State v. Crews

Decision Date19 February 1986
Citation208 N.J.Super. 224,505 A.2d 198
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Catherine CREWS, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Anne P. McHugh, Trenton, for defendant-appellant (Pellettieri, Rabstein & Altman, Trenton, attorneys; Richard M. Altman, Trenton, of counsel; Anne P. McHugh, Trenton, on brief).

Robin Parker, Deputy Atty. Gen., for plaintiff-respondent (Irwin I. Kimmelman, Deputy Atty. Gen., attorney; Robin Parker, of counsel, and on letter-brief).

Before Judges FRITZ, GAYNOR and BAIME.

The opinion of the court was delivered by

BAIME, J.A.D.

This appeal presents novel questions pertaining to the "absent witness" instruction approved by our Supreme Court in State v. Clawans, 38 N.J. 162, 183 A.2d 77 (1962). There the Court held that under certain circumstances the failure of a party to produce a witness whose testimony would serve to elucidate the material facts in issue may support an inference that he fears exposure of such evidence. Id. at 170-171, 183 A.2d 77. The Court also determined that where the appropriate conditions are satisfied, the trial judge may in his instructions apprise the jury of the adverse inference which permissibly flows from the party's nonproduction of the witness. Id. at 172, 183 A.2d 77. At issue here is whether a defendant in a criminal action is obliged to call a witness to the stand in the presence of the jury for the sole purpose of having him invoke his privilege against self-incrimination in order to avoid the inference which might otherwise flow from his nonproduction. Citing State v. Jamison, 64 N.J. 363, 316 A.2d 239 (1974) and State v. Jennings, 126 N.J.Super. 70, 312 A.2d 864 (App.Div.1972), certif. den. 60 N.J. 512, 291 A.2d 374 (1972), the trial judge held that the defense could avoid a Clawans instruction only by presenting the witness and having him assert the privilege in the presence of the jury. We disagree and are constrained to reverse.

We need not recount the facts at length. Defendant, a licensed clinical psychologist, was charged with ten counts of Medicaid fraud in violation of N.J.S.A. 30:4D-17(a) and (b). The gist of the charges was that defendant fraudulently misrepresented the nature and extent of the psychological counseling services she had rendered to five youthful patients in obtaining benefits under the New Jersey Medical Assistance and Health Services Act ( N.J.S.A. 30:4D-1 et seq.). Under the applicable Medicaid regulations, the "provider" is required to specify whether the counseling services performed were in conjunction with "individual", "group" or "family" psychotherapy. (Psychologist's Medicaid Manual--Group and Family Psychotherapy Definitions). Apparently, different rates of reimbursement are applicable depending upon the nature of the therapy rendered. In order to qualify as "individual" psychotherapy, the psychologist must have had "personal involvement with [the] patient to the exclusion" of others. Id. It was alleged that defendant submitted claim forms falsely representing that she had performed 160 hours of individual psychotherapy. While the State conceded that the five patients received some therapy, the essential thrust of the charges was that defendant's involvement in such treatment was minimal and that she had little or no personal interaction with the children.

This factual question was hotly contested at trial. The State presented evidence indicating that the five patients, all emotionally disturbed children, received little or no therapy during their sessions at defendant's office. Several of the children testified that they had "conversations" with defendant's husband, Dr. Felix Del Vecchio, who was also a licensed clinical psychologist. One of the witnesses testified that Dr. Del Vecchio administered several psychological tests and that these sessions lasted approximately one-half hour. However, most of the State's evidence disclosed that the children "played pool and other games" and were treated to "ice cream or pizza" while at defendant's office.

Defendant elected to take the stand. She testified that she and her husband formed a professional association, the Leander Psychological Institute, and generally worked as a team. According to her testimony, one of the "treatment modalities" commonly used in counseling children is "play therapy." This method is often employed in treating young or seriously disturbed children who have problems with verbal communications. Defendant testified that she employed the play therapy modality in counseling the five patients because of their tender ages and their resistance to other types of treatment. She further stated that two of the patients needed "a stable male figure" to assist them in confronting their problems. Defendant's husband, thus, took a more active role in providing therapy in those cases.

After the defense rested, the prosecutor requested that the judge include a reference to defendant's failure to produce Dr. Del Vecchio in his instructions at the conclusion of the case. Specifically, the State argued that defendant's failure to present her husband as a witness supported the "natural inference" that his testimony would be unfavorable to her. In response, defense counsel contended that Dr. Del Vecchio was unavailable as a witness because he was charged in a separate indictment with 112 counts of Medicaid fraud and would likely invoke his Fifth Amendment privilege. 1 Although Dr. Del Vecchio was present in court, no attempt was made to determine whether he would assert his privilege. Relying upon State v. Jamison, supra, 64 N.J. at 373-374, n. 1, 316 A.2d 439 and State v. Jennings, supra, 126 N.J. Super. at 75-77, 312 A.2d 864, the trial judge refused to accept defense counsel's representation regarding Dr. Del Vecchio's intention not to testify. Noting that the privilege was personal to the witness, the judge determined that it could be invoked only in the presence of the jury. While acknowledging that the witness' invocation of the privilege in the presence of the jury might well have a deleterious effect upon defendant's case, the judge nevertheless concluded that this course was mandated by State v. Jamison and State v. Jennings.

Based upon this ruling, defense counsel decided not to call Dr. Del Vecchio as a witness. The State thereafter, in rebuttal, introduced into evidence Dr. Del Vecchio's appointment book and presented testimony indicating that it would have been impossible for him to have rendered individualized therapy to defendant's patients because he was treating others at the time.

During his summation, the prosecutor repeatedly alluded to defendant's failure to produce Dr. Del Vecchio. In addition, the trial judge emphasized the point in his instructions and advised the jury that they could derive an "adverse inference" by virtue of defendant's failure to present her husband as a witness. In its verdict, the jury found defendant guilty of eight of the ten counts charged. This appeal followed.

I

We are firmly convinced that the trial judge erred when he held that defendant could avoid the absent witness charge only by presenting Dr. Del Vecchio and having him invoke his Fifth Amendment privilege in the presence of the jury. In State v. Clawans, supra, 38 N.J. at 171-172, 183 A.2d 77, our Supreme Court enunciated certain guidelines concerning inferences that may be drawn from the failure to produce a witness. One of the conditions precedent to such a charge is that it must appear that it was within the power of the party to produce the witness. Id. at 171, 183 A.2d 77. See State v. Carter, 91 N.J. 86, 127, 449 A.2d 1280 (1982); Wild v. Roman, 91 N.J.Super. 410, 414, 220 A.2d 711 (App.Div.1966); Meistrich v. Casino Arena Attractions, Inc., 54 N.J.Super. 25, 31, 148 A.2d 199 (App.Div.1959), mod. 31 N.J. 44, 155 A.2d 90 (1959); O'Neil v. Bilotta, 18 N.J.Super. 82, 86, 86 A.2d 705 (App.Div.1952). Obviously, the "inference is not proper if the witness is for some reason unavailable...." State v. Clawans, supra, 38 N.J. at 171, 183 A.2d 77. See also 2 Wigmore, Evidence, (3 ed. 1940), § 286 at 166-168.

While the question is one of first impression in New Jersey, we have no difficulty in holding that where a witness invokes his Fifth Amendment privilege and refuses to testify, he is unavailable to both parties and no adverse inference can fairly be drawn by virtue of his nonproduction. This principle is implicit in Evid.R. 39 which prohibits the judge and counsel from commenting on the exercise of a privilege and precludes the trier of fact from drawing an adverse inference. Numerous decisions of other jurisdictions also lend support to this rule. See United States v. Brutzman, 731 F.2d 1449, 1453-1454 (9 Cir.1984); United States v. Simmons, 663 F.2d 107, 108 (D.C.Cir.1979); United States v. Sircovich, 555 F.2d 1301, 1302 (5 Cir.1977); United States v. Young, 463 F.2d 934, 942 (D.C.Cir.1972); Bowles v. United States, 439 F.2d 536, 541-542 (D.C.Cir.1970), cert. den. 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971); United States v. Chapman, 435 F.2d 1245, 1247 (5 Cir.1970), cert. den. 402 U.S. 912, 91 S.Ct. 1392, 28 L.Ed.2d 654 (1971); Bradley v. United States, 420 F.2d 181, 186 (D.C.Cir.1969); People v. Banks, 98 Ill.App.3d 556, 562, 54 Ill.Dec. 148, 152, 424 N.E.2d 898, 902 (App.Ct.1981); Christensen v. State, 274 Md. 133, 140-141, 333 A.2d 45, 49 (Ct. of App.1975), rev'd on other grounds 33 Md.App. 635, 365 A.2d 562 (Ct.Spec.App.1976); Commonwealth v. Ries, 337 Mass. 565, 585-586, 150 N.E.2d 527, 541-542 (Sup.Jud.Ct.1958); State v. Dachtler, 318 N.W.2d 769, 774 (N.D.Sup.Ct.1982); State v. Johnson, 243 Or. 532, 537-538, 413 P.2d 383, 385-386 (Sup.Ct.1966).

A more difficult question is whether a party must call the witness to the stand and have him invoke his privilege against self-incrimination in the presence of the jury in order to...

To continue reading

Request your trial
9 cases
  • State v. Robinson
    • United States
    • New Jersey Superior Court — Appellate Division
    • January 21, 1992
    ...self-incrimination and refuse to testify. Cf. State v. Jamison, 64 N.J. 363, 374-375, 316 A.2d 439 (1974); State v. Crews, 208 N.J.Super. 224, 232, 505 A.2d 198 (App.Div.1986), aff'd o.b. 105 N.J. 498, 523 A.2d 149 (1987); State v. Cito, 213 N.J.Super. 296, 300-301, 517 A.2d 174 (App.Div.19......
  • State v. McGraw
    • United States
    • New Jersey Supreme Court
    • July 16, 1992
    ...a favorable inference from Larry's invocation of the Fifth Amendment. Bowles, supra, 439 F.2d at 542; State v. Crews, 208 N.J.Super. 224, 230, 505 A.2d 198 (App.Div.1986); see Cito, supra, 213 N.J.Super. at 300-01, 517 A.2d 174. To permit Larry to avoid testifying, the court would have to f......
  • Lister v. J.B. Eurell Co.
    • United States
    • New Jersey Superior Court — Appellate Division
    • June 22, 1989
    ... ... [Id. at 597, 210 A.2d 753 (citing State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964)).] ...         See also DeAngelo v. Alsan Masons, Inc., 122 N.J.Super. 88, 89-90, 299 ... ...
  • Robinson v. State
    • United States
    • Maryland Court of Appeals
    • March 9, 1989
    ...a privilege is claimed the trial judge may use that information to rule out a missing witness instruction. See State v. Crews, 208 N.J.Super. 224, 505 A.2d 198, 202-03 (1986). Unless the party against whom the inference might otherwise be drawn requests that the claim of privilege be repeat......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT