State v. Hedgespeth

• Decision Date: 27 December 2021
• Docket Number: 084892,A-22 Sept. Term 2020
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Tywaun S. HEDGESPETH, a/k/a Tywaune Hedgespeth, Tywuan Hedgespeth, Tywaun Hedgspeth, and Tavon James, Defendant-Appellant.
• Court: New Jersey Supreme Court

249 N.J. 234

265 A.3d 104

STATE of New Jersey, Plaintiff-Respondent,

v.Tywaun S. HEDGESPETH, a/k/a Tywaune Hedgespeth, Tywuan Hedgespeth, Tywaun Hedgspeth, and Tavon James, Defendant-Appellant.

A-22 Sept. Term 2020

084892

Supreme Court of New Jersey.

Argued October 13, 2021

Decided December 27, 2021

Whitney F. Flanagan, First Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Whitney F. Flanagan, of counsel and on the briefs).

Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens, II, Acting Essex County Prosecutor, attorney; Lucille M. Rosano, of counsel and on the briefs).

Matthew E. Frisch, Hackensack, argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; Matthew E. Frisch, of counsel and on the brief).

Valeria Dominguez, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Andrew J. Bruck, Acting Attorney General, attorney; Valeria Dominguez, of counsel and on the brief).

JUSTICE LaVECCHIA delivered the opinion of the Court.

In this appeal, we address two alleged evidentiary errors in the Appellate Division's affirmance of defendant's convictions. See State v. Hedgespeth, 464 N.J. Super. 421, 236 A.3d 1020 (App. Div. 2020). One relates to the confrontation issue resolved today in the companion appeal of State v. Carrion, 249 N.J. 253, 265 A.3d 115, (2021) : whether admission of an affidavit from the New Jersey State Police, affirming that a defendant does not appear in the State's firearm permit database, violates the Confrontation Clauses of both the State and Federal Constitutions when the affiant does not testify at trial.

We conclude that a violation occurred when the State was allowed to enter into evidence information set forth in the affidavit of a non-testifying officer concerning the no-permit results from a search of the State firearm registry. We reject the alternative argument that testimony concerning the search of an Essex County firearm database renders harmless the error with respect to the State database. The search of a county database is not the same as a search of the State database; thus, its admission into evidence does not cure the erroneous admission of the results of the State database search.

The other issue concerns whether the trial court committed harmful error when it permitted the State to impeach defendant with a prior conviction under N.J.R.E. 609, even though that conviction occurred more than ten years before the trial. The trial court reasoned that the conviction was not too remote because the sentence's probationary term extended within the ten-year window for remoteness. Although the State does not dispute defendant's claim of error in the trial court's remoteness analysis, it argues that the evidentiary ruling was not harmful under the circumstances despite the fact that defendant declined to testify after the court's ruling. We disagree.

We conclude that the trial court's incorrect N.J.R.E. 609 ruling constituted harmful error requiring reversal of the conviction. In so holding, however, we decline to adopt defendant's position that an evidentiary ruling that results in a defendant's decision not to testify can never be harmless.

Accordingly, the judgment of the Appellate Division is reversed.

I.

In 2017, defendant Tywaun S. Hedgespeth was convicted by a jury of unlawful possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-10(a)(1), and unlawful possession of a weapon without a permit, contrary to N.J.S.A. 2C:39-5(b)(1). Briefly, as recounted at trial, the facts leading to his charges stem from surveillance conducted by the Essex County Sheriff's department.

While surveilling a street corner in Newark, two detectives observed several men loitering in the area. One of the individuals, later identified as defendant, was described as a "black man, medium brown skin, wearing a black do-rag, a black puffy ski-type vest, a black hooded sweatshirt, black workpants, and ... black boots." Detective Ozzie Ryals testified to watching defendant walk back and forth a few times before he appeared to urinate on the side of a building, and then, when finished, "as he was fixing himself and adjusting his clothes, [the Detectives] observed what [they] thought to be the butt of a gun."

As the detectives were in communication with other members of their unit "via radio and cellphone," Ryals reported the gun to the backup team via radio, but at trial he could not recall what channel he used and acknowledged it may have been via cell phone. The backup units, already in position, were told to go in and apprehend all the men and to be cautious with defendant.¹

The backup team went to the scene. Detective Jimmy Bradley apprehended defendant, ordered defendant to show his hands, took defendant to the ground, and then alerted fellow officers that he found a weapon. Detective Angel Colon recovered the weapon. A third detective read defendant his rights. Neither of the surveilling detectives went to the scene where defendant was apprehended and the gun was allegedly found.

Defendant was searched by the arresting officers who discovered what was later determined to be crack cocaine on his person. Later, the gun and magazine were tested, but no fingerprints were found on either.

Defendant was indicted for various CDS and weapons charges.² In August 2017, he went to trial on the possession of CDS charge and the unlawful possession of a weapon charge.

The officers testified, as summarized, about the circumstances of the surveillance of the corner, followed by the apprehension of defendant by the backup unit officers. To address an element of the unlawful possession charge -- the lack of a firearm permit -- the State produced Deborah Despotovich, Criminal Division Manager of the Superior Court of New Jersey. According to her testimony, she oversaw a search of the Essex County gun records performed by her secretary, which returned no firearm permit for defendant.

At the close of the State's case, defense counsel advised the court that, to help defendant reach a decision on whether to testify, he required a ruling as to the admissibility of defendant's prior convictions, both of which involved CDS offenses. Defense counsel contested their admissibility, citing remoteness under N.J.R.E. 609³ and noting that the offenses dated back to 2001 and 2005. For the 2001 conviction, defendant received a three-year custodial term. For the 2005 conviction, defendant was sentenced to a four-year probationary term with no custodial term.

The trial court permitted the State to introduce the convictions for impeachment purposes, reasoning that the probationary term for the 2005 conviction extended to within ten years of the trial and the 2001 conviction represented a continuing course of conduct. The trial court required that the convictions be "sanitized" to exclude the details of the offense and permitted the State to refer to the date of conviction and sentence imposed. Defendant thereupon declined to testify and added that he believed his counsel's cross-examination of the State's witnesses was ineffective. In making his representations to the court in colloquy when declining to testify, defendant disputed the facts as recounted by the officers who testified at trial.

Following defendant's decision not to testify, and over his objection, the State reopened its case to introduce testimony from Detective John Cosgrove of the Essex County Prosecutor's Office. Detective Cosgrove was permitted to testify to the contents of an affidavit, sworn to by Detective Sergeant Brett Bloom of the Firearms Investigation Unit of the New Jersey State Police, which stated that defendant does not have a firearm permit on record with the State (the "no-permit affidavit"). Notably, the State firearm registry search was not conducted by Detective Cosgrove,⁴ and neither Bloom nor anyone else with responsibility for the State database or the specific search for defendant's name testified at trial. The defense asserted that the State was "asking to admit this without any witness or foundation." And, at the conclusion of the defense's cross-examination of Detective Cosgrove, counsel renewed his objection to the admission of the affidavit based on lack of foundation and lack of personal knowledge by the only witness testifying about the affidavit: Cosgrove.

On August 10, 2017, the jury found defendant guilty on both counts. The same day, defendant pleaded guilty to a certain-persons offense. The trial court imposed an aggregate sentence of eight years’ imprisonment with a five-year period of parole ineligibility.

On appeal, the Appellate Division affirmed defendant's convictions. Hedgespeth, 464 N.J. Super. at 427, 236 A.3d 1020. Although defendant raised five issues before the Appellate Division, only two are before this Court on certification: (1) whether the trial court committed harmful error in permitting impeachment of defendant by his prior convictions; and (2) whether the trial court erred in admitting an affidavit by a non-testifying officer.

The Appellate Division determined that the use of defendant's prior convictions for impeachment constituted error, id. at 437, 236 A.3d 1020,⁵ a determination the State does not presently challenge. However, the Appellate Division held that -- because "the State's evidence was so strong that had defendant testified, there was no real possibility that the jury would have reached a different result," and because the trial court issued a limiting instruction -- the erroneous ruling was harmless and did not require reversal. Id. at 438, 236 A.3d 1020.

The Appellate Division also rejected defendant's argument that admission of the no-permit affidavit without Bloom's testimony violated the Rules of Evidence and the Confrontation Clause.

I...