STATE OF NEW JERSEY v. MARCUS HOLLEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5053-06T45053-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCUS HOLLEN,

Defendant-Appellant.

_______________________________________________

 

Submitted September 16, 2009 - Decided

Before Judges Axelrad, Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, In-dictment No. 04-12-1699.

Yvonne Smith Segars, Public Defender, attor-ney for appellant (Rasheedah Terry, Desig-nated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

We review a conviction based on the mistaken admission of a material witness's videotaped deposition. The deposed witness was only absent from the State; he was not "unable to testify because of death or physical or mental incapacity," as required by Rule 3:13-2(c). Even though defense counsel failed to object to this misapplication of Rule 3:13-2(c), we reverse and remand for a new trial because the admission of the deposition was clearly capable of producing an unjust result.

Defendant was indicted and charged with a number of weapons offenses. Prior to trial, the State indicated its intention to seek a conviction only on a single count of second-degree possession of a weapon by a person not so permitted, N.J.S.A. 2C:39-7.

At trial, the State offered the deposition testimony of Ofptop Khan, who worked at the Kennedy Fried Chicken store in Paterson. The deposition was videotaped a few months prior to the impaneling of a jury. The judge presided over the deposition, defendant was present and defense counsel cross-examined Khan at length.

Khan testified in his deposition that during the early morning hours of September 4, 2004, defendant approached the rotating window and requested a cheeseburger. When Khan responded that the grill was closed, defendant displayed a handgun and knocked on the window with it. Khan offered defendant a beverage and placed it in the rotating window, whereupon defendant placed the handgun in the rotating window and spun it with sufficient force as to cause the weapon to fall to the floor of the store. Defendant then made threatening statements and told Khan to hold the weapon for him. Khan threw it into a nearby cardboard box. This deposition testimony represented the only direct evidence that defendant was in possession of a handgun, an essential element of the offense charged.

The only live witnesses were the investigating police officers. Officer Jose Torres testified that, in response to an anonymous call, he arrived at the chicken store at approximately the same time of the events that took place between defendant and Khan. Officer Torres arrived in a police vehicle, with his overhead lights on, and as he arrived, he saw defendant walking in his direction. According to Officer Torres, when defendant saw him he returned to the store and shoved a dark object into the rotating window. Upon questioning Khan as to what was passed through the window, Khan advised the officer that defendant just placed change in the window; he did not tell Officer Torres that a weapon was passed through the window or that the weapon remained in the store.

Officer Torres left, but soon thereafter received a radio dispatch about a handgun being passed to the store clerk. He returned and this time, upon further questioning, Khan acknowledged that defendant had previously passed a handgun through the window. Khan gave the officer a description of defendant and also showed him where the weapon was. Officer Torres retrieved a loaded nine-millimeter Lugar P-89 handgun. Defendant, who was still outside the store with other suspects, was arrested.

A search of defendant's person uncovered four nine millimeter bullets. In searching the area, another officer found a spent nine millimeter round approximately twenty-five feet from the store.

Defendant was convicted of being a person not permitted to be in possession of a handgun, N.J.S.A. 2C:39-7, at the conclusion of a five-day trial. Following an unsuccessful motion for a new trial, defendant was sentenced to a seven-year prison term with a five-year period of parole ineligibility.

Defendant appealed, raising the following arguments:

I. THE TRIAL COURT ERRED WHEN IT PERMITT[ED] MR. KHAN TO TESTIFY VIA VIDEOTAPE DEPOSITION IN LIEU OF LIVE TESTIMONY.

A. Mr. Khan was not unavailable due to death or serious illness as required by R. 3:13-2.

B. Mr. Khan was not committed for failure to give bail as required by R. 3:13-2.

C. The trial court violated Mr. Hollen's right to confrontation.

D. Mr. Hollen did not voluntarily, knowingly and intelligently waive his right to confrontation.

II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT RECONSTITUTED THE JURY AFTER IT EXCUSED MS. ROUNDTREE BECAUSE PRIOR TO THE RECONSTITUTION, THE JURY HAD BEEN EXPOSED TO EXTRANEOUS INFORMATION AND HAD BEGUN TO RESOLVE FACTUAL ISSUES BEARING ON MR. HOLLEN'S GUILT OR INNOCENCE DURING THE COURSE OF DELIBERATIONS.

III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DECLINED TO REPLAY THE OFFICERS' TESTIMONY BECAUSE THE JURY REQUESTED CLARI-FICATION AND THE TRIAL COURT HAD AN OBLIGA-TION TO CLEAR THE JURY'S CONFUSION.

IV. THE TRIAL COURT ABUSED ITS DECISION WHEN IT DENIED MR. HOLLEN'S MOTION FOR A NEW TRIAL BECAUSE THE GUILTY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE PRODUCED DURING THE TRIAL.

V. THE JUDGMENT OF CONVICTION MUST BE REVERSED AND REMANDED BECAUSE IT INCORRECTLY SETS FORTH MR. HOLLEN'S FINAL CHARGE.

VI. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED MR. HOLLEN TO SEVEN YEARS OF IMPRISONMENT WITH A FIVE YEAR PERIOD OF PAROLE INELIGIBILITY BECAUSE THE TRIAL COURT FAILED TO FIND EVIDENCE OF MITIGATION SUPPORTED BY THE RECORD.

Because we agree with defendant's argument in Point I that the videotaped deposition should not have been admitted, and that this error mandates a new trial, we need not reach the arguments contained in defendant's other points.

In Point I, defendant argues that the use at trial of the Khan deposition violated his federal and state constitutional confrontation rights and that Rule 3:13-2 does not permit, in these circumstances, either the creation or use of such a deposition.

The right of an accused to confront witnesses called in a criminal trial is guaranteed by the Sixth Amendment of the federal constitution and Article I, paragraph 10 of our state constitution. As explained in Coy v. Iowa, 487 U.S. 1012, 1017, 108 S. Ct. 2798, 2801, 101 L. Ed. 2d 857, 865 (1988) (quoting Pointer v. Texas, 380 U.S. 400, 404, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923, 926 (1965)), the principles embodied in the confrontation clause give life to the understanding that "there is something deep in human nature that regards face-to-face confrontation between accused and accuser as 'essential to a fair trial in a criminal prosecution.'" In examining the scope of the confrontation clause, it is understood that it consists of two aspects: the right to physically confront witnesses and the right to cross-examine. Ibid. Here, because defense counsel was permitted to cross-examine Khan at his deposition, our focus is on the physical confrontation aspect.

Over one hundred years ago, the Supreme Court recognized that "the primary object" of the confrontation clause was "to prevent depositions or ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." Mattox v. United States, 156 U.S. 237, 242-43, 15 S. Ct. 337, 339, 39 L. Ed. 409, 411 (1895). The record reveals that all the necessary elements required by this understanding of the confrontation clause, except one, were present. That is, defendant attended the deposition, his attorney was able and did, in fact, cross-examine Khan, and the jury was permitted -- because the deposition was videotaped -- to assess Khan's demeanor as he gave his testimony, but the procedure failed to provide defendant with the opportunity to have Khan exposed to the influence of the jury's presence as he testified.

That the process adopted here did not entirely fulfill the right as described by Mattox, however, is not conclusive. It is understood that the right to confront witnesses is not absolute. For example, it has been held that it does no violence to the confrontation clause to allow a child in an abuse case to testify by way of closed circuit television. See Maryland v. Craig, 497 U.S. 836, 857, 110 S. Ct. 3157, 3170, 111 L. Ed. 2d 666, 686 (1990); State v. Crandall, 120 N.J. 649, 658 (1990). In addition, Rule 3:13-2(a) permits the conducting of a videotaped deposition of a "material witness" when that witness "is likely to be unable to testify at trial because of death or physical or mental incapacity"; the party seeking the conducting of the deposition must demonstrate that "such action is necessary to prevent manifest injustice." And Rule 3:13-2(c) permits the later use of such a deposition at trial "in lieu of live testimony of the witness in open court if the witness is unable to testify because of death or physical or mental incapacity."

Rule 3:13-2 was not intended to have broad application. To the contrary, we have held that its application "should be tightly limited to those situations where it is truly necessary." State v. Benitez, 360 N.J. Super. 101, 112-13 (App. Div. 2003) (quoting Pressler, Current N.J. Court Rules, comment 1 on Rule 3:13-2 (2009)). In State v. Rodriquez, 264 N.J. Super. 261 (App. Div. 1993), aff'd o.b., 135 N.J. 3 (1994), we rejected a challenge to the use of a videotaped deposition of a material witness who suffered a mild heart attack and was hospitalized after direct examination. See also State v. Washington, 202 N.J. Super. 187, 191-93 (App. Div. 1985) (rejecting a challenge to the use of a videotaped deposition of a material witness who had suffered a heart attack at a prior court hearing). On the other hand, in Benitez, we concluded that Rule 3:13-2(c) did not authorize the use of a deposition simply because of the advanced age of the victim. 360 N.J. Super. at 117-18.

These authorities demonstrate in distinguishable circumstances, as we said in Washington, that "before a deposition videotape is admitted in evidence the State must bear a heavy burden of demonstrating to the trial judge that the witness in question is literally unavailable." 202 N.J. Super. at 194. Rule 3:13-2 defines what is meant by the unavailability of a material witness, requiring that the proponent establish that the witness has either died or is physically or mentally incapacitated. The Rule's incapacity element does not encompass a situation where the witness is healthy in mind and body but not physically present within the jurisdiction. Pressler, Current N.J. Court Rules, comment 3 on Rule 3:13-2 (2009). In an argument unfettered by legal citations, the State asserts in its appeal brief that Khan's absence from the State "represented a physical incapacity, which made him unable to testify pursuant to R. 3:13-2." This contention is utterly at odds with the Rule's intended limited scope.

Considering that the only suggested basis for the invoking of Rule 3:13-2 was the fact that Khan was in Pakistan, it follows that defendant had a valid objection to both the taking of the deposition and its use at trial; Rule 3:13-2 would have required that any such objections would have to be sustained and would have led to the exclusion of the videotaped testimony. Defense counsel, however, did not object to the creation and use of the deposition.

The record reflects that the parties were apparently ready to proceed on one of a number of scheduled trial dates in September 2006; Khan was then present in New Jersey. However, the judge was in the midst of another trial. Apparently at the State's suggestion, the parties appeared before the judge on September 21, 2006, while still waiting to be reached for trial. At that time, a plea bargain, which defendant ultimately rejected, was discussed on and off the record. During these recorded discussions, it was assumed that the judge would preside over the videotaped deposition in question because it was represented that Khan was planning on returning to Pakistan and might not be in New Jersey when the matter was eventually reached for trial.

Nothing was placed on the record on that occasion to suggest that defense counsel had any objection to the conducting of the deposition. Indeed, during voir dire concerning the rejected plea offer, defense counsel indicated to defendant that Khan's unavailability would be irrelevant to his chances of success at trial; that is, defense counsel told his client:

If you go to trial there . . . are a couple of problem[s]. The first one is, we're gonna take testimony today from this witness who allegedly was working in the chicken place where this all allegedly occurred on the night of . . . or early morning of September 4, 2004. And then he's gonna go back to Pakistan and this is gonna be memorialized on a videotape. But we're not having your trial today because the [j]udge and this [c]ourt doesn't have room to try your case right now.

Defendant did not respond directly to this statement during voir dire and later when defense counsel asked whether his decision was to go to trial, defendant responded it was.

When defense counsel had completed his voir dire, the judge also questioned defendant about his decision to go to trial rather than accept the plea offer, and he too indicated that "[w]e don't need the man from Pakistan [because] we would have his testimony [and] the jury would see it on the television because we're videotaping it today." At no point during this recorded discussion prior to the deposition did defense counsel state an objection to the process, or seek defendant's consent to the procedure, or advise defendant he had a right to object to the videotaping of Khan's deposition for later use at trial.

Khan was then deposed. During the course of the deposition, the only objections lodged by defense counsel related to the form of the prosecutor's questions. Defense counsel thoroughly cross-examined Khan and, when the deposition was completed, the cassette containing the deposition was marked as an exhibit. Nothing that was said during the deposition could be viewed as a defense objection to the process.

A few months later, a jury was impaneled and the trial finally commenced. In a recorded pretrial conference, the judge asked about the videotaped deposition and again, despite the opportunity, defense counsel failed to object to its use even though the record is bereft of any showing that Khan was then unavailable within the meaning of Rule 3:13-2. During that conference, counsel revealed that his client had raised concerns about Khan's absence but counsel stated that such an objection would have no merit. That is, after indicating there were no specific objections regarding Khan's testimony on which the judge would have to rule, defense counsel also said:

So the only other issue that anybody could potentially raise, I believe, is the obvious, which is that [Khan is] not here in person, which, in all fairness, Judge, my client raised to me this morning. He wanted to know how come [Khan] doesn't have to be here in person and it's because we already had a chance to cross-examine him. And I explained to him that were he to come in person, we would be going through the exact same stint we went through in September. Nothing different I believe would occur then what took place in September if he were here today.

Far from being an objection, defense counsel suggested that defendant's personal concerns regarding the process were without merit. Since no objection was urged, the judge made no ruling as to whether the deposition was admissible. Instead, the judge proceeded on the correct understanding that defendant had no objection as to its use. When the videotaped deposition was offered and played for the jury, defense counsel again made no objection.

As the State concedes, Khan "was the only witness that could testify that the defendant possessed the handgun" -- a necessary element of the charged offense. Because defense counsel failed to object, Khan's deposition was heard by the jury despite the fact that Rule 3:13-2(c) did not permit its use.

Because defense counsel failed to object to the deposition's admission, we must consider whether the plain-error standard of review requires reversal. Rule 2:10-2 permits our examination of an error not brought to the attention of the trial court if the error is of "such a nature as to have been clearly capable of producing an unjust result." An unnoticed error that has produced an unjust result is one which was "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971); see also State v. Castagna, 187 N.J. 293, 312 (2006); State v. Whitaker, 402 N.J. Super. 495, 512 (App. Div. 2008), certif. granted, 197 N.J. 476 (2009). The unnoticed error here may have led the jury to a result it might not have reached because, without the deposition testimony, the jury was not given sufficient evidence to convict defendant.

 
The circumstances, however, do not require acquittal at this time even though we have acknowledged that defendant could not be convicted in the absence of the erroneously admitted evidence. We reverse not because the State failed to provide evidence on an essential element but because the trial court erred in allowing the State to prove an essential element through inadmissible evidence. Under these circumstances, particularly in light of defendant's failure to raise the inapplicability of Rule 3:13-2 in the trial court, defendant is entitled to a new trial, not outright acquittal. State v. Ring, 85 N.J. Super. 341, 343-44 (App. Div. 1964), certif. denied, 44 N.J. 407, cert. denied, 382 U.S. 812, 86 S. Ct. 24, 15 L. Ed. 2d 60 (1965); see also State v. Morgan, 393 N.J. Super. 411, 420 (App. Div. 2007).

Reversed and remanded for a new trial.

This is not the only spelling of Khan's first name contained in the record. We have adopted the spelling of "Ofptop," which appears in the deposition transcript, but we note that the name has also been spelled as "Aftab" in other places in the record.

There is no dispute that Khan was a "material" witness. Without Khan's testimony, a jury could not find beyond a reasonable doubt that defendant was in possession of the handgun -- a critical element of the offense for which he was convicted.

This was not the first trial date. The judge mentioned during the proceedings on September 21, 2006 that "[t]his case has quite a bit of [c]ourt history and according to the file . . . was given a trial date first on March 1, '05 and then numerous trial dates after that."

Khan was also available on an earlier occasion to testify before the Grand Jury.

We do not view defense counsel's apparent misconception about the scope of Rule 3:13-2(c), which led him to remain silent when the deposition was offered, as invited error. There is nothing in the record to suggest -- and, indeed, the State has not argued -- that defense counsel "beseech[ed] and request[ed]" that the trial judge admit the deposition, "[took a] chance on the outcome of the trial," and, when the outcome proved unfavorable, "condemn[ed] the very procedure he sought and urged." State v. Pontery, 19 N.J. 457, 471 (1955); see also State v. Jenkins, 178 N.J. 347, 358 (2004).

(continued)

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A-5053-06T4

October 13, 2009