STATE OF NEW JERSEY v. EMMA PAINTER

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EMMA PAINTER,

Defendant-Appellant.

____________________________________________________

November 12, 2013

Argued October 1, 2013 Decided

Before Judges Messano and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 07-10-1031.

Vincent A. Campo argued the cause for appellant (Legome & Associates, L.L.C., attorneys; Mr. Campo, on the brief).

MargaretA. Cipparrone,Assistant Prosecutor, argued the cause for respondent (Sean F. Dalton, Gloucester County Prosecutor, attorney; Joseph H. Enos, Jr., Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

N.J.S.A.2C:28-5a(1) (count one), and second-degree official misconduct, N.J.S.A.2C:30-2 (count two). Following a bench trial, defendant was convicted of both charges. The judge imposed a four-year period of imprisonment with a two-year period of parole ineligibility on count one. Concluding that the interests of justice required a downgrade of defendant's conviction for second-degree official misconduct, seeN.J.S.A.2C:44-1f(2), the judge imposed a concurrent four-year sentence with a two-year period of parole ineligibility on count two. The State appealed the sentence, and defendant cross-appealed her conviction. In the interim, imposition of sentence was stayed.

Although defendant argued on her initial appeal that the indictment was insufficient and the facts did not support the charge of official misconduct, we did not reach the issue. State v. Painter, No. A-4616-08 (App. Div. Nov. 8, 2010) (slip op. at 3). Instead, we concluded the judge "incorrectly shifted the burden of proof to defendant with respect to the charge of witness tampering," and we reversed defendant's convictions and ordered a new trial. Ibid.

Before the second trial, defendant moved to dismiss the indictment. The motion was denied, and we subsequently denied defendant's motion for leave to appeal. After the original judge recused herself, the matter was set for trial before a second judge. On the day of trial, defendant entered into a plea agreement with the State.

Pursuant to the terms of the agreement, the State amended count one to charge fourth-degree obstruction, N.J.S.A.2C:29-1, to which defendant pled guilty. The State agreed to dismiss the charge of official misconduct. Defendant was sentenced to a one-year term of probation, with a condition that she perform 150 hours of community service. The judge permitted an earlier termination of probation if and when defendant completed her community service. Defendant then filed this appeal.

She raises for our consideration the following argument:

Point I

The State failed to establish an essential element of the crimes at the grand jury presentment and failed to adduce exculpatory evidence to the grand jury.

We have considered this argument in light of the record and applicable legal standards. We affirm.

Initially, we note that although not raised by the State, defendant's guilty plea acts as a waiver to any challenge she may now assert to the sufficiency of the indictment. See, e.g., State v. Robinson, 224 N.J. Super.495, 498 (App. Div. 1988) ("Generally, a guilty plea constitutes a waiver of all issues which were or could have been addressed by the trial judge before the guilty plea."); see alsoState v. Knight, 183 N.J.449, 470 (2005) ("Generally, a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea.") (quoting State v. Crawley, 149 N.J.310, 316 (1997)).

As the Court explained in Knight, supra, 183 N.J.at 471, there are generally only three exceptions to the waiver rule, none of which apply here. The first exception is provided expressly by Rule3:5-7, which permits a defendant to challenge on appeal an unlawful search and seizure of physical evidence after entering a guilty plea. Ibid. The second, expressly permitted by Rule3:28(g), permits an appeal after the entry of a guilty plea from an order denying entry into the pre-trial intervention program. Ibid. Lastly, if a defendant enters a conditional guilty plea pursuant to Rule3:9-3(f), she may appeal those issues expressly preserved. Ibid. We have not been provided with a transcript of the proceedings at which defendant pled guilty; however, we were advised at oral argument that the plea was not entered conditionally.1

In State v. Marolda, 394 N.J. Super.430, 434 (App. Div.), certif. denied, 192 N.J.482 (2007), one of the defendant's arguments on appeal was that the motion judge erred in failing to dismiss the indictment in its entirety. We refused to consider the issue, noting that "[b]ecause [the] defendant did not preserve the issue[] . . . by entry of a conditional guilty plea, he has waived his right to relief . . . ." Id.at 435-36.

While the above alone would compel us to affirm defendant's conviction, as noted, the State did not raise the issue of waiver in its brief. At oral argument before us, defense counsel candidly admitted that he had not considered the issue. In the interests of justice, we exercise our discretion and consider the merits of defendant's appeal. SeeState v. J.M., 182 N.J.402, 410 (2005) (citing State v. Gonzalez, 254 N.J. Super.300, 304 (App. Div. 1992)) (recognizing that despite the failure to enter a conditional plea, review is appropriate in limited situations).

To place the issue in proper context, we refer to some of the facts adduced at defendant's trial.2 The State alleged that in May 2007, defendant was a teacher and the girls' varsity field hockey coach at a certain high school. E.U. was defendant's friend and co-worker at the school. B.D. was a minor student at the school.

B.D. disclosed to school authorities, and eventually to law enforcement, that she and E.U. had engaged in a sexual relationship. In particular, B.D. spoke to Detective Stacey Lick of the Gloucester County Prosecutor's Office and provided information leading to E.U.'s arrest.

Defendant had known B.D. since she was a young child and was a friend of B.D.'s aunt. On the morning of May 17, 2007, defendant took B.D. out of class from first to fourth period, had her come to the gym and eventually to defendant's private office. Defendant expressed her love for E.U. The State alleged that after B.D. told defendant what she had told law enforcement, defendant attempted to have B.D. recant her prior statements. These conversations between defendant and B.D. formed the basis for the charges against defendant.

While there was other evidence adduced at trial from which a fact finder could conclude that defendant knew her conduct was illegal, we limit our discussion to the evidence adduced before the grand jury. In denying defendant's motion to dismiss the indictment, the judge cited the following testimony from the State's examination of Detective Lick, the only witness to appear before the grand jury:

Q: And [B.D.] gave you a detailed statement wherein she said that Emma Painter had pulled her out of some classes in the morning; is that correct?

A: Yes.

Q: Do you recall how many classes they were?

A: [Painter] pulled [B.D.] out for three periods, the time frame was 7:55 a.m. to 10:15 a.m.

Q: And, during that time she had . . . B.D. alone with her; is that correct?

A: Yes.

Q: And, during that time she had asked her to contact authorities and falsely recant her earlier statement; is that correct?

A: Yes.

Q: According to B.D., [defendant] said she knew her actions were illegal, but that she loved [E.U.], so she didn't care; is that correct?

A: Yes.

Defendant's argument is two-fold. She contends that the evidence produced before the grand jury was insufficient to establish probable cause that she committed official misconduct or witness tampering. Additionally, defendant argues the State committed prosecutorial misconduct because the prosecutor failed to present exculpatory evidence to the grand jury.

In particular, defendant contends that the State possessed evidence, including B.D.'s own statement to Lick, indicating that defendant believed the original account B.D. provided to law enforcement was false. Thus, defendant argues that even if she asked B.D. to recant her statements to Lick or others, defendant did not commit the crime of witness tampering because she did not attempt to have B.D. testify falsely.3

The State contends that we rejected defendant's arguments in our earlier decision. That response lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). It is clear from our decision that we never reached any issue regarding proceedings before the grand jury.

The State also contends that the evidence before the grand jury was sufficient to sustain the indictment as to both crimes charged. The State further asserts that it was not required to introduce evidence from which the grand jury could infer that defendant believed B.D.'s version of events was false. We agree with the State on both points.

"Once the grand jury has acted, an 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) (citations and internal quotation marks omitted). "[T]he decision whether to dismiss an indictment lies within the discretion of the trial court . . . and that exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused." Id. at 229 (citation omitted). "A trial court decision will constitute an abuse of discretion where 'the "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis."'" State v. Triestman, 416 N.J. Super. 195, 202 (App. Div. 2010) (alteration in original) (quoting United States v. Scurry, 193 N.J. 492, 504 (2008) (in turn quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

"In seeking an indictment, the prosecutor's sole evidential obligation is to present a prima facie case that the accused has committed a crime." Hogan, supra, 144 N.J. at 236. "A trial court . . . should not disturb an indictment if there is some evidence establishing each element of the crime to make out a prima facie case." State v. Morrison, 188 N.J. 2, 12 (2006) (emphasis added). "[A]n indictment will not be dismissed merely because hearsay or highly prejudicial evidence was heard by the grand jury." State v. Scherzer, 301 N.J. Super. 363, 428 (App. Div.), certif. denied, 151 N.J. 466 (1997) (quotation omitted).

When defendant was indicted, a person committed third-degree witness tampering "if, believing that an official proceeding or investigation is pending or about to be instituted, [s]he knowingly attempt[ed] to induce or otherwise cause a witness or informant to . . . [t]estify or inform falsely . . . ." N.J.S.A. 2C:28-5a(1) (2008).4 Defendant argues that the evidence before the grand jury was insufficient to establish a prima facie case as to one of the elements of the crime, i.e., that she attempted to induce or otherwise cause B.D. to "testify or inform falsely" because, according to defendant, she believed that B.D.'s statements to the police were themselves false.

"Although it is more often described as an inquiry as to whether the State has set forth a prima facie case that a crime has been committed and that the accused has committed it, the standard governing a grand jury's decision whether to indict has also been characterized as one of probable cause." In re A.D., 212 N.J. 200, 218 (2012). "In that context, grand jurors are instructed to consider both the evidence presented by the State and the 'reasonable inferences' from that evidence[.]" Id. at 219. Thus, our review requires "evaluation of 'the evidence and the rational inferences drawn from that evidence in the light most favorable to the State' to determine whether 'a grand jury could reasonably believe that a crime occurred and that the defendant committed it.'" Ibid. (quoting Morrison, supra, 188 N.J. at 13).

Here, although scant, Lick's testimony established that B.D.'s statement was the basis for E.U.'s arrest, defendant told B.D. that she loved E.U., defendant attempted to have B.D. "falsely recant her earlier statement" and defendant "knew her actions were illegal." We have no doubt that this evidence, together with the rational inferences drawn therefrom, when viewed in a light most favorable to the State, was sufficient to support the indictment.

We also reject defendant's ancillary argument that the indictment should have been dismissed because the prosecutor failed to provide exculpatory evidence to the grand jurors. Defendant cites to a portion of B.D.'s pre-indictment statement to Lick, in which she stated that defendant did not believe E.U. and B.D. had engaged in sexual activity.5

Prosecutors have a duty to inform the grand jury of certain evidence "only if the evidence satisfies two requirements: it must directly negate guilt and must also be clearly exculpatory." Hogan, 144 N.J. at 237. Evidence directly negates guilt if it "squarely refutes an element of the crime in question." Ibid. (emphasis removed). Whether the evidence is "'clearly exculpatory . . .' requires an evaluation of the quality and reliability of the evidence." Ibid. As the Court further explained:

The exculpatory value of the evidence should be analyzed in the context of the nature and source of the evidence, and the strength of the State's case. For example, if the exculpatory evidence in question is eyewitness testimony, potential bias on the part of the eyewitness may affect the prosecutor's obligation to present the witness's testimony to the grand jury. Similarly, the exculpatory testimony of one eyewitness is not "clearly exculpatory" if contradicted by the incriminating testimony of a number of other witnesses. Moreover, an accused's self-serving statement denying involvement in a crime, although such a statement directly negates guilt, ordinarily would not be sufficiently credible to be 'clearly exculpatory,' and need not be revealed to the grand jury.

[Id. at 237-38.]

In this case, whatever defendant conveyed to B.D. regarding defendant's belief in the veracity of B.D.'s statement to authorities is nothing more than a self-serving statement about her supposed state of mind. The evidence is not "clearly exculpatory," and the prosecutor was under no duty to present it to the grand jury.

Affirmed.

1 Also, the legality or severity of a sentence may be appealed following a guilty plea. State v. Sainz, 107 N.J. 283, 292 (1987).

2 Defendant cites extensively to portions of the trial testimony in her brief and includes them in her appendix.

3 Although not expressly argued, we assume defendant contends that if there was insufficient evidence of witness tampering, then there was insufficient evidence that she committed official misconduct, because the State's sole allegation in support of that charge was that defendant committed witness tampering in her capacity as a school teacher and coach.

4 The statute was amended in 2008 to provide that a person commits witness tampering "if, believing that an official proceeding or investigation is pending or about to be instituted or has been instituted, he knowingly engages in conduct which a reasonable person would believe would cause a witness or informant to . . . [t]estify or inform falsely . . . ." N.J.S.A. 2C:28-5a(1).

5 Defendant also points to the subsequent trial testimony of B.D. and two other State's witnesses, which essentially acknowledged that defendant did not believe B.D. when she told authorities that she and E.U. had engaged in sexual activity.