NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3830-13T4
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
December 3, 2015
v. APPELLATE DIVISION
WALTER A. TORMASI,
Defendant-Appellant.
________________________________________________
Submitted November 4, 2015 – Decided December 3, 2015
Before Judges Fisher, Espinosa and Currier.
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County,
Indictment No. 97-04-0234.
Walter A. Tormasi, appellant pro se.
Geoffrey D. Soriano, Somerset County
Prosecutor, attorney for respondent (James
L. McConnell, Assistant Prosecutor, of
counsel and on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
In this appeal of the denial of post-conviction relief,
defendant argues that the judge erred in finding inadmissible a
thirty-eight-page document which purports to be an affidavit —
lacking its last page — authored by defendant's father in which
he takes responsibility and proclaims defendant's innocence of
the murder for which he was convicted. The judge excluded
consideration of the document because the thirty-ninth page,
which was alleged by witnesses to have contained the signature
of defendant's father and the jurat of a notary public, was
missing. We reverse because, if sufficiently authenticated, the
document was admissible pursuant to N.J.R.E. 803(c)(25); we
remand, however, for further proceedings because the judge never
evaluated the sufficiency of defendant's effort to authenticate
the document through extrinsic evidence pursuant to N.J.R.E. 901.
The record on appeal reveals that in January 1998,
defendant was tried and convicted, among other things, of the
March 1, 1996 murder of his mother. Although sixteen years old
at the time of the murder, defendant was tried as an adult and
sentenced to a term of life in prison subject to a thirty-year
period of parole ineligibility. We affirmed by way of an
unpublished opinion, State v. Tormasi, No. A-5530-97 (App. Div.
July 20, 2001); the Supreme Court denied defendant's petition
for certification, 171 N.J. 42 (2002).
On July 8, 2002, defendant filed a post-conviction relief
(PCR) petition, which was supplemented on December 8, 2005 and
again on December 29, 2006. By way of these submissions,
defendant argued the ineffective assistance of counsel because
of his trial attorney's performance during the investigation
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stage as well as at trial. The trial judge denied relief, and
we affirmed. State v. Tormasi, No. A-2248-07 (App. Div. May 26,
2009). The Supreme Court denied defendant's petition for
certification. 200 N.J. 474 (2009).
Defendant filed another PCR petition on December 22, 2011.
This time defendant argued that newly-discovered evidence — what
he refers to as the "affidavit" of his father (Attila Tormasi,
Sr.) — demonstrates his innocence. That is, the document in
question purports to contain Attila, Sr.'s acknowledgement that
he hired a private detective to commit the murder for which
defendant was convicted. In addition, as cogently explained by
defendant's PCR counsel at the start of the evidentiary hearing:
[t]here's a second aspect to the claim which
is based in part on the affidavit that
[Attila, Sr.] paid funds to [defendant's]
appointed counsel . . . in order that he
[Attila, Sr.] not be implicated in the
murder and that the defense that it was
[Attila, Sr.] who had orchestrated the
murder not be presented to the jury . . . .
The judge conducted a two-day hearing limited to examining
"the significance of [the] document and whether or not it is
evidential as well as whether or not [defendant's trial
attorney] had an un-waivable conflict during the term of his
representation." After hearing defendant's three witnesses and
the State's two witnesses, the PCR judge found, by way of a
written decision, that the document was inadmissible. In
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denying relief, the judge determined the document "was not hand-
written, not signed, and there is no way of authenticating it,"
and described it "as a hearsay document which does not meet any
exceptions to the hearsay rule permitting it as an evidentiary
document." The judge concluded that "[s]ince [the document] is
not evidence, it cannot be newly[-]discovered evidence."
For those reasons, the PCR judge looked no further into the
allegations of the PCR petition, which was denied by order
entered on April 9, 2014. Defendant appeals, arguing:
I. ATTILA SR.'S SELF-INCRIMINATORY AFFIDAVIT
CONSTITUTES NEWLY[-]DISCOVERED EVIDENCE
ENTITLING DEFENDANT TO THE REVERSAL OF HIS
CONVICTIONS UNDER APPLICABLE LAW.
II. ATTILA SR.'S UNILATERAL FEE ARRANGEMENT
WITH DEFENSE COUNSEL CREATED AN IMPERMIS-
SIBLE CONFLICT OF INTEREST AND DEPRIVED
DEFENDANT OF EFFECTIVE ASSISTANCE OF
[1]
COUNSEL.
We reverse and remand.
Newly-discovered evidence of the type that would require a
new trial must be "(1) material to the issue and not merely
cumulative or impeaching or contradictory; (2) discovered since
the trial and not discoverable by reasonable diligence
beforehand; and (3) of the sort that would probably change the
jury's verdict if a new trial were granted." State v. Carter,
1
For brevity's sake, we have not included the subparts to these
two points.
4 A-3830-13T4
85 N.J. 300, 314 (1981); see also State v. Puchalski, 45 N.J.
97, 107 (1965); State v. Artis, 36 N.J. 538, 541 (1962). The
Supreme Court has further counseled that such evidence "must be
reviewed with a certain degree of circumspection to ensure that
it is not the product of fabrication, and, if credible and
material, is of sufficient weight that it would probably alter
the outcome of the verdict in a new trial." State v. Ways, 180
N.J. 171, 187-88 (2004).
There can be no doubt that another person's confession is
material and constitutes the sort of evidence that would
probably change the jury's mind. The PCR judge recognized this,
observing in his written opinion that "if true" the document
"places full responsibility for Frances Tormasi's murder on
Attila, Sr., and exonerates [defendant]."
Ultimately, however, defendant was denied relief because
the judge determined the document was inadmissible. This ruling
was based on a misinterpretation of both N.J.R.E. 803(c)(25) and
N.J.R.E. 901.
I
If the document can be authenticated as Attila, Sr.'s
statement, it is admissible. In reaching this conclusion, we
start by acknowledging that the document constitutes "hearsay"
because it purports to be "a statement, other than one made by
5 A-3830-13T4
the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted."
N.J.R.E. 801(c). We also recognize that hearsay "is not
admissible except as provided" by the evidence rules or other
law. N.J.R.E. 802.
N.J.R.E. 803(c) provides numerous exceptions to the general
rule of hearsay inadmissibility. The PCR judge's decision and
the parties' arguments focus on N.J.R.E. 803(c)(25); that rule,
as relevant here, renders admissible a hearsay statement which
was at the time of its making so far
contrary to the declarant's pecuniary,
proprietary, or social interest, or so far
tended to subject declarant to civil or
criminal liability, . . . that a reasonable
person in declarant's position would not
have made the statement unless the person
believed it to be true.
Even though the document fits within the parameters of this
hearsay exception, the judge relied on the exception's next and
last sentence: "Such a statement is admissible against an
accused in a criminal action only if the accused was the
declarant." N.J.R.E. 803(c)(25). After quoting this sentence,
the judge concluded only that:
In the present case, [defendant] does not
allege that he authored the writing; he is
claiming that his father Attila is the
declarant. Therefore, exception 803(c)(25)
does not apply.
This conclusion was erroneous.
6 A-3830-13T4
The evidence rule's last sentence, upon which the judge
relied, deals with a discrete issue not applicable here because
it only prohibits the use of a statement against interest when
the declarant is someone other than the accused and only when
offered "against an accused" in a criminal action. N.J.R.E.
803(c)(25). If, for example, at defendant's criminal trial, the
prosecution offered another individual's statement which was
against that individual's interest and declared defendant
committed the murder, the last sentence of N.J.R.E. 803(c)(25)
would bar its admission. See State v. White, 158 N.J. 230, 239
(1999) (recognizing, also, the Confrontation Clause problem
generated by the admission of such a statement); see also State
v. Bowser, 297 N.J. Super. 588, 598-99 (App. Div. 1997); State
v. Felton, 131 N.J. Super. 344, 350-51 (App. Div. 1974), certif.
denied, 68 N.J. 140 (1975). Only a statement made by the
accused may be offered against the accused through application
of this rule. See State v. Rucki, 367 N.J. Super. 200, 206-07
n.1 (App. Div. 2004).
The rule does not apply equally in reverse. An accused is
entitled to offer a statement against interest made by another,
usually for the purpose of demonstrating the guilt of another,
so long as the statement falls within the other parameters of
N.J.R.E. 803(c)(25); indeed, it is well-established that this
7 A-3830-13T4
aspect of the rule must "not be applied mechanistically to
defeat an accused's ability to present a defense." Biunno,
Current N.J. Rules of Evidence, comment 6 on N.J.R.E. 803(c)(25)
(2015); accord Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.
Ct. 1038, 1049, 35 L. Ed. 2d 297, 312-13 (1973); State v. Brown,
170 N.J. 138, 153 (2000).
The document in question purports to be a statement by
Attila, Sr., against his interests — in that it expresses his
responsibility for the murder of his wife — and snugly fits the
requirements of N.J.R.E. 803(c)(25).2 And because the document
was offered by defendant and not against him, the rule's last
sentence, upon which the judge relied, has no application.
Barring an authentication problem, to which we now turn, the
document was admissible.
II
For two reasons we reject the judge's conclusion that
"there is no way of authenticating" the document: (a) the
2
The judge also found the document inadmissible because it was
neither signed nor handwritten. This conclusion was erroneous
as well. Contrary to the PCR judge's narrow view, N.J.R.E.
801(a) defines "statement" as "(1) an oral or written assertion
or (2) nonverbal conduct of a person if it is intended by him
[or her] as an assertion." Ibid. An unsigned written statement
or even — as subsection (2) recognizes — a wink, nod or point of
a finger may constitute a "statement" for these purposes. See,
e.g., State v. Simmons, 52 N.J. 538, 541 (1968), cert. denied,
395 U.S. 924, 89 S. Ct. 1779, 23 L. Ed. 2d 241 (1969); State v.
Jones, 308 N.J. Super. 15, 20, 22 (App. Div. 1998).
8 A-3830-13T4
judge's decision regarding authentication was mistakenly based
on the fact that the document is not self-authenticating
pursuant to N.J.R.E. 902(h); and (b) the judge made no findings
regarding the extrinsic evidence offered by defendant as the
means of authenticating the document pursuant to N.J.R.E. 901.
A
We start by recognizing, as the judge observed, that the
thirty-eight-page document is incomplete; the thirty-eighth page
ends mid-sentence and the document lacks a signature line, a
signature, and a jurat. Defendant provided the testimony of his
brother (Attila, Jr.) and sister (Sophia), as well as an
investigator who took custody of the document in December 2010
upon its discovery by Attila, Jr. soon after his father's death
on November 16, 2010.
Defendant's siblings both testified they saw the document
at some point years after the trial.3 Attila, Jr., testified that
in 2003, when he was twenty-two years old, he confronted his
father about the document:
3
Attila, Jr., testified he saw the document — in its complete
state, with Attila, Sr.'s signature and a notarization — in
2003. Sophia, the oldest of the three siblings, testified
Attila, Jr., showed her the document, also with a signed and
notarized thirty-ninth page. She stated that she could only
remember that she was shown the document sometime between 2000
and 2005; notwithstanding, Sophia was "one hundred percent
certain it was signed by [her] father and that it was also
notarized."
9 A-3830-13T4
Q. And how did that conversation go? If we
were listening to the conversation, what did
you say and what did he say to you?
A. I don't remember exactly what was said.
Q. In sum and substance?
A. But I did tell him that I found [the
complete version of the document] and I read
it, and he was very upset, but I asked him
if what was contained in there was the truth
and he said yes but that he didn't — I
shouldn't be snooping around his stuff and
don't mention it to anybody and he got
pretty upset.
Sophia similarly testified that she spoke to her father about
the document she saw years earlier:
Q. . . . You went to your father and as you
just said —
A. Yes, I —
Q. — asked him why he signed this and what
did he tell you?
A. Yes. He — he told me that he signed it
because it was true, and then from there he
didn't want to talk about it. He got very
agitated and very, very upset. So I just
left it.
Both Attila, Jr., and Sophia testified they did not mention the
affidavit to defendant or anyone else; as Sophia explained, her
father "was not the type of person that liked to be doubled
crossed."
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Instead of making findings about the credibility of
defendant's siblings, the PCR judge concluded only that the
document could not be admitted because it "was not hand-written,
not signed, and there is no way of authenticating it." We
discern from the judge's opinion that, due to the lack of either
a signature or jurat, the document was not self-authenticated.
Although not cited, we assume the judge meant that the
authentication problem could not be resolved by resort to
N.J.R.E. 902(h), which declares that "[e]xtrinsic evidence of
authenticity as a condition precedent to admissibility is not
required with respect to . . . [d]ocuments accompanied by a
certificate of acknowledgement executed in the manner provided
by law by a notary public or other officer authorized by law to
take acknowledgements."
We agree the document was not self-authenticated, but that
conclusion does not bar authentication through other means.
B
N.J.R.E. 901 states that "[t]he requirement of
authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a
finding that the matter is what its proponent claims." The rule
"does not require absolute certainty or conclusive proof" — only
"a prima facie showing of authenticity" is required. State v.
11 A-3830-13T4
Mays, 321 N.J. Super. 619, 628 (App. Div.), certif. denied, 162
N.J. 132 (1999); see also State v. Joseph, 426 N.J. Super. 204,
220 (App. Div.), certif. denied, 212 N.J. 462 (2012).
As Professor McCormick observed, "[a] writing may . . . be
authenticated from a percipient witness that other connections
exist between the writing and a particular person, and it is
those connections that make that writing relevant." McCormick on
Evidence § 222 at 86 (Bourn ed., 7th ed. 2013). Here, defendant
provided the testimony of his siblings; they not only claimed to
have seen the document in its complete, executed and notarized
state, but they also described interactions with their then-
living father that arguably suggested his familiarity with the
document and his acknowledgement that its contents were "true."
"The fundamental idea of authentication is to connect the
writing with the person alleged to be its author." In re Blau,
4 N.J. Super. 343, 351 (App. Div. 1949) (quoting 5 Wigmore on
Evidence § 1496 at 319 (Chadbourn rev. 1974)). When such
extrinsic evidence is presented, a judge in his gatekeeping
role, Konop v. Rosen, 425 N.J. Super. 391, 411 (App. Div. 2012),
may, to some degree, consider the credibility of the
authenticating witnesses. That never occurred here. Absent a
finding that Attila, Jr., and Sophia's testimony regarding the
purported links between the document and their late father was
12 A-3830-13T4
unworthy of belief, the judge was obliged to acknowledge the
statement appeared to be what it purported to be and leave for
the factfinder "more intense review of the document[]," Biunno,
Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on
N.J.R.E. 901 (2015) (quoted with approval in Konop, supra, 425
N.J. Super. at 411), and a weighing of the testimony of the
percipient witnesses. Because the judge did not apply this
authentication method, we are compelled to remand.
III
We are mindful the "gatekeeper" and "factfinder" here are
one and the same. Considering that N.J.R.E. 901 "does not erect
a particularly high hurdle," United States v. Ortiz, 966 F.2d
707, 716 (1st Cir. 1992) (construing the similar Federal Rule of
Evidence 901(a)), cert. denied, 506 U.S. 1063, 113 S. Ct. 1005,
122 L. Ed. 2d 154 (1993), and considering the judge's dual role
with regard to its admission and weight, the better practice in
such a circumstance will often warrant the admission of the
document and then a consideration by the judge, as factfinder,
as to whether it and all other evidence, warranted post-
conviction relief through the further application of Carter,
supra, 85 N.J. at 314, and Ways, supra, 180 N.J. at 188-89. We
13 A-3830-13T4
leave the matter to the experienced judge for his further
consideration of these principles.4
We lastly emphasize what we are not deciding. In responding
to this appeal, the State forcefully argues that the jury was
presented with overwhelming evidence of defendant's guilt. That
contention is not presently relevant. Today we consider only
whether the reasons given by the PCR judge for excluding the
document were mistaken. They were.5
Reversed and remanded. We do not retain jurisdiction.
4
Because the judge implicitly concluded that his exclusion of
the document was determinative of all other issues, we also
remand for further consideration of defendant's ineffective-
assistance contention that an unwaivable conflict arose when his
father paid defendant's trial attorney so as to keep that
attorney from presenting evidence casting blame on him (Attila,
Sr.) for the murder. The judge failed to make findings on this
issue as required by Rule 1:7-4(a).
5
In addition, we note that the PCR judge did not address — and
the State did not argue in the trial court or here — the
timeliness of defendant's second petition, which was subject to
Rule 3:22-12(a)(2) and Rule 3:22-4(b). Accordingly, as noted
above, we have limited our discussion to the judge's ruling on
the evidentiary issue.
14 A-3830-13T4