State v. Castagna

*317Justice RIVERA-SOTO,

concurring in the result.

In this appeal, we address two separate issues. First, we address the claim by defendants Josephine Castagna and Thomas J. D’Amico that their constitutional rights were infringed when the trial court prohibited the cross-examination of a witness in respect of the results of a polygraph examination to which that witness subjected herself pursuant to her plea agreement—her contract— with the State. Second, we address D’Amico’s claim that his trial counsel was ineffective. The Appellate Division upheld the defendants’ arguments in respect of both claims and we reverse that judgment. I separately address these issues because, although I concur in the result we reach, I do so for reasons different from those expressed by the majority.

I.

The majority concludes that “the limitation placed on defendants’ right of cross-examination did not serve the interests of fairness and reliability!]]” and, hence, “the trial court erred in denying defendants the right to cross-examine Arias concerning the polygraph test results, not because those results were necessarily reliable, but because the test results caused Arias to change her statement.” Ante, 187 N.J. 311-12, 901 A.2d 373-74 (2006). Although it condemns the trial court’s actions, the majority ultimately is “convinced that the failure to permit defendants to cross-examine Arias about the results of the polygraph test was harmless beyond a reasonable doubt.” Ante, 187 N.J. 313, 901 A.2d 374 (2006).

I agree with the final result reached by the majority that the Appellate Division’s decision in respect of the evidence concerning Arias’s polygraph examination cannot be sustained. But, I arrive at that conclusion through a different path. In my view, the reasoning on which the trial court based its refusal to permit defendants to cross-examine Arias on the results of a polygraph examination to which she was subjected as a condition of her plea agreement with the State was entirely correct. As the trial court *318reasoned, our case law makes clear that the results of polygraph examinations are inadmissible unless “the State and defendant enter into a stipulation to have defendant submit to a polygraph test, and have the results introduced in evidence[.]” State v. McDavitt, 62 N.J. 36, 46, 297 A.2d 849 (1972). In addition to those limitations on the admissibility of polygraph examinations, “it must appear that the stipulation is clear, unequivocal and complete, freely entered into with full knowledge of the right to refuse the test and the consequences involved in taking it. It must also appear that the examiner is qualified and the test administered in accordance with established polygraph techniques.” Ibid.

The answer to the question whether defendants, who were neither parties to nor intended or incidental beneficiaries of Arias’s plea agreement with the State, had any standing to rely on Arias’s stipulation to support the admissibility of her polygraph results in defendants’ separate trial is, to me, self-evident: they do not. However, that alone does not answer the basic inquiry here. The focus must be on whether the core principles of State v. McDavitt, allowing for the admission of polygraph results, were observed. They too were not.

Simply said, because there is nothing in this record that shows that Arias entered her stipulation knowing that the results of her polygraph examination could be used in a trial other than her own, there is substantial doubt that, in respect of the use of those results in defendants’ trial, Arias clearly, completely, unequivocally and freely entered into her stipulation. Similarly, because there was no showing that Arias was informed that her polygraph results could be used in the trial of another, there is substantial doubt that she entered into her stipulation “with full knowledge of ... the consequences involved in taking it.” Ibid.

The majority does not address those concerns. Instead, citing to State v. Williams, 184 N.J. 432, 444, 877 A.2d 1258 (2005), the majority focuses on defendants’ constitutional confrontation rights as the predicate for its intermediate conclusion that “the limitation *319placed on defendants’ right of cross-examination did not serve the interests of fairness and reliability.” Ante, 187 N.J. 311, 901 A.2d 373 (2006). Following that reasoning, the majority then holds that “the trial court erred in denying defendants the right to cross-examine Arias concerning the polygraph test results, not because those results were necessarily reliable, but because the test results caused Arias to change her statement.” Ante, 187 N.J. 311-12, 901 A.2d 373-74 (2006). Ultimately, however, the majority concludes that, in light of the sheer scope and breadth of the cross-examination of Arias afforded defendants, “the failure to permit defendants to cross-examine Arias about the results of the polygraph test was harmless beyond a reasonable doubt.” Ante, 187 N.J. 313, 901 A.2d 374 (2006).

The better view, it seems to me, lies in the proviso the majority acknowledges: “the right of confrontation is not absolute.” Ante, 187 N.J. 309, 901 A.2d 372 (2006) (citing State v. Smith, 158 N.J. 376, 384, 730 A.2d 311 (1999)). See also State v. Williams, 184 N.J. 432, 444, 877 A.2d 1258 (2005) (“[T]he rights to confront State witnesses and to present favorable witnesses are ‘not absolute, and may, in appropriate circumstances, bow to competing interests.’ ”) (citing State v. Budis, 125 N.J. 519, 531, 593 A.2d 784 (1991)). Because it renders irrelevant those bedrock principles, I do not subscribe to the unfortunately limitless view that “if evidence is relevant and necessary to a fair determination of the issues, the admission of the evidence is constitutionally compelled.” State v. Garron, 177 N.J. 147, 171, 827 A.2d 243 (2003). As a practical matter, there are everyday limits to the use and admissibility of evidence, and those limits do not ipso facto engender questions of constitutional dimension. Thus, we regularly sustain the assertion of testimonial privileges even though they “often undermine the search for truth in the administration of justice[.]” State v. Szemple, 135 N.J. 406, 413, 640 A.2d 817 (1994) (citation and internal quotation marks omitted). For example, the blanket claim that rape shield laws, laws that protect a victim from the presentation or introduction of evidence of the victim’s previous sexual conduct, see N.J.S.A. 2C:14-7, per se infringe on a defen*320dant’s constitutional confrontation rights has been rejected. State v. Cuni, 159 N.J. 584, 600, 733 A.2d 414 (1999) (adopting, for rape shield law purposes, two-step analysis of relevance versus balance of probative value against prejudicial effect).

We recently framed the issue thusly: “Those constitutional rights [to confrontation and compulsory process], however, may, in appropriate eases, bow to accommodate other legitimate interests in the criminal trial process, such as established rules of evidence and procedure designed to ensure the fairness and reliability of criminal trials.” Garron, supra, 177 N.J. at 169, 827 A.2d 243 (citations and internal quotation marks omitted). I entirely concur with that core concept. Garron, however, creates an exception that, in my view, swallows that rule whole. According to Garrón,

when the mechanistic application of a state’s rules of evidence or procedure would undermine the truth-finding function by excluding relevant evidence necessary to a defendant’s ability to defend against the charged offenses, the Confrontation and Compulsory Process Clauses must prevail. The competing state interest served by barring proposed evidence must be closely examined when the denial or significant diminution of the rights of confrontation and compulsory process calls into question the ultimate integrity of the fact-finding process.
[Ibid, at 169-70, 827 A.2d 243 (citations and internal quotation marks omitted).]

Based on that analysis, Garrón concluded that, “[s]tated a different way, if evidence is relevant and necessary to a fair determination of the issues, the admission of the evidence is constitutionally compelled.” Ibid, at 171, 827 A.2d 243. I cannot agree with so sweeping a pronouncement.

It is impossible to envision a set of circumstances where the assertion of any substantive, procedural or evidentiary obstacle to the introduction of evidence does not “undermine the truth-finding function” of a trial. As such, that standard, standing alone, is meaningless. When, as here, we are called on to determine whether a trial judge’s determination as to the admissibility of trial proofs, the time-honored and far better standard we apply is whether the trial court abused its discretion, a standard embodied in N.J.R.E. 403 (“[Rjelevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) *321undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.”).

The application of that standard here leads to the conclusion that it was not error for the trial court to refuse defendants’ application to cross-examine Arias in respect of her polygraph examination results or to permit the testimony of the polygrapher who administered Arias’s polygraph examination. Using the balancing test usually required of it, the trial court determined that defendants’ proffered evidence was inadmissible. I see no basis upon which to conclude that the trial court’s determination constituted an abuse of discretion. Hence, I see no need to engage in the harmless error analysis on which the majority relied.

II.

I wholly concur with the majority’s view that the Appellate Division erred when it “conclude[d] that D’Amico satisfied the Strickland test to establish he was denied effective assistance of counsel.” Ante, 187 N.J. 316, 901 A.2d 376 (2006). However, to the extent the majority “cannot determine whether D’Amico had agreed in advance with defense counsel’s trial strategy to admit D’Amico’s guilt to certain offenses to gain credibility with the jury in an attempt to earn a not guilty finding on the first-degree murder charge,” or “whether D’Amico agreed that counsel should inform the jury that he would testify!,]” ante, 187 N.J. 316, 901 A.2d 376 (2006), I cannot join its reasoning. Unlike the majority’s conclusion that “[t]he answers to these questions lie outside the record and must await a post-conviction relief petition!,]” ante, 187 N.J. 316, 901 A.2d 376 (2006), I find the record in this case sufficient to dispense entirely with D’Amico’s ineffective assistance of counsel claim. I would find that D’Amico’s challenge fails both prongs of the Strickland/Fritz test, that is, whether counsel’s performance “fell below an objective standard of reasonableness,” and if so, whether there exists a “reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding *322would have been different[.]” Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698 (1984); State v. Fritz, 105 N.J. 42, 58, 519 A.2d 336 (1987) (adopting Strickland, standard for ineffective assistance of counsel claims).

The unadorned fact of the matter is that, at the time of Grant’s brutal and unspeakable murder, D’Amico was a certified and authorized police officer in this State and, in any event, he certainly was not free to join what could only be described charitably as a lynch mob. On the contrary, D’Amico’s clear sworn duty lay in standing between the victim and that murderous mob. D’Amico chose to soil and dishonor the uniform he should have been proud to wear and, instead, elected to willingly participate in what the Appellate Division understatedly described as “the indisputably barbaric acts that brought about the destruction of [a] human life[.]” State v. Castagna, 376 N.J.Super. 323, 330, 870 A.2d 653 (App.Div.2005).

That context created the challenge D’Amico’s trial counsel squarely faced: the Herculean and ultimately impossible task of justifying how a police officer could so shamelessly abandon his sworn duty, join with a murderous mob in attacking a single victim, by his own admission kick a defenseless prone man, and enable others to crush the victim’s skull with a twenty-five pound Belgian block. In my view, D’Amico’s counsel faced that challenge in the only practical and credible way he could: he tried valiantly to divert the jury from the more gruesome consequences of D’Amico’s actions and, because of their significantly lesser penal consequences, he sought to turn the jury’s focus to D’Amico’s failure to act as his official position then required.

When properly framed, it simply cannot be said that the performance of D’Amico’s counsel “fell below an objective standard of reasonableness,” or that there was a “reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different[.]” Strickland v. Washington, supra; State v. Fritz, supra. Therefore, I would not defer consideration *323of D’Amico’s ineffective assistance of counsel claim to another day. I would hold that the record in this case is sufficient to conclude that D’Amico’s ineffective assistance of counsel claim is utterly without merit.

III.

Although I concur with the majority’s ultimate conclusions that reverse the Appellate Division and reinstate defendants’ convictions, I would reach those results by the means I have described: sustaining, under the abuse of discretion standard, the trial court’s refusal to admit either the results of Arias’s polygraph examination or the testimony of the polygrapher, and determining that D’Amico’s claim of ineffective assistance of counsel is without merit and does not survive this appeal.

For reversal and reinstatement—Chief Justice PORITZ, and Justices LaVECCHIA, ZAZZALI, WALLACE, and RIVERA-SOTO—5.

Opposed—None.