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Date: 01-21-2019
Case Style:
State of New Jersey v. Guillermo Santamaria
Case Number: A-44/45-17
Judge: Walter F. Timpone
Court: SUPREME COURT OF NEW JERSEY
Plaintiff's Attorney: Nancy A. Hulett, Assistant Prosecutor
Andrew C. Carey, Middlesex County Prosecutor
Defendant's Attorney: Frank J. Pugliese, Assistant Deputy Public Defender
Joseph E. Krakora, Public Defender, attorney; Frank J. Pugliese
Description:
Former middle school teacher Guillermo Santamaria was tried and
convicted of aggravated sexual assault and official misconduct for his sexual
relationship with a student at his school from the time she was fourteen. In
this appeal we consider whether the trial court’s admission of some sixty-five
photographs -- approximately fourteen of which were sexually graphic --
amounted to plain error. Additionally, we examine whether the State
committed reversible error in its summation by commenting on defendant’s
silence when the victim, H.B., accused him of having had sexual relations with
her while she was a minor on multiple occasions over many years.
The Appellate Division reversed defendant’s convictions and remanded
the matter for a new trial. The panel found that, although defendant did not
object to the admission of the photographs, the trial court should have
excluded them sua sponte as cumulative and unduly prejudicial under N.J.R.E.
403 and as other-crime evidence or bad acts under N.J.R.E. 404(b). The panel
also offered guidance for retrial, demonstrating support for defendant’s
argument that the State improperly commented on his silence during a
recorded conversation with H.B.
3
We now reverse the Appellate Division’s judgment ordering a new trial.
We find neither error in the admission of the photographs under N.J.R.E. 403
nor reversible error concerning the prosecutor’s closing comments regarding
the defendant’s silence when H.B. made her recorded accusations. We
nevertheless remind trial courts to be attentive to their gatekeeping function as
they curate the admission of evidence.
I.
A.
We elicit the facts from the record, including the trial testimony.
In 1997, thirteen-year-old eighth grader H.B. met forty-three-year-old
defendant at the McGinnis Middle School in Perth Amboy, where he was
employed as a science teacher. Defendant introduced himself as “the
neighboring science teacher.” They spoke several times a week by telephone
and later added instant messaging. H.B. confessed to having problems with
her parents at home.
In the spring of 1998, defendant encouraged H.B. to enroll in his twice
weekly Greek and Latin course. The class met regularly at the school and once
at defendant’s home in Perth Amboy. When H.B. graduated from middle
school in June 1998, their communications continued, becoming more
intimate. She viewed it as the equivalent of a dating relationship. They met
4
often at a local park and in June or July 1998, they kissed “passionately” for
the first time.
Shortly after her fourteenth birthday, H.B. met the defendant in the park.
Defendant told her to lift up her skirt and warned that “this is going to hurt a
little bit, but this is good for you.” He then engaged in vaginal intercourse
with her. The pattern continued as H.B. entered high school. She described
the relationship as dominant-submissive, with the defendant in the dominant
role.
At the same time, defendant was in a sexual relationship with a fellow
teacher. In H.B.’s senior year, the teacher discovered in defendant’s email
account a photo of H.B. wearing what appeared to be a bikini top sitting in
defendant’s car. She reported it to the then-named Division of Youth and
Family Services (DYFS). Both defendant and H.B. denied any impropriety,
causing DYFS to send a letter to H.B.’s mother indicating that they had done
an investigation and found no basis for allegations of illicit sexual contact.
H.B. started college in the fall of 2002. Her liaisons with the defendant
continued while she was in college. Their relationship became tense. He
quizzed her on whether she was dating anyone and what she was doing in her
free time. He occasionally visited her at her college. While on break, H.B.
returned home and visited her old middle school to see her former teachers.
5
She found defendant in his classroom and ultimately performed oral sex on
him in an adjoining room. During winter break from college, H.B.’s mother
saw an email from the defendant asking H.B. if she was prepared to submit to
him in the ways he wanted and whether she was open to a future with him. At
that time, H.B. did not confide in her parents the nature and extent of her
relationship with defendant.
In 2009, H.B. called a family meeting with her parents and her siblings.
She told them about her relationship with defendant but did not want to bring
charges against him at that time. Approximately one year later, H.B. contacted
a detective at the Middlesex County Prosecutor’s Office with her information
about the defendant. In addition to conducting numerous interviews, the
detective obtained authorization to record conversations between defendant
and H.B.
With the detective’s help, H.B. scheduled a dinner with the defendant.
She wore a hidden recording device to capture their conversation. At dinner,
she questioned defendant about why he started the relationship with her when
she was fourteen instead of when she was nineteen. She pointedly asked him,
“How could you rape a fourteen-year-old?” Defendant made no admissions or
denials; instead he steered the conversation away from the accusations.
6
In addition to the recorded evidence, defendant’s ex-wife turned over a
CD of approximately sixty-five photos that she had found in her yard in 2002.
The CD’s contents ranged from hardcore photos of sexual acts between
defendant and H.B. to suggestive pictures of H.B. in various states of undress.
The detective also interviewed H.B.’s parents, defendant’s co-workers,
defendant’s former girlfriends, defendant’s ex-wife, and several other parties.
Defendant was arrested three days after the recorded dinner with H.B.
On October 1, 2010, a Middlesex County grand jury indicted defendant on one
count of first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14
2(a); two counts of second-degree sexual assault, contrary to N.J.S.A. 2C:14
2(c); and two counts of official misconduct, contrary to N.J.S.A. 2C:30-2.
B.
Before trial began, the prosecution, defense counsel, and the court
collaborated on a questionnaire for potential jurors, including a question about
the photographs: “During the trial there may be sexually graphic images
displayed. Would that affect your ability to be fair and impartial? Why or
why not?” Only those jurors who stated they would be impartial remained part
of the jury selection process.
The trial judge offered to hold an N.J.R.E. 104 hearing without the jury
to determine the admissibility of the photos on the CD found in the grass
7
outside of defendant’s home. Neither side took the judge up on his offer.
While marking the photos, the judge again asked if there were any objections.
And again, defense counsel did not object to admitting the photos into
evidence, embracing their admission. The parties agreed that the photos were
all taken shortly after H.B. turned eighteen.
The prosecution and defense each referenced the photos during the trial
to support their respective theories of the case. Defendant argued primarily
that he and eighteen-year-old H.B. had a consensual adult relationship.
Defense counsel opened and closed on the photos. He urged the jury to view
them as exhibiting nothing more than the actions of two consenting adults. He
attempted to undercut H.B.’s testimony, saying defendant had been “ambushed
about a past that never happened.”
The State argued that it is not credible that H.B. would have consented
to pose for such a broad array of photos in so new of a relationship. Instead,
according to the State, the photos were evidence of a long sexual relationship
that substantially predated H.B.’s eighteenth birthday.
To underscore this argument, the prosecutor reviewed during summation
before the jury the conversation recorded at the restaurant. She highlighted
H.B.’s accusation that defendant had raped her when she was fourteen, noting
that defendant did not respond to the accusation.
8
We never hear from [defendant], “What are you talking about?” Yes, that’s what you should expect. That’s exactly what you should expect. But what you got was this: What you got was every time [H.B.] brought up high school, he told -- he tried to distract her, “Oh, you’re gorgeous. Let’s talk about something else.” Controlling the conversation away from -- because he doesn’t know why she’s there and, in fact, he said, “We’ll talk about this when I have some trust in you.” This is not a stupid man, ladies and gentlemen.
. . . .
He can’t deny it, ladies and gentlemen, that’s why he doesn’t deny it in that taped statement.
. . . .
He said, . . . after she confronted him, “why did you have sex with me when I was fourteen?”
“Oh, your memory is much better than mine.” Now, all of a sudden, he doesn’t remember. That’s convenient.
. . . .
But what you should expect there . . . that’s what you should expect, him saying, “What are you talking about?” No. Instead you got a whole bunch, “Don’t look at that, let’s talk about this.”
The jury found defendant guilty of all counts.
C.
Defendant appealed from his convictions, challenging, among other
things, the admission of the photographs and the prosecutor’s references to his
silence during summation. After reversing as to one count of official
9
misconduct that it found beyond the statute of limitations, the panel reversed
defendant’s other convictions because it found the admission of the
photographs to be reversible error.
The Appellate Division found the photographs to be of marginal
probative value and relevance under N.J.R.E. 401 because they were taken
after H.B. had turned eighteen years old. Although it noted that the photos
“were logically connected to whether [defendant and H.B.] previously had a
sexual relationship when H.B. was underage,” the panel concluded that the
photos’ minimal probative value was substantially outweighed by the risk of
undue prejudice and constituted the needless presentation of cumulative
inflammatory evidence. The panel also determined the photos were too
attenuated from the allegations of underage sex because they were taken “at
least several weeks, if not years, after the alleged crimes occurred.”
The Appellate Division concluded the photos of a nude eighteen-year
old engaged in various sexual acts with the defendant, a man thirty years her
senior, were potentially inflammatory and stressed that H.B. was asked to
identify herself and defendant in the pictures and to identify the defendant’s
penis and her vagina. Applying N.J.R.E. 403, the panel expressed concern
about the likelihood that the photos could divert the jurors from a proper
evaluation of guilt or innocence. The panel also made findings under N.J.R.E.
10
404(b) and concluded that the photos were not “intrinsically relevant” because
they did not prove that defendant had sex with H.B. while she was underage.
The panel concluded the photos should have been excluded from evidence
under N.J.R.E. 404(b) “because they were not admissible as intrinsic
evidence.”
Because the panel reversed defendant’s convictions, it did not need to
reach the comments made by the prosecutor during her summation. The panel
nonetheless admonished that prosecutors should “avoid comments that invade
the rights bestowed on defendants, including the right to remain silent.”
(citing State v. Muhammad, 182 N.J. 551, 568-69 (2005)).
After the Appellate Division rendered its decision, the State filed a
motion for reconsideration, contending that the panel may not have had copies
of the photographs challenged on appeal and, therefore, found prejudice from
the graphic nature of the photos “without having seen them.” The Appellate
Division denied the motion.
On the heels of the denial of the reconsideration motion, the State filed a
petition for certification which we granted. 232 N.J. 153 (2018). Defendant
cross-petitioned. We granted defendant’s petition as well, limited to the two
issues outlined above. 232 N.J. 295 (2018).
11
II.
A.
The State argues that the Appellate Division’s opinion granting a new
trial should be reversed. The State maintains that the photos were not
prejudicial under N.J.R.E. 403 because defendant failed to object to their use
at trial and, instead, strategically relied on the photos to support his defense.
Before jury selection, the prosecutor announced her intention to admit into
evidence sexually explicit photos. The judge offered, but the parties both
declined an evidentiary hearing. The State notes defense counsel reasoned that
the photos merely showed H.B. as an adult voluntarily posing for photos -- not
evidence of a crime -- and even encouraged the jury to review the photos.
The State also argues that the panel erroneously held that the photos
should be excluded under N.J.R.E. 404(b) because the photos merely depicted
an adult who posed voluntarily, such that no crime or bad act is implicated.
The State emphasized that this was a case of sexual assault and that photos of a
sexual nature are relevant to the case.
Finally, the State disputes any impropriety in the prosecutor’s comments
on defendant’s silence at dinner when H.B. accused him of sexual assault
while she was a minor. The State insists that his silence was not at or near the
time of defendant’s arrest. His arrest came three days after the recorded dinner
12
conversation. The State concludes since there was sufficient attenuation
between the recording of the conversation and the defendant’s arrest, no
government compulsion exists. Lack of government compulsion, the State
argues, makes the use of silence appropriate for impeachment purposes at trial.
B.
Amicus curiae the Attorney General of New Jersey makes arguments
that echo those of the State. The Attorney General proffers that defense
counsel used the photographs as part of his trial strategy to depict H.B. in an
unflattering way, concluding that the defense should be precluded from now
arguing that the photos were prejudicial.
C.
Defendant urges us to affirm the Appellate Division’s conclusion that
the trial court sua sponte should have excluded the photos pursuant to N.J.R.E.
401 or 402, because the photos were not relevant, under N.J.R.E. 403, because
the photos were unduly prejudicial given their graphic content, or under
N.J.R.E. 404(b), because the photos improperly permitted the jury to infer that
defendant and H.B. engaged in sexual activity while she was underage.
According to defendant, the photos were not relevant to any charges
involving allegations of underage sex with H.B. because they are evidence
only of consensual sexual activity between two adults. He postulates that the
13
jury may have found the photos grossly offensive and the mere fact that
defendant took the pictures when he and H.B. were performing sex acts may
have caused the jury to convict based on perceived immorality. Further,
defendant argues that jurors could unreasonably infer from such highly
prejudicial evidence defendant had the proclivity to commit the offenses for
which he was on trial. Defendant also asserts that defense counsel’s failure to
object to the photos’ admission was not “some grand stroke of strategic
genius” but was “simply a matter of neglect.”
Defendant also agrees with the panel that the prosecutor’s comment
regarding defendant’s silence when H.B. accused him of a long-term sexual
relationship and the rape of a minor infringed on his federal and state
constitutional rights to remain silent. Although defendant concedes that his
statements made during dinner were admissible since he was not in custody at
the time he made them, he argues that it was improper for the prosecutor to
argue in summation that his silence was evidence of his guilt.
III.
If a defendant, as here, does not object or otherwise preserve an issue for
appeal at the trial court level, we review the issue for plain error. R. 2:10-2.
We must disregard any unchallenged errors or omissions unless they are
“clearly capable of producing an unjust result.” Ibid.
14
Plain error is a high bar and constitutes “error not properly preserved for
appeal but of a magnitude dictating appellate consideration.” State v. Bueso,
225 N.J. 193, 202 (2016) (quoting Pressler & Verniero, Current N.J. Court
Rules, cmt. 2.1 on R. 2:10-2 (2016)). The “high standard” used in plain error
analysis “provides a strong incentive for counsel to interpose a timely
objection, enabling the trial court to forestall or correct a potential error.” Id.
at 203.
“A defendant who does not raise an issue before a trial court bears the
burden of establishing that the trial court’s actions constituted plain error”
because “‘to rerun a trial when the error could easily have been cured on
request[] would reward the litigant who suffers an error for tactical advantage
either in the trial or on appeal.’” State v. Ross, 229 N.J. 389, 407 (2017)
(quoting State v. Weston, 222 N.J. 277, 294-95 (2015)).
The admission of all the photographs was raised for the first time on
appeal by defendant. We reverse only if any error was “clearly capable of
producing an unjust result.” R. 2:10-2. The same standard applies to our
review of the prosecutor’s remarks during summation, to which defense
counsel did not object.
IV.
We begin by considering the admission of the photographic evidence.
15
A.
Beginning our analysis with N.J.R.E. 401, we consider whether the
photographs are relevant. N.J.R.E. 401 defines “relevant evidence” as
“evidence having a tendency in reason to prove or disprove any fact of
consequence to the determination of the action.” Relevant evidence “need not
be dispositive or even strongly probative in order to clear the relevancy bar.”
State v. Cole, 229 N.J. 430, 447 (2017) (quoting State v. Buckley, 216 N.J.
249, 261 (2013)). Instead, the relevancy threshold is met “[o]nce a logical
relevancy can be found to bridge the evidence offered and a consequential
issue in the case.” Id. at 448 (quoting State v. Burr, 195 N.J. 119, 127 (2008)).
Under N.J.R.E. 402, “all relevant evidence is admissible” subject to exceptions
provided for elsewhere in the rules.
The parties here all agree that the photographs were taken after H.B.
turned eighteen, apparently during the several weeks between H.B.’s July 5
birthday and her leaving for college in mid-August. The sheer number of
photographs -- as well as the graphic nature of the sexual acts depicted mere
weeks after H.B. turned eighteen -- is relevant to establishing a pre-existing
relationship between defendant and H.B., which in this case would mean a
relationship while H.B. was underage. The photos are therefore intrinsic to the
prosecution’s case.
16
Defendant argues that the photographs are not relevant because his
relationship with H.B. was consensual and legal at the time the photographs
were taken. But H.B. testified, without any objection, that her relationship
with defendant began well before her eighteenth birthday and continued
afterward. That testimony included extensive recitation about their
relationship from her eighteenth birthday until it ended. It is incongruent to
argue that the photographs are in no way relevant to the charges here without
simultaneously challenging H.B’s testimony about the relationship depicted in
the photographs. Defendant concedes H.B.’s testimony about events occurring
after her eighteenth birthday was relevant. We find no compelling reason why
the same logic would not apply to the photographs. The relationship once
H.B. reached legal age remains relevant as a continuation of the relationship
begun when H.B. was a minor.
B.
Relevant evidence may still “be excluded if its probative value is
substantially outweighed by the risk of (a) undue prejudice, confusion of
issues, or misleading the jury or (b) . . . needless presentation of cumulative
evidence.” N.J.R.E. 403. Evidence should be barred under N.J.R.E. 403 if
“the probative value of the evidence ‘is so significantly outweighed by [its]
inherently inflammatory potential as to have a probable capacity to divert the
17
minds of the jurors from a reasonable and fair evaluation of the’ issues.” Cole,
229 N.J. at 448 (alteration in original) (quoting State v. Thompson, 59 N.J.
396, 421 (1971)). Inflammatory evidence “must be excluded if other
probative, non-inflammatory evidence exists.” Green v. N.J. Mfrs. Ins. Co.,
160 N.J. 480, 500 (1999). The party urging the exclusion of evidence under
N.J.R.E. 403 retains the burden “to convince the court that the N.J.R.E. 403
considerations should control.” Rosenblit v. Zimmerman, 166 N.J. 391, 410
(2001) (quoting Biunno, Current N.J. Rules of Evidence, cmt. 1 on N.J.R.E.
403 (2000)).
Here, the photographs depicted H.B. in various states of undress either
alone or engaging in sexual acts with defendant. The trial judge and the
parties took steps to mitigate any potential inflammatory effect from the
pictures by raising the issue in the jury questionnaire. The trial court spoke
with jurors about the graphic nature of the pictures to ensure they would be
comfortable examining them for their intended purpose. The prosecutor’s
summation clarified the use of the pictures:
If this -- if this relationship didn’t happen until it was legal, do you think that [H.B.] . . . would be that comfortable in the way she’s posing and that sexual, if this relationship -- you don’t go from zero to sixty in a month, ladies and gentlemen. That’s just not reasonable. That’s not rational.
18
Defendant argues that the photographs were cumulative in nature
because both defendant and H.B. admitted to a consensual relationship once
H.B. was eighteen and H.B. provided testimony about their consensual
relationship. Yet, both the nature and number of photographs have the
capacity to demonstrate the depth and length of the relationship. Given that
H.B. turned eighteen in early July and the pictures were taken in July or early
August, the sheer volume and intimate nature of the photographs is significant
and highly probative.
As the State pointed out, an eighteen-year old in the first weeks of a
relationship is not likely to consent to a sexual partner’s taking sixty-five nude
and semi-nude photographs, particularly when fourteen of those photographs
depict hardcore sexual acts. Further, the photographs support H.B.’s testimony
about the dominant-submissive nature of their relationship as defendant
appeared to be controlling the photographs and never displayed his face in any
of them.
Therefore, it was not error to admit the photographs. The evidence was
admissible under N.J.R.E. 403 as its probative value outweighed any
prejudicial effect. We also note that it is markedly unfair for the panel to have
judged the photos as excessive without having viewed them.
19
Moreover, defendant was also provided several opportunities to dispute
the admission of the photographs. At the beginning of the case, the
photographs were briefly discussed before the trial court asked if any N.J.R.E.
104 hearings were necessary. Defense counsel replied: “I don’t think so.”
During the trial itself, the State introduced the photographs during defendant’s
ex-wife’s testimony and then again during H.B.’s testimony, systematically
reviewing numerous photographs and questioning each witness about various
details in the photographs. Defense counsel did not object to any of the
photographs and, on cross-examination, even briefly questioned H.B. further
about the photographs. During the marking of exhibits, the trial court again
discussed the “graphic photographs,” asking “[a]ny objections?” Defense
counsel replied: “No, judge.”
Because we find the photographs were admissible under N.J.R.E. 403,
the trial court did not err by not sua sponte excluding them under its
gatekeeping function. The trial court provided the opportunity for counsel to
hold a 104 hearing and then properly deferred to each party’s strategic and
tactical decisions in allowing each party to try the case as it saw fit.
Importantly, defendant did not merely fail to object to the photographs
but instead strategically relied on the photographs as part of his defense.
Defense counsel’s opening and closing statements each referenced the
20
photographs and argued their role as evidence of defendant’s innocence. In
opening, defendant’s attorney stated:
The State is going to show you some pictures. I want you to look at those pictures. I want you to hear about this [sic] pictures. When were those pictures taken? And you’re going to hear those pictures, they’re not evidence of a crime. They’re not evidence of wrongdoing and they’re very -- they’re graphic pictures, no doubt about that. You may be offended. You got to understand that those pictures, those are not a crime, because at that point in time it was a legal consensual relationship that they were involved in.
[(emphasis added).]
In summation, defendant’s attorney stated:
[T]here were some pictures and they were sexually explicit. But what do we know about those pictures? . . . [H.B.] was eighteen . . . . The pictures are shocking because it’s a person having sex with a stranger, I understand that. Look at the pictures. This is a woman exploring her sexuality, the legal consensual thing. Not evidence of any wrongdoing.
[(emphasis added).]
Defendant cannot be permitted to argue now on appeal that it was error
on the part of the court to admit the photos. Although we find it was not error
to admit the photos, even if it were error, a party cannot strategically withhold
its objection to risky or unsavory evidence at trial only to raise the issue on
appeal when the tactic does not pan out. See State v. Harper, 128 N.J. Super.
270, 277 (App. Div. 1974) (“Trial errors which were induced, encouraged or
21
acquiesced in or consented to by defense counsel ordinarily are not a basis for
reversal on appeal.”); cf. State v. Jenkins, 178 N.J. 347, 359 (2004) (discussing
invited error doctrine). Plain error has intentionally been created as a high bar
for parties to meet in order to encourage litigants to raise any objections to
evidence at the trial level where the court can best “forestall or correct a
potential error,” in a timely manner. Bueso, 225 N.J. at 203 (collecting cases).
Of course, if defendant had objected and asked for the court to limit the
number of photographs, the court’s duty is to exercise its gatekeeping function
and assess whether the evidence was cumulative and should have been limited.
See N.J.R.E. 403. Here, defendant both failed to object to the photographs at
trial and relied on the photographs as part of his case strategy. The Appellate
Division here erred by finding plain error in the admission of the photographs
under N.J.R.E. 403.
C.
N.J.R.E. 404(b) provides that “evidence of other crimes, wrongs, or acts
is not admissible to prove the disposition of a person in order to show that such
person acted in conformity therewith.” Significantly, however, “evidence that
is intrinsic to the charged crime is exempt from the strictures of Rule 404(b).”
State v. Rose, 206 N.J. 141, 177 (2011) (citing 22 Charles Alan Wright &
Kenneth W. Graham, Jr., Federal Practice and Procedure § 5239 at 445
22
(1978)). In Rose, this Court considered the concept of intrinsic evidence and
its impact on Rule 404(b):
Whenever the admissibility of uncharged bad act evidence is implicated, a Rule 404(b) analysis must be undertaken. The threshold determination under Rule 404(b) is whether the evidence relates to “other crimes,” and thus is subject to continued analysis under Rule 404(b), or whether it is evidence intrinsic to the charged crime, and thus need only satisfy the evidence rules relating to relevancy, most importantly Rule 403.
[Id. at 179.]
In determining whether evidence is intrinsic or related to “other crimes,”
this Court quoted United States v. Green, 617 F.3d 233 (3d Cir. 2010), which
stated:
we . . . reserve the “intrinsic” label for two narrow categories of evidence. First, evidence is intrinsic if it “directly proves” the charged offense. This gives effect to Rule 404(b)’s applicability only to evidence of “other crimes, wrongs, or acts.” If uncharged misconduct directly proves the charged offense, it is not evidence of some “other” crime. Second, “uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime.” But all else must be analyzed under Rule 404(b).
As a practical matter, it is unlikely that our holding will exclude much, if any, evidence that is currently admissible as background or “completes the story” evidence under the inextricably intertwined test. We reiterate that the purpose of Rule 404(b) is “simply to keep from the jury evidence that the defendant is prone to commit crimes or is otherwise a bad person, implying
23
that the jury needn’t worry overmuch about the strength of the government’s evidence.” “No other use of prior crimes or other bad acts [is] forbidden by the rule,” and one proper use of such evidence “is the need to avoid confusing the jury.”
[Rose, 206 N.J. at 180 (alteration in original) (quoting Green, 617 F.3d at 248-49 (internal citations omitted)).]
As such, if evidence is found to be intrinsic to the crime at issue, it does
not constitute other-acts evidence and is subject only to the limits of Rule 403.
The Appellate Division found the entire CD of photographs to be
inadmissible under N.J.R.E. 404(b) as other-acts evidence whose apparent
prejudice outweighed its probative value.
Here, the State used the photographs to demonstrate that the consensual
relationship admitted to by both parties logically must have preceded H.B.’s
majority based on the highly intimate nature of the photographs taken shortly
after H.B. turned eighteen. That use of the photographs made the evidence
intrinsic to the charged crime as proof of the ongoing relationship between
H.B. and defendant. The photographs served to demonstrate the control
defendant had over H.B., and suggested defendant groomed her over their
years-long sexual relationship beginning shortly after H.B.’s fourteenth
birthday. The photographs were intrinsic, not evidence of “other crimes,
wrongs, or acts,” so the Appellate Division was incorrect to find the
24
photographs should have been excluded under 404(b). N.J.R.E. 404(b)
(emphasis added).
Having determined that defendant’s convictions should not have been
reversed on the basis of the admitted photographs, we turn next to defendant’s
challenge of the prosecutor’s remarks in summation.
V.
A.
The Fifth Amendment of the United States Constitution provides that
“[n]o person . . . shall be compelled in any criminal case to be a witness
against himself.” U.S. Const. amend. V. Although the same right is not
expressly included in the New Jersey Constitution, the privilege against self
incrimination is present in New Jersey common law and statutory law. See
N.J.S.A. 2A:84A-19 (“[E]very natural person has a right to refuse to disclose
in an action or to a police officer or other official any matter that will
incriminate him or expose him to a penalty or a forfeiture of his estate . . . .”)
(emphasis added); State v. S.S., 229 N.J. 360, 381 (2017) (discussing
embodiment of the Fifth Amendment privilege in New Jersey law). “The
practical effect of the privilege to remain silent is . . . ‘that when a defendant
expressly refuse[s] to answer, no inference can be drawn against him under the
doctrine of acquiescence by silence or any other concept . . . .’” State v.
25
Deatore, 70 N.J. 100, 115 (1976) (quoting State v. Ripa, 45 N.J. 199, 204
(1965)). This case does not invoke the scenario of official compulsion because
we are not dealing with an officer interrogating a witness.
Importantly, “pre-arrest silence that is not ‘at or near’ the time of arrest,
when there is no government compulsion and the objective circumstances
demonstrate that a reasonable person in a defendant’s position would have
acted differently, can be used to impeach that defendant’s credibility with an
appropriate limiting instruction.” State v. Stas, 212 N.J. 37, 58 (2012) (citing
State v. Brown, 190 N.J. 144, 158-59 (2007); State v. Brown, 118 N.J. 595,
613-14 (1990)). Pre-arrest silence “cannot . . . be used as substantive evidence
of a defendant’s guilt.” Ibid.
B.
Although H.B. was wearing a body recorder, she spoke with defendant
as a private citizen, in a public place, with defendant unaware of any police
presence. See State in Interest of J.D.H., 171 N.J. 475, 477-78, 481 (2002)
(upholding admission of defendant’s incriminating statement made during a
recorded phone call with victim who asked questions provided by detective).
Defendant argues that H.B. was acting as an agent of the police, which
precludes the prosecutor from commenting on defendant’s silence in response.
26
The mere use of a recording device to allow law enforcement to listen in on a
conversation does not show government compulsion.
It is noteworthy that the prosecutor’s comments questioning defendant’s
response to H.B.’s accusations were made only during summation and were
fair comment. The court twice instructed the jury not to interpret anything
said during summation as evidence. “We presume that the jury faithfully
followed [the] instruction[s]” it received, State v. Miller, 205 N.J. 109, 126
(2011), and was aware that the prosecutor’s remarks were argumentative, not
evidentiary, in nature.
A return to the language of New Jersey’s statutory privilege against self
incrimination is informative: “[E]very natural person has a right to refuse to
disclose in an action or to a police officer or other official any matter that will
incriminate him or expose him to a penalty or a forfeiture of his estate . . . .”
N.J.S.A. 2A:84A-19. Defendant’s “right to refuse to disclose” is not
implicated when, as here, (1) there is no action; and (2) he did not disclose “to
a police officer or other official.” Ibid.
The State’s comments on defendant’s silence were appropriate and did
not infringe on defendant’s right to remain silent or privilege against self
incrimination. The Appellate Division’s guidance on the prosecutor’s
comments on silence should not be adopted.
Outcome: We reverse the judgment of the Appellate Division and remand for
consideration of defendant’s remaining arguments.
Plaintiff's Experts:
Defendant's Experts:
Comments: