State v. Williams

LONG, J.,

Dissenting.

The majority has essentially applied the rule we enunciated in State v. Garron, 177 N.J. 147, 171-72 , 827 A.2d 243 (2003) — that where evidence is relevant and necessary to the defense of a criminal case, and cannot be otherwise obtained, it will not be shielded by a privilege. That is the proper paradigm for this case.

However, I disagree with the Court’s conclusions regarding the “need” for the mediator’s testimony and whether it was “otherwise available” within the meaning of N.J.S.A. 2A:23C-6(b). Obviously, those are fact-sensitive conclusions. However, the facts in this case do not support them. This case was a pitched credibility battle over whether defendant acted in self-defense when confronted by Bocoum, wielding a shovel against him. Defendant testified that Bocoum had a shovel. Bocoum testified that he did not. All of the other witnesses were partisans of defendant or Bocoum, related by blood or marriage. Renee Oliver, Bocoum’s wife, and her brother, Robert Eckford, supported Bocoum’s position that he never picked up or swung a shovel at defendant. Kia *455 Williams, defendant’s wife and the sister of Renee and Robert, testified that Robert admitted to her on more than one occasion that Bocoum did wield a shovel and that he had lied in his testimony.

Defendant, the most interested of all witnesses, testified that Bocoum admitted during mediation that he had a shovel. If Bocoum made that admission, it was in direct conflict with his trial testimony and dramatically undercut his credibility on the fundamental issue in the case: self-defense. I disagree with the majority’s conclusion that defense evidence on the subject obviated the need for the mediator’s testimony.

The mediator’s position as the only objective witness placed him in an entirely distinct role from the other witnesses in the case. See Model Jury Charge (Criminal), “Credibility of Witnesses,” (2002) (stating jury, “in determining whether a witness is ... credible,” “may take into consideration ... the possible bias, if any, in favor of the side for whom the witness testified”). The evidence that the mediator could have given was therefore different in kind from that of defendant. See Corkery v. Central R.R. of New Jersey, 43 A. 655, 655 (N.J.Sup.Ct.1899) (holding evidence “of a different kind and character” to be “not cumulative”); Van Riper v. Dundee Mfg. Co., 33 N.J.L. 152, 156 (Sup.Ct.1868) (defining cumulative evidence as “additional evidence to support the same point, and which is of the same character as evidence already produced”) (internal citations and quotation marks omitted). Because the mediator was the only witness without a proverbial “ax to grind,” his testimony was not “otherwise available,” nor was it cumulative. Indeed, it could have turned the tide in this very close case. Therefore, it was essential both to the defense of the criminal charges against defendant and to the very fairness of the trial. That was a sufficient basis on which to breach the mediator’s privilege.

Finally, I believe that this Court overstepped its bounds in declaring that the mediator’s testimony “does not exhibit the indicia of reliability and trustworthiness demanded of competent *456 evidence.” 1 In support of its conclusion, the majority has excerpted portions of the mediator’s testimony that, to me, do not fully reflect the entire colloquy. The complete transcript of the mediator’s testimony leaves a different impression than those excerpts:

Mediator: They were talking about the fight that they has. Carl [Williams] says that they went into a fight and they come together and he picked up the next gentleman and he threw him and they fell into a garbage bin, okay? He says — and I ask him did you use a weapon and he says no.

The other fellow says that it was a fight and there was a shovel at the door and he picked up the shovel and — but he didn’t make any hit with it. The wife says that she threw her shoes at Carl.

They started to raise their voices. I says you know what? My part of this court is, if I started to ask questions, only one person at a time. And both of them start. I says okay, listen, let me — case closed. And I send it back to the judge. Trial Judge: So you weren’t able to get an account given by any one of them sitting down talking without other people talking at the same time?

Mediator: Both of them was talking at the same time. One is saying I picked you up and threw you; the other one said there was a shovel I picked up the shovel And they were talking, going on. I says let the case close, send it back for trial. Because I’m only there to settle the cases.

If I get settled, then I wrote it up, wrote a statement up, and I signed it; then both parties sign it and the judge signs it. They both get a copy and they go home, settled. If I doesn’t settle it, then I send it back.

Trial Judge: Did you have any contact with any of them between the time you mediated it and last Friday?

Mediator: No. I don’t even know the people here, if I saw them right now, the people might come in, I wouldn’t even know them, ’cause I only — Carl, I met him the first time in court.

Trial Judge: Then you didn’t see him again until last Friday?

Mediator: To be frank, I saw him before Friday, but we didn’t have no contact with nothing like this case.

Trial Judge: Oh. Well are you able to remember today who said that the one fellow had a shovel whether Carl said he had a shovel or the guy said— Mediator: The guy says he has a shovel he picked up the shovel it was some place at the door.

Trial Judge: It wasn’t Carl that said the guy picked up the shovel?

Mediator: No. The next guy — I don’t know his name; I don’t remember his name — he said he’s the one that picked up the shovel. It seemed like he picked *457 up — to my understanding, the little knowledge that I have — he picked up the shovel, but he didn’t say he hit Carl with it or nothing. And they both started to wrestle.

[Emphasis added.]

There is nothing unclear about that testimony. Plainly, Bocoum admitted, in the mediator’s presence, to wielding a shovel. That, in turn, rendered the mediator’s testimony “relevant and necessary” to the defense. Any further concerns over the mediator’s quality as a witness (e.g., ability to recollect or bias) went to the weight to be accorded to his testimony by the jury, not its admissibility. For all those reasons, I dissent.

Justice ALBIN joins in this opinion.

For affirmance — Chief Justice PORITZ and Justices LaVECCHIA, ZAZZALI, WALLACE and RIVERA-SOTO — 5.

For reversal and remandment — Justices LONG and ALBIN— 2.

Although the trial judge expressed some reservations about the mediator's proposed testimony, he specifically declined to rule on that basis.