                       RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-0545-16T4

STATE OF NEW JERSEY,

     Plaintiff-Appellant,
                                      APPROVED FOR PUBLICATION
v.
                                            June 9, 2017

BARTHOLOMEW P. MCINERNEY,                APPELLATE DIVISION

     Defendant-Respondent.


         Argued February 1, 2017 – Decided June 9, 2017

         Before Judges Alvarez, Accurso, and Manahan.

         On appeal from the Superior Court of New
         Jersey, Law Division, Middlesex County,
         Indictment No. 08-10-2334.

         Monica do Outeiro, Assistant Prosecutor,
         argued the cause for appellant (Christopher
         J. Gramiccioni, Monmouth County Prosecutor,
         attorney; Ms. do Outeiro, of counsel and on
         the brief).

         Edward C. Bertucio argued the cause for
         respondent (Hobbie, Corrigan & Bertucio,
         P.C., attorneys; Mr. Bertucio, of counsel
         and on the brief; Elyse S. Schindel, on the
         brief).

     The opinion of the court was delivered by

ALVAREZ, P.J.A.D.
       Defendant    Bartholomew    McInerney,     a   former   high    school

baseball coach, was convicted by a jury of ten counts of second-

degree endangering the welfare of a child, N.J.S.A. 2C:24-4.

State v. McInerney, 428 N.J. Super. 432, 434 (App. Div. 2012),

certif. denied, 214 N.J. 175 (2013).           The convictions were later

reversed because of error in the jury instructions.             Id. at 444-

50.

       On the eve of the retrial, the State was granted leave to

appeal the Law Division judge's September 27, 2016 ruling that

would have allowed defendant to introduce as evidence his own

testimony from the previous trial.              The judge's decision was

based on his conclusion that defendant's election not to testify

made him an unavailable witness within the meaning of N.J.R.E.

804(a)(1), an exception to the hearsay rule.                We disagree and

now reverse.

       Before the retrial, the State had disclosed its intention

to    introduce    defendant's   prior   testimony    during   its    case-in-

chief, subject to some redactions.            The judge ordered that both

sides could introduce portions of defendant's testimony.                  When

the    State   subsequently   advised    it   would   not   proffer    any   of

defendant's prior testimony, it also sought to have the judge

bar defendant from doing so.       The judge refused.




                                     2                                A-0545-16T4
    The     judge     viewed    defendant's       exercise   of   his      Fifth

Amendment right to remain silent as the exercise of a privilege

recognized by N.J.R.E. 804(a)(1).             "[T]he ground of privilege"

may render a witness unavailable, thereby making the witness's

prior     testimony    admissible.          See   N.J.R.E.    804(a)(1)       and

804(b)(1)(A).        Thus the judge relied upon the language of the

rule in addition to his reading of State v. Wilson, 57 N.J. 39

(1970), and State v. Farquharson, 321 N.J. Super. 117 (App.

Div.), certif. denied, 162 N.J. 129 (1999).

                                       I.

    We review evidentiary rulings deferentially, employing an

abuse of discretion standard.          State ex rel. A.B., 219 N.J. 542,

554 (2014).     Such rulings are upheld unless "there has been a

clear error of judgment."         State v. J.A.C., 210 N.J. 281, 295

(2012).    We do not substitute our judgment for that of the trial

court unless the evidentiary ruling "was so wide of the mark

that a manifest denial of justice resulted."                 State v. Perry,

225 N.J. 222, 232 (2016) (quoting State v. Kelly, 97 N.J. 178

(1984)).       The     ruling   must    be    consistent,     however,       with

applicable law.       State v. Belliard, 415 N.J. Super. 51, 87 (App.

Div. 2010), certif. denied, 205 N.J. 81 (2011).




                                       3                                A-0545-16T4
                                              II.

       The State argues that a defendant who exercises his Fifth

Amendment privilege while simultaneously being the proponent of

the   evidence,     that     evidence         being        his   own   prior     testimony,

cannot rely on N.J.R.E. 804(a)(1)'s unavailability exception to

the hearsay rule.           Defendant responds that the prior testimony

is not even hearsay because it is literally "not an out-of-court

statement,"      but    rather,       "previous       in[-]court         trial    testimony

that was made under oath and subject to full cross-examination."

       The rule defines "unavailability," and enumerates the types

of hearsay statements that may be admissible when the declarant

is unavailable.          N.J.R.E. 804.              Included in the definition of

"unavailable" is a declarant who "is exempted by ruling of the

court on the ground of privilege from testifying concerning the

subject matter of the statement."                      N.J.R.E. 804(a)(1).             Among

the   categories       of   statements         that    "are      not    excluded    by   the

hearsay rule if the declarant is unavailable as a witness"                                 is

"[t]estimony given by a witness at a prior trial of the same or

a    different     matter,      .    .   .    if     the    party      against    whom   the

testimony is now offered had an opportunity and similar motive

in    the   prior      trial,       hearing    or     proceeding        to   develop     the

testimony     by    examination          or        cross-examination."             N.J.R.E.

804(b)(1)(A).




                                               4                                   A-0545-16T4
      The     State's       argument   rests      on   Rule     804(a)'s    preliminary

paragraph,       which        carves        out     from       the      definition      of

"unavailable," those declarants whose "unavailability has been

procured or wrongfully caused by the proponent of declarant's

statement for the purpose of preventing declarant from attending

or testifying."         N.J.R.E. 804(a).           We believe that a defendant's

invocation of his right not to testify falls squarely within the

parameters of this exception.                    A declarant is not unavailable

when he is asserting his own Fifth Amendment privilege.

      In 1993, New Jersey's Rules of Evidence expanded to include

the     exercise       of     a     privilege      within       the     definition     of

"unavailable."          See       Biunno,   Weissbard      &    Zegas,    Current     N.J.

Rules    of    Evidence,       1991    Supreme     Court       Committee    Comment    on

N.J.R.E. 804(a) (2016); N.J.S.A. 2A:84A Appendix A.1                        But nothing

in the amendment conferred upon a criminal defendant the ability

to introduce his own prior testimony by invoking his right to

remain silent at a subsequent trial.

      To the contrary, the current definition of "unavailable" in

N.J.R.E.      804(a)        excludes    witnesses       whose        unavailability     is

caused by the proponent of the statement, as did the definition


1
  By order of Chief Justice Robert N. Wilentz, dated September
15, 1992, the recommendations of the 1991 Supreme Court
Committee on the Rules of Evidence were adopted to be effective
July 1, 1993. N.J.S.A. 2A:84A Appendix A.



                                             5                                 A-0545-16T4
in the 1967 Rules of Evidence.                   The earlier Evidence Rule 62(6)

limited the definition of an "Unavailable witness" as follows:

"A witness is not unavailable when the condition was brought

about by the procurement, wrongdoing or culpable neglect of the

party    offering     his     statement."            Thus,    when     the      proponent

procured the witness's unavailability, the hearsay statement was

nonetheless inadmissible.

     Although New Jersey has no published case regarding whether

the invocation of the right to remain silent makes a defendant

unavailable     for   purposes        of    N.J.R.E.    804(a),       numerous      other

jurisdictions       with    similar      hearsay     rules    have    considered       the

issue and concluded that it does not.                    Unsurprisingly, Federal

Rule of Evidence 804(a), in language like our                            N.J.R.E. 804,

limits   the    criteria      for     witness       unavailability         as    follows:

"this    subdivision        (a)     does     not    apply     if     the     statement's

proponent      procured       or     wrongfully        caused      the       declarant's

unavailability as a witness in order to prevent the declarant

from attending or testifying."2

     The    federal        courts     have       consistently      interpreted       this

provision      as   preventing       a     defendant    who     invokes       his   Fifth

2
  Prior to 2011, this sentence read:        "A declarant is not
unavailable as a witness if exemption, refusal, claim of lack of
memory, inability, or absence is due to the procurement or
wrongdoing of the proponent of a statement for the purpose of
preventing the witness from attending or testifying."



                                             6                                   A-0545-16T4
Amendment right against self-incrimination from offering his own

testimony from a previous trial as part of his defense.                             A

criminal    defendant   who   invokes     his     Fifth       Amendment   privilege

renders himself unavailable to any other party and leaves others

powerless to compel his testimony.           United States v. Bollin, 264

F.3d 391, 413 (4th Cir.), cert. denied, 534 U.S. 935, 122 S. Ct.

303, 151 L. Ed. 2d 225 (2001); United States v. Peterson, 100

F.3d 7, 13 (2d Cir. 1996).       Although a defendant who has invoked

that privilege is unavailable to any other party, he is not

unavailable to himself.        Peterson, supra, 100 F.3d at 13.                   Nor

can   the   proponent   who   seeks     to      admit     a    declarant's      prior

testimony    "create    the   condition      of    unavailability         and   then

benefit therefrom."      United States v. Kimball, 15 F.3d 54, 55-56

(5th Cir.), cert. denied, 513 U.S. 999, 115 S. Ct. 507, 130 L.

Ed. 2d 415 (1994).

      The rule "was designed to ensure one access to testimony

where, by the actions of the opponent, or at least through no

fault of the testimony's proponent, a desired witness becomes

unavailable."    Id. at 56.      It is not intended to be used by a

party who creates his own unavailability through the invocation

of his privilege against self-incrimination.                     Ibid.    In other

words, the obligation to protect a defendant's invocation of his

Fifth Amendment rights cannot overwhelm the "basic rule of our




                                      7                                    A-0545-16T4
adversary system" that a defendant who seeks to testify and

offer exculpatory statements must face cross-examination.                        Ibid.

    The concerns of the federal courts are echoed by state

courts that have considered the issue.                     For example, the Texas

hearsay   rules        incorporate       an   exception     to   the   definition   of

"unavailable" that contains language similar to the New Jersey

rules.    See Tex. R. Crim. Evid. 804(a) (stating that a declarant

is not unavailable as a witness if "the statement's proponent

procured or wrongfully caused the declarant's unavailability as

a witness in order to prevent the declarant from attending or

testifying.").

    Affirming a trial court's denial of a defendant's proffer

of his own testimony from a pretrial hearing at his plenary

trial,    the    Texas      Court   of    Criminal       Appeals   explained:       "By

invoking his Fifth Amendment privilege, appellant procured this

exemption for the purpose of preventing himself from testifying

as a witness.           And appellant was the proponent of his prior

testimony.        Therefore, under the plain language of the rule,

appellant was not unavailable."                   Davis v. Texas, 961 S.W.2d 156,

156-57 (Tex. Crim. App. 1998) (applying similar language from

the previous version of the rule); see also Castro v. Texas, 914

S.W.2d 159, 163 (Tex. App. 1995) (holding that the defendant's

testimony       from    a   prior   trial         was   inadmissible   hearsay    when




                                              8                              A-0545-16T4
offered by the defendant who invoked his right not to testify at

the trial; a court is not required to permit a defendant "to

offer self-serving evidence to the jury without facing cross-

examination by the State.").

     Massachusetts        and     New    York     have      reached     the   same

conclusion.    See Massachusetts v. Labelle, 856 N.E.2d 876, 878

(Mass. App. Ct.), review denied, 859 N.E.2d 432 (Mass. 2006)

("The defendant, having made himself 'unavailable' at trial by

invoking his privilege under the Fifth Amendment to the United

States Constitution against self-incrimination, could not claim

his prior testimony was excepted from the hearsay rule."); New

York v. Sibadan, 671 N.Y.S.2d 1, 7 (N.Y. App. Div.), appeal

denied, 699 N.E.2d 451 (N.Y. 1998) ("[A] criminal defendant may

not create his unavailability by invoking his privilege against

self-incrimination,       and     then    seek   to   benefit     therefrom      by

introducing   his   own    prior    hearsay      statements    not     subject   to

cross-examination.").

     Similarly, the Virginia Court of Appeals has held that a

criminal defendant who invokes his right not to testify at trial

is   not   unavailable     for     purposes      of   the    statement-against-

interest exception.        Bailey v. Virginia, 749 S.E.2d 544, 548

(Va. Ct. App. 2013).            The defendant in Bailey was barred from

introducing   his   girlfriend's         testimony    regarding       self-serving




                                         9                                A-0545-16T4
statements he had made to her supporting his theory of the case,

which was that he had not robbed the victim but only taken money

the victim owed him during a drug deal.          Id. at 546-49.          The

court   refused   to   "interpret    the   hearsay   rule   to   allow    a

defendant to invoke his Fifth Amendment right not to testify as

a shield to protect and insulate him against cross-examination

only to simultaneously employ that right as a sword to obtain

the admission of his alleged extrajudicial prior self-serving

hearsay statements."    Id. at 548.

                                    III.

    The only published New Jersey case that touches upon a

defendant's use of his prior testimony at a retrial, albeit

decided under the former Rules of Evidence, is State v. Pacheco,

106 N.J. Super. 173, 176-77 (App. Div.), aff'd, 54 N.J. 579

(1969), cert. denied, 400 U.S. 834, 91 S. Ct. 68, 27 L. Ed. 2d

65 (1970).    The case does not support the admission of this

defendant's prior testimony.

    In Pacheco, the otherwise-competent defendant claimed he

had lost all memory regarding the crime as a result of electro-

shock therapy administered in the interim between the first and

second trials.    Id. at 176.        His "principal ground of appeal"

was that his total lack of recall made it impossible for him to

"prepare a defense with counsel -- an asserted denial of due




                                     10                          A-0545-16T4
process."         Ibid.       We held that "the availability to defense

counsel of the transcript of defendant's testimony at the first

trial, and defendant's right to offer it in his defense in view

of his present amnesia," since he was otherwise competent, meant

his due process rights were satisfied and he could be fairly

tried.       Id. at 177.             We affirmed the trial judge's decision

allowing the defendant to read his testimony to the jury, in

accord     with     former        Evidence       Rule    63(3)(a)(ii),           because     his

condition was involuntary.                 Id. at 177.

      In     line      with   Pacheco,       the     current        rule    recognizes       the

admissibility          of     a    declarant's          statements         if    he   or     she

"testifies        to    a     lack    of     memory      of     the      subject      matter."

N.J.R.E.      804(a)(3).              Pacheco's         amnesia,         which   effectively

rendered      him      unavailable         because      he    had     no    memory     of    the

incident,      is       nonetheless        factually          distinguishable         from     a

defendant who makes himself unavailable due to the exercise of a

privilege.

      Nor     is       the    admission       of     defendant's           testimony       under

N.J.R.E. 804 supported by the two cases the trial judge cited.

In   both,    a     defendant        who   had     testified        in     the   first     trial

elected not to testify during the second but the State, rather

than the defendant, was the proponent of the evidence.                                 Wilson,




                                              11                                      A-0545-16T4
supra, 57 N.J. at 45; Farquharson, supra, 321 N.J. Super. at

120.

       In Farquharson, the State read to the jury the defendant's

unredacted testimony from the first trial, including questioning

about his criminal conviction history.                 Farquharson, supra, 321

N.J.   Super.     at   120.      We   concluded      that,   although   the   prior

testimony was admissible under the hearsay exceptions for the

statement of a party opponent under N.J.R.E. 803(b)(1), and the

prior testimony of an unavailable witness in N.J.R.E. 804(b)(1),

the inclusion of the defendant's prior criminal history violated

his constitutional right not to testify.                Id. at 120-21.

       Like Farquharson, Wilson focused on the admissibility of a

defendant's earlier testimony when the State, not the defendant,

is the proponent of the evidence.               Wilson, supra, 57 N.J. at 45-

46.    Wilson was decided under the 1967 Rules of Evidence, before

the    evidence    rules      were    amended   to   make    the   exercise   of   a

privilege a circumstance rendering a witness unavailable.                       Id.

at 47-48.    The Court observed:

            [T]here   is  no   real  difference  between
            inculpatory statements made at a prior trial
            and voluntary confessions. If anything, the
            former are more reliable than the latter
            since they are made under oath in the
            solemnity of the courtroom before judge and
            jury and in the presence of [a defendant's]
            own counsel.

            [Id. at 48.]



                                          12                              A-0545-16T4
      Wilson drew the clear parallel between the admission of a

confession and a defendant's prior testimony.                     In Wilson and

Farquharson, the State sought to convict a defendant using his

own words, a classic exception to the hearsay rule.                    Thus none

of   the     published      cases    support    a   defendant's      use   of     his

testimony in a subsequent trial if he elects not to testify.

See Belliard, supra, 415 N.J. Super. at 87 ("We review a trial

judge's evidentiary determinations under an abuse of discretion

standard, provided that the judge's rulings are not inconsistent

with applicable law.") (emphasis added).

                                          IV.

      Finally, defendant's contention that his testimony at the

first      trial   is     not   hearsay    lacks    merit.      Hearsay     "is     a

statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth

of   the    matter      asserted."     N.J.R.E.     801(c)    (emphasis    added).

Defendant's prior testimony is an out-of-court statement because

it was not made while testifying at the retrial.

      Defendant's        suggested    interpretation     of    the   language     of

N.J.R.E. 801(c) would mean that any trial testimony, subjected

to cross-examination, is not hearsay.                  That is not the law.

Such an interpretation would render meaningless the exception to

the hearsay rule found in N.J.R.E. 804(b)(1)(a).




                                          13                               A-0545-16T4
      Defendant's decision not to testify during his retrial is

his   alone   and    must    be   scrupulously     honored.    See   State     v.

Kucinski, 227 N.J. 603, 616-17 (2017).                 That does not mean,

however, that by the mere exercise of this right he leapfrogs

over the Rules of Evidence.           A defendant does not make himself

"unavailable"       within   the    meaning   of    N.J.R.E.   804(a)     if   he

chooses to remain silent.

      Reversed.




                                       14                               A-0545-16T4
