                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1419-19T6

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

C.M.W.,

     Defendant-Respondent.
______________________________

                    Argued December 17, 2019 – Decided January 10, 2020

                    Before Judges Fisher, Gilson and Rose.

                    On appeal from an interlocutory order of the Superior
                    Court of New Jersey, Law Division, Ocean County,
                    Complaint No. W-2019-000965-1506.

                    William Kyle Meighan, Senior Assistant Prosecutor,
                    argued the cause for appellant (Bradley D. Billhimer,
                    Ocean County Prosecutor, attorney; Samuel J.
                    Marzarella, Chief Appellate Attorney, of counsel;
                    William Kyle Meighan, on the brief).

                    Francis Robert Hodgson, III, argued the cause for
                    respondent.

PER CURIAM
      We granted leave to consider the State's interlocutory appeal of an order

denying pretrial detention of a defendant charged with first-degree murder. We

conclude the trial judge abused his discretion in finding defendant rebutted the

presumption in favor of detention. Even if it could be said on this record that

the presumption was rebutted, the State provided clear and convincing evidence

that detention was required notwithstanding. Consequently, we reverse the

order under review.

      The record contains, as the judge found, "sufficient evidence to charge

defendant" and to conclude the presence of probable cause that defendant "is

responsible for stabbing the victim with a knife" in the early afternoon of

September 29, 2019. Late the following afternoon, defendant turned herself in,

in the company of her attorneys. She was charged with first-degree murder,

N.J.S.A. 2C:11-3(a)(1), third-degree unlawful possession of a weapon (a knife),

N.J.S.A. 2C:39-5(d), and third-degree possession of a weapon (a knife) for an

unlawful purpose, N.J.S.A. 2C:39-4(d).

      On October 1, 2019, the State moved for pretrial detention and, after a few

brief adjournments, the hearing commenced on October 17, 2019. When the

defense offered what the judge referred to as a "substantial submission" of

evidence, he provided the State with a one-day continuance to submit responsive


                                                                         A-1419-19T6
                                       2
evidence. After additional information was provided, the judge made rulings

about the admissibility of some of the evidence and then heard arguments on the

merits; no live testimony was taken. On November 1, 2019, the judge rendered

a written decision explaining his order releasing defendant on level three home

supervision without electronic monitoring.

      The judge granted the State's application for a stay pending disposition of

its motion for leave to appeal. We granted leave to appeal, continued the stay

pending our disposition of this appeal, and now reverse.

      Defendant, as noted, was charged with first-degree murder at the time of

her arrest. During the pendency of this interlocutory appeal, a grand jury

indicted defendant and charged her with first-degree murder and the weapons

offenses referred to above, as well as a number of hindering and tampering

charges.1   The probable cause finding on the murder charge, and now the

indictment, carry a rebuttable presumption in favor of detention because, in that

circumstance, the Legislature has assumed that

            no amount of monetary bail, non-monetary condition or
            combination of monetary bail and conditions would

1
  She was charged with: three counts of third-degree hindering apprehension,
N.J.S.A. 2C:29-3; third-degree conspiracy to hinder apprehension, N.J.S.A.
2C:29-3; N.J.S.A. 2C:5-2; fourth-degree tampering with evidence, N.J.S.A.
2C:28-6(1); and fourth-degree conspiracy to tamper with evidence, N.J.S.A.
2C:28-6(1); N.J.S.A. 2C:5-2.
                                                                         A-1419-19T6
                                       3
            reasonably assure the eligible defendant's appearance in
            court when required, the protection of the safety of any
            other person or the community, and that the eligible
            defendant will not obstruct or attempt to obstruct the
            criminal justice process[.]

            [N.J.S.A. 2A:162-19(b).]

This presumption, however, may be rebutted when a defendant is able to show

otherwise by a preponderance of the evidence. N.J.S.A. 2A:162-19(e)(2).

      At the detention hearing, the trial judge was presented with: videos

obtained from defendant's cellphone; pleadings and other documents revealing

a history of domestic violence between defendant and the victim; and recorded

interviews of defendant's brother and her eight-year-old daughter. From this

information, the judge determined that the victim was "the initial aggressor" and,

so, defendant possesses "a viable self-defense claim." In addition, the judge

found that whatever danger defendant may have posed to the victim, there is

now "little risk of danger as it pertains to any other person or the surrounding

community." The trial judge, thus, rejected the public safety assessment, in

which defendant scored a 3 (risk of failure to appear) and 4 (risk of new criminal

activity), and in which she was flagged for an elevated risk of new violent

criminal activity.




                                                                          A-1419-19T6
                                        4
      In considering the judge's ruling, we start with the premise that appellate

courts should not intervene in detention matters absent an abuse of discretion.

We must give appropriate deference to the judge's fact findings, even when they

are, as here, based "solely on video or documentary evidence" that we can view

and assess as well as the trial judge. State v. S.N., 231 N.J. 497, 514-15 (2018)

(quoting State v. S.S., 229 N.J. 360, 379 (2017)).        Notwithstanding this

deferential standard, we may intervene when the judge's decision lacks "factual

underpinnings and legal bases supporting [the] exercise of judicial discretion,"

or rests on: "an impermissible basis"; "irrelevant or inappropriate factors"; a

failure "to take into consideration all relevant factors"; "a clear error in

judgment"; or a misconception of the applicable law. S.N., 231 N.J. at 515

(quoting State v. C.W., 449 N.J. Super. 231, 255 (App. Div. 2017)).

      In making his ruling, the trial judge referred to the "long history of

domestic violence," detailing what some of the documentary evidence revealed:

               • On November 2, 2017, according to the judge's
                 description of a police report account, the victim
                 allegedly assaulted defendant by "grabbing [her]
                 by the back of her hair, dragging her across the
                 floor," "kick[ing] [her] legs several times and
                 punch[ing] [her] in the mouth with a closed fist."
                 When defendant attempted to call 9-1-1, the
                 victim was alleged to have taken her phone away.
                 Later that evening, defendant received a text
                 message from the victim that he had vandalized

                                                                         A-1419-19T6
                                       5
   her apartment and responding officers observed
   "Cop Bitch," "RAT," and "Bitch Cop Caller"
   spray painted on the apartment walls. The next
   day, the victim was alleged to have posted
   defendant's address on Instagram with a similar
   message. The victim's arrest for the alleged
   offenses committed over this two-day period did
   not occur until January 2018; the record does not
   reveal a reason for the delay.

• On February 10, 2018, a few weeks after the
  victim's arrest and release regarding the above,
  he was charged with violating a restraining order
  by returning to defendant's apartment and
  destroying household items.

• On March 27, 2018, the victim appeared at
  defendant's apartment and, according to the
  judge's findings, which were based on police
  reports, "yell[ed] profanities, got in [defendant's]
  face, and threw her shoes in the front yard."
  Defendant sought and obtained a domestic
  violence temporary restraining order and, based
  upon her assertions to a police officer that the
  victim "punched her multiple times in the area of
  her upper right shoulder with a closed fist," the
  officer signed a complaint warrant against the
  victim for simple assault.

• On April 10, 2018, officers were dispatched to
  defendant's home. At that time she alleged she
  was assaulted by the victim two weeks earlier.

• On June 20, 2018, after again being dispatched to
  defendant's apartment, police officers observed
  the victim walking away from defendant's
  vehicle; the four tires had been slashed. The
  victim was arrested for criminal mischief and

                                                         A-1419-19T6
                        6
                  harassment. There was also an allegation that he
                  previously broke a window in defendant's
                  apartment.

While the judge found these domestic violence allegations go "directly to the

defendant's character and mental state," it is noteworthy that the last of these

events occurred fifteen months before the victim was fatally stabbed.

      On the other hand, the State offered evidence of a domestic violence

incident in May 2019 – a few months before the alleged murder – in which

defendant was the aggressor. The victim alleged that defendant sent him twenty-

five text messages, including messages such as: "I am going to make you hate

me. I am going to make your life a living hell. Watch this shit. Go play with

somebody else. You are being calling crying. You and your mother. I get you

locked up." The victim filed a complaint; undeterred, defendant responded to

him with the following message: "I love when you act tough and disrespectful

and shit so I can humble your ass." At the time he filed his complaint, the victim

told police officers that defendant is emotionally unstable and has bipolar mental

illness.   On June 7, 2019, the victim obtained a domestic violence final

restraining order against defendant; he dismissed it twelve days later.

      As noted, the judge found this history "goes directly to the defendant's

character and mental state." Although the judge wasn't more specific about this


                                                                          A-1419-19T6
                                        7
determination, we assume he interpreted this history as supporting defendant's

self-defense claim even though the last of defendant's domestic violence

allegations against the victim occurred more than a year prior to the fatal

stabbing. The judge offered no view as to the significance of defendant's far

more recent domestic violence directed toward the victim; his opinion suggests

he was unimpressed by defendant's more recent act of domestic violence because

the victim later obtained a dismissal of the FRO. In fact, all the allegations

brought against the victim by defendant had also been dismissed , apparently

prior to any adjudication. And the judge made no finding about a letter found

by police when searching defendant's car after the alleged murder. In that "to

whom it may concern" letter, dated April 11, 2019, defendant acknowledged she

had "exaggerated the details" of certain earlier allegations out of anger.

      Other than his interpretation of the prior allegations of domestic violence,

the judge relied on a series of videos extracted from defendant's phone, which

the judge described in the following way:

            Throughout the video the defendant repeatedly asks the
            victim to leave the home. The victim repeatedly refuses
            to leave stating he has a right to be there. The argument
            continues to escalate as defendant instructs her
            daughter [who was in another room] to lock her door.
            Both victim and defendant continue to yell, at which
            point, the defendant walks into the kitchen and states:
            "Now I have to defend myself." A drawer is opened off

                                                                             A-1419-19T6
                                        8
            screen and then closed. It is not apparent from the
            video if anything was taken out of the drawer. [2] [The
            victim] states: "I'll be in jail? I hit you right? That's
            what I did, I hit you? Now I am going to hit you." A
            loud thud is heard and the video abruptly ends. A strike
            does not appear on screen . . . .

      After this description, the judge then drew certain inferences from what

was seen and heard. The judge recognized that "[a] strike does not appear on

screen," but he concluded

            from [the victim's] statements, the loud thud, the
            sudden stop of the video, and the mugshot taken at the
            time of [defendant's] arrest depicting swelling on [her]
            face, that [the victim] struck [defendant] prior to the
            stabbing.

The assumption that these videos demonstrate that defendant fatally stabbed the

victim while acting in self-defense requires a leap of faith.       In fact, that

assumption seems belied by what the nine clips plainly reveal.




2
  Although it is true that defendant went into the kitchen and opened and closed
a drawer, stating "[n]ow I have to defend myself," the preceding argument did
not reveal that the victim was any more aggressive than defendant in their verbal
argument. If anything, a reasonable viewer of the videos could conclude that
defendant was more aggressive during the verbal argument; for example, she
appeared to have spat on the victim a couple of times. The judge did not find
one way or the other as to whether defendant – when she opened the drawer –
had any reason to conclude that she was required to defend herself or arm
herself.


                                                                         A-1419-19T6
                                       9
      The video clip described by the judge in the quote above is two minutes

and thirteen seconds in duration. It is true, as the judge determined, that the clip

does end in a thud (in the final second or two) and that the victim made the

statements the judge attributed to him in the few seconds before that (at 2:07 to

2:13).3 We defer to those findings. But the judge did not describe the entire

video clip and, thus, we need not defer to findings not rendered.

      For most of the eighth clip, the verbal argument continues; the participants

never raised their voices. For most of the clip, defendant would seem to be

seated, as – to her right – the victim compiles his belongings in plastic bags and

containers. About twenty to twenty-five seconds before "the thud" (at the 1:45

mark), the victim crosses in front of defendant, as he reaches into the kitchen to

her left for a broom and dustpan, which he then uses (from then until about 2:05)

to sweep up some material on the floor where he had previously been sitting.

During these moments, the victim says something, which we cannot make out,

that causes defendant to laugh. As the victim walks back (at about 2:05) to the

kitchen with the broom in his right hand and the dustpan in his left, he makes

the statements attributed to him about hitting her. See n.5, above. For about



3
 The judge found that the victim said, "I'll be in jail? I hit you right? That's
what I did, I hit you? Now I am going to hit you."
                                                                            A-1419-19T6
                                        10
five seconds before "the thud," as he makes those statements, the victim cannot

be seen. In the clip's final one or two seconds, "the thud" occurs as only

defendant's left arm and hand, still holding the dustpan, can be seen. It is not

inconceivable from what is seen and heard that the victim hit defendant with the

broom he had been holding seconds earlier in his right hand.

      The trial judge's analysis of these clips requires our deference to the extent

it is based on what is revealed by the clips. The assumption the judge draws

from these clips is that defendant acted in self-defense in response to whatever

produced "the thud." But this assumption is belied by what else is revealed by

the collection of clips. The metadata contained in the exhibit demonstrates that

the clip containing "the thud" was not the last of the nine clips taken from

defendant's phone. It was the eighth. The ninth clip, which is only two seconds

long, was captured approximately two minutes after "the thud." Brief as it is, it

captures the voices of both. Defendant appears to say, in a normal tone of voice,

"all right," the victim then says something not clear to us, and defendant says,

still in a normal tone, "all right now you will –," at which point the clip ends.

While, in this ninth clip, the victim is again walking from defendant's right to

her left (he's no longer holding a broom in one hand and a dustpan in the other;




                                                                            A-1419-19T6
                                       11
instead, he's holding something small (perhaps a cell phone) in his left hand and

a bottle of water in his right), and defendant is still seated.

      Although this ninth clip – that did not factor into the judge's findings –

appears insignificant because of its duration, we find it highly important in

assessing the viability of defendant's self-defense theory.        As the judge

accurately observed, the sense of all the clips is that defendant and the victim

were engaged in a verbal argument. The cause of the thud heard when the eighth

clip ends is unclear but, giving the judge deference even though we're able to

view the same clips he viewed, see S.N., 231 N.J. at 514-15, we are required to

assume, as the judge found, that the victim somehow struck defendant. We are

not, however, required to defer to the judge's ultimate conclusions derived from

the factual record when it seems clear the judge did not consider all evidence

relevant to the critical issue on which pretrial release was based or did not

appreciate the significance of other evidence. Ibid.

      There is nothing in the judge's opinion to suggest that he considered the

metadata contained within the clips, which would have strongly suggested that

whatever caused "the thud" did not likely cause her to act in self-defense. A fair

reading of the judge's opinion would suggest that he was of a view that there

was substance to a contention that the stabbing was a near immediate reaction


                                                                          A-1419-19T6
                                        12
to whatever caused "the thud." But the ninth clip, even though only two seconds

long, shows that after "the thud" the parties were still engaged in the verbal

argument, that defendant is still seated, the victim is still walking about, and

both are speaking in normal, unheated tones. To conclude that there was a sound

basis for assuming defendant acted in self-defense as a reaction to having been

struck, as suggested by the trial judge's findings, we would have to ignore the

ninth clip.

      Even if we could agree that defendant's factual submission suggested a

viable theory of self-defense, defendant was still required to overcome the

presumption of pretrial detention by showing, by a preponderance of the

evidence, that there is no serious risk that: she will not appear in court as

required; poses a danger to any other person or the community; or may obstruct

or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to

threaten, injure, or intimidate, a prospective witness or juror.

      As to these concerns, the pretrial assessment revealed that defendant, who

is twenty-seven years old, has already failed to appear in other criminal

proceedings eleven times. She has, as the judge recognized, "one prior violent

conviction." As the judge found, defendant had in the past "hindered her own

apprehension, provided false reports to law enforcement, and resisted arrest."


                                                                         A-1419-19T6
                                       13
And the judge recognized that defendant, as a juvenile, "assaulted a DCPP

caseworker." She was also "flagged" as having "an elevated risk of new violent

criminal activity." All of this was given little or no weight by the judge; he

explained:

             All the defendant's prior failures to appear result from
             a period of time, in which, the defendant was involved
             in a criminal enterprise. The defendant ple[ade]d guilty
             to the charges and agreed to testify on behalf [of] the
             State. The defendant took substantial steps to rectify
             her past wrong doings and assumed the risks that
             accompanied her previously mentioned actions. In
             doing so the defendant has displayed a willingness to
             comply with law enforcement and the court system as a
             whole.

Although it appears that defendant pleaded guilty and testified for the State in

an earlier criminal prosecution, there is nothing else in the record that would

support the judge's assertion that defendant "took substantial steps to rectify her

past wrongdoings." Indeed, the steps defendant took after fatally stabbing the

victim counter any such suggestion.

      Defendant makes much of the fact that she drove the victim to the hospital.

But she did not stay. She left before the police arrived and then began attempting




                                                                           A-1419-19T6
                                       14
to cover up what had occurred by cleaning her home 4 (or engaging others to

assist in that regard 5), disposing of her phone, and being unavailable to police

for more than twenty-four hours.

      The judge also concluded that defendant is not a flight risk because she is

a "lifelong resident of New Jersey." He noted that defendant obtained a degree

"to become a medical assistant" and that defendant "believes she can gain

employment because of her degree." He did not find that defendant was actually

employed.

      The evidence amassed reveals significant concerns about defendant's

appearance in court when required, the protection of the safety of any other

person or the community, and the potential for obstruction or further attempts to

obstruct justice. As for the first of these, defendant's eleven failures to appear

in the past, her failure to await the police arrival at the hospital, and her elusive



4
   Defendant's daughter told police that defendant called a friend and asked
whether "she should get rid" of the bloody clothes she was wearing at the time
of the stabbing. The daughter also recounted that her mother cleaned the
residence with bleach, and later drove her vehicle to a vegetable stand near the
woods. From there, defendant used Uber to get around. The child also said that
defendant stated "it's all her fault" and that "she knew what she did and wanted
to do it." The child later recounted her statement.
5
  A friend of defendant's told police that she called him that day and asked for
help in cleaning up the scene.
                                                                             A-1419-19T6
                                        15
conduct after the stabbing, present grave concerns about the likelihood of

defendant appearing in court when required. On the second aspect, the judge

appeared to believe that because defendant's alleged violent tendencies were

directed at the victim – and he's now dead – there's no likelihood that defendant

poses a risk to others. Even if this were a logical finding based on the materials

presented, it disregards defendant's prior record. And the likelihood of an

attempt to obstruct seems apparent from defendant's post-stabbing conduct.

      Whether we view the evidence from the standpoint of whether defendant

overcame the presumption of detention or, if the presumption was overcome,

from the standpoint of whether the State clearly and convincingly demonstrated

a need for detention, we conclude that the judge abused his discretion in denying

the State's motion for pretrial detention.

      Reversed. Defendant shall be detained pretrial with the rights accorded

under the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26.




                                                                          A-1419-19T6
                                       16
