Case Brief: State v. Figueroa

Superior Court of New Jersey, Appellate Division (2021)

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

Parties:               Plaintiff-Respondent: State of New Jersey
Defendant-Appellant: Andre Figueroa

Facts:                  Figueroa was spotted by a police officer emerging from between two houses late at night in a vacation town during winter.  Most people are away during winter and it was unusual to the police officer that defendant was out late at night between houses.  Officer followed Figueroa who was riding his bicycle on a sidewalk in violation of a local municipal ordinance.  Upon the violation of this ordinance officer Redmond attempted to stop defendant.  Defendant refused to comply and eventually fled on foot.  Officer Redmond called for backup which arrived in the presence of Officer Tardio.

Defendant fled into the rear of a restaurant and was finally apprehended by the officers.  Officers returned to the home defendant had emerged from and found a screen door cut and pulled open.  Officers entered and found two elderly occupants sleeping upstairs.  Victim noted to police that his black pants filled with rent money he had just collected was missing.

Retracing defendant’s steps officers found the black pants in the rear of the restaurant with some $2900 inside along with victims wallet and identification.

At trial the jury had a question “Could the defense have called Officer Tardio or any other officers at the scene to testify, or is it only permissible for the prosecution – or only possible for the prosecution?  The court consulted with counsel off the record, and subsequently responded to the question with the following instruction:

The simple answer to that question is, yes, defense could have called either Officer Tardio or any other witness. But if you remember with regards to the instructions that I gave you, the burden of proving each element of a charge beyond reasonable doubt rests upon the State and that burden never shifts to the defendant. The defendant in a criminal case has no obligation or duty to prove his innocence or to offer any proof relating to his innocence.

Defendant did not object to the court’s response to the jury question and subsequently found defendant guilty.  Defendant contends that the instruction resulted in an “improper Clawans charge” and shifted the burden of proof to the defendant.

Issue:                  #1. Should the court have issued a Clawans charge in response to the jury’s question?  Did the court’s answer improperly omit instructions that were essential to preserve defendant’s right to fair trial?

Holding:              No.

Rule:                    A Clawans adverse inference charge is appropriate when a party fails to call a witness at trial, allowing the jury to infer that the witness testimony would have been unfavorable to that party.  38 N.J. at 170-71.  Before giving a Clawans adverse inference charge the court must find:

(1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony of the witness might be expected to give;
(2) that the witness is available to that party both practically and physically;
(3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue; and
(4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven.
State v. Hill, 199 N.J. 545, 561-62 (2009 quoting, State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985).

Further, A party requesting a Clawans charge must make it clear to the judge and opposing counsel “at the close of his opponent’s case, of his intent to so request and demonstrating the names or classes of available persons not called and the reasons for the conclusion that they have superior knowledge of the facts.” Clawans, 38 N.J. at 172. This process allows the opposing party the option of calling the witness or demonstrating to the court the reason for the decision not to do so and the court can then determine whether an adverse inference charge is warranted. Id.

Additionally, the charge would not have been warranted in this case because the court determined that it could fairly glean from the record that Radio was not “peculiarly within the control or power” of the State.  Defendant was aware of the officer’s identity and could have subpoenaed him as a witness.  A witness who is available to both parties but was not called to testify “precludes the raising of an inference against either.” Id. at 171.

Reasoning:         Because Tardio’s identity was known to the defense, they had every opportunity to call him as a witness themselves.  Their failure to call him as a witness cannot be the basis of a Clawans charge.  That charge is for when the identity of a witness is unknown or known only to the opposing party.  Additionally the charge must be made at the closing of the opponent’s case, and the charge was never made.

Disposition:       Judgment affirmed.