State v. Sanchez

Decision Date05 February 1996
Citation143 N.J. 273,670 A.2d 535
PartiesSTATE of New Jersey, Plaintiff-Appellant, v. Alex SANCHEZ, Defendant-Respondent.
CourtNew Jersey Supreme Court

Janet Flanagan, Deputy Attorney General, for appellant (Deborah T. Poritz, Attorney General of New Jersey, attorney).

Frank Joseph Pugliese, Assistant Deputy Public Defender, for respondent (Susan L. Reisner, Public Defender, attorney).

The opinion of the Court was delivered by

STEIN, J.

Alex Sanchez (Alex) and his brother, Juan Sanchez (Juan), were jointly indicted for second-degree robbery and related offenses. On the eve of their joint trial, Alex moved for severance, claiming that Juan would provide testimony exculpating Alex if the two were tried separately. The trial court denied the motion, and both Alex and Juan were convicted of all charged offenses. The Appellate Division reversed, holding that severance was warranted because there was a substantial likelihood that Juan would have offered exculpatory testimony for Alex if they had been separately tried. We granted certification, 140 N.J. 276, 658 A.2d 300 (1995), to determine the standard by which trial courts should evaluate motions for severance based on the claim that one codefendant will exculpate another if the two are not tried together. We reverse.

I

On January 23, 1988, Mary Ann Wyman went shopping at the Monmouth Mall in Eatontown, New Jersey, along with her husband, daughter, and two grandchildren. At approximately 4:45 p.m., after Mrs. Wyman exited the mall and walked into the parking lot, a man grabbed her pocketbook and attempted to pry it away from her. Although Mrs. Wyman initially held on to the pocketbook, the assailant successfully wrestled it away on his second attempt. The force of the assailant's efforts caused Mrs. Wyman to fall to the ground and fracture her pelvis. She remained hospitalized for five days and was unable to return to work for nineteen weeks.

Mrs. Wyman's husband, Kenneth, had been walking approximately ten feet in front of his wife at the time of the attack. Hearing a scream, he turned around and saw his wife lying on the ground. He then watched the assailant run to and enter a station wagon parked alongside the curb near a mall entrance. Mr. Wyman recognized the assailant as the same man he had earlier noticed standing next to the open passenger door of the station wagon. Mr. Wyman did not see the driver of the station wagon as the car sped away, but he took note of the car's license plate number, CDE-82B. Mr. Wyman subsequently identified Juan at a photographic lineup as the person who had stolen his wife's pocketbook.

The Wymans' daughter, Laura Anselmo, was walking next to her mother at the time of the attack. At a photographic lineup and in court, she identified Juan as her mother's assailant.

Deborah Polito, who worked as a hairdresser at the mall, also observed the robbery. She was warming up her car in the parking lot, preparing to return home from work, when she saw a man take Mrs. Wyman's pocketbook, knock her to the ground, and enter his get-away car. Although Polito was not able to see the face of the assailant because of the speed of the attack, she had previously observed for approximately ten minutes the driver of the get-away car illegally parked in the fire zone abutting the mall. At a photographic lineup and in court, Polito identified Alex as the driver of the vehicle.

The screech of the get-away car caught the attention of Joseph Holsey, a shopper who was leaving the mall at the time of the robbery. He watched Mrs. Wyman fall to the ground, and then realized that the get-away car was approaching him. Fearing that the car would hit him, Holsey jumped back from the road to the sidewalk. From approximately four feet away, he saw two men through the windshield of the car. At a photographic lineup and in court, Holsey identified Alex as the driver of the vehicle and Juan as his passenger.

The brothers were jointly indicted in March 1988 for second-degree robbery, contrary to N.J.S.A. 2C:15-1; second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1); and third-degree theft, contrary to N.J.S.A. 2C:20-3.

On Monday, December 7, 1992, the day the joint trial was scheduled to begin, Alex moved for severance. The basis for the motion was an affidavit signed by Juan on July 6, 1988, in which Juan admitted that he robbed Mrs. Wyman with Noel Manuel, the person to whom the station wagon bearing license plate number CDE-82B was registered. Juan stated in the affidavit:

How my brother Alex became implicated in this crime I['ll] never understand, because he had no knowledge of Noel['s] and [my] inten[t]ions before or after the [ ] incident. * * * [A] man (my brother) is being held for a crime [that] Noel and I committed. I[ ] will cooperate in any way ne[ce]ssary to gain Alex['s] fre[e]dom. * * * Noel and I are the only people responsible for the robbery of that old lady in the mall.

At the time he signed the affidavit, Juan was incarcerated in Pennsylvania, having recently commenced a forty-year prison term with a twenty-year parole disqualifier for aggravated assault, indecent sexual intercourse with a minor, kidnapping, and corrupting the morals of a minor.

Alex's lawyer, James N. Butler, Esq., explained to the court that until the preceding Friday he had assumed that at trial Juan would exonerate Alex in accordance with his affidavit. On that Friday, however, Juan's lawyer informed Butler that Juan would not testify at a joint trial. Pursuant to the procedure outlined in State v. White, 195 N.J.Super. 457, 460, 480 A.2d 230 (Law Div.1984), the court asked the prosecutor, Alex, and Butler to leave the room, and questioned Juan under oath about his intentions. Although Juan first stated that he had not decided whether to testify in a joint trial, he later informed the court that the "honest truth" was that he did not intend to testify if he and his brother were tried together. Juan was uncertain about whether a grant of severance would alter his decision not to take the witness stand on his brother's behalf. He had apparently anticipated that the State would offer him a "deal" in exchange for his testimony as set forth in the affidavit. Now that no such offer was forthcoming, Juan explained, he had to devise an alternative strategy. He initially stated that even if the severance motion were granted he would not testify at his brother's trial "on [his] own will." When the court offered to try Juan's case first and asked if that would affect Juan's decision, Juan replied, "Maybe. * * * I don't know." Juan's lawyer then explained to him that Juan's interests would not be prejudiced if Juan were tried first and thereafter testified at his brother's trial, unless that testimony constituted perjury. Juan responded to subsequent court inquiries with "I might testify," "I may testify," "Most certainly I might testify," and, finally, "I haven't decided."

Upon further questioning, Juan explained that if he were to testify he would testify in accordance with his affidavit. In attempting to understand Juan's version of the events in question, the court asked whether Alex was present at the scene of the crime. The following colloquy resulted:

MR. JUAN SANCHEZ: I don't think I'm in a position to answer that to you, Your Honor.

THE COURT: Why not? You were there.

MR. JUAN SANCHEZ: Well, because I don't think that it would be right for me to say that Alex was there or not. I said that Alex wasn't there. It was me and Noel. That's what I said on the affidavit at that time.

THE COURT: You didn't say Alex wasn't there. You said you and Noel were there.

MR. JUAN SANCHEZ: Yeah.

THE COURT: But [what] I'm asking now is was he there. Was Alex there?

MR. JUAN SANCHEZ: I have to answer that?

THE COURT: Yes.

MR. JUAN SANCHEZ: Yes.

After the prosecutor, Alex, and Butler returned to the courtroom, Butler explained that his argument at trial would be that Alex "wasn't there. So he really doesn't know what happened at [the Monmouth Mall] on that particular date." In a subsequent in camera hearing, Alex informed the court that he was working at Freedman's Bakery in Belmar around the time of the crime and was not present at the crime scene.

The trial court denied the severance motion. The court cited Juan's failure to demonstrate that he would testify at Alex's trial if the severance motion were granted. The court also noted that "the testimony of the two defendants is not consistent on the crucial issue of the presence of Alex at the scene. And, therefore, the defendants appear to the Court to be attempting to simply use the severance as a device to get one of them acquitted." As an alternative basis for its ruling, the court found that the severance motion was not made in a timely manner under Rule 3:15-2(c), which, at the time of trial, required that "[a] motion for separate trial of counts of an indictment or accusation must be made within 30 days after the initial plea to the indictment or accusation."

At trial, Juan neither testified nor called any witnesses. Alex did not testify, but a representative of Freedman's Bakery testified for Alex that on January 23, 1988, Alex reported to work at 7:04 a.m. and punched out at 3:32 p.m. The jury convicted Alex and Juan of all three charged offenses.

In an unreported, per curiam opinion, the Appellate Division reversed Alex's conviction. The court stated that Juan could not have been expected to testify at a joint trial, but there was a substantial likelihood that he would have testified at a separate trial for Alex. The court held that because the trial court in effect foreclosed the possibility that Alex could benefit from Juan's testimony, the trial court abused its discretion in denying Alex's severance motion.

II

Rule 3:7-7 allows for joinder of defendants who are "alleged to have participated in the same act or transaction or in the same series of acts or...

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