State v. Pinkston

• Decision Date: 14 June 2018
• Docket Number: 080118,A–22 September Term 2017
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Leo C. PINKSTON, Defendant-Appellant.
• Court: New Jersey Supreme Court

233 N.J. 495

187 A.3d 113

STATE of New Jersey, Plaintiff-Respondent,

v.Leo C. PINKSTON, Defendant-Appellant.

A–22 September Term 2017

080118

Supreme Court of New Jersey.

Argued March 12, 2018

Decided June 14, 2018

Thomas R. Ashley argued the cause for appellant (Thomas R. Ashley, on the brief).

Stephanie Davis Elson, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Stephanie Davis Elson, on the briefs).

Laura B. Lasota, Assistant Deputy Public Defender, argued the cause for amicus curiae Office of the Public Defender (Joseph E. Krakora, Public Defender, attorney; Laura B. Lasota, of counsel and on the brief).

Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Edward L. Barocas, Legal Director, attorney; Alexander Shalom, Edward L. Barocas, and Jeanne LoCicero, on the brief).

Claudia Joy Demitro, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Claudia Joy Demitro, of counsel and on the brief).

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER's opinion.

CHIEF JUSTICE RABNER delivered the opinion of the Court.

The Criminal Justice Reform Act (CJRA) provides that defendants "shall be afforded an opportunity ... to present witnesses" at pretrial detention hearings. N.J.S.A. 2A:162-19(e)(1). In this appeal, we consider whether the provision allows a defendant to compel an adverse witness to testify at a detention hearing. We find that the CJRA—like the federal and D.C. laws on which it is based in part—provides defendants a qualified right to summon adverse witnesses.

There are two components to a detention hearing. If no indictment has been returned, the State must present proof of probable cause. N.J.S.A. 2A:162-19(e)(2). To justify detention, the State must also present clear and convincing evidence that no release conditions would reasonably guard against the risk of danger, flight, or obstruction a defendant poses. N.J.S.A. 2A:162-18(a)(1). We find that, before calling an adverse witness, a defendant must proffer how the witness's testimony would tend to negate probable cause or undermine the State's evidence in support of detention in a material way.

I.

According to the affidavit of probable cause in this case, the police spotted defendant Leo Pinkston on June 4, 2017 in a car that matched the general description of a vehicle used in a shooting the day before. The officers observed the dark-colored car, with tinted windows, parked improperly. From an unmarked police vehicle, the officers "activated their lights and sirens." Defendant allegedly "disregarded" the lights and sirens and drove off; he then gained speed and ignored traffic signals. Because the police car had engine trouble, other officers picked up the pursuit. Ultimately, defendant struck another car, and both vehicles collided with a light pole and caught on fire. The victim in the other car suffered burns and was taken to the hospital for treatment.

The accompanying complaint-warrant charged defendant with second-degree eluding, N.J.S.A. 2C:29-2(b), and second-degree aggravated assault while eluding, N.J.S.A. 2C:12-1(b)(6).

Pretrial Services prepared a Public Safety Assessment (PSA) that scored defendant 2 out of 6, with 6 being the highest, for risk of failure to appear, and 4 out of 6 for risk of new criminal activity. The PSA also had a flag for new violent criminal activity. Among other things, the PSA noted that defendant had four prior indictable convictions that included identity theft, attempted murder, and possession of a weapon. Pretrial Services recommended against defendant's release.

The State moved to detain defendant. The day before the scheduled hearing date, defense counsel asked for an adjournment to obtain additional discovery and subpoena police officers to testify at the hearing. The State had provided two police reports in discovery. The first noted that when the police tried to conduct the motor vehicle stop, defendant's car "began to slowly travel," and the police "were unable to clearly identify the make and model of the" car because of low visibility and poor lighting. The second report referred to a radio broadcast of "shots fired at the officers." The author of the report spoke with an officer who said that he discharged his weapon at defendant after hearing the transmission. According to the report, two other officers also "discharg[ed] their firearms."

The trial court denied defendant's request for an adjournment. The court explained that information related to the pursuit and accident was not relevant to the detention motion. In addition, the court observed that federal courts had uniformly held that "a defendant does not have the right to call adverse witnesses at a detention hearing."

The detention hearing was held on June 22, 2017. At the outset, defense counsel pressed his request for an adjournment to call the officers involved in the incident. Counsel argued that the circumstances of the pursuit weighed against a finding of probable cause and detention. He proffered that defendant did not knowingly speed away from the officers and did not shoot at them; that the officers violated departmental policy by shooting from and at a moving car; and that defendant crashed the car because the police fired shots at him. Counsel also submitted that he had the right to call witnesses under the statute.

The court acknowledged that the CJRA allows live testimony. However, it found that the evidence counsel sought to present was not relevant to the issue of probable cause. Defendant's arguments, the court noted, would probably be relevant at trial instead. After it considered the complaint, affidavit of probable cause, PSA, Preliminary Law Enforcement Incident Report, and the arguments of counsel, the court concluded that (a) probable cause existed, and (b) clear and convincing evidence established that defendant should be detained.

Defendant filed an expedited appeal. The Appellate Division granted defendant's motion to supplement the record with the police reports recounted above, but the panel concluded that, under the circumstances, the trial judge did not mistakenly exercise his discretion in denying defendant's request to call adverse witnesses. In an unpublished order, the panel affirmed the trial court's finding of probable cause and its order of detention.¹

We granted defendant's motion for leave to appeal and accelerated the timing for oral argument.

231 N.J. 418, 176 A.3d 221 (2017). We also granted the Attorney General, the Public Defender, and the American Civil Liberties Union of New Jersey (ACLU) leave to appear as amici curiae.

II.

Defendant argues that the trial court erred by not allowing him to call witnesses at the detention hearing. He contends the police reports and officer testimony would have established that probable cause did not exist because "it was very likely that defendant never even realized that ... officers were pursuing him as he ‘slowly’ departed the area," and because "the car crash was occasioned by defendant's attempt to avoid death by gunfire." Defendant claims the same evidence would have rebutted the State's argument that he posed a danger to the community.

The Public Defender and ACLU both argue that the CJRA provides defendants who face detention an unconditional right to call witnesses, aside from generic limits that apply in all cases. For support, they rely on the plain language of the statute. They also contend that live testimony can be relevant as to both probable cause and the need for detention, and that the trial court abused its discretion in this case.

The State contends that defendants do not have an absolute right to call adverse witnesses under the statute. Instead, the State maintains, the Court should follow the majority view and adopt the approach outlined in United States v. Edwards, 430 A.2d 1321 (D.C. 1981) (en banc). The State also argues that the proffered reports and testimony were not relevant as to probable cause, and that the record amply supported defendant's detention.

The Attorney General echoes the State's position and contends that defendants do not have an "automatic and unfettered right" to compel the State's witnesses to testify. The Attorney General submits that, consistent with Edwards, defendants "should be required to either (1) proffer how [a] witness's testimony will negate probable cause, or (2) articulate a good-faith basis for believing that the witness will testify favorably to the accused on a critical issue related to pretrial detention." Under that standard, the Attorney General contends that the trial court did not abuse its broad discretion when it denied defendant's request to call police officers to testify.

III.

Shortly before this appeal was argued, defendant pled guilty to second-degree eluding and fourth-degree aggravated assault by auto. The State then moved to dismiss defendant's appeal as moot. We denied the motion because "the appeal raise[d] an issue of public importance that is capable of repetition yet evades review." 232 N.J. 299, 179 A.3d 1053 (2018) ; see State v. Mercedes, 233 N.J. 152, 169, 183 A.3d 914 (2018). For the same reason, we now address when and under what circumstances defendants may compel adverse witnesses to testify at a detention hearing. Given the current posture of this case, however, we decline to evaluate whether the trial court abused its discretion when it ordered defendant detained.

IV.

A.

We begin with certain relevant principles under the CJRA. The law favors the pretrial release of defendants "by non-monetary means." N.J.S.A. 2A:162-15. A defendant may be detained pretrial only if, after a hearing, a judge finds "by clear and convincing evidence that no release conditions would reasonably assure the defendant's appearance in court, the safety of the community, or the...