STATE OF NEW JERSEY, IN THE INTEREST OF T.W. v.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6591-03T46591-03T4

STATE OF NEW JERSEY,

IN THE INTEREST OF

T.W.,

Juvenile-Appellant.

____________________________________________

 

Submitted December 5, 2005 - Decided

Before Judges A.A. Rodr guez and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FJ-03-1349-04.

Yvonne Smith Segars, Public Defender, attorney for appellant (Raquel Y. Bristol, Assistant Deputy Public Defender, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Missy Piccioni, Assistant Prosecutor, of counsel and on the letter brief).

PER CURIAM

T.W. was charged with juvenile delinquency for acts that allegedly occurred on June 26, 2003, when he was sixteen, which, if committed by an adult, would constitute third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7).

The State presented the testimony of T.B., also a juvenile, who claimed that he was drawn into an altercation with A.P. and A.J., among others, during a fire drill at school on June 26, 2003. Following the fire drill, T.B. and most other students left the school for the day. Later that day, while walking through town, T.B. saw two vehicles, one driven by A.P.; T.W. and A.J. were passengers in A.P.'s car. Both cars stopped. The juveniles in one car exited and chased the other juveniles then in T.B.'s company. T.W. and A.J. exited A.P.'s vehicle and pursued T.B., who was caught when his knees buckled during the chase. T.B. testified that while A.J. was swinging at him, T.W. threw twigs taken from a bundle in the nearby yard of a Mr. Johnson. Eventually, T.B. escaped and entered the Johnson home. There, he realized his face was punctured in two places and that one twig remained embedded in his cheek. T.B. claimed that he later required minor surgery for its removal.

At the close of the evidence, T.W.'s counsel moved for a continuance in order to secure the appearance at trial of Mr. Johnson and a police officer who received a written statement from T.B. shortly after the incident. Defense counsel apparently assumed that T.B.'s testimony would be similar to this written statement. In that statement, T.B. did not mention that T.W. threw twigs or sticks at him; he also wrote in the statement, contrary to what he said at trial, that others, including A.J., attacked him, and that his attackers used pipes or an ice pick or some combination thereof. Confusion about T.B.'s contrasting versions also arose from the fact that T.W. and T.B. have the same first name and that T.B.'s handwritten statement is quite indecipherable and unintelligible in many places.

The reasons for defense counsel's application for a continuance and the trial judge's denial of that application are contained within a colloquy that occurred toward the end of this brief trial:

[DEFENSE COUNSEL]: Your Honor, I'm going to have to ask for an adjournment so that I can subpoena Mr. Johnson and the police officer to testify in my case, and I'll tell you why. It's very important and it goes to the credibility of the victim here which is consistent with the contradictions that he made in his statements, he sat there on the witness stand and said that the only person that was there, the only person that threw anything at him was my client, and in his statement he says that he thinks he was stabbed in the face with an icepick. There was two people that had pulled out pipes, and then he ran into this lady's house. Now, Mr. Johnson says that -- in the police report says that he looked outside his home and saw a large group of males --

. . . .

And, some of the males were running with sticks, and that would be the gist of his testimony which, again, contradicts the victim's testimony when he indicates that no one was there that caused him any harm except for my client. And, even [A.J.] was not there throwing sticks at him.

And, I have -- and the reason why I need the police officer in here is because there's a statement in the police report where [A.J.] admits that he had struck this gentleman with a stick. So, I need to bring these witnesses in . . . so that this testimony can be taken on behalf of my client, Judge.

THE COURT: Mr. Johnson was subpoenaed to be here today by the State. He is not here. You knew about him and didn't subpoena him. [A.J.'s] a co-defendant. You can't call him as a witness.

[DEFENSE COUNSEL]: I'm not calling him. I'm calling the police officer, Judge.

THE COURT: Oh, the police officer. Well, the police officer[] is also known so I'll have to deny the motion for an adjournment to call other witnesses.

[DEFENSE COUNSEL]: Judge, this would be in the form of a rebuttal at this particular time because I did not expect -- this is a surprise, Judge. I did not expect that the witness would get up there and say that the only person, the only person that threw any sticks at him based on the evidence that was presented to me from the State, that the only person that did anything that day to him was my client, Judge.

THE COURT: Okay. Well, let me ask you this, did -- does the statement say that your client hit him with a stick?

[DEFENSE COUNSEL]: No, it does not.

. . . .

There's no mention of sticks at all. That's the whole point, Judge.

THE COURT: But does he mention your client --

[DEFENSE COUNSEL]: No, Judge. He says [A.J.] and two more pulled out pipes and I think an icepick and stabbed me.

[PROSECUTOR]: It says [T.] in there, doesn't it?

[DEFENSE COUNSEL]: They ran -- it's just me and [T.], which was his -- his friend, right?

[PROSECUTOR]: [A.] and [T.]. It's says [T.] in the statement.

THE COURT: The victim's name is [T.] also.

. . . .

[DEFENSE COUNSEL]: But he does not indicate that [T.W.] in his statement threw sticks at him, Judge. There's no mention of sticks in the statement.

. . . .

THE COURT: All right. I understand your position, but I'm not going to grant your request for an adjournment to call other witnesses. Okay. So that's it.

Following this, the judge heard the summations of counsel and rendered findings of fact, ultimately drawing the conclusion that T.W. committed a simple assault. In determining whether the State proved the charges, the judge recognized that T.B. had presented one version in his written statement and another while testifying at trial. Nevertheless, the judge chose to find credible the version told by T.B. at trial. Following that determination, and without requiring the preparation and submission of a pre-disposition report, the judge placed T.W. on probation for a period of eighteen months.

T.W. appealed, raising the following arguments for our consideration:

I. THE JUVENILE'S ADJUDICATION OF DELINQUENCY MUST BE REVERSED AND A JUDGMENT OF ACQUITTAL ENTERED BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE JUVENILE COMMITTED THE CHARGED OFFENSE.

II. THE TRIAL JUDGE'S DENIAL OF COUNSEL'S REQUEST TO ADJOURN THE TRIAL IN ORDER TO PRESENT REBUTTAL WITNESSES TO SURPRISE TESTIMONY DEPRIVED THE JUVENILE OF DUE PROCESS OF LAW AND A FAIR TRIAL.

III. THE COURT ERRED IN SENTENCING T.W. WITHOUT BENEFIT OF A PREDISPOSITION REPORT, THE PREPARATION OF WHICH T.W. HAD NOT WAIVED (Not Raised Below).

IV. THE JUVENILE'S SENTENCE SHOULD BE REMANDED BECAUSE IT IS EXCESSIVE AND THE COURT FAILED TO GIVE A STATEMENT OF REASONS (Not Raised Below).

Because the trial judge mistakenly exercised his discretion in refusing to permit a brief continuance, we reverse and remand for a new trial without resolving the arguments contained in Points I, III and IV.

As the lengthy colloquy earlier quoted indicates, T.W. was taken by surprise by the fact that T.B. testified to a version of what occurred on June 26, 2003 that conflicted with his prior written statement. Contrary to what he swore to at trial, T.B.'s earlier written statement, although difficult to read or understand, did not indicate that the harm he suffered was brought about through the use of twigs or sticks and did not appear to suggest that T.W. caused his injuries. When T.B. testified and placed the blame on T.W. -- and no one else -- what T.W. had anticipated would be the factual basis for the charges brought against him had been significantly altered. As a result, T.W. had more than a good faith basis for seeking a brief continuance so his counsel could attempt to secure the appearance of the police officer, who took the statement from T.B., and Mr. Johnson as well, who had been subpoenaed by the State but had not appeared. The trial judge denied the continuance because the identity of these persons and their involvement in the matter were already known to T.W. and his counsel.

We recognize that the conduct of a trial is "in the hands of the judge," State v. O'Keefe, 135 N.J. Super. 430, 434 (Law Div. 1975), and that a decision to either grant or deny a continuance lies within the trial judge's sound discretion, which should not be disturbed "unless it appears form the record that the defendant suffered manifest wrong or injury," State v. Lamb, 125 N.J. Super. 209, 213 (App. Div. 1973). See also State in Interest of D.P., 232 N.J. Super. 8, 19 (App. Div. 1989). Notwithstanding the considerable deference that appellate courts afford such determinations, we nevertheless are required to insist that such a ruling fairly consider the rights implicated. That is, judicial discretion "connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court." Higgins v. Polk, 14 N.J. 490, 493 (1954). Although afforded considerable leeway in such matters, the judge was obligated to balance the interest in expeditiously disposing of the matters on his calendar against the injury caused by the denial of such relief. Because this was a non-jury proceeding, we are satisfied that the administration of justice would not have suffered if the judge granted a brief delay during the course of this one-day trial. We also observe that although the State now contends the judge properly denied the request, it did not object to T.W.'s request at the time of trial. Since we can find in the record no principled reason for the denial of T.W.'s request, and since T.B.'s new version, presented for the first time at trial, severely disarmed the defense, we conclude that the denial of the request for a continuance represented a mistaken exercise of the judge's discretion.

 
Reversed and remanded for a new trial.

In his written statement, T.B. referred to "T." (after which he wrote a "?") and "A.," and then wrote, "and 2 more pulled out pipes and I think a ice pick stab me in the face . . . ." This would suggest, as defense counsel argued to the trial judge, significant doubt as to whether T.B. had indicated in his written statement that T.W. assaulted him, let alone assaulted him with sticks or twigs. In fact, the words "stick" and "twig" are not included in T.B.'s written statement.

The judge recognized this, indicating in his findings of fact that "[t]here are variations in the somewhat illegible very brief statement the police obtained. It's a poor statement, poorly done."

(continued)

(continued)

9

A-6591-03T4

RECORD IMPOUNDED

December 20, 2005