State v. Shaw
| Decision Date | 04 March 2020 |
| Docket Number | 081652,A-59 September Term 2018 |
| Citation | 227 A.3d 279,241 N.J. 223 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Jerome SHAW, Jr., Jerome Shaw, Jerone Shaw, Jr., and Rome, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Douglas R. Helman, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Douglas R. Helman, of counsel and on the briefs, and Anderson D. Karkov, Designated Counsel, on the briefs).
Nicole Paton, Assistant Prosecutor, argued the cause for respondent (Mark Musella, Bergen County Prosecutor, attorney; Nicole Paton, of counsel and on the briefs and William P. Miller, Special Deputy Attorney General/Acting Assistant Prosecutor, on the briefs).
CJ Griffin argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation and Pashman Stein, Walder, Hayden, attorneys; Jeanne LoCicero and Alexander Shalom, of counsel and on the brief, and CJ Griffin, on the brief).
Regina M. Oberholzer, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Regina M. Oberholzer, of counsel and on the brief).
In this appeal, we consider whether there should be any limits on the number of times a prosecutor can submit a case to a grand jury to seek an indictment after a prior grand jury declined to indict.
Grand juries decide whether there is sufficient probable cause to return an indictment. At the same time, they serve as a check on the power of the State to bring criminal charges. Although the grand jury is an arm of the court, it is an independent body, so courts are reluctant to intercede directly in the indictment process. This Court has acted only when necessary to ensure the fairness and integrity of grand jury proceedings.
Repeated grand jury presentations about the same conduct present one of those rare circumstances, because the practice increases the risk that an innocent person may be charged with a crime. We therefore invoke the Court's supervisory authority and hold as follows: if grand juries decline to indict on two prior occasions, the State must obtain advance approval from the Assignment Judge before it can submit the same case to a third grand jury. To decide whether to permit a third presentation, Assignment Judges should consider whether the State has new or additional evidence to present; the strength of the State's evidence; and whether there has been any prosecutorial misconduct in the prior presentations.
Based on the circumstances of this case, which did not violate defendant's right to a fundamentally fair grand jury presentation, we affirm the judgment of the Appellate Division and decline to dismiss defendant's indictment.
At about 1:00 a.m. on October 21, 2012, a sergeant with the Upper Saddle River Police Department, who was on routine patrol, came upon a Ford pickup truck blocking West Saddle River Road. He braked hard to avoid hitting the truck and then told the driver to park in the driveway of the home the truck was facing. Two men were in the truck: the driver, Jerome Shaw, Sr. (Shaw Sr.); and his son and passenger, defendant Jerome Shaw, Jr.
The sergeant noticed a rifle case in the back seat and called for backup. Soon after, Officer Edward Riedel and another officer arrived. Riedel noted that both men were dressed from head to toe in black clothing and shoes. Each also had a pair of gloves, a black mask, and black goggles at his feet.
Both the driver and passenger consented to a search of the rifle case. Inside it, Riedel found a large mallet, five crowbars, two sets of pliers including one for cutting, different types of zip ties, a pipe wrench, and knee pads. Many of the tools were new and still had price tags attached.
Riedel spoke separately to Shaw Sr. and defendant. Each said they were involved in construction work but relayed a different story. Defendant claimed he and his father were working on a residence in New Jersey, but when pressed for details he was unable to identify the address, town, or type of construction work. Shaw Sr. said he was doing commercial construction work at a strip mall somewhere in the area of Route 17.
The police arrested both men. Riedel found a flashlight and a rock about the size of a tennis ball in Shaw Sr.'s pocket. Defendant also had a flashlight in his pocket along with a handwritten list of addresses on a piece of paper: four homes in Upper Saddle River and two in Mendham. Defendant and his father resided in New York.
On February 28, 2013, the State presented the case to a grand jury. Riedel, the sole witness, recounted much of the above information. The grand jury declined to authorize the proposed charges -- conspiracy to commit burglary, multiple counts of attempted burglary, and multiple counts of possession of a weapon for an unlawful purpose -- and returned a no bill.1
The State resubmitted the case to a second grand jury on March 20, 2013. Once again, Riedel was the only witness, and he presented similar testimony with some additional facts. This time, the grand jury voted to indict. The trial court, however, dismissed the true bill on its own motion. The judge later explained that prosecutors cannot "go to the grand jury more than once on the same facts" without violating what she called "the multiple presentation rule."
On April 16, 2013, the prosecution presented the case a third time to another grand jury. Riedel presented largely the same testimony. In addition, the prosecution called Captain Timothy Condon as a witness. Condon testified as an expert in burglary investigations and explained the significance of certain items found at the scene. For example, he explained that paint chips can remain on a crowbar used in a break-in. Condon noted that experienced burglars therefore often purchase new tools before committing a burglary and then discard them to avoid a possible forensic match afterward; construction tools, by contrast, are often well-worn from regular use. Condon also testified that zip ties can be used to restrain people in a home during a break-in.
The grand jury returned a ten-count indictment charging Shaw Sr. and defendant with one count of third-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and 2C:18-2 ; six counts of third-degree attempted burglary -- one for each home listed on the handwritten note -- N.J.S.A. 2C:5-1 and 2C:18-2(a)(1) ; and three counts of third-degree possession of a weapon for an unlawful purpose -- a sledgehammer, mallet, and prybar, respectively -- N.J.S.A. 2C:39-4(d).
Defendant argued that the prosecution presented essentially the same evidence before the third grand jury and that the indictment should therefore be dismissed. The trial court found that Captain Condon offered new and different expert testimony and did not violate "the multiple presentation rule." The judge accordingly denied the motion to dismiss.
Defendant later pled guilty to conspiracy to commit burglary and a disorderly persons offense for possession of burglary tools.2 The court sentenced defendant to five years in prison, with two years to be served without parole, to run concurrently with a North Carolina sentence defendant was already serving.3
The Appellate Division affirmed defendant's conviction. State v. Shaw, 455 N.J. Super. 471, 492, 190 A.3d 539 (App. Div. 2018). In its thoughtful opinion, the Appellate Division observed that "no New Jersey statute or common law precedent ... categorically bars a prosecutor from choosing to resubmit a case to a new grand jury after one has previously voted a no bill, or requires the State to present new evidence as a condition of resubmission." Id. at 484, 190 A.3d 539. The court also surveyed practices in other jurisdictions. Id. at 485-87, 190 A.3d 539.
The Appellate Division considered reasons for and against imposing limits on a prosecutor's ability to resubmit a case. Id. at 487-88, 190 A.3d 539. Ultimately, the Appellate Division deferred to this Court: "[W]e are confident our Court would place some limits on successive resubmissions, in order to respect the grand jury's screening function to shield the innocent; control the abusive exercise of prosecutorial discretion; and assure defendants fundamental fairness." Id. at 488, 190 A.3d 539.
In this case, the Appellate Division noted that two out of three grand juries returned an indictment and "the State presented new and material evidence to" the third grand jury. Id. at 489, 190 A.3d 539. The court found no abuse of prosecutorial discretion and concluded defendant did not show that resubmission "deprived him of fundamental fairness." Id. at 476, 490, 190 A.3d 539.
We granted defendant's petition for certification limited to a single issue: whether defendant's indictment should have been dismissed because the State presented its case to three grand juries. 236 N.J. 632, 202 A.3d 624 (2019). We also granted leave to the Attorney General and the American Civil Liberties Union of New Jersey (ACLU) to participate as friends of the Court.
Defendant argues that his motion to dismiss the indictment should have been granted. He contends that, after the first grand jury failed to return a true bill, later indictments for the same offenses, without new evidence, violated his right to fundamental fairness. Defendant urges this Court to use its supervisory powers to limit the number of times a prosecutor may resubmit a case to a grand jury. He submits that judges should look to the factors set forth in State v. Abbati, 99 N.J. 418, 435, 493 A.2d 513 (1985), which we discuss later, to decide whether the State may re-present a case after a no bill. Applying those factors, defendant contends that the third grand jury presentation was fundamentally unfair.
The ACLU likewise argues that there should be a limit on the number of...
To continue reading
Request your trial
-
State v. Bell
...returned by a grand jury. A.The grand jury functions "as both a sword and shield" of our criminal justice system. State v. Shaw, 241 N.J. 223, 236, 227 A.3d 279 (2020). Article I, Paragraph 8 of the New Jersey Constitution provides in relevant part that "[n]o person shall be held to answer ......
-
State v. Vega-Larregui
...predating the adoption of New Jersey's first Constitution in 1776 and the United States Constitution in 1787. See State v. Shaw, 241 N.J. 223, 235-36, 227 A.3d 279 (2020) (detailing the historical development of the grand jury). The right to a grand jury presentation was guaranteed by New J......
-
State v. Njango
...A.2d 1060 (2008). An "integral part" of that guarantee of due process is the doctrine of fundamental fairness. See State v. Shaw, 241 N.J. 223, 239, 227 A.3d 279 (2020) (quoting State v. Saavedra, 222 N.J. 39, 67, 117 A.3d 1169 (2015) ); see also State v. Abbati, 99 N.J. 418, 429, 493 A.2d ......
-
State v. Rodriguez
...to decide if there is probable cause that a crime was committed, and to protect the innocent against unfounded charges. State v. Shaw, 241 N.J. 223, 235 (2020); v. Bell, 241 N.J. 552, 560 (2020). Though the grand jury is an arm of the court, we reluctantly and sparingly review the grand jur......