In the past two days, the Appellate Division has issued two precedential decisions in criminal cases which turned on issues of statutory construction. One concerned the marital privilege statute, and the other concerned the vehicular homicide statute. Both ruled in favor of the defendants.
In the marital privilege case, the Appellate Division addressed, as an issue of “first impression,” whether “the term ‘child’ in the spousal privilege exception means an unemancipated child.” State v. Horne, ___ N.J. Super. ___, 2020 WL 1683172 (App. Div. Apr. 7, 2020). The defendant was charged with assaulting his 27-year-old stepson, and the State moved pretrial to compel the trial testimony of the defendant’s wife, who was also the stepson’s mother. Id. at *1. The trial court denied the motion, and the Appellate Division granted the State’s motion for leave to appeal but ultimately affirmed the motion’s denial by concluding that the term “child,” as used in the statute and rule bespeaking the spousal privilege exception, means an “unemancipated child,” not an “emancipated adult” who is also the son or daughter of the defendant. Id.at *2.
As codified in both N.J.S.A. 2A:84A-17(2) and N.J.R.E. 501(2), the spousal privilege provides, in pertinent part, that the “spouse … of the accused in a criminal action shall not testify in such action except to prove the fact of marriage … unless … the accused is charged with an offense against … a child of the accused or of the spouse …, or a child to whom the accused or the spouse … stands in the place of the parent ….” Id. at *1 (quoting statute). On appeal, the State argued that the “plain language of the statute and rule are clear and unambiguous: the ‘spousal privilege’ does not apply when the accused is charged with offenses against a child of the spouse,” regardless of whether that child is an unemancipated child or an emancipated adult. Id.
The Appellate Division disagreed and affirmed the denial of the State’s motion to compel the wife’s testimony about her husband’s alleged assault of their adult stepson. Focusing on the statute’s reference to “a child to whom the accused or the spouse … stands in the place of a parent,” the court found that “[s]omeone stands in the place of a parent to an unemancipated child, not an emancipated adult.” Id. at *2. The court then found that this meaning of the term “child” must also govern the statute’s prior reference to “a child of the accused or of the spouse” because “[t]he meaning of child must have the same meaning in both portions of the same section of the same statute.” Id. at *3. The court reached this conclusion even though the two statutory phrases are separated by the disjunctive term “or” and only the second phrase qualifies the term “child” with “to whom the accused or the spouse … stands in the place of a parent.” Id. at *1. The court added that “[t]he purpose of the exception is to protect children, even at the expense of marital harmony, by requiring parents to testify truthfully when called by the State in those instances where a dependent child is the victim,” but it cited for that proposition just a 1975 federal decision from the Eighth Circuit Court of Appeals. Id. at *2. (citation omitted).
In the vehicular homicide case, the defendant pled guilty under a plea agreement requiring a sentence of probation, with the State free to seek 364 days of county jail time as a condition of probation and the defendant free to seek noncustodial probation. State v. Pascucci, ___ N.J. Super. ___, 2020 WL 1670775 (App. Div. Apr. 6, 2020). At sentencing, the defendant admitted that he had driven drunk when he struck the victim pedestrian but argued that mitigating factor five, N.J.S.A. 2C:44-1b(5) (the victim of defendant’s conduct induced or facilitated its commission), should apply because a witness had claimed that the victim walked off a grassy median into the defendant’s traffic lane and the defendant hit her at full speed and without ever seeing her. Id. at *4. The sentencing judge disagreed, finding that the vehicular homicide statute, N.J.S.A. 2C:11-5.3d, precluded application of that mitigating factor in all cases by providing that “[i]t shall not be a defense to a prosecution under this section that the decedent contributed to his own death by reckless or negligent conduct ….” Id. Believing that “he was legally precluded from considering this evidence [of the victim’s conduct] in determining whether defendant was entitled to assert mitigating factor five,” the sentencing judge imposed 364 days of county jail time. Id. at *5.
The Appellate Division disagreed with the sentencing judge’s construction of the vehicular homicide statute. The court concluded that “[a] plain reading of the text in N.J.S.A. 2C:11-5.3d shows the Legislature intended to preclude a defendant from presenting evidence of the victim’s conduct as an affirmative defense in the prosecution of this offense,” not in support of mitigating factors at sentencing. Id. at *4. Because “[t]he judge erroneously construed the language in N.J.S.A. 2C:11-5.3d to preclude him from considering whether the victim’s conduct induced or facilitated her own death, as provided in mitigating factor” five, the court reversed the sentence and remanded for resentencing. Id.
In sum, two precedential Appellate Division decisions in two days turned on issues of statutory construction in criminal cases, and both decisions ruled in favor of the defendants.