STATE OF NEW JERSEY v. MICHAEL TAFFARO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5419-04T45419-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL TAFFARO,

Defendant-Appellant.

_________________________________________________

 
 
Submitted December 12, 2006 - Decided March 13, 2007

Before Judges Kestin and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Indictment No. 04-07-1501.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Robert Seelenfreund,

Assistant Deputy Public Defender, of

counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A.

Foddai, Assistant Prosecutor, of counsel

and on the brief).

PER CURIAM

Defendant, Michael Taffaro, involved in a bitter probate dispute with his sister, Susan Taffaro, was ordered by a municipal judge "not to communicate with . . . Susan Taffaro either personally, or by telephone, in writing, or in any other manner directly or indirectly." After a Craigslist posting of a salacious offer of sexual favors by Susan was traced to defendant, he was indicted for fourth-degree contempt, N.J.S.A. 2C:29-9a, was convicted by a jury of that crime, and was sentenced to one year of probation.

At trial, defendant did not contest the fact that the email posting originated from his computer. As defendant has admitted in his appellate brief, the evidence in that regard was "compelling." Instead, he defended against the charges by testifying that the message was composed and posted by his friends Daniel Ng and Redner Portela, but that defendant thought the message had been deleted upon his demand. Ng and Portela, testifying for the State, claimed that the message was posted on Craigslist by defendant as revenge upon his sister. The jury evidently credited the State's version of the events, leading to the conviction from which defendant now appeals.

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL JUDGE'S CROSS-EXAMINATION OF THE DEFENDANT WENT BEYOND PERMISSIBLE BOUNDS; HIS RELENTLESS QUESTIONING RIDICULED DEFENDANT'S EXPLANATION AND DEPRIVED DEFENDANT OF A FAIR TRIAL.

(Not Raised Below)

POINT II

ANDREW D'ONOFRIO'S TESTIMONY THAT DEFENDANT POSTED THE AD ON CRAIGSLIST EXCEEDED HIS EXPERTISE AND VIOLATED EVIDENCE RULE 702 AND WAS ADMITTED IN VIOLATION OF THE PROSECUTOR'S DUTY TO DISCLOSE THAT SHE WAS GOING TO ELICIT THAT OPINION.

(Not Raised Below)

POINT III

THE PROSECUTOR IMPROPERLY CROSS-EXAMINED DEFENDANT BY REPEATEDLY ASKING QUESTIONS ABOUT WHAT HE SAID TO HIS ATTORNEY, THEREBY VIOLATING EVIDENCE RULE 504, THE ATTORNEY CLIENT PRIVILEGE, AS WELL AS ASKING QUESTIONS ABOUT WHAT HE DID NOT SAY, IN VIOLATION OF DEFENDANT'S FIFTH AMENDMENT RIGHT TO REMAIN SILEN[T].

POINT IV

THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.

POINT V

THE TRIAL COURT'S CHARGE TO THE JURY FAILED TO DEFINE KEY ELEMENTS OF THE OFFENSE AND IN GENERAL FAILED TO SHAPE THE INSTRUCTION TO THE FACTS OF THE CASE. THE TRIAL COURT COMPOUNDED THE ERROR WHEN IT FAILED TO ANSWER THE JURY'S QUESTION ABOUT THESE ELEMENTS.

(Not Raised Below)

POINT VI

THERE WAS CUMULATIVE ERROR IN THIS CASE WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL.

We affirm.

I.

In his first argument, defendant claims that, because he did not contest the fact that the offensive message originated from his computer and because defendant's version of how the posting occurred differed from that of Ng and Portela, defendant's credibility as a witness constituted the key issue of the trial. In these circumstances, he argues, questioning by the trial judge that disclosed the relatively slight relationship that defendant maintained with "acquaintances" Ng and Portela, the lack of any foundation for trust in their alleged statement that the posting had been removed, and the absence of steps by defendant to verify that fact, crossed the "fine line that separates advocacy from impartiality," Village of Ridgewood v. Sreel Inv. Corp., 28 N.J. 121, 132 (1958), creating structural or plain error.

At the outset, we reject both defendant's contention that structural error occurred in this case and his invitation to reverse the verdict against him regardless of the strength of evidence of actual guilt. Defendant offers no direct support for his position, and the precedent cited, appearing as illustrations of the principle in a four-justice dissent in Arizona v. Fulminante, 499 U.S. 279, 295-96, 111 S. Ct. 1246, 1256-57, 113 L. Ed. 2d 302, 321 (1991), is inapposite. The illustrations, unlike the present argument, concern the treatment of constitutional errors, found by the United States Supreme Court to invalidate convictions regardless of evidence of guilt. We judge this case by the plain error standard customarily applied to matters of this sort when no objection has been raised at trial. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).

We discern no such error to have occurred as the result of the trial judge's questioning. As we stated in State v. Medina:

The parameters of judicial intervention in the conduct of a trial are well settled. Our courts have long rejected the "arbitrary and artificial methods of the pure adversary system of litigation which regards the lawyers as players and the judge as a mere umpire whose only duty is to determine whether infractions of the rules of the game have been committed." The intervention of a trial judge in the questioning of a witness is both a power and a duty, and forms part of the judiciary's general obligation to ensure a fair trial "conducted in [an] orderly and expeditious manner." Trial judges are vested with the authority to propound questions to qualify a witness's testimony and to elicit material facts on their own initiative and within their sound discretion. The discretionary power of a judge to participate in the development of proof is of "high value," because a fair trial is his responsibility.

[ 349 N.J. Super. 108, 130-31 (App. Div.) (citations omitted), certif. denied, 174 N.J. 193 (2002).]

Our review of the record in this matter persuades us that the trial judge did not overstep his bounds in questioning defendant in the fashion that he did. As the judge had recognized in denying a motion for a judgment of acquittal immediately before defendant's testimony commenced, the result in this case depended upon an assessment of the credibility of the witnesses espousing the two versions of the events that took place. The judge's questioning of defendant at the conclusion of the prosecutor's cross-examination explored the foundations upon which the jury's determination of credibility would properly depend. Although that questioning was somewhat extended, its length resulted, at least in part, from the nonresponsive nature of many of defendant's answers to the judge's queries, not from oppressive conduct on the part of the judge.

Defendant complains that, by exposing the weaknesses in his version of how the posting occurred, the judge assumed the role of an advocate. We disagree. The judge's questions were properly focused, neutral in tone, and non-demeaning. The absence of any objections to those questions provides support to that conclusion. That the exchange served to diminish the weight of defendant's testimony did not render it adversarial, but merely probing. In the context of the entire trial, we find no failure of impartiality on the part of the judge, whose questioning was clearly designed only to clarify the salient issue in the case and to aid in the ascertainment of truth. Band's Refuse Removal, Inc. v. Fair Lawn Borough, 62 N.J. Super. 522, 548 (App. Div. 1960), certif. denied, 33 N.J. 387 (1960).

II.

Defendant next argues that the expert testimony of Detective Andrew D'Onofrio, the officer who traced the posted message to its source, exceeded his expertise in computer forensics and computer network analysis, and it thus violated N.J.R.E. 702. Defendant additionally claims that D'Onofrio's opinion was admitted in violation of the prosecutor's duty to disclose the substance of that opinion to the defense. Specifically, defendant focuses on a single comment by D'Onofrio that defendant was the individual who posted the objectionable message, and he argues that the admission of that statement, which constituted an opinion on the ultimate issue of guilt, was plain error.

At trial, D'Onofrio testified that the posting was initially traced, through Craigslist, to "Elaine Norris, 2000 at Yahoo.com." However, it was later determined that the information was incorrect and, through use of defendant's internet protocol (IP) address, it was discovered that Verizon was the service provider and that defendant's computer was the message source. D'Onofrio conceded that he could not tell who actually pushed the computer's "send" button, because he was not present when the message was sent. However, he was able to rule out the likelihood that the computer transmittal system had been violated by a hacker, who was the real message sender, because a "victim-suspect relationship" existed between defendant and his sister that increased the probability that defendant was the source.

D'Onofrio proffered the following explanation:

For example, if we had an e-mail that went out to our current Governor Cody as a threat and that e-mail came from St. Mary's School of the Blind, the head nun there that ran St. Mary's School of the Blind, we would be a little bit suspect that she would be threatening our current governor.

So we would try to do a little bit more of an investigation to f[i]nd out how it is that that IP address originated from there.

D'Onofrio continued by stating that the probability was low of finding that a random hacker would actually know the recipient of his message. Proof that an IP address was accurate was further strengthened when it was determined that a motive for sending the message existed.

D'Onofrio was then asked by the prosecutor:

So after you look at the computer aspects of [your investigation] you testified that the conclusion you came to based on the forensics of the computer was that Michael Taffaro's computer had sent this message to Craigslist. The investigation that you just described, the totality of circumstances of the investigation, if we can call it that, did that change your opinion of who sent the e-mail?

D'Onofrio responded:

No, it re-affirmed it, Ma'am.

In the context of the examination that had just taken place, it is reasonable to conclude that D'Onofrio's response related to defendant's computer, and not to him, personally. We thus do not regard the testimony of D'Onofrio (who was not an investigator in the case), in response to the prosecutor's questions on direct examination, to have constituted an impermissible opinion on the ultimate fact of guilt. See State v. Odom, 116 N.J. 65, 80-81 (1989). If defense counsel had viewed the response as such, a strong objection would have been expected. It did not occur.

The issue of the originator of the message, avoided by the prosecutor, was instead addressed by defense counsel, who queried:

Gee whiz. I mean, look, the point is you're saying that because Mr. Taffaro had a prior relationship with his sister, that that makes you feel that it is probable that he is the sender of the message. Is that correct?

In response, D'Onofrio stated that it was the technology that supported the conclusion. However, defense counsel persisted, asking:

Okay, I mean, what is there about the facts that you know about in this case that makes it so . . . that it has to be Mr. Taffaro and not another person using his computer?

At this point D'Onofrio responded that the fact that the account was defendant's, that there was a victim-suspect relationship between Susan Taffaro and defendant, that there was motive for the message, and that defendant had an opportunity to post it supported the conclusion that the message was sent by defendant. But even then, D'Onofrio immediately qualified his testimony by stating that he could not definitively say who had posted the message, since he was not present at the time.

We find no merit to defendant's contention that the prosecutor did not provide notice of D'Onofrio's testimony in this regard. The prosecutor did not elicit the testimony; defense counsel did. Thus, any error in this respect was invited. State v. Corsaro, 107 N.J. 339, 345-46 (1987). Further, we find that the testimony did not exceed D'Onofrio's expertise. Even if it "is hardly debatable" that a subject of inquiry "pose[s] no matter of scientific complexity," the Supreme Court has held that an expert can offer an opinion "rationally based on the relationship of the scientific to the circumstantial evidence" in a case. State v. Zola, 112 N.J. 384, 415-416 (1988) (permitting an expert to testify that saliva found in the victim's vagina might have been placed there by the defendant).

Moreover, as the Supreme Court stated in Odom when discussing Zola: "In admitting into evidence that common-sense interpretation of the relationship between scientific fact and the inference it sustained, the trial court's ruling did not infringe on the jury's capacity to determine an ultimate fact: the source of the saliva in the sample." Odom, supra, 116 N.J. at 78 (quoting Zola, supra, 112 N.J. at 416). We find the Court's rationale equally applicable to the testimony of D'Onofrio, who drew an inference based upon his expertise in computer science and his knowledge of the facts of the matter, while making it clear to the jury that his opinion did not constitute conclusive evidence on the issue raised.

III.

In his third argument, defendant contends that the prosecutor violated the attorney-client privilege set forth in N.J.R.E. 504 by repeatedly questioning defendant regarding communications with his lawyer, and that the prosecutor violated defendant's Fifth Amendment rights by asking him questions regarding what he did not say to the attorney.

At trial, it was disclosed that the municipal judge's restraining order prohibited direct and indirect contact between defendant and his sister. However, as the result of ongoing probate litigation between the siblings, the final paragraph of the judge's order provided:

The only exception for any indirect contact by Michael Taffaro with . . . Susan Taffaro is if necessitated because of pending litigation, professional representatives of Michael Taffaro may contact professional representatives of

. . . Susan Taffaro.

In his trial testimony, defendant claimed that he had advised Ng and Portela not to post the message soliciting contacts with Susan for deviant sexual purposes because defendant was pursuing an appeal in the probate matter at the time, a judge had told him not to "do anything" to his sister, and his lawyer was telling him not to "write any more letters." In the circumstances, posting the message would get defendant in trouble. Defendant continued:

[Ng and Portela] are saying, "Oh, don't worry about it. It's a static IP, they can never trace it." I said, "Look, get that thing off, I'm not going to get even with my sister by doing something stupid. I've got an inheritance battle. I can't do nuttin stupid.

. . . .

. . . It's my computer, it's my inheritance, it's my sister.

Although defendant testified that the two men agreed to remove the posting, he did not verify that they had done so; merely, "in his mind," he thought they had.

With the background of direct testimony that the only permissible means of communication between defendant and his sister was through defendant's attorney and that defendant had no proof of the erasure of an exceedingly objectionable posting that even defendant admitted was "wrong," the prosecutor asked defendant a series of questions as to whether defendant had requested that his attorney warn Susan that the message, allegedly posted by defendant's friends, might still remain on-line. Defendant responded in a manner consistent with his testimony on direct examination that he had not done so because "[a]s far as [he] knew, [the message] was off."

We discern no violation of the attorney-client privilege in the prosecutor's line of questioning, which focused on the attorney's role as a conduit for communication pursuant to court order, not his role as a legal advisor in the civil, probate matter being litigated on defendant's behalf. We likewise do not perceive the violation of State v. Muhammad, 182 N.J. 551, 558 (2005), that defendant claims, since the prosecutor's questioning primarily focused on a period considerably before defendant's arrest when, by his view, the possibility of arrest had been obviated by the retraction of any posting, and the questioning did not involve any interaction between defendant and the police, but rather, the existence of a wholly private exchange. Id. at 571-72 (permitting the use of a defendant's pre-arrest silence if it significantly preceded his arrest and did not arise from a custodial or interrogative setting); State v. Brown, 118 N.J. 595, 613 (1990) ("evidence of pre-arrest silence, particularly in the absence of official interrogation, does not violate any right of the defendant involving self-incrimination"); State v. Messino, 378 N.J. Super. 559, 585 (App. Div. 2005) (permitting use of defendant's failure to inform doctors of the allegedly accidental cause of his child's injuries).

The State concedes that the prosecutor erred in questioning defendant whether, following his arrest, he had conveyed to Susan both a warning and a disclaimer of responsibility through his lawyer. However, it argues that the single question did not result in plain error. We agree that any error occurring in this brief attack on defendant's credibility, involving neither police questioning nor other interrogation, was harmless in the context of this matter. State v. Pepshi, 162 N.J. 490, 494 (1999).

IV.

We find no merit in defendant's argument that the court erred in denying his motion for a judgment of acquittal on the charge of contempt at the close of the State's case because the State failed to prove the existence of a "communication" between him and his sister, Susan. The internet posting, viewed in a light most favorable to the State, clearly constituted an indirect communication to Susan of defendant's enmity. State v. Castagna, 387 N.J. Super. 598, 607 (App. Div.) (discussing indirect communication of a threat through a third person, but finding charge unsupported), certif. denied, 188 N.J. 577 (2006); State v. Loponio, 85 N.J.L. 357, 361 (E. & A. 1913) (finding privileged an inmate's indirect communication to his lawyer, written by another inmate); see also Commonwealth v. Consoli, 792 N.E.2d 1007, 1012 (Mass. App.) (one cannot avoid the force of a no contact order by ricocheting comments off a third person), review denied, 797 N.E.2d 379 (Mass. 2003); Commonwealth v. Basile, 712 N.E.2d 633, 635 (Mass. App.) (holding that communication by defendant to victim through third parties violated no contact order), review denied, 720 N.E.2d 468 (Mass. 1999). The State's evidence, when viewed under the standards established by the Court in State v. Reyes, 50 N.J. 454, 458-59 (1967), was thus sufficient to sustain the jury's verdict. Defendant's own testimony, given later in defense of the charge, demonstrated that he regarded the Craigslist posting to constitute a violation of the court's restraining order; that he found it to be "wrong"; and that he recognized that the message would affect his sister.

We regard defendant's remaining arguments to have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The restraining order was admitted into evidence, and thus was available to the jury for its consideration in determining whether a violation of the order had occurred. In this circumstance, the decision by the trial judge not to read the order to the jury as part of the judge's charge cannot be deemed reversible error. Macon, supra, 57 N.J. at 336. Nor did the judge commit reversible error in declining to answer a question by the jury when any substantive response to the query would have been tantamount to directing a verdict against the defendant.

Affirmed.

 

Even if it were found that introduction of this testimony was erroneous, "[t]rial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for a reversal on appeal." State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974). Moreover, in the present case, any error "was not of such magnitude that [it] trench[ed] directly upon the proper discharge of the judicial function," id. at 278, or went "so plainly to the integrity of the proceedings" as to require a new trial. State v. Macon, 57 N.J. 325, 338 (1971).

(continued)

(continued)

17

A-5419-04T4

March 13, 2007