STATE OF NEW JERSEY v. JOHN E. KINDT, JR

(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NOT FOR PUBLICATION WITHOUT THE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-3588-05T43588-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN E. KINDT, JR.,

Defendant-Appellant.

_______________________________________

 

Argued April 21, 2009 - Decided

Before Judges Parker, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-08-1617.

Alison Perrone, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Perrone, on the brief).

Barry Serebnick, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Mr. Serebnick, of counsel and on the brief).

PER CURIAM

Defendant John E. Kindt, Jr. appeals from his convictions of interference with custody, contempt of court, attempted interference with custody, and conspiracy. For the reasons that follow, we affirm.

I.

We briefly summarize the relevant facts. Defendant married Anne O'Connor (O'Connor) in 1985 and they subsequently adopted two children. The couple resided in California from 1985 to 1996, when O'Connor took the children to New Jersey for the holidays. She expected defendant to join her here but he never arrived. O'Connor said that the marriage was already deteriorating and she became convinced that it was unlikely that the marriage would work. O'Connor filed for divorce in New Jersey in May 1997.

A final judgment of divorce was entered in May 2000. The judgment granted the parties joint custody, with O'Connor as the parent of primary residence. The judgment also granted defendant reasonable and liberal parenting time. In addition, the judgment provided that the children's holidays and vacation time would be divided in a reasonable and fair manner.

Later in May 2000, defendant moved to New Jersey with his new wife, Stacey Froland-Kindt (Froland) and her daughter. The parties agreed to share physical custody of the children. The children stayed with defendant until 7:00 p.m. on Tuesdays and Thursdays, and also went with him every other weekend. It appears, however, that a dispute between the parties arose in November 2000, because defendant began to keep the children overnight instead of returning them to O'Connor at the previously-agreed-upon time.

In December 2000, the court ordered defendant to cease interfering with O'Connor's custody and to return the children to O'Connor by 7:00 p.m. on Tuesdays, Thursdays and every other Sunday. O'Connor and defendant were scheduled to appear in court on January 2, 2001 for custody mediation.

During the 2000 holiday season, O'Connor agreed to leave the children with defendant from Wednesday, December 27 until Saturday, December 30, at which time O'Connor would pick them up. On Thursday morning, O'Connor stopped at defendant's home to drop off some presents for the family. Later that day, O'Connor phoned defendant to reschedule the Saturday pick-up time, settling on noon of that day.

On Friday night, at approximately 6:30 p.m., O'Connor attempted to phone the children but discovered that the phones at defendant's home were disconnected. She drove to defendant's house and found that no one was home. She called defendant's cell phone and left messages. At 9:00 p.m. on Friday night, O'Connor returned to defendant's home and found that it was still empty.

At noon on Saturday, O'Connor returned to pick up the children but the house remained empty. Snow had fallen on the driveway but it was undisturbed. O'Connor also noticed that defendant's van was missing. O'Connor made several calls in an attempt to locate the children. She was unsuccessful and reported the matter to the Wall Township police.

The police began an investigation. They found defendant's van in a long-term parking lot at Newark Airport. They spoke with defendant's father, who informed them that he had received a letter from his son who said that, by the time the letter arrived, he and the children would be gone. Defendant did not reveal his location but said that he and the children were safe. Defendant wrote that he had been "manipulated and abused" and, as a result, had to take the children away.

The police additionally spoke with Froland's mother, who informed them that she received a letter from her daughter in which she stated that, so long as the children are in O'Connor's possession and O'Connor's father "runs Monmouth County," the law would protect her. Froland wrote that she and defendant believed that they had only two options: to leave the children or to take them.

Froland also wrote that she and defendant intended "to establish possession of the children, create a new status quo, and remove [themselves] far enough away that [O'Connor's father's] influence will not be able to taint the judicial process." Froland asked her mother to pay her and defendant's bills and destroy the letter, in order to give them time to move the children away.

The police also learned that defendant, Froland and defendant's nephew, Matthew Aronson (Aronson), had arrived with the children in Wilson, North Carolina on December 29, 2000, and called for a taxi to take them to Oriental, North Carolina, which is about three hours away by car.

The police additionally learned that, on December 29, defendant purchased a boat called "The Tara." Several days after they arrived in North Carolina the group moved to an inn. Defendant informed the innkeeper that he was going to the Bahamas. The innkeeper told defendant that he would need a larger boat with more safety features. Defendant cancelled his order for "The Tara" and placed an order for a thirty-nine-foot sailboat called "The Dorado."

The police contacted the Coast Guard to be on the lookout for that boat. On January 22, 2001, the Coast Guard received a distress call from "The Dorado." It was disabled and required a tow. The Coast Guard identified defendant and took defendant, Froland and Aronson into custody. The children were placed in protective services.

Defendant, Froland and Aronson were charged under a Monmouth County indictment with kidnapping, N.J.S.A. 2C:13-1b (counts one and two); interference with custody, N.J.S.A. 2C:13-4a(1), (2) and/or (4) (counts three and four); attempted interference with custody, N.J.S.A. 2C:13-4a(1), (2) and/or (4) (counts six and seven); and conspiracy, N.J.S.A. 2C:5-2 (count eight). Defendant and Froland also were charged with contempt of court, N.J.S.A. 2C:29-9 (count five).

The charges against Froland and Aronson were severed. Froland was tried first and convicted of kidnapping, interference with custody, contempt of court and conspiracy and the court imposed an aggregate sentence of seven years of incarceration. State v. Froland, 378 N.J. Super. 20, 30 (App. Div. 2005), rev'd, 193 N.J. 186 (2007), modified, 195 N.J. 413 (2008). The record does not disclose the disposition of the charges against Aronson.

While Froland's appeal from her conviction was pending, defendant moved in the trial court for dismissal of the kidnapping charges and the court ruled that, under the circumstances, the kidnapping statute did not apply. Froland, supra, 378 N.J. Super. at 25. We granted the State's motion for leave to appeal and consolidated that matter with Froland's appeal. Id. at 24. We held that the kidnapping statute could be applied to a joint custodial parent if the parent intended to permanently deprive the other parent of custody. Id. at 36. Froland filed a petition for certification with the Supreme Court.

Defendant was tried before a jury and, on December 7, 2005, he was found not guilty of kidnapping but guilty of the other charges. After appropriate mergers, the trial court sentenced defendant to an aggregate seven years of incarceration. Thereafter, the Supreme Court granted Froland's petition for certification. State v. Froland, 187 N.J. 82 (2006).

The Court later ruled that, although Froland and defendant could be prosecuted for interference with custody, they could not be found guilty of kidnapping in the absence of proof they used deception, threats or force. Froland, supra, 193 N.J. at 196-97. Defendant filed separate appeals from his sentence and his conviction. We affirmed defendant's sentence. State v. Kindt, No. A-2509-06T2 (App. Div. June 2, 2008).

In this appeal, defendant raises the following issues for our consideration:

POINT ONE

TESTIMONY THAT DEFENDANT HAD PHYSICALLY ASSAULTED HIS EX-WIFE DENIED DEFENDANT A FAIR TRIAL. (Partially Raised Below).

POINT TWO

THE TRIAL COURT'S INSTRUCTION TO THE JURY ON "FLIGHT" SERVED TO DILUTE THE STATE'S BURDEN OF PROOF, THUS DENYING DEFENDANT HIS RIGHT TO A FAIR TRIAL.

POINT THREE

THE TRIAL COURT'S FAILURE TO PROVIDE AN ENHANCED UNANIMITY INSTRUCTION TO PREVENT AN UNCONSTITUTIONAL PATCHWORK VERDICT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below).

POINT FOUR

DEFENDANT WAS DENIED HIS RIGHT TO PRESENT A DEFENSE WHEN THE COURT REFUSED TO GRANT AN ADJOURNMENT SO THAT A CRITICAL DEFENSE WITNESS COULD TESTIFY.

POINT FIVE

BECAUSE THE IMPROPER SUBMISSION OF THE KIDNAPPING CHARGES TO THE JURY LED TO AN UNJUST RESULT, DEFENDANT'S CONVICTIONS MUST BE REVERSED.

II.

We turn first to defendant's contention that he was denied his right to a fair trial because evidence was admitted at trial that he had physically assaulted O'Connor.

At the trial, O'Connor testified for the prosecution. In her direct testimony, she did not make any reference to any physical or mental abuse. During her cross-examination, defendant, who represented himself at the trial, asked O'Connor to read from a transcript from his bankruptcy proceeding. In that matter, O'Connor had been asked why she moved to New Jersey. She stated that she had been "running away from California."

On re-direct, the prosecutor asked O'Connor to read a portion of a statement she gave to the police which related to the circumstances under which she left California. O'Connor's statement said, "There was physical and mental abuse. I also found out that [defendant] was cheating on me. It was an abusive situation all the way around. And I was escaping." The prosecutor asked whether this was what O'Connor meant during the bankruptcy proceeding when she stated that she had been "running away." She replied, "Yes." Defendant did not object to O'Connor's testimony.

At side-bar, prior to re-cross, defendant presented O'Connor's application for a restraining order, as well as a police report regarding alleged domestic violence. The trial court warned defendant, "You are opening a door to let something in to hang yourself." Defendant nevertheless proceeded to have O'Connor read the application, in which she said that defendant had used violence against her in the past but she had not filed any charges against him. Defendant also asked O'Connor to read from the police report relating to an incident that occurred on December 23, 1998, in which the officer wrote that there was no sign of violence at the scene and no violence as indicated by the parties.

On re-direct, the prosecutor asked O'Connor who called the police. She said that she did. On further cross-examination, defendant asked O'Connor to clarify the reasons for the call. She testified:

As I recall you came over to my house and pulled the kids out of their beds to bring them over to your house. And I called the police. I was trying to stop you from doing that. And that I had pictures of the bruises on my arms from you dragging me and pulling me. And I called the police and they came and they separated us and they sent me and the children to my parents. And I did not, foolishly again, did not pursue [the matter by] filing charges against you.

After this testimony, the court instructed the jury that it was not trying issues of domestic violence. The court told the jury to "filter out the noise and get to that [which] deals with the charge[s] here before you." In its final instructions to the jury, the court stressed the irrelevance of the domestic violence issue. The court stated, "There had been some talk about domestic violence in this case. As I told you, this is not a case about domestic violence. I've indicated to you that that is not part of your deliberations."

Defendant argues that the court erred by not excluding O'Connor's testimony regarding the alleged abuse. As noted, defendant did not object when the prosecutor first elicited testimony from O'Connor that she left California because defendant had subjected her to physical and mental abuse. The prosecutor asked that question after defendant had O'Connor read from her prior statement that she had been "running away" from California.

Moreover, it was defendant, not the prosecutor, who first elicited testimony from O'Connor regarding the December 23, 1998 incident in which she reported that she had been a victim of domestic violence. Indeed, as we have noted, the court specifically warned defendant that it would be unwise for him to bring out those facts.

In our view, O'Connor's statement about "running away" from California opened the door to clarification, but the subsequent testimony that she left California to escape abuse by defendant was not relevant to the case and was prejudicial. Nevertheless, we are not convinced that the admission of those statements constitutes plain error under Rule 2:10-2.

As we have indicated, the trial court promptly recognized that this evidence was irrelevant and prejudicial and ordered the jury not to consider it. See State v. Vallejo, 198 N.J. 122, 135 (2009) (noting the need for immediate and specific instructions when jury has heard inadmissible evidence). The court reiterated that instruction in its final charge to the jury.

We are satisfied that the measures taken by the court were sufficient to address the potential for prejudice that could result from the admission of O'Connor's statements. In this regard, we note that O'Connor's testimony was brief and relatively unimportant, particularly when considered in the context of a nine-day trial, which included testimony from thirty witnesses. Furthermore, there was no evidence that a court had issued a domestic violence restraining order. Vallejo, supra, 198 N.J. at 134. We therefore conclude that the admission of O'Connor's brief testimony on this point was not clearly capable of producing an unjust result.

III.

Defendant next argues that the court erred by instructing the jury on "flight." He contends that "flight" is an element of the crime of interference with custody and, by instructing the jury that it could consider "flight" as evidence of consciousness of guilty, the court lessened the State's burden to prove the charge beyond a reasonable doubt and confused the jury. We disagree.

Here, defendant was charged with, among other offenses, interference with custody, contrary to N.J.S.A. 2C:13-4a(1), (2) and/or (4). The statute provides that a parent may be found guilty of interference with custody if the parent:

(1) Takes or detains a minor child with the purpose of concealing the minor child and thereby depriving the child's other parent of custody or parenting time with the minor child; or

(2) After being served with process or having actual knowledge of an action affecting marriage or custody but prior to the issuance of a temporary or final order determining custody or parenting time rights to a minor child, takes, detains, entices or conceals the child within or outside the State for the purpose of depriving the child's other parent of custody or parenting time, or to evade the jurisdiction of the courts of this State; [or]

. . .

(4) After the issuance of a temporary or final order specifying custody, joint custody rights or parenting time, takes, detains, entices or conceals a minor child from the other parent in violation of the custody or parenting time order.

We are convinced that the court did not err by charging the jury that it could consider "flight" as evidence of a consciousness of guilt if it found that defendant's purpose was to evade accusation or arrest. "Flight" is not an element of a charge of interference with custody under N.J.S.A. 2C:13-4a(1), (2) or (4). Proof that defendant took the children and concealed them from O'Connor is sufficient to establish that defendant committed the offense. In our judgment, the court properly instructed the jury on "flight" and allowed it to consider evidence that defendant departed after having taken and concealed the children as evidence of a consciousness of guilt.

In doing so, the court did not lessen the State's burden of proving the charge beyond a reasonable doubt. Here, the trial court carefully instructed the jury on all elements of interference with custody. The court emphasized that the State had the burden of proving the elements of the offense beyond a reasonable doubt. Thus, charging the jury on "flight" did not lessen the State's burden of proof because the court made clear that such evidence could only be considered as evidence of consciousness of guilt.

IV.

Defendant additionally argues that the court erred by failing to provide the jury with an "enhanced unanimity" instruction with regard to the three alternative theories under which he was charged with interference with custody. Defendant did not seek the instruction at trial. We again consider whether the court's failure to provide the instruction was erroneous and, if so, whether it constituted an error clearly capable of producing an unjust result. R. 2:10-2.

In State v. Frisby, 174 N.J. 583 (2002), the defendant was charged with endangering the welfare of a child under two distinct theories: 1) injuring the child or failing to properly supervise him, which resulted in the injury; or 2) abandoning the child. Id. at 598. The Court noted that the State had advanced different theories "based on different acts and entirely different evidence." Id. at 599. The Court concluded that under those circumstances, the general unanimity charge was insufficient and a more specific instruction on unanimity was required. Id. at 599-600.

Here, defendant was charged with three theories of interference with custody. The theories were, however, conceptually similar. All involve the taking, detainment or concealment of the children for purposes of depriving O'Connor of custody or parenting time.

The first theory did not require proof of the existence of a court order on custody or parenting time. The second theory required knowledge of an impending court order. The third theory required the existence of a final court order. Moreover, the State relied upon the same acts and evidence to support conviction on all three theories.

We therefore conclude that the court's failure to sua sponte provide the jury with a specific unanimity instruction was not error, let alone an error clearly capable of producing an unjust result.

V.

Defendant also argues that the trial court erred by denying his request for an adjournment so that he could secure the testimony of a defense witness, specifically, Steven Mather (Mather). Again, we disagree.

Mather was an attorney who, at one time, represented both defendant and O'Connor. The Office of the Public Defender (OPD) refused to pay for the cost of transporting Mather to New Jersey because, in its view, Mather's testimony was likely barred by the attorney-client privilege and was irrelevant in this matter. Defendant argued, however, that Mather's testimony would have supported his assertion that he took the children only to flee a "corrupt" situation that arose in part from Mather's recommendation that O'Connor pursue a limited divorce. The trial court determined that the OPD had properly denied funding to secure Mather's appearance and refused to adjourn the matter.

We are satisfied that the court did not abuse its discretion or deny defendant of his right to a fair trial by refusing to adjourn the matter so that defendant could endeavor to obtain Mather's testimony. Here, defendant sought to elicit testimony of legal advice that Mather had provided to O'Connor regarding a divorce. Such communications between an attorney and his client are privileged. N.J.R.E. 504(1).

It is undisputed that O'Connor did not waive the privilege. Therefore, defendant could not compel Mather's testimony. Moreover, the trial court properly determined that Mather's testimony as to legal advice he provided to O'Connor was not critical to defendant's assertion that he did not intend to permanently deprive O'Connor of custody or parenting time.

VI.

Defendant additionally argues that, in light of the Supreme Court's holding in Froland, he was unfairly prejudiced by the submission of the kidnapping charges to the jury. He argues that, had he not been defending against the more serious kidnapping charges, he would not have "essentially concede[d] guilt on the interference of custody charges" and would have instead mounted a more aggressive defense to those charges. Because this issue was not raised during the trial, we consider whether the submission of the kidnapping charges to the jury was plain error. State v. Wilder, 193 N.J. 398, 418 (2008).

We conclude that it was not. When defendant was tried, the trial court adhered to our ruling, which had reinstated the kidnapping charges against him. He was found not guilty on those charges. After defendant's trial, the Supreme Court decided Froland, which indicated that the kidnapping charges should not have been submitted to the jury.

In considering an overcharge claim, we cannot speculate as to whether the jury failed to follow the court's instructions and reached a compromise verdict by returning a verdict on a lesser offense. Id. at 415-16. In this matter, the trial court provided the jury with clear instructions and told the jury that the State was required to prove all of the elements of interference with custody beyond a reasonable doubt. We must assume that the jury followed those instructions. Moreover, there was sufficient evidence to support defendant's conviction of interfering with custody. We therefore conclude that the submission of the kidnapping charges to the jury was not an error clearly capable of producing an unjust result.

Affirmed.

 

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A-3588-05T4

June 4, 2009