STATE OF NEW JERSEY v. DARREN L. SEAWRIGHT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2314-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARREN L. SEAWRIGHT,

Defendant-Appellant.

__________________________________

SubmittedMay 3, 2011 Decided July 28, 2011

Before Judges Messano and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-05-0519.

Darren L. Seawright, appellant pro se.

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jaclyn E. Fineburg,Assistant Prosecutor,of counsel and on the brief).

PER CURIAM

Defendant Darren L. Seawright appeals his conviction for burglary and theft by unlawful taking. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

On the morning of November 29, 2007, Stephanie Rodriguez left her home on Paddock Lane in Willingboro to drop her daughter off at school. When she left, the doors were locked and a kitchen window above the sink was intact. Stephanie's husband, Robert Rodriguez, had left the residence earlier.1

Stephanie returned home between 11:00 and 11:30 a.m. She walked into the kitchen and discovered that the back door was open and the window above the kitchen sink had been broken and "cranked open." Stephanie called the police, who arrived within a few minutes and entered the home while she waited outside. Robert returned home shortly thereafter.

The police officers then asked Stephanie and Robert to enter the house and determine what was missing. They reported that Stephanie's jewelry and Robert's camera had been stolen. Robert's change jar, which had been about three-quarters full of nickels, quarters and dimes, was empty, and there was change scattered throughout the house. Approximately $1175 in cash was taken from the room occupied by Robert's son.

Detective Amber Ciccanti of the Willingboro Police Department arrived at the scene shortly before noon. She noted that the window above the kitchen sink had been broken inward. Ciccanti dusted "the area around the window and the window sill" for fingerprints, but did not find any in that area. However, Ciccanti was able to retrieve "two lifts of latent prints" from Robert's empty coin jar.

Ciccanti placed each of the two "lifts" on separate white cards and wrote information regarding each print on the back of the cards. The cards also had the date, Ciccanti's name, and her badge number, all in Ciccanti's handwriting. She then transported the prints back to the police station and filled out a request for a fingerprint examination report. The two fingerprints and report request were placed in an envelope and stored in a secured evidence locker at the Willingboro Police Station.

On December 3, 2007, the case was assigned to Willingboro Police Detective Kevin Vernon. At that time, Vernon knew that Ciccanti had retrieved latent fingerprints from the scene of the burglary, and that those prints would be analyzed later. In January 2008, however, the prints had not yet been analyzed. Although Vernon believed Seawright was a suspect, he closed the case due to a lack of physical evidence.

On February 20, 2008, Willingboro Police Detective Albert Kelly delivered the envelope containing the prints lifted by Ciccanti to the New Jersey State Police Automated Fingerprint Identification System (AFIS) Unit. Kelly also delivered a fingerprint card with Seawright's prints.2 AFIS notified Ciccanti of the match on February 21, 2008.

Detective Sergeant Michael Wiltsey of the Burlington County Prosecutor's Officer, who was assigned to the Crime Scene Unit, was supplied with the AFIS hit packet and analyzed the prints lifted from the coin jar. Although the first print was not sufficient, Wiltsey determined that the clarity of the second print was sufficient to permit identification. Wiltsey compared the second print to Seawright's fingerprint card and concluded that it matched the right-ring finger print on Seawright's fingerprint card.

Seawright was arrested on March 10, 2008. On March 17, Seawright, who had not yet been indicted, filed a pro se motion requesting a probable cause hearing. See R. 3:4-3. On March 25, he filed a motion to dismiss the charges against him.

Seawright sought to represent himself at the probable cause hearing. After a hearing on April 30, the judge determined that Seawright had knowingly and intelligently waived his right to counsel for the probable cause hearing, which was scheduled for May 13. Seawright was indicted for third-degree burglary, contrary to N.J.S.A. 2C:18-2(a)(1) (count one), and third-degree theft by unlawful taking, contrary to N.J.S.A. 2C:20-3(a) (count two) on May 1, 2008.

The probable cause hearing was held on May 13. On May 15, the judge issued a written opinion and order. He determined that Seawright's request for a probable cause hearing was moot because he had been indicted. He denied Seawright's motion to dismiss the charges, concluding that the forty-five day period between his request for a probable cause hearing and the return of the indictment was not unreasonable.

On June 5, Seawright filed a pro se motion to dismiss the indictment. On June 18, the State filed a motion to amend the indictment because its factual allegations did not conform to the facts adduced before the grand jury. The State's application to amend the indictment was granted, and Seawright's motion to dismiss was denied.

On June 27, Seawright filed a motion to suppress a police report made by Officer George Smith of the Willingboro Police Department. He also requested suppression of partial latent fingerprints from the crime scene. The motion to suppress was argued on August 11, and was denied in an oral decision on the record.

On September 16, Seawright filed a motion to exclude the partial latent finger prints at the trial. In a letter of September 17, the judge denied the motion without prejudice on the grounds that the issue could not be determined on a pretrial application.

In October 2008, the judge appointed standby counsel for Seawright's trial. On October 21, the judge determined that Seawright had knowingly and intelligently waived his right to trial counsel, but ordered that standby counsel be present at trial. At the same time, the State provided Seawright with additional discovery: an AFIS latent evidence log, and a Burlington County Prosecutor's office evidence log.

On October 22, the State sought to provide additional discovery, a one-page form prepared by Ciccanti entitled "Call-out Follow up Form." The form stated that latent fingerprints were recovered from the crime scene, but that no other evidence was collected. The prosecutor explained that he had only received it from the Willingboro Police Department the prior evening because Ciccanti "did not realize [the] form should have come up in the normal package of discovery." The judge determined that Seawright was not prejudiced by the late submission of the additional document.

Seawright was tried before a jury on October 30, November 5, 6, and 7, 2008. At trial, Seawright objected to the State's request to admit Robert's coin jar into evidence. The judge admitted the jar after hearing testimony from Stephanie and Robert that the female detective from Willingboro Police Department (Ciccanti) had dusted the same jar for fingerprints.

The jury convicted Seawright on both counts of the indictment. On December 12, Seawright was sentenced as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). The judge sentenced him to eight years on the third-degree burglary, with a four year period of parole ineligibility, and to a concurrent five years on the third-degree theft by unlawful taking, with a two-and-a-half year period of parole ineligibility.

This appeal followed.

II.

Seawright raises the following issues on appeal:

POINT I: DEFENDANT RIGHT [sic] TO DUE PROCESS WAS VIOLATED WHEN THE TRIAL COURT DISMISSED DEFENDANT MOTION TO DISMISS INDICTMENT, IN VIOLATION OF BOTH FEDERAL AND STATE CONSTITUTION FOURTH AND FOURTEENTH AMENDMENTS, N.J.S.A. ART I, PAR 7 AND 8.

POINT II: THE STATE FAILED TO DISCLOSE DISCOVERABLE MATERIAL IN A TIMELY FASHION IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART I, PAR 10 OF THE NEW JERSEY CONSTITUTION.

POINT III: DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN THE STATE USED FALSE EVIDENCE AND PERJURED TESTIMONY IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART I, PAR 10 OF THE NEW JERSEY CONSTITUTION.

POINT IV: THE DEFENDANT WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW WHEN THE TRIAL COURT ALLOWED THE COIN JAR TO BE INTRODUCED INTO EVIDENCE WITHOUT THE STATE LAYING THE PROPER FOUNDATION FOR ITS ADMISSIBILITY, IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART I, PAR 6 AND 10 OF THE NEW JERSEY STATE CONSTITUTION.

We turn first to Seawright's argument that the trial judge erred in denying his motion to dismiss the indictment because the evidence submitted to the grand jury was "insufficient to return an indictment." He maintains that, because Detective Robert Kelly was the only witness to testify before the grand jury, there was insufficient evidence for an indictment due to the fact that Kelly was not at the crime scene and had no "first-hand knowledge of the investigation." He further argues that Kelly's testimony was largely based on inadmissible hearsay.

"[A]n indictment should be disturbed only on the clearest and plainest ground, and only when the indictment is manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996) (citation and internal quotation marks omitted). The decision on a motion to dismiss an indictment is generally addressed to the discretion of the trial judge. State v. McCrary, 97 N.J. 132, 144 (1984). A trial court's "exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused." Hogan, supra, 144 N.J. at 229.

In support of his argument, Seawright relies on two trial court opinions that are not binding on us: State v. Chandler, 98 N.J. Super. 241 (Cty. Ct. 1967) and State v. Costa, 109 N.J. Super. 243 (Law Div. 1970). In Chandler, the defendant filed a motion to dismiss the indictment premised on the fact that the only witness who testified before the grand jury did not witness the event. Chandler, supra, 98 N.J. Super. at 244-45. The trial judge dismissed the indictment, explaining that the witness, a police detective, did not have any "relevant information" because he did not witness the alleged crime and "served only the limited purpose of consigning the prosecutor's file to the grand jury." Id. at 251. Similarly, in Costa, the defendant filed a motion to dismiss the indictment because the sole witness before the grand jury, a police officer, "simply relat[ed] what had been told him by other persons." Costa, supra, 109 N.J. Super. at 244-46. The judge dismissed the indictment on the grounds that it was based exclusively on the hearsay testimony of the police officer, who lacked any first-hand knowledge of the incident. Id. at 248.

In State v. Holsten, 223 N.J. Super. 578, 584 (App. Div. 1988), we questioned the continued viability of the holdings in Chandler and Costa following our decision in State v. Ferrante, 111 N.J. Super. 299 (App. Div. 1970). In Ferrante, we held that "[a]bsent misconduct or abdication by grand jurors, the question whether evidence before a grand jury was competent or incompetent, . . . [is] irrelevant on a motion to dismiss the indictment." Ferrante, supra, 111 N.J. Super. at 306.

As we explained in Holsten, "[a]n indictment may be based largely or wholly on hearsay and other evidence which may not be legally competent or admissible at the plenary trial." Holsten, supra, 223 N.J. Super. at 585 (citation and internal quotation marks omitted). See also McCrary, supra, 97 N.J. at 146 (stating "hearsay and other informal proofs are permissible in determining issues that implicate important rights") (citing Costello v. United States, 350 U.S. 359, 363, 76 S. Ct. 406, 408, 100 L. Ed. 397, 402-03, reh'g denied, 351 U.S. 904, 76 S. Ct. 692, 100 L. Ed. 1440 (1956)); State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987) ("A grand jury may return an indictment based largely or wholly on hearsay testimony."). Where there is sufficient evidence to sustain the grand jury's charges, the indictment should not be dismissed. Holsten, supra, 223 N.J. Super. at 585-86.

Here, although Kelly was not involved in the investigation of the crime scene, he continued the investigation. He interviewed Seawright on the charges found in the indictment, and questioned him briefly before Seawright invoked his right to remain silent. Although there was substantial hearsay in his testimony, it was nevertheless properly before the grand jury and is not grounds for dismissing the indictment. Id. at 585. In addition, the grand jury testimony provided a sufficient factual basis for the indictment. State v. Morrison, 188 N.J. 2, 12-13 (2006) (stating an indictment should not be dismissed if there is evidence from which "a grand jury could reasonably believe that a crime occurred and that the defendant committed it").

Consequently, we conclude that the trial judge did not abuse his discretion in denying Seawright's motion to dismiss the indictment.

We next address Seawright's arguments concerning untimely disclosure of Ciccanti's "Call-out Follow up Form," which was not provided to him until just before jury selection. Seawright argues that the late production of the report was a violation of Rule 3:13-3(c)(8), which provides that "[t]he prosecutor shall permit defendant to inspect and copy or photograph . . . if not given as part of the discovery package . . . police reports which are within the possession, custody, or control of the prosecutor." Seawright also argues that the State failed to disclose that it did not have the coin jar in its possession.

The State has a "constitutional obligation to provide criminal defendants with exculpatory evidence in the State's possession." State v. Marshall, 148 N.J. 89, 154, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (citing State v. Knight, 145 N.J. 233, 245 (1996)). "'[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'" Knight, supra, 145 N.J. at 245 (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963)). Thus, the question is "whether evidence is sufficiently 'material' to require its timely disclosure to the defendant." Id. at 246. "[R]egardless of the specificity of the defendant's request, evidence is material for Brady purposes if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Ibid. (citation and internal quotation marks omitted). "A 'reasonable probability' is one that is 'sufficient to undermine confidence in the outcome.'" State v. Martini, 160 N.J. 248, 269 (1999) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)).

Seawright argues that Ciccanti's "Call-Out Follow up Form" was relevant and material to his defense because it would have revealed that no evidence was collected other than the two latent fingerprints lifted from the coin jar. He also maintains that it would have assisted "in effectively cross examining Detective Ciccanti with respect to her investigation."

Our review of the record discloses that information indicating that no evidence was collected other than the fingerprints had already been disclosed to Seawright. Officer Smith's report, which was given to Seawright well before trial, stated: "No other latent evidence, other than possible prints which Det. Ciccanti recovered were found." In addition, Seawright offers no persuasive articulation of how his cross-examination of Ciccanti would have been effective had he received the Ciccanti form earlier.

We discern no prejudice to Seawright from the admittedly late submission of Ciccanti's one page report. See State v. E.W., 413 N.J. Super. 70, 81 (App. Div. 2010) (holding defendant failed to establish there was a reasonable probability the result of the proceeding would have been different were an initial police report disclosed because a "substantially similar" document was disclosed). There is no "reasonable probability" that the result of the proceeding would have been different had the report been provided in May 2008, when he received the initial discovery. Knight, supra, 145 N.J. at 246.

Seawright next contends that the coin jar, which had been retained by the victims and not taken by the investigating officers, was improperly admitted into evidence because the State failed to lay a proper foundation for its admission. He specifically argues that the State failed to establish an uninterrupted chain of custody because Ciccanti did not preserve the coin jar from which she lifted two latent fingerprints.

Our standard of review requires us to give "substantial deference to a trial [judge's] evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We review such decisions under "an abuse of discretion standard." State v. Burns, 192 N.J. 312, 332 (2007). "[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). See also State v. Goodman, 415 N.J. Super. 210, 224-25 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

"A party introducing tangible evidence has the burden of laying a proper foundation for its admission." State v. Brunson, 132 N.J. 377, 393 (1993). A proper foundation "should include a showing of an uninterrupted chain of possession." Ibid. (citing State v. Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied, 51 N.J. 468 (1968)). Evidence should be admitted if there is a "reasonable probability that the evidence has not been changed in important respects or is in substantially the same condition as when the crime was committed." Brunson, supra, 132 N.J. at 393-94 (citation and internal quotation marks omitted). Whether a chain of custody has been adequately established to admit evidence is a determination "'committed to the discretion of the trial judge, and his determination will not be overturned in the absence of a clearly mistaken exercise thereof.'" Morton, supra, 155 N.J. at 446 (quoting Brown, supra, 99 N.J. Super. at 27).

In admitting the coin jar, the trial judge relied upon Stephanie's testimony that she cleaned the jar after Ciccanti lifted prints, placed it back in her closet, and that it had not been altered since that time. Stephanie's testimony demonstrated "an uninterrupted chain of possession," and provided support for the judge's conclusion that the jar was "in substantially the same condition as when the crime was committed." Brunson, supra, 132 N.J. at 393-94.

We similarly find no merit in Seawright's argument that Ciccanti "failed to preserve [the coin jar] which was essential to the [S]tate's case" and that "[w]ithout the coin jar, the [S]tate had no evidence that defendant was involved in this incident." The State relied on the latent prints lifted from the jar, rather than the jar itself. Seawright did not suffer any prejudice from the State's failure to preserve the coin jar, nor was its admission at trial an abuse of discretion. It was demonstrative rather than material evidence. There is simply no reason to believe that the result would have been different had the jury not seen what the jar actually looked like.

Finally, Seawright maintains that "the prosecutor knowingly allowed perjured testimony by [a] key witness[], Officer George Smith" in order to obtain defendant's conviction. Specifically, Seawright argues that Smith's testimony that he saw Ciccanti lift fingerprints from the coin jar and that he documented her actions in his police report is false testimony because Smith's report does not reflect "that Detective Ciccanti retrieved a partial latent finger print [sic] from a coin jar at the scene of the crime." Seawright maintains that his conviction should be overturned in light of the inconsistencies between Smith's police report and his testimony.

To obtain reversal of his conviction on the grounds of false or perjured testimony, the testimony "'must be shown by clear, convincing and satisfactory evidence to have been, not false merely, but to have been willfully and purposely falsely given, and to have been material to the issue tried and not merely cumulative but probably to have controlled the result.'" Gilgallon v. Bond, 279 N.J. Super. 265, 267 (App. Div. 1995) (quoting Shammas v. Shammas, 9 N.J. 321, 330 (1952)).

Smith's report states that, on November 29, 2007, "Det. A. Ciccanti responded and began to process the scene." Smith also wrote that "[n]o other latent evidence, other than possible prints which Det. Ciccanti recovered were found." At trial, Smith testified that he was present when Ciccanti responded to the scene, at which time he observed her dust and lift fingerprints from the jar. He also testified that he documented the actions of Ciccanti in his police report.

While Smith's report states that Ciccanti recovered "possible prints" without stating that they were lifted from the coin jar, Seawright has not demonstrated that Smith's testimony was "willfully false" or that his testimony was entirely contradictory to the statements in his report. Any conflict between the testimony and the report, if indeed there was one, was for the jury to resolve. Credibility issues are for the trier of fact to determine. State v. Locurto, 157 N.J. 463, 474 (1999).

In summary, we find no merit in any of the arguments raised by Seawright on appeal. Consequently, we affirm his convictions for burglary and theft by unlawful taking.

Affirmed.

1 Because the victims share the same last name, we refer to them by their first names.

2 Another Willingboro detective, Robert Kelly, had fingerprinted Seawright on December 14, 2007, when he was arrested on a warrant from Delaware.