STATE OF NEW JERSEY V. EMILIO RODRIQUEZ
Case Date: 03/15/1994
Docket No: SYLLABUS
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(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court.
Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
(NOTE: The Court wrote no full opinion in this case. Rather, the Court's affirmance of the
judgment of the Appellate Division is based substantially for the reasons expressed in the
written per curiam opinion below.)
Argued February 15, 1994 -- Decided March 15, 1994
PER CURIAM
On January 16, 1990, at about 6:25 p.m., sixty-two-year-old Anthony DePasque was kidnapped in
front of his driveway and forced into a car by three individuals. DePasque recognized the voice of Al
Politi, his ex-son-in-law, who was seated in the front passenger seat. DePasque also identified Emilio
Rodriquez as one of the other men. When the kidnappers arrived at their destination with DePasque,
Adam Christopher Mayo came downstairs from a second floor apartment. Rodriquez and Politi brought
DePasque upstairs where Politi demanded $150,000. Rodriquez also demanded money and threatened
to harm DePasque's family. DePasque was permitted to make several phone calls that were eventually
traced. The police arrived at the apartment in the early morning hours of January 17, 1990.
Rodriquez and Mayo were indicted, along with Politi, on charges relating to the kidnapping of
DePasque. A jury convicted Rodriquez and Politi of first-degree kidnapping; aggravated assault with a
weapon; terroristic threats; possession of a weapon for an unlawful purpose; and conspiracy to commit
kidnapping. Mayo was convicted of conspiracy to kidnap.
The trial judge denied Rodriquez's and Mayo's motions for a new trial. He merged Rodriquez's
conviction for conspiracy to commit kidnapping into the conviction for first degree kidnapping.
Rodriquez was sentenced to thirty years in prison, ten years without parole eligibility on the conviction
for first degree kidnapping. He also was sentenced to concurrent terms of six months for the conviction
of simple assault; eighteen months without parole eligibility for the conviction of aggravated assault with
a weapon; four years for terroristic threats; seven years, three years without parole eligibility, for the
conviction of possession of a weapon for an unlawful purpose. Mayo was sentenced to five years of
probation.
Rodriquez and Mayo appealed their convictions, which were consolidated before the Appellate
Division. That court considered all of the arguments raised by the defendants, concluded that they were
without merit, and affirmed Rodriquez's and Mayo's convictions.
The Appellate Division addressed the defendants' argument that they were entitled to a Wade
hearing before DePasque should have been permitted to identify them in court. Prior to trial, DePasque
had been shown photographic arrays of Rodriquez and Mayo. DePasque was unable to identify Mayo
positively, but narrowed his choice to two photographs which he thought might have been Mayo, one of
which actually was Mayo. Another six-photo array was presented which contained a picture of
Rodriquez. DePasque did pick out Rodriquez's photograph. These arrays were preserved for trial. The
trial court had denied defendants' request for a Wade hearing, finding that there was an inadequate
proffer of suggestiveness to warrant such a hearing. The Appellate Division agreed, finding that the
record adequately supported the judge's denial of the Wade hearing.
The Appellate Division also addressed Mayo's and Rodriquez's arguments concerning the failure to
preserve the record of the out-of-court identification and the failure to establish a chain of custody of the
photographs used in the array. The Appellate Division concluded that there was no bad faith shown by
the police, nor was there any prejudice to Rodriquez or Mayo. The detective's testimony that, to the
best of his recollection, the photographs were the ones used in the array was sufficient to undergird the
trial judge's finding. The Appellate Division also noted that there were independent grounds for
identification and, therefore, a Wade hearing was not required.
Mayo and Rodriquez also challenged the videotaping of the testimony of DePasque during trial as
violating their right of confrontation and cross-examination. The direct examination of DePasque had
been completed and the initial cross-examination had begun in court. Prior to the next day's
appearance, the prosecutor's office was informed that two individuals had gone to DePasque's house to
threaten him with bodily harm if he did not change his story. DePasque, frightened by the incident,
suffered a mild heart attack and was admitted to the hospital. The trial court delayed completion of
DePasque's cross-examination and permitted the continuation of the trial with the State's other
witnesses. After the State presented those witnesses, the judge heard arguments on whether to permit
videotaped testimony of DePasque in the event he remained hospitalized. The judge ruled that the
videotaped cross-examination would be allowed, noting the length of time the defendants had been
incarcerated (ten months), and a concern that DePasque may not be available to further testify in court.
The trial court found that there was no right of confrontation as far as the jury was concerned and that
the defendants' right of confrontation would be protected by their ability to confront the witness during
the videotaping. DePasque's cross-examination was completed on videotape with the judge, prosecutor,
defense attorneys, defendants and a court reporter present in the hospital. That videotape was played
for the jury a few days later.
The Appellate Division agreed that the confrontation clause does not mandate eye-to-eye contact
between the jury and the witness. Rather, that clause relates to a defendant's ability to confront
witnesses against him or her. The court found that clear public policy was furthered in allowing the trial
to proceed where a material witness could not testify in court, particularly in the circumstances of this
case where his testimony was interrupted by illness, possibly brought about by threat or fear, during the
course of the trial. Moreover, the Appellate Division found that the defendants were not prejudiced by
the judge's ruling to allow the State's other witnesses to testify before Mayo and Rodriquez had the
opportunity to cross-examine DePasque. The court reasoned that adjournments are matters entrusted
to the trial court's discretion and that there was no mistaken exercise of discretion here. The Appellate
Division found that the trial judge had given adequate reasons on the record why the trial should not be
delayed when he preliminarily ruled on the question. Moreover, the judge adequately instructed the jury
when the videotaped evidence was presented in court.
The Supreme Court Granted certification.
HELD: Judgment of the Appellate Division is AFFIRMED for the reasons expressed in the per curiam
opinion below. The defendants were not entitled to a Wade hearing concerning whether the
photographic array was impermissibly suggestive; and the videotaping of the victim-witnesses
cross- examination did not violate the defendants' right of confrontation.
JUSTICE O'HERN, dissenting, is of the view that the court rule that allows the videotaped
deposition of a material witness to be used at trial in order to "prevent manifest injustice" does not
contemplate the partial use of such testimony except in very rare circumstances. The splitting of the
testimony of a key State witness in a relatively short criminal trial creates, rather than prevents, manifest
injustice.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, HANDLER, POLLOCK, GARIBALDI and
STEIN join in this opinion. JUSTICE O'HERN filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EMILIO RODRIQUEZ,
Defendant-Appellant.
Argued February 15, 1994 -- Decided March 15, 1994
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
264 N.J. Super. 261 (1993).
Joan D. Van Pelt, Deputy Public Defender,
argued the cause for appellant (Susan L.
Reisner, Acting Public Defender, attorney;
Ms. Van Pelt and Katherine Lusby, Designated
Counsel, of counsel and on the brief).
Carol M. Henderson, Deputy Attorney General,
argued the cause for respondent (Deborah T.
Poritz, Attorney General of New Jersey,
attorney).
PER CURIAM
Chief Justice Wilentz and Justices Clifford, Handler,
Pollock, Garibaldi, and Stein join in this opinion. Justice
O'Hern has filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EMILIO RODRIQUEZ,
Defendant-Appellant.
O'HERN, J., dissenting.
I believe that Rule 3:13-2, which allows the videotaped deposition of a material witness to be used at trial in order to "prevent manifest injustice," does not contemplate the partial use of such deposition testimony (live direct examination; taped cross-examination) except in the rarest of circumstances. To permit such splitting of the testimony of a key state witness in a relatively short criminal trial creates, rather than prevents, manifest injustice.
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