(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 23, 2008 – Decided April 8, 2008
LONG, J. , writing for a unanimous Court.
This appeal addresses the retroactive application of this Court’s opinion in State v. Daniels, 182 N.J. 80 (2004), which prohibits a prosecutor from drawing the jury’s attention to a defendant’s presence at trial as an opportunity for the defendant to tailor his testimony to conform to that of other witnesses. In addition, the Court considers whether the prosecutor’s comments in this case warrant a reversal under Daniels.
A Union County grand jury charged defendant, Carlos Feal, with first-degree murder and weapons offenses. At trial, the State adduced the following evidence. In October 2000, Feal was living with his girlfriend, Julia Torres, in an apartment in Elizabeth. Torres’s daughter Carmen testified that Feal owned a revolver which he kept in the master bedroom. According to Carmen, the couple had a tense relationship. On several occasions, Carmen overheard Feal threaten to kill Torres if she left him. Carmen did not take the threats seriously.
At approximately 7:30 a.m. on October 31, 2000, the neighbors in the apartment complex heard a gunshot. About fifteen minutes later, they observed Feal walk out of the building with a supermarket bag in hand. A neighbor called 911 and when emergency medical technicians arrived, they pronounced Torres dead at the scene.
Feal fled New Jersey after Torres’s death. Seven months later, police received information that Feal was in New York City. Feal was arrested in Manhattan by two detectives from the Elizabeth Police Department along with detectives from New York.
Feal gave a sworn statement shortly after his arrest that was read into the record at trial. In that statement, Feal claims that Torres came at him with a broomstick, so he went to the bedroom and took out his gun and put it in the kitchen. He told Torres that if she hit him again he was going to hit her over the head with the gun or shoot her. Feal claimed that Torres went to grab the gun, and he took it from her. He claims that as he was pointing the gun at Torres, it “just went off, and I shot her in the left shoulder and she fell down.” After some questioning, Feal admitted he did not contact anyone for help. Feal also stated that he disposed of a .38 revolver on a grass median on Route 278.
At trial, Feal testified on his own behalf. That testimony was at odds with his prior statement in numerous respects. Notably, Feal stated that after seeing Torres eyeing the gun, he took the gun to the kitchen to hide it. Feal then portrayed Torres as an armed aggressor, who took the gun from its hiding place and “came at him” with it. Fearing that Torres would use the gun against him, Feal stated that he attempted to take it from her and, in the ensuing struggle, the gun accidentally went off.
On cross-examination, the prosecutor pointed out in detail the inconsistencies between Feal’s prior statement and his testimony. Among other things, the prosecutor noted that Feal had been given discovery in the form of statements and photographs, and that he had had an opportunity to hear the State’s witnesses “tell their story.” The prosecutor made similar references in summation.
The jury convicted Feal on all charges, and he was sentenced to an aggregate term of forty years with a thirty-year period of parole ineligibility. Feal appealed, and the Appellate Division reversed on the ground that Daniels should be given pipeline retroactivity and that its application required the overturning of Feal’s convictions based on the comments of the prosecutor. This Court granted the State’s petition for certification.
HELD: The holding of Daniels should be given pipeline retroactivity but, in this case, the Daniels violation does not warrant reversal of Feal’s convictions.
1. A tailoring allegation is a claim that a witness has adapted his testimony to conform to other evidence that has been produced during a trial. Prior to Daniels, the United States Supreme Court held, under the Federal Constitution, that a prosecutor could comment on a testifying defendant’s presence in the courtroom as an opportunity for the defendant to tailor his testimony. New Jersey’s case law has, for decades, conformed to this approach. In Daniels, New Jersey’s tailoring law underwent a sea-change. There, during summation, the prosecutor stated that defendant sits with counsel and listens to each of the State’s witnesses, knows what facts he can’t get past, and can choose to craft his version to accommodate those facts. Defense counsel did not object to those remarks, and the jury convicted defendant. This Court reversed, explaining that evidentially baseless tailoring accusations, like other baseless credibility challenges, are prohibited. The Court declared that a comment rooted in a defendant’s presence at trial, which had previously been considered permissible, is improper. The Court characterized the prosecutor’s claims in that trial as plain error. (pp. 13-17)
2. Daniels was silent regarding its retroactivity. The threshold retroactivity question is always the same – whether a new rule of law has been announced. If a new rule of law is implicated, there are four options: (1) make the new rule of law purely prospective, applying it only to cases with operative facts arising after the new rule is announced; (2) apply the new rule to future cases and to the parties in the case, while applying the old rule to all other pending and past cases; (3) grant the new rule pipeline retroactivity, applying it to cases in (1) and (2) as well as to pending cases where the parties have not yet exhausted all avenues of direct review; and (4) give the new rule complete retroactive effect. In determining which of these options to adopt, the Court considers three factors: (1) the purpose of the rule and whether that purpose is furthered by retroactive application; (2) the degree of reliance placed on the old rule by those who administered it; and (3) the effect a retroactive application would have on the administration of justice. The first factor, the purpose factor, is often the pivotal consideration. Where the purpose of the new rule is to overcome an aspect of the criminal trial that “substantially impairs” its truth-finding function and raises serious questions about the accuracy of guilty verdicts in past trials, the first factor points to a complete retroactive application. That is so without regard to whether the State relied on the old rule or whether retroactivity would have an impact on the efficient administration of justice. In cases where the old rule did not substantially impair the accuracy of the fact-finding process, but the new rule is designed to enhance the reliability of that process, a court will balance the first prong against the second and third. (pp. 17-21)
3. Daniels clearly departed from New Jersey precedent and from the United States Supreme Court’s holding which allowed tailoring accusations by a prosecutor, and therefore constituted a new rule of law. Although Daniels interdicted tailoring claims as, in some measure, impacting the truth-seeking function, it seems to the Court that that case is quite different from the kinds of situations that are recognized as warranting complete retroactivity. In addition, to the extent that a jury will always have in mind the fact that a defendant has heard the testimony of those who preceded him in evaluating his credibility, any additional reference to a defendant’s presence by a prosecutor would be unlikely to have a substantial effect on the truth-seeking function. Thus, the purpose factor does not weigh clearly in favor of complete retroactive application. (pp. 21-22)
4. Applying the degree-of-reliance test, the State justifiably relied on the old rule that permitted tailoring accusations in good faith. The second factor therefore weighs in favor of a prospective application. As to the administration-of-justice factor, the Court tries to avoid retroactive application if many cases will be impacted. Here, there are no dispositive statistics about the number of cases that could be affected if the rule is applied retroactively. Generally, the absence of such data about the impact of retroactive impact mandates that the new rule be applied only to cases pending direct review. (pp. 23-24)
5. The State concedes that the prosecutor’s comments regarding Feal’s presence in the courtroom during trial, which were not subject to an objection, violated Daniels, but argues that the remarks did not rise to the level of plain error. Plain error must be sufficient to raise a reasonable doubt as to whether the error led the jury to a result that it otherwise might not have reached. In light of the nature of the credibility challenge to Feal, it does not appear that the prosecutor’s fleeting references to Feal’s presence in the courtroom could have led the jury to a result it otherwise would not have reached. The Court does not find that plain error occurred. (pp. 24-26)
The judgment of the Appellate division is REVERSED, and the matter is REMANDED to that court for disposition of the remaining issues raised by Feal on appeal.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE LONG’s opinion.
SUPREME COURT OF NEW JERSEY
A-
16 September Term 2007
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CARLOS FEAL,
Defendant-Respondent.
Argued January 23, 2008 – Decided April 8, 2008
On certification to the Superior Court, Appellate Division.
Sara B. Liebman, Assistant Prosecutor, argued the cause for appellant (Theodore J. Romankow,
Union County Prosecutor, attorney; Ms. Liebman and Steven J. Kaflowitz, Assistant Prosecutor, on
the briefs).
Frank J. Pugliese, Assistant Deputy Public Defender, argued the cause for respondent (Yvonne
Smith Segars, Public Defender, attorney).
JUSTICE LONG delivered the opinion of the Court.
In State v. Daniels, exercising our supervisory role over the administration of criminal
justice, we issued a blanket prohibition against a prosecutor’s “drawing the jury’s attention
to defendant’s presence during trial and his concomitant opportunity to tailor his testimony”
during summation.
182 N.J. 80, 98 (2004) (citing Portuondo v. Agard,
529 U.S. 61, 70-71,
120 S. Ct. 1119, 1126,
146 L. Ed.2d 47, 57
(2000)). We further stated that “at no time during cross-examination may the prosecutor
reference the defendant’s attendance at trial or his ability to hear the testimony
of preceding witnesses.” Id. at 99 (emphasis added). We applied that bright-line rule
“even when the record indicates that defendant tailored his testimony.” Id. at 101.
In the present case, during cross-examination and on summation, the prosecutor accused defendant
of tailoring his testimony based on his review of pre-trial discovery and on
his ability to “observe all the witness[es] that the State presented come in
and testify in this case.”
Defendant appealed, and relying on Daniels, the Appellate Division reversed on the ground
that the prosecutor improperly commented on defendant’s presence during trial as a tailoring
opportunity. Because defendant’s trial preceded Daniels, we are faced here with an issue
of retroactivity. We now hold that Daniels is entitled to pipeline retroactivity but
that, in this case, the Daniels violation does not warrant reversal of defendant’s
convictions.
I
A Union County grand jury charged defendant Carlos Feal with (1) first-degree murder
in violation of N.J.S.A. 2C:11-3(a)(1); (2) second-degree possession of a weapon for an
unlawful purpose in violation of N.J.S.A. 2C:39-4(a); and (3) third-degree unlawful possession of
a weapon in violation of N.J.S.A. 2C:39-5(b).
At trial, the State adduced the following evidence. In October 2000, defendant was
living with his girlfriend, Julia Torres, in an apartment at 220 Third Street
in Elizabeth, New Jersey. Torres’s daughter Carmen testified that defendant owned a revolver,
which was kept in the master bedroom in the nightstand. According to Carmen,
the couple had a “tense” relationship. On several occasions, Carmen overheard defendant threaten
to kill or injure Torres if she ever left him. Carmen did not
take the threats seriously.
On October 30, 2000, Carmen and her two-year-old daughter spent the day at
her mother’s apartment. At some point during the afternoon, Torres discovered that the
child had taken one of defendant’s two guns from the nightstand in the
bedroom. Defendant then took both guns and placed them on the top shelf
of the bedroom closet out of the child’s reach. Carmen and her daughter
left the apartment around 11:30 p.m.
At approximately 7:30 a.m. on October 31, 2000, the neighbors in the apartment
complex heard a gunshot. About fifteen minutes later, they observed defendant walk out
of the building with a supermarket bag in hand. A neighbor called 911,
and when emergency medical technicians arrived, they pronounced Torres dead at the scene.
Defendant fled New Jersey after Torres’s death, traveling to Texas, Florida, and eventually
New York under an assumed name. Seven months after Torres’s death, the police
received information that defendant was in New York City. Detectives Kenney and Olivero,
of the Elizabeth Police Department, and two New York City detectives arrested defendant
in Manhattan.
Defendant’s initial statement
See footnote 1
to the police was read into the record at trial
by Detective Olivero, as follows:
I arrived home about 7 in the morning and [Torres] started to fight
with me and pull on my pullover saying that I smell like perfume
and that I had a hickey on my neck. She then started to
hit me with the broomstick, so I went to the bedroom and went
to the draw[er] where I kept the gun, took it out and put
it on the kitchen counter by the sink. I then told her that
if she hits me again that I was either going to hit her
over the head with the gun or shoot her. I put it down
and she went to grab it. As she grabbed it, I took it
from her and told her to stop hitting me with the stick. And
as I was pointing the gun at her, the gun just went off,
and I shot her in the left shoulder and she fell down.
Question: What did you do after you shot her and she fell down?
Answer: She started to talk to me. She said you killed me. I
told her that I would call for help and she said what for
you already killed me.
After that I grabbed a pair of jeans, socks, and my sneakers and
left.
Question: Did you speak to anybody as you were leaving the building?
Answer: [A neighbor] opened the door and I said to him I think
I killed [Torres] . . . and I left.
Defendant also stated that he disposed of a .38 revolver on a grass
median on Route 278.
A medical expert produced by the State testified that, in addition to the
gunshot wound, Torres had a fresh contusion on the left parietal region of
the scalp caused by blunt force, possibly from the butt of a gun.
Also, the police could not locate any photographs of Defendant in the apartment,
although Carmen indicated that there were always photographs of defendant and Torres in
the master bedroom.
Defendant testified on his own behalf. That testimony was at odds with his
prior statement in numerous respects. Notably, defendant said that he saw Torres eyeing
the nightstand in which the gun was located and as a result took
the gun and stored it behind a canister on the kitchen counter. Defendant
then portrayed Torres as an armed aggressor and stated that she took the
gun from where he had hidden it and came at him “with the
pistol in her hand . . . with the pistol facing the floor.”
Fearing that Torres would use the gun against him, defendant stated that he
attempted to take it away from her. According to defendant, in the ensuing
struggle, the gun accidentally went off.
During cross-examination, the prosecutor pointed out those inconsistencies in detail:
Q. [Prosecutor]: Now you testified the other day that you went and got
the gun because you saw Julia looking at that night stand, correct?
A. [Defendant]: Yes.
Q. You agree with me that those words are not in that statement in
front of you, correct?
A. Yes.
Q. You testified that you took the gun out of that night stand and
then hid it in the kitchen, correct?
. . . .
A. No, I put it behind something that was hidden, to – hide it.
Q. Right. You testified that you took the gun out of the night stand
and hid it in the kitchen beside some canisters, I believe, right?
A. Yes.
Q. Do you agree with me that information, as well, is not contained in
that statement, correct?
A. Yes.
Q. You also testified the other day that after hiding that gun behind those
canisters, you made yourself a bowl of cereal and went into the bedroom,
correct?
A. Yes.
Q. You agree with me that information concerning you making the bowl of cereal
is not contained in that statement in front of you, correct?
A. Yes.
Q. You agree with me you stated the other day that you walked with
that bowl of cereal into the bedroom and then sometime afterwards Julia came
in holding the gun that you had hidden in the kitchen, correct?
A. Yes.
. . . .
Q. You also agree with me that information is not contained in the statement
in front of you, correct?
A. Yes.
Q. You also stated that, the other day, that you struggled with Julia, and
when the gun went off her hands were over the top of the
weapon, correct?
A. Well, I think so, because there was a struggle and that happened very
quickly.
Q. My question to you is this: You testified the other day that when
you struggled with Julia when the gun went off, her hands were over
the top of the weapon, is that correct?
A. Yes.
Q. You agree with me that information about her hands being on the gun
is not in the statement in front of you?
A. Yes.
Q. You agree with me, you testified the other day, that after Julia had
been shot, you went over to your neighbor Elroy’s apartment and asked him
to call the police or the ambulance, correct?
A. Yes.
Q. But you agree with me the statement in front of you has no
mention of you telling Elroy to call the ambulance or – the police or
the ambulance, correct?
A. Yes.
. . . .
Q. You agree with me you stated in Court the other day that your
revolver, that you owned this black revolver, you didn’t know what type of
gun it was?
A. Yes.
Q. You agree with me you stated you didn’t know because you really didn’t
know anything about guns? Any types of guns?
A. Yes.
Q. But you agree with me, at least that the statement you have in
front of you indicates that you told the police that it was a
black .38 revolver?
A. The Detective Olivero and I spoke, and we agreed that, yes, it must
have been black .38 revolver like this. Like this.
Q. Sir, all I’m asking you is do you agree with me on the
second page of your statement it indicates that you were asked what kind
of gun it was you shot Julia with and you answered it was
a black .38 revolver? That’s the information in that statement?
A. Yes.
. . . .
Q. So seven months after Miss Torres was shot you have a typed, formal
written statement to the police, is that correct?
A. Yes.
Q. And at some point after giving that statement you were brought back to
the State of New Jersey, is that correct, from New York?
A. Yes.
At the end of that exchange, the prosecutor introduced a new subject:
Q. And at some point after you were brought back to New Jersey, you
were given a copy of all the statements, the photographs, discovery in this
case, correct?
A. 6 months later.
Q. You agree with me you were given all that information, correct?
A. Yes.
Q. And now, over two years later, after you’ve had the opportunity to
look at all those items, do you agree with me the version of
events that you testified here to in court is a lot different than
what’s contained in that statement.
A. I’ve been aware that this is not what I said. I’ve been aware
of this since a year and a half.
Q. Sir, what I’m asking you is, at the time of your arrest,
when you gave a statement to the police, obviously the police didn’t give
to you all the statements, the Medical Examiner’s report, the photographs involved in
this case, is that correct?
A. Yes.
Q. And here, today, you have had the – had the ability to look
at all the statements involved in this case, the photographs involved in this
case, the medical reports involved in this case?
A. Yes.
In addition the prosecutor asked the following question:
Q. You’ve had an opportunity to observe all the witnesses that the State
presented come in and testify in this case and tell their story, correct?
A. Yes.
Q. And now what I’m asking you, you agree with me that the
version of events that you have here in court is a lot different
than what you gave to the police back seven months after Julia Torres
had been shot?
A. Yes.
[(Emphasis added).]
In summation, the prosecutor made the following argument:
We know seven months after Julia had been killed the defendant gave a
formal statement to the police.
We know that in that statement the defendant gave one version of events
that occurred.
Now, I submit to you, . . . that that version is not
the complete truth either.
Remember, this is the defendant who had seven months to come up with
a story. But I submit to you that it’s a lot closer probably
to what happened than with what we heard here in court.
We know that now the defendant, after receiving all his discovery, all the
photographs, the charts, the diagrams, the reports in this case, after hearing all
the witnesses testify, comes up here and tells you, ladies and gentlemen, a
different version than what’s in that piece of paper, that statement. We know
those things.
. . . .
Defendant doesn’t mention something in his original statement, this is what this is.
Then he gets stuff. He gets photographs, he gets reports, he gets diagrams.
And he says to himself I’m going to use this.
[(Emphasis added).]
When instructing the jury, the judge stated, “[a]rguments, statements, remarks and summations of
counsel are not evidence and cannot be treated as such. Although such remarks
may point out what counsel deems important in this case, you must rely
solely upon your understanding and recollection of the evidence that was admitted.”
The jury convicted defendant of all charges. After appropriate mergers, the trial judge
sentenced defendant to a custodial term of forty years with a thirty-year period
of parole ineligibility on the murder count and to a concurrent sentence of
five years on the possessory weapons offense.
Defendant appealed, and the Appellate Division reversed on the ground that Daniels should
be given pipeline retroactivity and that its application required the overturning of defendant’s
convictions based on the comments of the prosecutor regarding defendant’s presence at trial
as presenting an opportunity for tailoring. We granted the State’s petition for certification,
192 N.J. 71 (2007), and now reverse.
II
The State argues that Daniels must be applied prospectively because it established a
new rule of law; because there was substantial reliance on pre-Daniels precedent; and
because retroactivity would negatively impact on the administration of justice. On the merits,
the State concedes that the prosecutor’s tailoring accusations regarding defendant’s presence at trial
are Daniels errors but argues that they do not rise to the level
of plain error in light of the strong proofs presented by the State.
Defendant counters that Daniels should be applied retroactively because it did not establish
a new rule of law; because the pre-Daniels rule, which permitted prosecutorial accusations
of tailoring, substantially impaired the truth-seeking function and undermined a defendant’s right to
a fair trial; because the State could not have relied on the old
rule in light of a prosecutor’s duty of good faith; and because the
retroactive application of Daniels would not burden the administration of justice. Finally, if
Daniels applies, defendant contends that the prosecutor’s comments regarding his presence in the
courtroom amount to plain error because they deprived him of his right to
a fair trial. (Defendant does not challenge the prosecutor’s comments regarding his review
of the discovery provided by the prosecutor.)
III
A tailoring allegation is a claim that a witness has adapted his
testimony to conform to other evidence that has been produced during a trial.
Prior to Daniels, the United States Supreme Court held, under the Federal Constitution,
that a prosecutor could comment on a testifying defendant’s presence in the courtroom
as an opportunity to tailor his testimony. See Portuondo, supra, 529 U.S. at
73, 120 S. Ct. at 1127, 146 L. Ed.
2d at 59. In
ruling, that Court concluded that there was no historical basis for prohibiting such
comments and distinguished them from interdicted statements regarding a defendant’s right to remain
silent. Id. at 65-70, 120 S. Ct. at 1123-26,
146 L. Ed 2d
at 54-57 (discussing Griffin v. California,
380 U.S. 609,
85 S. Ct. 1229,
14 L. Ed.2d 106 (1965)). Portuondo explained that a prosecutor cannot comment
negatively on a defendant’s refusal to testify because that would be urging the
jury to do something it “is not permitted to do” –- draw a
negative inference from a defendant’s silence. Id. at 67, 120 S. Ct. at
1124, 146 L. Ed.
2d at 55 (emphasis omitted). In essence the Court
held that there is no logical inference of guilt from silence. Ibid. On
the contrary, Portuondo explained that when a defendant is present in court and
testifies, “it is natural and irresistible for a jury, in evaluating the relative
credibility of a defendant who testifies last, to have in mind and weigh
in balance the fact that he heard the testimony of all those who
preceded him.” Id. at 67-68, 120 S. Ct. at 1124,
146 L. Ed. 2d at 55.
[T]he principle [defendant] asks us to adopt here differs from what we adopted
in Griffin in one or the other of the following respects: It either
prohibits inviting the jury to do what the jury is perfectly entitled to
do; or it requires the jury to do what is practically impossible.
[Id. at 68, 120 S. Ct. at 1124,
146 L. Ed 2d at
55 (footnote omitted).]
Ultimately, the Court concluded that a prosecutor may accuse a defendant of tailoring
based on trial presence because such comments are “appropriate” and “sometimes essential []
to the central function of the trial, which is to discover the truth.”
Id. at 73, 120 S. Ct. at 1127,
146 L. Ed 2d at
59.
Our appellate case law has, for decades, conformed to the Portuondo approach and
permitted the kind of accusations allowed in that case. See State v. Buscham,
360 N.J. Super. 346, 366 (App. Div. 2003) (holding prosecutor’s reference to defendant
being only witness in courtroom during testimony as tailoring opportunity not plain error).
In State v. Robinson,
157 N.J. Super. 118, 119-20 (App. Div.), certif. denied,
77 N.J. 484 (1978), another panel held that the prosecutor’s tailoring accusations during
summation based on defendant’s presence were proper. The panel explained that it was
well-settled that a testifying defendant “subjects himself to cross-examination as to the credibility
of his story. . . . Here the issue of defendant’s credibility was
whether his testimony was tailored to that of the testimony of other witnesses,
a perfectly proper inquiry.” Id. at 120.
In Daniels, supra, our tailoring law underwent a sea-change. There, the defendant testified
on his own behalf, and, during summation, the prosecutor stated that “the defendant
sits with counsel, listens to the entire case and he listens to each
one of the State’s witness[es], he knows what facts he can’t get past.
. . . But he can choose to craft his version to accommodate
those facts.” Daniels, supra, 182 N.J. at 87 (emphasis omitted). Defense counsel did
not object to those remarks, and subsequently, the trial judge instructed the jury
that it could not consider any remarks made during summation as evidence. Ibid.
The jury convicted the defendant of robbery. Ibid.
Defendant appealed and the Appellate Division affirmed, declaring the challenged comments permissible under
Portuondo. Id. at 88. In reversing, we made the point that we are
responsible for the exercise of supervisory authority over the criminal justice system and
that we would view the issue through that lens. Id. at 95-96. Accordingly,
we accepted the Portuondo Court’s invitation to decide whether the prosecutor’s tailoring comments
are “‘desirable as a matter of sound trial practice.’” Id. at 97 (quoting
Portuondo, supra, 529 U.S. at 73 n.4, 120 S. Ct. at 1127 n.4,
146 L. Ed.
2d at 58 n.4.).
In Daniels, we affirmed the basic notion that some challenges to a defendant’s
credibility are permissible and others are not. Cleaving essentially to our rules governing
prosecutorial misconduct, we reaffirmed that evidentially baseless tailoring accusations, like other baseless credibility
challenges, are prohibited. Ibid. We then declared that a comment rooted in a
defendant’s presence at trial, which had previously been considered permissible, is actually improper.
Id. at 98 (citing Portuondo, supra, 529 U.S. at 76, 120 S. Ct.
at 1129, 146 L. Ed.
2d at 60 (Stevens, J., concurring)).
Accordingly, we established a bright-line rule that the prosecutor’s summation references to the
defendant’s ability to “sit” and “listen” to witness testimony, and thereafter “craft his
version” of the events were impermissible “even when the record indicates that defendant
tailored his testimony.” Id. at 101 (emphasis added). We concluded that the trial
judge’s instructions failed to cure the harmful effect of the accusations and characterized
the prosecutor’s claims of tailoring as plain error. Ibid.
IV
Daniels was silent regarding its retroactivity.
See footnote 2
We therefore undertake that analysis here. The
threshold retroactivity question is always the same–-whether a new rule of law has
been announced. State v. Colbert,
190 N.J. 14, 22 (2007); see also State
v. Molina,
187 N.J. 531, 542-43 (2006); State v. Cummings,
184 N.J. 84,
96-97 (2005).
A case announces a new rule of law for retroactivity purposes if there
is a “‘sudden and generally unanticipated repudiation of a long-standing practice.’” State v.
Purnell,
161 N.J. 44, 53 (1999) (quoting State v. Afanador,
151 N.J. 41,
58 (1997)). A new rule exists if “‘it breaks new ground or imposes
a new obligation on the States or the Federal Government . . .
[or] if the result was not dictated by precedent existing at the time
the defendant’s conviction became final.’” State v. Lark,
117 N.J. 331, 339 (1989)
(quoting Teague v. Lane,
489 U.S. 288, 301,
109 S. Ct. 1060, 1070,
103 L. Ed.2d 334, 349 (1989)). Obviously, where a new rule is
not at issue, a retroactivity inquiry is unnecessary. See Colbert, supra, 190 N.J.
at 22. Courts will simply construe the rule as “one that has always
applied.” Ibid.
If, however, a new rule of law is implicated, we have four options:
(1) make the new rule of law purely prospective, applying it only to
cases whose operative facts arise after the new rule is announced; (2) apply
the new rule to future cases and to the parties in the case
announcing the new rule, while applying the old rule to all other pending
and past litigation; (3) grant the new rule . . . [pipeline] retroactivity,
applying it to cases in (1) and (2) as well as to pending
cases where the parties have not yet exhausted all avenues of direct review;
and, finally, (4) give the new rule complete retroactive effect.
[State v. Burstein,
85 N.J. 394, 402-03 (1981) (citation omitted).]
In determining which option to adopt, we consider the following three factors: “‘(1)
the purpose of the rule and whether it would be furthered by a
retroactive application, (2) the degree of reliance placed on the old rule by
those who administered it, and (3) the effect a retroactive application would have
on the administration of justice.’” State v. Knight,
145 N.J. 233, 251 (1996)
(quoting State v. Nash,
64 N.J. 464, 471 (1974)).
The first factor, the purpose factor, is “often the pivotal consideration.” Knight, supra,
145 N.J. at 251 (citation omitted). “[W]here the purpose of the new rule
‘is to overcome an aspect of the criminal trial that substantially impairs its
truth-finding function’ and raises ‘serious question about the accuracy of guilty verdicts in
past trials’” the first factor points to a complete retroactive application. Burstein, supra,
85 N.J. at 406-07 (quoting Williams v. United States,
401 U.S. 646, 653,
91 S. Ct. 1148, 1152,
28 L. Ed.2d 388, 395 (1971)). That
is so without regard to whether the State relied on the old rule
or whether retroactivity would have an impact on the efficient administration of justice.
Id. at 407. For example, full retroactivity was afforded
to the requirement that the State may not escape its burden of proof
beyond a reasonable doubt by using presumptions to shift burdens of proof to
the defense, Hankerson v. North Carolina,
432 U.S. 233,
97 S. Ct. 2339,
53 L. Ed.2d 306 (1977); the requirement that, in juvenile proceedings, the
State prove beyond a reasonable doubt all elements of an offense that would
constitute a crime if committed by an adult, Ivan V. v. City of
New York,
407 U.S. 203,
92 S. Ct. 1951,
32 L. Ed.2d 659 (1972); the right to counsel at preliminary hearings in which a defendant
must assert certain defenses or lose them, Arsenault v. Massachusetts,
393 U.S. 5,
89 S. Ct. 35,
21 L. Ed.2d 5 (1968); the rule barring
the admission of one co-defendant’s extrajudicial confession implicating another defendant, Roberts v. Russell,
392 U.S. 293,
88 S. Ct. 1921,
20 L. Ed.2d 1100 (1968);
the right to counsel at trial, Pickelsimer v. Wainwright,
375 U.S. 2,
84 S. Ct. 80,
11 L. Ed.2d 41 (1963); and the requirement that
a confession made some time ago meet current standards of voluntariness, Reck v.
Pate,
367 U.S. 433,
81 S. Ct. 1541,
6 L. Ed.2d 948
(1961).
[Ibid.]
Those extraordinary situations clearly warranted full retroactivity because they struck at the heart
of the truth-seeking function.
On the contrary, in cases where the new rule is designed to enhance
the reliability of the fact-finding process, but the old rule did not “substantially
impair” the accuracy of that process, a court will balance the first prong
against the second and third. Id. at 410; see also Molina, supra, 187
N.J. at 543. Applying the degree-of-reliance factor, a court will consider whether the
State administered the old rule in “‘good faith reliance [on] then prevailing constitutional
norms.’” Purnell, supra, 161 N.J. at 55 (quoting State v. Howery,
80 N.J. 563, 570, cert. denied,
444 U.S. 994,
100 S. Ct. 527,
62 L.
Ed.2d 424 (1979)). Under the administration-of-justice factor, retroactivity will not be afforded
if it “would undermine the validity of large numbers of convictions.” Knight, supra,
145 N.J. at 252. Ultimately, the retroactivity determination turns on the court’s view
of “‘what is just and consonant with public policy in the particular situation
presented.’” Id. at 251 (quoting Nash, supra, 64 N.J. at 469).
V
In a broad sweep, Daniels recategorized comments on a defendant’s presence at trial
as interdicted under all circumstances. That unanticipated ruling clearly departed from New Jersey
precedent and from the United States Supreme Court’s holding in Portuondo which allowed
such challenges. In that respect, Daniels was a break with past practice and
constituted a new rule of law. See Buscham, supra, 360 N.J. Super. at
366; Robinson, supra, 157 N.J. Super. at 119-20.
That brings us to the three-factor test. As we have said, under the
purpose factor, the modification of a rule will ordinarily receive full retroactivity if
the old rule substantially impaired the truth-seeking function of the trial. See Burstein,
supra, 85 N.J. at 406-07. Defendant contends that that standard was met, and
therefore, the new rule should receive retroactive application. The State counters that the
old rule was a well-settled and legitimate means of fairly attacking a defendant’s
credibility while guaranteeing him freedom from sequestration and did not impair the truth-seeking
function in any discernible way. Although Daniels interdicted tailoring claims as, in some
measure, impacting the truth-seeking function, it seems to us that that case is
quite different from the kinds of situations that are recognized as warranting complete
retroactivity. See, e.g., Hankerson, supra, 432 U.S. at 243-44, 97 S. Ct. at
2345, 53 L. Ed.
2d at 316 (applying retroactively prohibition against use of
presumptions attempting to shift burden of proof to defendant); Pickelsimer, supra, 375 U.S.
at 2, 84 S. Ct. at 80, 11 L. Ed.
2d at 41
(applying retroactively requirement that defendant have right to counsel at trial).
Further, as Portuondo observed, “in evaluating the relative credibility of a defendant who
testifies last, [the jury will always] [] have in mind and weigh in
the balance the fact that he has heard the testimony of those who
preceded him.” Portuondo, supra, 529 U.S. at 67-68, 120 S. Ct. at 1124,
146 L. Ed.
2d at 55. To the extent that is so, any
additional reference to a defendant’s presence by a prosecutor would be unlikely to
have a substantial effect on the truth-seeking function. Thus, though we continue to
believe that the Daniels rule is the correct one, the purpose factor does
not weigh clearly in favor of complete retroactive application.
We therefore move to the remaining elements of the test. Under the degree-of-reliance
factor, the State must have administered the old rule in “‘good faith reliance
[on] then-prevailing constitutional norms.’” Purnell, supra, 161 N.J. at 55 (quoting Howery, supra,
80 N.J. at 570). Our courts began permitting tailoring accusations based on presence
thirty years before Daniels. Robinson, supra, 157 N.J. Super. at 119-20. That precedent
endured until we decided Daniels in 2004. Thus, the State justifiably relied on
the old rule, and the second factor weighs in favor of a prospective
application.
The weight to be accorded the administration-of-justice factor is the last consideration. We
generally try to avoid retroactive application if many cases will be impacted. See
Knight, supra, 145 N.J. at 252. Here, we have no dispositive statistics regarding
the universe of potential cases that could be affected if the rule is
applied retroactively.
See footnote 3
Generally, the absence of data concerning “the number and kinds of
cases that would be affected by a rule of complete retroactivity and the
impact that complete retroactivity would have on the administration of justice mandates that
the new rule should apply only to cases pending direct review at the
time of the rule’s announcement.” State v. Bellamy,
178 N.J. 127, 142-43 (2003)
(citing State v. Czachor,
82 N.J. 392, 409-10 (1980)). Consistent with our view
of what is just and consonant with public policy, we adopt that view
here and accord Daniels only pipeline retroactivity. Consequently, because this case is on
direct appeal, Daniels applies.
VI
The State concedes that the prosecutor’s comments regarding defendant’s presence in the courtroom
during trial, which were not subject to an objection, violated Daniels, but argues
that the remarks did not rise to the level of plain error.
To be sure, not every prosecutorial misstatement warrants a new trial. See, e.g.,
State v. Smith,
167 N.J. 158, 178 (2001). Where a defendant fails to
object to the challenged statements and thus deprives the trial judge of the
opportunity to ameliorate any perceived errors, he must establish that the comments constitute
plain error under Rule 2:10-2. Plain error must be “‘sufficient [to raise] a
reasonable doubt as to whether the error led the jury to a result
that it otherwise might not have reached.’” Daniels, supra, 182 N.J. at 102
(quoting State v. Macon,
57 N.J. 325, 336 (1971)).
Here, defendant acknowledged that he killed Torres, but gave two different versions of
the incident, one before and one during trial. In the pretrial version, defendant
said that Torres was hitting him with a broom because of what she
perceived as his infidelity; that he took out the gun and threatened her
with it; and that he was still threatening her when it “went off.”
At trial, defendant repeated his testimony about the altercation with Torres. He then
testified that he hid the gun from her; that she retrieved it from
the hiding place and “came at him” with it; and that while he
was attempting to disarm her, the gun accidentally discharged. Defendant’s credibility was severely
damaged by those statements which were at odds with each other in critical
respects, and the prosecutor capitalized on that during cross-examination. To be sure, the
prosecutor’s references to defendant’s presence at trial as a tailoring opportunity were a
mistake in light of what we said in Daniels. However, defendant’s testimony at
trial was obviously not cut to fit that of the other witnesses he
saw. On the contrary, the only “tailoring” he did was to back-peddle with
respect to his earlier pretrial statement that likely would have convicted him if
left unchanged.
Thus, the attack on defendant’s credibility was unlike the attack in Daniels where
defendant gave testimony that conformed to that of the other witnesses and was
challenged solely because of his presence in the courtroom. On those facts, we
concluded that the prosecutor’s comment could have prejudiced defendant. Here, our careful canvass
of the record has led us to conclude otherwise. In light of the
nature of the credibility challenge to defendant, it does not appear that the
prosecutor’s fleeting references to defendant’s presence in the courtroom could have led the
jury to a result it otherwise would not have reached. In short, we
do not find that plain error occurred, and we reverse the Appellate Division’s
determination to the contrary.
VII
The judgment of the Appellate Division is reversed. The matter is remanded to
that court for disposition of the remaining issues raised by defendant on appeal.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in
JUSTICE LONG’s opinion.
SUPREME COURT OF NEW JERSEY
NO. A-16 SEPTEMBER TERM 2007
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CARLOS FEAL,
Defendant-Respondent.
DECIDED April 8, 2008
Chief Justice Rabner PRESIDING
OPINION BY Justice Long
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST
Footnote: 1
At the time of his arrest, defendant primarily spoke Spanish and understood little
English. During questioning, Detective Olivero, who is fluent in Spanish, served as the
interpreter. Detective Olivero issued Miranda warnings and provided defendant with a waiver of
rights form, written in both Spanish and English. Defendant indicated verbally and in
writing that he understood the warnings and forms. Then, Detective Kenney, with the
help of Detective Olivero, took defendant’s sworn statement.
Footnote: 2
In State v. Roman,
382 N.J. Super. 44, 58-59 (App. Div. 2005),
an appellate panel applied the Daniels holding retroactively, without analysis and the opinion
is therefore not helpful here.
Footnote: 3
Without explaining its methodology or vouching for the accuracy of its results,
the State, in a post-certification, pre-argument submission, suggested “[t]he data gathered reveals that
currently, fewer than ten cases would be affected” by a retroactive application of
Daniels. Defendant did not challenge the representations contained in that submission.