STATE OF NEW JERSEY VS. CLIFFORD MOORE(13-01-0034, UNION COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
    Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R.1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-1661-14T4
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    CLIFFORD MOORE,
    Defendant-Appellant.
    ___________________________
    Argued February 8, 2017 – Decided           June 29, 2017
    Before Judges Simonelli, Carroll and Gooden
    Brown.
    On appeal from the Superior Court of New
    Jersey, Law Division, Union County, Indictment
    No. 13-01-0034.
    Joshua F. McMahon argued the cause for
    appellant (Schiller McMahon LLC, attorneys;
    Mr. McMahon, of counsel and on the brief).
    Milton S. Leibowitz, Special Deputy Attorney
    General/Acting Assistant Prosecutor, argued
    the cause for respondent (Grace H. Park,
    Acting Union County Prosecutor, attorney;
    Meredith L. Balo, Special Deputy Attorney
    General/Acting   Assistant  Prosecutor,   of
    counsel and on the brief).
    PER CURIAM
    Defendant Clifford Moore appeals from the August 28, 2014 Law
    Division order, which denied his motion to set aside the verdict
    and enter a judgment of acquittal, and from the October 17, 2014
    order, which denied his motion for reconsideration.                  For the
    following reasons, we affirm.
    I.
    We derive the following facts from the record.              A grand jury
    indicted defendant for third-degree possession of a controlled
    dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree
    distribution of a CDS,    N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-
    5(b)(3); and third-degree possession of a CDS with intent to
    distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3).
    On January 29, 2013, the State produced some, but not all,
    discovery to defendant, including a laboratory certificate.                The
    State   also   provided   a   notice    of   its   intent   to   proffer   the
    laboratory certificate as evidence at trial pursuant to N.J.S.A.
    2C:35-19(c) without the testimony of the analyst.                 The notice
    advised defendant, incorrectly, that he had ten days from receipt
    of the notice to object.       However, N.J.S.A. 2C:35-19(c) provides
    as follows, in pertinent part:
    Whenever   a party intends to proffer in a
    criminal   . . . proceeding, a certificate
    2                              A-1661-14T4
    executed pursuant to this section, notice of
    an intent to proffer that certificate and all
    reports relating to the analysis in question,
    including a copy of the certificate, shall be
    conveyed to the opposing party or parties at
    least [twenty] days before the proceeding
    begins.
    [(Emphasis added).]
    Thus, the ten-day time period does not begin to run until the
    State has produced all laboratory-related discovery.                      See also
    State v. Heisler, 
    422 N.J. Super. 399
    , 405-06 (App. Div. 2011)
    (holding that "the ten-day period in which a defendant must object
    to the admission into evidence of a lab certificate begins to run
    only after the State has served upon the defendant all related lab
    reports").
    On July 10, 2014, five days before the start of the trial,
    defendant     advised   the    State   that      he   would   not    stipulate    to
    anything,      including      the   CDS,     and      demanded      production    of
    outstanding discovery, including all laboratory notes.                     On July
    13,   2014,    defendant   demanded        the   outstanding     discovery       plus
    additional     laboratory-related      items       the   State   had    failed    to
    produce, including a list of devices the State utilized to test
    the CDS by serial number; any maintenance or technical records of
    said devices; whether or not said devices had any technical defects
    since 2012; "[a]ny and all documents wherein [the State's chemist]
    3                                   A-1661-14T4
    ever erred or made a mistake in the course of her work[;]" and
    chain of custody records.
    On July 15, 2014, the first day of trial, the State provided
    additional discovery, including a letter from the State's forensic
    chemist, Suzanne Bryant, that included the laboratory report and
    other laboratory-related documents.   After the close of the day's
    proceedings and after the jury was discharged, all counsel1 met
    with the trial judge in chambers to discuss scheduling and other
    issues.   In an effort to conserve the jurors' valuable time and
    efficiently and fairly move the proceedings along, the judge
    inquired whether a stipulation would obviate the need for Bryant
    to testify.   After discussing the verbiage of the stipulation, all
    counsel agreed on a stipulation that obviated the need for Bryant
    to testify.    Defense counsel confirmed the stipulation in an e-
    mail to the prosecutor.
    On July 17, 2014, the State withdrew from the stipulation,
    and at the close of its case, sought admission of the laboratory
    certificate pursuant to N.J.S.A. 2C:35-19(c) without Bryant's
    testimony.    Defendant raised a confrontation/Crawford2 objection.
    1
    Defendant was tried along with a co-defendant whose counsel
    participated in all phases of the trial.
    2
    Crawford v. Washington, 
    541 U.S. 36
    , 
    124 S. Ct. 1354
    , 
    158 L. Ed. 2d 177
     (2004).
    4                          A-1661-14T4
    The State countered that: (1) defendant failed to object to
    admission     of   the    laboratory   certificate      within       ten    days    of
    receiving it, and thus, waived any confrontation objection; and
    (2) he lacked standing to demand confrontation of Bryant because
    his objection was untimely.            The judge admitted the laboratory
    certificate over defendant's objection without the testimony of
    Bryant, who was outside the courtroom and available to testify.
    Defendant was subsequently convicted of all offenses.
    On August 6, 2014, defendant filed a motion to set aside the
    verdict and enter a judgment of acquittal, arguing, in part, that
    the   court   improperly     admitted       the   laboratory       certificate      in
    violation     of    his    constitutional         rights,    and     without       the
    certificate, the court must enter a judgment of acquittal because
    the State could not prove the charges beyond a reasonable doubt.
    Defendant also raised a double jeopardy argument.                          The State
    conceded that admission of the laboratory certificate was error,
    but argued the error was harmless and the appropriate remedy was
    a new trial, not a judgment of acquittal.                   Defendant responded
    that pursuant to Heisler, it was inappropriate to remand for a new
    trial to allow the State to cure the error.
    In an August 28, 2014 order, the judge vacated defendant's
    conviction, denied the motion for a judgment of acquittal, and
    remanded for a new trial.        The judge found that he had improperly
    5                                    A-1661-14T4
    admitted the laboratory certificate into evidence without Bryant's
    testimony; the error was not harmless; the error was a trial error,
    not a failure of proof; and the State could retry defendant and
    seek   admission    of   the   laboratory   certificate       with   Bryant's
    testimony. Defendant then entered a conditional plea to an amended
    charge    of   fourth-degree    distribution   of   CDS       paraphernalia,
    N.J.S.A. 2C:36-3.
    Prior   to   sentencing,    defendant    filed     a     motion     for
    reconsideration, raising the same arguments he had previously
    raised.   The judge denied the motion and then sentenced defendant
    to time served.     This appeal followed.
    On appeal, defendant raises the following contentions:
    POINT I:
    THE TRIAL COURT'S ORDER VIOLATES STATE v.
    HEISLER.
    POINT II:
    EVEN IF HEISLER IS FOUND TO BE INAPPLICABLE
    TO THE INSTANT CASE, THE TRIAL COURT ERRED
    BECAUSE JUDGMENT OF ACQUITTAL IS REQUIRED BY
    THE FEDERAL AND STATE PROHIBITION AGAINST
    DOUBLE JEOPARDY.
    POINT III:
    EVEN IF THE COURT FINDS THAT HEISLER AND
    DOUBLE JEOPARDY DO NOT DEMAND A JUDGMENT OF
    ACQUITTAL, UNDER [RULE] 3:13-3 AND/OR STATE
    OR FEDERAL DUE PROCESS GUARANTEES AND/OR THE
    FUNDAMENTAL FAIRNESS DOCTRINE AND/OR RES
    JUDICATA   OR  COLLATERAL   ESTOPPEL  AND/OR
    6                                A-1661-14T4
    INHERENT JUDICIAL SUPERVISORY POWERS, A
    JUDGMENT OF ACQUITTAL IS PROPER DUE TO THE
    SYSTEMIC AND THEREFORE EGREGIOUS GOVERNMENT
    MISCONDUCT.
    II.
    Defendant reiterates in Point I that the court improperly
    admitted the laboratory certificate into evidence and without the
    certificate, he was entitled to a judgment of acquittal because
    the State could not prove the charges beyond a reasonable doubt.
    Defendant again relies on Heisler to argue that the State is
    precluded from curing the error in a retrial and acquittal is the
    only proper remedy.    Defendant argues in Point II that even if
    Heisler does not apply, a judgment of acquittal is the only remedy
    because double jeopardy prohibits affording the State another
    opportunity to produce evidence it failed to produce at the
    original proceeding.   We disagree with both arguments.
    Heisler concerned an appeal from a municipal court conviction
    after trial de novo in the Law Division, which affirmed the
    defendant's conviction for being under the influence of a CDS and
    operating a vehicle while knowingly in possession of a CDS.
    Heisler, supra, 422 N.J. Super. at 405. The defendant's conviction
    was based in part on the admission of a laboratory certificate
    pursuant to N.J.S.A. 2C:35-19 that indicated the substance found
    in his possession was cocaine.     Id. at 423.   We determined that
    7                         A-1661-14T4
    because the State failed to timely deliver all laboratory reports,
    and the defendant objected within ten days of receipt of all
    required   documents,   admission   of   the   laboratory    certificate
    pursuant   to   N.J.S.A.   2C:35-19(a)   was   improper     without    the
    laboratory analyst's testimony.     Id. at 422.   We remanded the case
    to the trial court and held that "the State shall not have the
    opportunity to call the lab analyst . . . to cure the initial
    error of admitting the lab certificate," because a remand is
    "inappropriate in order to afford the State the opportunity to
    provide proofs it should have provided in the initial trial which
    were necessary to support a conviction."          Id. at 424 (quoting
    State v. McLendon, 
    331 N.J. Super. 104
    , 108 (App. Div. 2000)).
    Instead, we determined that the matter must be decided "solely on
    the remaining testimony."     
    Id. at 425
    .      We relied on the late
    disclosure of the laboratory certificate in barring the State from
    retrying its proofs on remand.      
    Id. 423-25
    .
    Defendant also relies on State v. Hardy, 
    211 N.J. Super. 630
    (App. Div. 1986).   Similar to Heisler, we determined in Hardy that
    "[n]owhere in . . . [Rule 3:23-8(a)] is the State given the right
    to correct or bolster its case-in-chief; rather it may only respond
    to evidence admitted by defendant under the rule."          
    Id. at 634
    .
    Heisler and Hardy do not apply to this case.           Unlike here,
    Heisler and Hardy concern a trial de novo in the Law Division
    8                             A-1661-14T4
    after an appeal from a municipal conviction, and both cases were
    decided under a pre-2013 version of Rule 3:23-8(a).                Under the
    pre-2013    version,   the    Law    Division,   in    reviewing   municipal
    appeals, was strictly confined to the record below and could not
    remand for expansion of the record.          The 2013 amendment, however,
    provides as follows, in pertinent part:
    The court to which the appeal has been taken
    may reverse and remand for a new trial or may
    conduct a trial de novo on the record below.
    . . . If the court to which the appeal is
    taken decides the matter de novo on the
    record, the court may permit the record to be
    supplemented for the limited purpose of
    correcting a legal error in the proceedings
    below.
    [R. 3:23-8(a)(2) (emphasis added).]
    See also Pressler & Verniero, Current N.J. Court Rules, comment 1
    on R. 3:23-8 (2017) (stating that "[t]he deletion in 2013, in new
    subparagraph   (2),    of    the    prior   standard   for   remand,    namely
    prejudice to the defendant, should be read as facilitating the
    State's introduction of such evidence;" and "[t]he amended rule
    makes clear that the record may be supplemented only for the
    'limited purpose of correct[ing] a legal error in the proceedings
    below'").
    Accordingly, the State is permitted to correct trial errors
    on remand.     A trial error occurs when a criminal defendant is
    "convicted through a judicial process [that] is defective in some
    9                               A-1661-14T4
    fundamental respect[.]"         State v. Millett, 
    272 N.J. Super. 68
    , 97
    (App. Div. 1994) (quoting Burks v. United States, 
    437 U.S. 1
    , 16,
    
    98 S. Ct. 2141
    , 2150, 
    57 L. Ed. 2d 1
    , 12-13 (1978)).                 Examples of
    fundamental defects may include an incorrect receipt or rejection
    of evidence, as occurred here, or incorrect instructions.                     
    Ibid.
    (quoting Burks, 
    supra,
     
    437 U.S. at 16
    , 
    98 S. Ct. at 2150
    , 
    57 L. Ed. 2d at 12-13
    ).         "A reversal for trial error never constitutes
    a decision that the State failed to prove its case, and therefore
    implies nothing with respect to the defendant's guilt or innocence"
    and does not preclude retrial.            
    Ibid.
     (citation omitted).
    For example, in State v. Slaughter, 
    219 N.J. 104
     (2014), the
    defendant was convicted of aggravated manslaughter after the State
    introduced an audiotape interview of his girlfriend, during which
    she attributed incriminating statements to him.                Id. at 106.       The
    court admitted the audiotape into evidence absent the State calling
    the    girlfriend    as   a   witness,    despite     the   fact   that    she   was
    available to testify.          Ibid.     Our Supreme Court determined that
    this   violated     the   defendant's     rights    under    the   Confrontation
    Clause and vacated his conviction.            Ibid.    Importantly, the Court
    remanded the case to the trial court for a new trial, requiring
    the State to call the girlfriend as a witness if it intended to
    introduce the audiotape into evidence.                Id. at 120.         The Court
    10                                 A-1661-14T4
    reached a similar conclusion in State v. Cabbell, 
    207 N.J. 311
    ,
    339 (2011).
    Conversely, the State is not permitted to correct substantive
    failures of proof on remand.   A failure of proof occurs when the
    State fails to prove one or more of the elements of the crime
    charged.   See State v. Tropea, 
    78 N.J. 309
    , 310 (1978) (holding
    that the State's failure to offer any evidence of the legal speed
    limit in a speeding infraction was a failure of proof).     Reversal
    for failure of proof "means that the government's case was so
    lacking that it should not have even been submitted to the jury."
    Millett, 
    supra,
     
    272 N.J. Super. at 97
     (quoting Burks, 
    supra,
     
    437 U.S. at 16
    , 
    98 S. Ct. at 2150
    , 
    57 L. Ed. 2d at 12-13
    ).   "[A]lthough
    a remand for a new trial is proper where reversal of a criminal
    conviction is predicated on trial error, the double jeopardy clause
    forbids a second trial where the conviction has been overturned
    due to a failure of proof at trial."     Tropea, 
    supra,
     
    78 N.J. at 314-16
     (citation omitted).
    Citing State v. Lawn King, 
    84 N.J. 179
     (1980), defendant
    argues that the State's failure to call Bryant was a failure of
    proof rather than a trial error.     In Lawn King, the Court noted
    the State "made a conscious decision to limit its evidence of
    criminality to that required by the per se rule."        
    Id. at 213
    .
    The Court held:
    11                           A-1661-14T4
    where the State has had a reasonable
    opportunity to present complete evidence
    against a defendant in a criminal trial but
    has failed to do so, its conscious election
    to restrict its evidential presentation,
    designed to serve its own prosecutorial
    convenience, should foreclose it from seizing
    another opportunity to prosecute defendants.
    [Id. at 214.]
    Lastly, citing McMullen v. Tennis, 
    562 F.3d 231
    , 237 (3d
    Cir.), certif. denied, 
    558 U.S. 833
    , 
    130 S. Ct. 72
    , 
    175 L. Ed. 2d 51
     (2009), defendant argues that criminal defendants are excepted
    from the trial error rule, and thus, cannot be retried on the
    underlying charge when the "evidence is insufficient to sustain a
    guilty   verdict."   Defendant   further   cites   McMullen   for   the
    proposition that double jeopardy "forbids a second trial for the
    purpose of affording the prosecution another opportunity to supply
    evidence which it failed to muster" and that "the prosecution
    cannot complain of prejudice [when] it has been given one fair
    opportunity . . . [and] the Double Jeopardy Clause bars the
    prosecution from taking the proverbial second bite at the apple."
    Id. at 237-38 (citations omitted).
    Lawn King and McMullen do not support defendant's arguments.
    The State did not fail to call Bryant out of "prosecutorial
    convenience," but rather pursuant to a stipulation that obviated
    the need for her to testify, which the judge ultimately enforced
    12                            A-1661-14T4
    out of judicial economy despite the State's withdrawal.                 In
    addition, McMullen did not provide an exception to the trial error
    rule.   Rather, it further clarified the difference between a trial
    error and a failure of proof. The prosecution's failure to "muster
    evidence" is a prime example of failure of proof and is not an
    exception to the trial error rule.     Here, the error was not caused
    by the State's failure to "muster evidence."        The trial error
    occurred as a result of the judge's erroneous admission of the
    laboratory certificate absent the testimony of Bryant, who was
    available to testify.
    We are satisfied that the judge properly deemed the admission
    of the laboratory certificate without Bryant's testimony a trial
    error, rather than a failure of proof.      As in Millett, this case
    involved the incorrect receipt of evidence.     Unlike Tropea, where
    the State failed to offer any evidence that would satisfy an
    element of the crime charged, here, the State provided evidence
    establishing that the substance at issue was heroin, but the
    evidence    was   improperly   admitted.    Accordingly,   the     judge
    correctly vacated defendant's conviction and denied the motions
    for a judgment of acquittal and for reconsideration, and correctly
    permitted the State to introduce Bryant's testimony at a retrial,
    which never occurred because defendant pled guilty to an amended
    charge.    See Slaughter, supra, 219 N.J. at 120.   Having concluded
    13                             A-1661-14T4
    that the error was trial error and not a failure of proof,
    defendant's double jeopardy argument fails.                     Tropea, 
    supra,
     
    78 N.J. at
    314-16 (citing Burks, 
    supra,
     
    437 U.S. at 16
    , 
    98 S. Ct. at 2149-2150
    , 
    57 L. Ed. 2d at 12-13
    ).
    III.
    Defendant argues in Point III that even if Heisler and double
    jeopardy do not demand a judgment of acquittal, we should exercise
    our separate and independent authority to enter a judgment of
    acquittal under the fundamental fairness doctrine as a result of
    the State's systemic discovery violations.                     We have considered
    this    argument     in    light   of   the    record    and    applicable      legal
    principles and conclude it is without sufficient merit to warrant
    discussion in a written opinion. R. 2:11-3(e)(2).                         However, we
    make the following brief comments.
    The doctrine of fundamental fairness is an "elusive concept"
    and its "exact boundaries are undefinable." State v. Yoskowitz,
    
    116 N.J. 679
    , 704-05 (1989) (citations omitted).                      "For the most
    part,   it   has    been    employed    when    the     scope    of   a    particular
    constitutional protection has not been extended to protect a
    defendant."        
    Id. at 705
    .      Dismissal on fundamental fairness is
    triggered because "[t]he primary considerations should be fairness
    and fulfillment of reasonable expectations in the light of the
    constitutional and common law goals."                 State v. Currie, 
    41 N.J. 14
                                        A-1661-14T4
    531, 539 (1964).       The fundamental fairness doctrine does not
    preclude a retrial where "the elements of harassment and oppression
    which [are] the historic object of the constitutional and common
    law . . . principles" were not present."           State v. Tsoi, 
    217 N.J. Super. 290
    , 297 (App. Div. 1987).
    We discern no reason to exercise our independent authority
    to grant a judgment of acquittal.        While the State's discovery
    violations are troubling, this was not the cause of defendant's
    grievance   and   is   largely   irrelevant   to    the    analysis   of   his
    fundamental fairness claim.       Rather, a trial error was the root
    cause.   The law clearly permits the State to remedy a trial error,
    and double jeopardy principles do not apply.              The constitutional
    goals were satisfied in this case and defendant received the relief
    the law compels: his conviction was vacated.
    Affirmed.
    15                                 A-1661-14T4