State v. Ramirez

• Decision Date: 21 November 2022
• Docket Number: A-1 September Term 2021,085943
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Oscar RAMIREZ, Defendant-Appellant.
• Court: New Jersey Supreme Court

252 N.J. 277

284 A.3d 839

STATE of New Jersey, Plaintiff-Respondent,

v.Oscar RAMIREZ, Defendant-Appellant.

A-1 September Term 2021

085943

Supreme Court of New Jersey.

Argued September 28, 2022

Decided November 21, 2022

Rochelle Watson, Deputy Public Defender II, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Rochelle Watson, of counsel and on the briefs, and Nakea J. Barksdale, Assistant Deputy Public Defender, on the briefs).

John R. Mulkeen, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Erin M. Campbell, Assistant Prosecutor, on the briefs).

Alexander Shalom, Newark, argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation and Rutgers Constitutional Rights Clinic Center for Law & Justice, attorneys; Alexander Shalom and Jeanne LoCicero, of counsel and on the brief, and Ronald K. Chen, on the brief).

Joshua P. Law argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; CJ Griffin, on the brief).

Sarah D. Brigham, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Acting Attorney General, attorney; Sarah D. Brigham, of counsel and on the brief).

JUDGE SABATINO (temporarily assigned) delivered the opinion of the Court.

In this appeal, we consider the conflicting rights of a sexual assault victim -- to decline to participate in an investigation and to enjoy solitude at home -- and a person accused of a sexual offense -- to receive an effective defense, to assert the right to confrontation and compulsory process of witnesses, and to due process. Specifically, we ponder these issues in the context of a prosecutor's motion under Rule 3:13-3(e) for a protective order relieving the prosecution of its obligation under subsection (b) of that rule to supply a victim's residential address to defense counsel.

We hold that the resolution of such motions requires careful judicial oversight and a sensitive balancing of the competing interests. To guide that process, we provide a gloss to Rule 3:13-3 to ensure that a defendant's counsel and agents do not have unfettered access to a sexual assault victim's home address through pretrial discovery, while also requiring the trial court to consider, in its discretion, judicially supervised "pathways" for: (1) conveying to the victim the defense's reasons for seeking to contact the victim; and (2) verifying that, after being neutrally informed of those reasons, the victim still declines to be interviewed or to participate in the defense's investigation.

Because neither the ruling of the trial court nor that of the Appellate Division in this case anticipated such guidance or fully addressed the competing interests at stake, we vacate their decisions and remand for further proceedings.

I.

A.

We briefly summarize the facts that provide the backdrop to this discovery dispute, mindful they have not yet been established at a trial.

In the late evening hours of October 25, 2019, D.C.,¹ a twenty-three-year-old woman, was walking home from her shift as a waitress at a restaurant in North Bergen. Shortly after midnight, a man approached D.C. and grabbed her. He held a box cutter to her neck and told her to be quiet or he would kill her. He forced her into a nearby cemetery, removed all her clothing, and sexually assaulted her in multiple ways. The man reiterated to the victim to be quiet, or he would kill her.

When the attacker heard police sirens, he pulled up his pants, told the victim to count to twenty, stole her purse and phone, and left. The victim believed the man had ejaculated without wearing a condom because he wiped his penis with his clothing before leaving. She fled from the cemetery in her underwear, holding her clothes. She flagged down a couple driving by for help, and they took her to the North Bergen Police Department.

At 4:15 a.m., a nurse examined the victim using a rape kit. The victim described her attacker to the nurse as "short, Hispanic, white skin, beard, long hair, loose big eyes." She also stated he was "approximately five feet, four inches tall, wearing a dark sweatshirt, pants and ... a cross body backpack." She reported that he smelled of alcohol.

Local surveillance footage from that night showed a man getting a haircut at a nearby barber shop, going to a bar or club, and then following another woman before losing track of her. The footage later showed the same man following the victim on the street. At 12:13 a.m., the video showed the victim leaving the cemetery, clutching her clothes. The man appears on the video walking on a nearby street at 12:30 a.m. The footage did not show the alleged sexual assault.

Based on information from an employee who worked at the barber shop depicted in the footage, the police identified the man in the video as defendant Oscar Ramirez, who resided in North Bergen.

The police learned that defendant had previously been convicted of two assaults that arose out of initial charges of alleged sexual contact. Specifically, in October 2017, after being charged with aggravated sexual assault with a weapon, defendant was convicted of third-degree aggravated assault. In May 2018, after being charged with criminal sexual contact, defendant was convicted of simple assault.

The police arrested defendant. Apparently without being asked about the alleged attack, defendant gave a statement to the police in which he denied committing what he termed "the rape of a girl." A police officer responded, "I didn't mention anything about the rape of a girl." Defendant explained that his father had told him about a rape in North Bergen. Defendant added that if he had done something to a woman, he did not remember it because he was under the influence of alcohol and drugs. Defendant denied that he had been in the cemetery.

Despite his denials, defendant did identify himself to the police as the man shown in the surveillance footage. He also referred to himself as a "bad person." He admitted, without specifics, to previously "killing people in Mexico." When asked what he would say to the victim if she were present, defendant told the detective that he would apologize. Defendant has been confined in pretrial detention since his arrest.

Laboratory results thereafter matched defendant's DNA to swabs taken from the victim's external genitalia and underwear on the night of the assault.

A Hudson County grand jury charged defendant with kidnapping, aggravated sexual assault, armed robbery, possession of a weapon for an unlawful purpose, unlawful possession of a weapon, aggravated criminal sexual contact, and terroristic threats.

B.

When supplying pretrial discovery to defense counsel, the prosecution furnished the victim's name and date of birth, as well as a search reflecting that the victim had no prior criminal history of arrests. However, the prosecution redacted from the supplied materials the address where the victim lived at the time of the offense. According to the prosecution, the victim moved to a different residence after the attack, and she provided an updated home address to the prosecutor's office. The prosecution also did not provide the new address to defense counsel.

To justify withholding the victim's former and current addresses, the prosecution moved for a protective order under Rule 3:13-3(e). The prosecution submitted a sworn certification from an assistant prosecutor in support of the motion. His certification asserts, in relevant part, that

[v]ia a Zoom conference on September 17, 2020, Victim told the undersigned and [an agent within the Prosecutor's Office] that she does not want her address information provided to the defense. She is afraid that Defendant or someone close to him would be able to locate her. Moreover, she also stated she does not want to speak to the Defense before trial about the case, including in-person, by telephone or by video conference. The undersigned told her this decision was her choice, not the decision of the Prosecutor's Office.

Other than the certification, the record contains no documents memorializing the Zoom call between the prosecutor's office and the victim. Notably, the prosecution did not provide a statement signed or attested to by the victim herself with its motion. The prosecution served the motion and supporting certification on defense counsel, who filed opposition.

In oral argument on the motion, the prosecutor asserted that this case -- one in which defendant reportedly made threats to kill the victim and admitted to killing people in the past -- is particularly egregious and justifies a protective order. The prosecutor specifically represented that some victims have told him in previous cases that defense investigators have come to their homes and claimed they work for "the State" without explaining they work for the public defender.

Defense counsel responded that Rule 3:13-3(e) required the prosecution to provide the victim's contact information. Counsel asked that, at the very least, the defense team, including professional investigators, be given access to the victim's contact information, even if defendant himself is not allowed to have access. Defense counsel urged that his investigators be allowed to knock on the victim's door, explain what their purpose is, and let the victim decide whether she wants to talk to them. He maintained that his investigators are professional, always identify themselves as working for the defendant, try only to get information, and do not intimidate or harass victims. Counsel further assured that if his investigators call the victim and she declines to speak, that choice would be honored.

The motion judge granted in part and denied in part the prosecution's motion. Specifically, the judge "order[ed] the [prosecution] to provide defendant's counsel with [the] victim's contact...