State v. Twiggs

• Decision Date: 19 June 2018
• Docket Number: A–63/64/65 September Term 2016,A–51 September Term 2016,077964,077686
• Parties: STATE of New Jersey, Plaintiff–Appellant, v. Gary TWIGGS, Defendant–Respondent. State of New Jersey, Plaintiff–Appellant–Cross–Respondent, v. James E. Jones and Likisha Jones, Defendants–Respondents–Cross–Appellants, and Godfrey J. Gibson, Defendant.
• Court: New Jersey Supreme Court

233 N.J. 513

187 A.3d 123

STATE of New Jersey, Plaintiff–Appellant,

v.Gary TWIGGS, Defendant–Respondent.

State of New Jersey, Plaintiff–Appellant–Cross–Respondent,

v.James E. Jones and Likisha Jones, Defendants–Respondents–Cross–Appellants,andGodfrey J. Gibson, Defendant.

A–51 September Term 2016

A–63/64/65 September Term 2016

077686

077964

Supreme Court of New Jersey.

Argued January 29, 2018

Decided June 19, 2018

Sarah Lichter, Deputy Attorney General, argued the cause for appellant in State of New Jersey v. Gary Twiggs (A–51–16) (Gurbir S. Grewal, Attorney General, attorney; Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).

Vincent P. Sarubbi argued the cause for respondent in State of New Jersey v. Gary Twiggs (A–51–16) (Archer & Greiner, attorneys; Vincent P. Sarubbi and Bailey E. Axe, on the brief).

Sarah Lichter, Deputy Attorney General, argued the cause for appellant in State of New Jersey v. James E. Jones and Likisha Jones (A–63/64/65–16) (Gurbir S. Grewal, Attorney General, attorney; Sarah Lichter and Joseph A. Glyn, Deputy Attorney General, of counsel and on the briefs).

Daniel V. Gautieri, Assistant Deputy Public Defender, argued the cause for respondent James E. Jones in State of New Jersey v. James E. Jones and Likisha Jones (A–63/64/65–16) (Joseph E. Krakora, Public Defender, attorney; Daniel V. Gautieri, of counsel and on the briefs).

Christopher T. Campbell argued the cause for respondent Likisha Jones in State of New Jersey v. James E. Jones and Likisha Jones (A–63/64/65–16) (Law Offices of Christopher T. Campbell, attorneys; Christopher T. Campbell, of counsel and on the briefs).

JUSTICE TIMPONE delivered the opinion of the Court.

The New Jersey Code of Criminal Justice (the Code) contains a tolling provision that delays the start of the clock on the statute of limitations "when the prosecution is supported by physical evidence that identifies the actor by means of DNA testing ... until the State is in possession of both the physical evidence and the DNA ... evidence necessary to establish the identification of the actor by means of comparison to the physical evidence." N.J.S.A. 2C:1–6(c). These consolidated appeals hinge on the meaning of the term "actor" within that provision and require us to determine whether the provision applies when a DNA identification does not directly identify the defendant but rather begins an investigative chain that leads to the defendant. Because of the common issues in this opinion, we are consolidating these appeals.

Based on the plain language of N.J.S.A. 2C:1–6(c) and the policy rationale underlying the criminal statute of limitations, we conclude that the DNA-tolling exception applies only when the State obtains DNA evidence that directly matches the defendant to physical evidence of a crime. Because the DNA identifications at issue in these cases did not directly link defendants to the relevant offenses, we affirm the Appellate Division's affirmance of the trial court's dismissal of the indictments against defendant Gary Twiggs in its entirety and against defendants James and Likisha Jones in relevant part.

A separate issue in State v. Jones is whether the indictment on the conspiracy count survives under a "continuing course of conduct" analysis that would toll the applicable statute of limitations under N.J.S.A. 2C:1–6(c). We agree that the State presented sufficient evidence of a continuing course of conduct to survive the motion to dismiss the indictment, so we also affirm the Appellate Division on that count.

I.

A.

We derive the facts in State v. Twiggs from pretrial motion practice.

On June 16, 2009, a detective from the Wildwood Crest Police Department responded to a robbery call. At the scene, the detective met with S.T. (the victim) and defendant Gary Twiggs, who stated they had been robbed of their money and cell phones by a white male wearing a black hoodie, jeans, and a black mask, later identified as Dillon Tracy. S.T. told the detective that after Twiggs pulled up in his vehicle, Tracy approached S.T. from behind, placed a gun in his side, and ordered him into the passenger seat of Twiggs's vehicle. Tracy then demanded their cell phones and money and escaped into a black SUV after both Twiggs and S.T. complied. Police later found a black mask where S.T. said the black SUV had been parked. A police officer took the mask for DNA analysis and later entered the extracted DNA into the Combined DNA Information System (CODIS).

Twiggs and S.T. submitted to multiple interviews with police. During one interview, S.T. admitted that he met Twiggs on the night of the robbery to sell Twiggs Percocet

tablets. S.T. said he believed Twiggs and Tracy were friends and had arranged the robbery. In a later interview, Twiggs claimed he was a victim of the robbery.

In July 2014, police collected DNA from Tracy after he entered a guilty plea in drug court. His DNA matched the sample found on the mask. Tracy later confessed, implicating Twiggs in the 2009 robbery. In September 2014, based on Tracy's testimony, police arrested Twiggs for conspiracy and the robbery.

In December 2014, a Cape May Grand Jury returned an indictment, charging Twiggs and Tracy with conspiracy to commit robbery, N.J.S.A. 2C:5–2(a), and robbery, N.J.S.A. 2C:15–1(a). Twiggs moved to dismiss the indictment, arguing that the claim was barred by the general criminal statute of limitations, N.J.S.A. 2C:1–6(b)(1). The State responded that the DNA exception within N.J.S.A. 2C:1–6(c) tolled the statute of limitations.

The trial court found the DNA-tolling provision inapplicable because the DNA evidence recovered in connection with the offense did not identify Twiggs, but rather Tracy, who in turn implicated Twiggs as an alleged co-conspirator. The court consequently dismissed the indictment, and the State appealed.

A divided panel of the Appellate Division affirmed. State v. Twiggs, 445 N.J. Super. 23, 36, 135 A.3d 981 (App. Div. 2016). The majority held that "the actor" in the DNA-tolling provision "refers to the individual whose DNA is analyzed. It does not apply to a third party identified by that individual." Id. at 25–26, 135 A.3d 981. The majority determined that the plain language of the statute "only applies to persons whose DNA directly identifies them as criminal actors, and does not apply to those who are later named by those same criminal actors." Id. at 30, 135 A.3d 981.

Because the physical evidence recovered and the DNA evidence later obtained did not directly, by itself, implicate Twiggs, the panel found the DNA-tolling provision inapplicable for a prosecution against him. Id. at 31, 135 A.3d 981 ("[T]he only evidence that the State derived from the DNA evidence was Tracy's identity, and, subsequently, his confession that he and defendant conspired to commit robbery.").

The majority considered the DNA-tolling exception's legislative history and rejected the State's argument that our decision in State v. Rumblin, 166 N.J. 550, 766 A.2d 1141 (2001), supports a broader definition of the term "actor." Id. at 33–34, 135 A.3d 981. The Rumblin Court concluded that the term "actor" was synonymous with "principal" and "accomplice" for purposes of the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2. 166 N.J. at 555–56, 766 A.2d 1141. The majority in Twiggs distinguished N.J.S.A. 2C:1–6(c)'s use of the term "actor" as different "both syntactically and lexicologically" from NERA's use of the word. 445 N.J. Super. at 35, 135 A.3d 981. Focusing, therefore, on the text of the tolling provision, the panel concluded that its "syntactical use of the word ‘actor’ ... is more specific than the use of the term in NERA and Rumblin." Id. at 35–36, 135 A.3d 981.

According to the dissent, the "majority opinion's reasoning [cannot square] with the Supreme Court's interpretation of the term ‘the actor’ in State v. Rumblin." Id. at 37, 135 A.3d 981 (Leone, J., dissenting). Judge Leone's primary concern was to avoid an interpretation that "would enable the leaders of conspiracies to evade prosecution under N.J.S.A. 2C:1–6(c) by having the crime committed by minions, who alone could be prosecuted when the minion's DNA is matched." Id. at 46, 135 A.3d 981.

On May 4, 2016, the State filed a notice of appeal as of right pursuant to Rule 2:2–1(a)(2).

B.

We glean the following facts from the grand jury proceedings in State v. Jones.

On August 14, 2002, ten-year-old Iyonna Jones left summer school and went to her aunt Likisha Jones's Manhattan apartment. After she arrived, Iyonna fed her nine-year-old sister, Jon–Niece Jones. Jon–Niece¹ became ill after eating and fell over. When Iyonna picked her up, Jon–Niece made Iyonna promise she would not let her die. Jon–Niece then closed her eyes, and Iyonna carried her to bed.

In the early morning hours of the next day, Iyonna's and Jon–Niece's mother, Elisha Jones, woke Iyonna and instructed her to get a large garbage bag. Elisha took the garbage bag into Jon–Niece's room while Iyonna went back to sleep. The next morning, Iyonna found a note from Elisha—intended for Likisha—explaining that Jon–Niece had stopped breathing and that Elisha went to her Staten Island home to "tak[e] care of it."

In the meantime, Likisha called her brother, James Jones, telling him that there was a family emergency and instructing him to go immediately to the Manhattan apartment.

About two days later, Iyonna overheard a phone conversation between Likisha and Elisha, during which Elisha said "she was scared and didn't know what to do" because Jon–Niece was "dead at [her] apartment ... sitting in a bucket [and] bag, along with cement and gasoline," and Elisha was contemplating "burn[ing] the apartment down." Likisha told Elisha to hold off and that help was on the way to Elisha in Staten Island.

James and Iyonna's uncle, Godfrey Gibson, traveled to Elisha's home. Likisha left the Manhattan apartment but stressed she did not accompany the men to Staten Island. Upon their arrival, Elisha packed a plastic bin and...