NOT FOR PUBLICATION WITHOUT THE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
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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