relied heavily on State v. Feal, 194 N.J. 293 (2008), in finding the requirements of Burr retroactively applicable. The Supreme Court stated in Feal:

The threshold retroactivity question is always the same -- whether a new rule of law has been announced.

A case announces a new rule of law for retroactivity purposes if there is a "'sudden and generally unanticipated repudiation of a long-standing practice.'" A new rule exists if "'it breaks new ground or imposes a new obligation on the States or the Federal Government . . . [or] if the result was not dictated by precedent existing at the time the defendant's conviction became final.'"

[Id. at 307-08 (internal citations omitted).]

When it has been determined that a new rule of law has been pronounced, there are four options as to its applicability: (1) apply it only prospectively; (2) apply it only prospectively and to the parties in the case announcing the new rule; (3) apply prospectively and to all cases in which the parties have not yet exhausted all direct review ("pipeline retroactivity"); and (4) afford the new rule complete retroactive effect. Id. at 308. Feal discussed three factors to be considered when determining whether to apply a new rule of law retroactivity: "(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice." Ibid. (quoting State v. Knight, 145 N.J. 233, 251 (1996)).

The first factor is "often the pivotal consideration." Ibid. The court must consider whether the "purpose of the new rule 'is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function' and raises a 'serious question about the accuracy of guilty verdicts in past trials.'" Id. at 308-09 (citations omitted and emphasis in original). If answered in the affirmative, then the court should afford the rule complete retroactivity. However, if the new rule is only "designed to enhance the reliability of the fact-finding process, but the old rule did not 'substantially impair' the accuracy of that process," then the first factor is weighed against the second and third. Id. at 309 (citation omitted).

Applying the degree-of-reliance factor, a court will consider whether the State administered the old rule in "'good faith reliance [on] then prevailing constitutional norms.'" Under the administration-of-justice factor, retroactivity will not be afforded if it "would undermine the validity of large numbers of convictions." Ultimately, the retroactivity determination turns on the court's view of "'what is just and consonant with public policy in the particular situation presented.'"

[Id. at 309-10 (internal citations omitted.]

It is undisputed that Burr announced a new rule of law. On the issue of retroactivity, we reject the State's argument that the trial court erred in finding that Burr was, at a minimum, a pipeline retroactivity case. Although the State contends the language of Burr supports its position, the Supreme Court did not explicitly discuss the issue of retroactivity, and so we analyze the Burr holding using the Feal standard.

The first consideration is whether the new rule was intended to correct a past defect that "substantially impaired" the fact finding process. Feal, supra, 194 N.J. 308.

In Burr, the Supreme Court stated: "The danger posed [by allowing jurors access to the videotaped statements] is that the jury may unfairly emphasize [the victim]'s videotaped statements over other testimony presented at trial, including her own cross-examination." Burr, supra, 195 N.J. at 134. As we stated in State v. Michaels, 264 N.J. Super. 579, 644 (App. Div. 1993), aff'd on other grounds, 136 N.J. 299 (1994):

It is clear that videotaped testimony provides more than conventional, transcribed testimony. The witness' actual image, available in a video replay, presents much more information than does a transcript reading. In essence, the witness is brought before the jury a second time, after completion of the defense case, to repeat exactly what was testified to in the State's case. The witness' words and all of the animation, passion, or sympathy originally conveyed are again presented to the jury. It is difficult to deny that there is an advantage that may be gained in such circumstances.

The Burr procedures benefit the fact finding process not by correcting a substantially impairment in the prior procedures, but rather by minimizing the potential for certain evidence to be overemphasized.

In measuring the extent to which the old rule impaired the truth-finding process, two things should be considered: first, the likelihood of untrustworthy evidence being admitted under the old rule and, second, whether the defendant had alternate ways of contesting the integrity of the evidence being introduced against him.

[State v. Burstein, 85 N.J. 394, 408 (1981).]

Ordinarily, when videotaped statements are played in the course of a trial, the defendant is afforded the opportunity to challenge the witness's credibility in cross-examination. However, as we stated in Michaels, if the jury is allowed to view the videotaped statement again after the close of the defendant's case, the defendant's ability to contest the integrity of the evidence is compromised. See Michaels, supra, 264 N.J. Super. at 644 ("It is difficult to deny that there is an advantage that may be gained in such circumstances.").

This is not one of the "extraordinary cases" cited in Feal where a case is given complete retroactivity. See Feal, supra, 194 N.J. at 309:

[F]ull retroactivity was afforded to the requirement that the State may not escape its burden of proof beyond a reasonable doubt by using presumptions to shift burdens of proof to the defense, Hankerson v. North Carolina, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306 (1977); the requirement that, in juvenile proceedings, the State prove beyond a reasonable doubt all elements of an offense that would constitute a crime if committed by an adult, Ivan V. v. City of New York, 407 U.S. 203, 92 S. Ct. 1951, 32 L. Ed. 2d 659 (1972); the right to counsel at preliminary hearings in which a defendant must assert certain defenses or lose them, Arsenault v. Massachusetts, 393 U.S. 5, 89 S. Ct. 35, 21 L. Ed. 2d 5 (1968); the rule barring the admission of one co-defendant's extrajudicial confession implicating another defendant, Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100 (1968); the right to counsel at trial, Pickelsimer v. Wainwright, 375 U.S. 2, 84 S. Ct. 80, 11 L. Ed. 2d 41 (1963); and the requirement that a confession made some time ago meet current standards of voluntariness, Reck v. Pate, 367 U.S 433, 81 S. Ct. 1541, 6 L. Ed. 2d 948 (1961).

When a new rule does not warrant complete retroactivity, the court must consider the second and third Feal factors:

After [the] determination is made [not to afford complete retroactivity], the extent to which the old rule impaired the reliability of the truth-finding process is then balanced against the countervailing State reliance on the old rule and the disruptive effect that retroactivity would have on the administration of justice.

[Burstein, supra, 85 N.J. at 408.]

The second consideration, the State's reliance on the old rule, cuts in favor of retroactivity. The trial court's reliance on the old rule that accompanying transcripts need not be read was not "firmly justified" because the old rule had not been "expressly sanctioned by prior law." Burnstein, supra, 85 N.J. at 410. Although the trial court did have our decision in Burr, supra, 392 N.J. Super. at 538, before it, the trial court was aware that the Supreme Court had granted certification and heard oral argument one month prior to the issue being raised in the present case. This should have removed any "concrete assurance that its conduct would be upheld." Burnstein, supra, 85 N.J. at 410. Therefore, the second factor counsels in favor of finding at least limited retroactivity.

The third consideration, the effect that retroactivity would have on the administration of justice, is presently incalculable. No evidence has been presented as to how many prior cases would be affected by either complete or pipeline retroactivity.

Generally, the absence of data concerning "the number and kinds of cases that would be affected by a rule of complete retroactivity and the impact that complete retroactivity would have on the administration of justice mandates that the new rule should apply only to cases pending direct review at the time of the rule's announcement."

[Feal, supra, 194 N.J. at 311-12 (quoting State v. Bellamy, 178 N.J. 127, 142-43, (2003)).]

We also conclude that the failure to follow the procedures announced in Burr is harmful error. In doing so, we reject the State's argument that even though the exact procedures outlined in Burr were not followed, the new trial is not necessary.

The State points to the fact that the trial judge did inquire if the jury was at a point where it believed viewing the video would be helpful and also asked whether it was necessary to view the entire tape or just a portion. The State argues that these precautionary measures distinguish this case from the actions taken by the trial court in Burr. However, the procedure followed by the judge did not fully satisfy the requirements of Burr, supra, 195 N.J. at 135, that "any playback of the videotape must occur in open court, along with the readback of related testimony that the court shall require."

Here, the videotaped statement was the only evidence of penetration and this evidence was contradicted at trial by the testimony of the victim. A read back of the trial testimony would have provided a proper context for the videotaped statement. Ibid. Further, the Supreme Court explicitly warned about the admission of this type of evidence: "Indeed, because this particular videotape contained hearsay testimony admitted pursuant to the tender-years hearsay exception, we think it imperative that the victim's related cross-examination at trial also be read back to the jury." Id. at 135 n.9.

We also reject the State's argument that this is a case of invited error. See State v. Jenkins, 178 N.J. 347, 358 (2004). The State argues that Defendant did not object to the replaying of the videotape, but only requested that the judge remind the jury "after viewing it, that it's one piece of evidence just like all the rest and not to give any undue weight." The trial judge declined defendant's request.

Our review of the transcript reveals that it was the State that initially raised the Burr issues. Defendant subsequently suggested the trial court first inquire as to whether the videotape would be beneficial to deliberations and whether the jury needed to view the entire videotape. Although defendant did not specifically request that the victim's trial testimony be read back to the jury, he did request that the trial judge take more precautionary measures with the videotape statement than were employed. Because the trial judge did not heed the requests of defendant, this is not a case of invited error. Ibid. ("We have stated that a 'defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.'") (quoting State v. Pontery, 19 N.J. 457, 471 (1955)).

"No matter how seemingly evident the guilt of the accused, he is entitled to a fair trial surrounded by all the substantive and procedural safeguards our legal heritage has provided." State v. Sachs, 69 N.J. Super. 566, 578 (App. Div. 1961). We conclude that defendant was not been afforded all the necessary safeguards announced in Burr. Therefore, a new trial is warranted.

 
The order granting a new trial is affirmed.

The Supreme Court did not overturn the decision in Burr based on the viewing of the videotaped statement, but rather on the admission of expert testimony on Asperger's disorder. The Court directed that, on remand, the trial court should employ new procedures for viewing the videotaped statements. Burr, supra, 195 N.J. at 134 ("The jury asked to hear all of the victim's testimony and her videotape. Because we are reversing based on the expert-testimony issue, there is no need for us to overanalyze what the trial court did here in the face of the broad request made of it.").

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A-1521-08T4

RECORD IMPOUNDED

June 16, 2009