Supervisor of toxicologist permitted to testify based on review of result
State v v. K.W. __ NJ Super. __ A-2049-23
Following a jury trial, defendant K.W. was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). The State alleged the victim was under the influence of ketamine and other substances at the time of the offenses based on toxicological testing of her blood and urine.
The State's toxicologist who performed the testing and prepared its toxicology report was unavailable to testify at trial. In her stead, the State called the toxicologist's supervisor as permitted by our Supreme Court's decision in State v. Michaels, 219 N.J. 1 (2014). In Michaels, the Court held a substitute expert can testify at trial without violating a defendant's right to confrontation if the expert reaches an independent opinion based on machine-generated testing data from testing performed by a non-testifying technician.
In this case, the supervisor had peer reviewed the original toxicologist's report, independently reviewed the toxicologist's report, notes, and data prior to trial, and formed an independent opinion that the results of the report were correct. The supervisor was qualified as an expert without objection and testified based on the forensic testing performed by the original toxicologist.
On appeal, defendant argued the supervisor's testimony violated his right to confrontation under the United States and New Jersey Constitutions based on the United States Supreme Court's decision in Smith v. Arizona, 602 U.S. 779, 144 S. Ct. 1785 (2024), which was decided after defendant's trial. Defendant contended our Supreme Court's decision in Michaels was effectively overruled by Smith. Defendant argued that Smith held a defendant's confrontation right is violated unless the individual who performed the forensic testing testifies at trial.
The court affirmed. It determined the supervisor's trial testimony violated the rule established in Michaels because she repeatedly read directly from the original toxicologist's report, rather than testifying to her own independent opinions. Because defendant did not object at trial and affirmatively used the expert's testimony defensively, the court concluded his Confrontation Clause argument was waived.
The court also determined Michaels remains sound law after Smith. Specifically, the court concluded machine-generated data is not the equivalent of a "testimonial statement" for Confrontation Clause purposes. Therefore, if a substitute expert testifies at trial after reaching an independent opinion based on machine-generated data, as permitted by Michaels, there is no Confrontation Clause violation. APPROVED FOR PUBLICATION December 17, 2025
Full Opinion:
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2049-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
December 17, 2025
APPELLATE DIVISION
v.
K.W.,
1
Defendant-Appellant.
RECORD IMPOUNDED
____________________________
Argued September 9, 2025 – Decided December 17, 2025
Before Judges Firko, Perez Friscia, and Vinci.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Accusation No. 23-07-
0582.
Philip Nettl argued the cause for appellant (Benedict
Altman and Nettl, LLC, attorneys; Philip Nettl, on the
briefs).
Elizabeth K. Gibbons, Assistant Prosecutor, argued the
cause for the respondent (Yolanda Ciccone, Middlesex
County Prosecutor, attorney; Elizabeth K. Gibbons, of
counsel and on the brief).
1 We use initials to protect the identity of a victim of sexual offenses. 3(c)(12).
R. 1:38-The opinion of the court was delivered by
VINCI, J.A.D.
Defendant K.W. appeals from a March 11, 2024 judgment of conviction
entered after a jury found him guilty of second-degree sexual assault, N.J.S.A.
2C:14-2(c)(1), and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b),
and an order entered the same day denying his motion for a new trial. We affirm.
I.
We summarize the facts and trial testimony relevant to the issues raised
on appeal. The State alleges that on July 4, 2019, defendant sexually penetrated
his adult niece, J.G., at his home in Woodbridge Township without her
affirmative and freely-given permission. Defendant concedes he sexually
penetrated J.G. but contends it was consensual. On January 12, 2022, a
Middlesex County grand jury returned an indictment charging defendant with
second-degree sexual assault and fourth-degree criminal sexual contact. The
indictment charged that defendant committed sexual assault by perpetrating "an
act or acts of sexual penetration upon [J.G.] by means of force or coercion."
Effective January 21, 2020, the sexual assault statute, N.J.S.A. 2C:14-
2(c)(1), was amended. Where it previously provided a person is guilty of sexual
assault if the person commits an act of sexual penetration "us[ing] physical force
2 A-2049-23or coercion[,]" under the 2020 amendment a person is guilty of sexual assault if
the person "commits the act using coercion or without the victim's affirmative
and freely-given permission[.]"
On July 5, 2023, two weeks before trial, the court granted defendant's
motion to dismiss the indictment due to allegedly incorrect grand jury
instructions. For what defendant describes as "tactical reasons," that same day
he executed a written waiver of his right to an indictment and "request[ed] to be
tried on accusation.
" The accusation, unlike the indictment, alleged defendant
committed sexual assault "by using coercion or without [J.G.'s] affirmatively or
freely[-]given permission[.]"
At trial, J.G. testified that on July 4, 2019, she flew to New Jersey from
Florida, where she lived with her children and then-boyfriend, to attend her
grandmother's birthday party at her assisted living facility. J.G. arrived at the
party around 2:00 p.m. Her mother, sisters, and maternal family, including
defendant, also attended. J.G. had "[m]aybe about two glasses of wine" during
the party. She "felt fine" after drinking the wine.
At some point, her mother and sisters left the facility. J.G. stayed to spend
time with her grandmother and extended family. She planned to spend the night
at her mother's house and return to Florida the next day.
3 A-2049-23Around 5:00 p.m., J.G. accompanied her grandmother to the dining room
and then returned to the hall "where [they] were having the . . . party." J.G.,
defendant, his son, J.G.'s aunt, and her aunt's boyfriend were present. Defendant
asked "if anybody wanted to take shots or take something stronger, and [they]
agreed." "[Defendant] went down and bought alcohol, bought Fireball, and
brought it back to the hall." "[H]e brought back two bottles . . . a bigger bottle
and . . . a smaller[-]size bottle."
Defendant "poured [J.G.] a shot, but the shot was in . . . a regular cup."
The "shot was really big, so [J.G.] asked [her] aunt if she wanted to share the
shot with [her], because it was . . . a big cup of alcohol." J.G. "poured half of it
into another cup for" her aunt. After the first shot, she "started . . . to feel . . . a
buzz, but . . . did[ not] feel drunk or anything." Defendant poured J.G. another
shot after "[m]aybe . . . [thirty] minutes[,]" which "was[ not] as big as" the first
shot. "After the second shot, [she] started feeling bad. [She] started feeling
woozy, kind of foggy. It was . . . starting to really hit [her] hard."
"[W]ithin a couple minutes . . . , [J.G.] was ready to go. [She] was[ not]
feeling well. . . . [She] did[ not] expect it to hit [her] that hard, so [she] was
ready to go." J.G. asked her "aunt if she would drop [her] off [at her mother's
house], but there was no space in the car." She said "[she] would . . . take an
4 A-2049-23Uber[, but defendant] suggested . . . [she] go to his house first, and then from
there take an [U]ber." J.G. agreed. She "was getting progressively
worse . . . . Like, foggy. . . . [I]t was a very weird feeling. It[ was] nothing [she]
had ever felt before. It was just like a foggy feeling." She was "aware of
everything that was happening . . . [but] just felt foggy."
She was "feeling pretty out of it" when she left the assisted living facility
with defendant and his son. When they arrived at defendant's house, she
"walked [herself] in." She sat "on the sofa, but . . . did[ not] sit straight up[]
because [she] was[ not] . . . feeling well." She was sitting "there for a few
minutes" when defendant "reached over, grabbed [her] legs, . . . pulled them on
to his lap[,]" and started "caressing" her legs "[f]rom [her] knee down."
Defendant "mentioned something about taking a drug." He said "[he]
ha[d] something that [she could] take. It[ would] make [her] feel better." She
agreed and "[h]e sat [her] up, because [she] could[ not] even sit up. . . . [She]
saw it was . . . [a powder] in a little jar[.]" "[H]e put it on his hand
and . . . explained [she] just had to come to his hand and just sniff." J.G.
"inhaled it through [her] nose." "After [she] took it, . . . [she] felt . . . a very hot
feeling all over [her] body" and "immediately just laid back down." Defendant
5 A-2049-23asked "if [she] wanted to do it again, and . . . [she] said no. But [she] . . . could
hear that [defendant] was still using it."
Defendant's son "came into the living room. At this point, [her] eyes
[were] closed, so [she] [did not] see what[ was] happening, but [she] hear[d]
everything that[ was] happening. . . . [Defendant's son] asked [defendant] if he
could drop him off . . . at a friend's house." He "said yeah. And then he put
[her] legs down and they left the house."
After defendant left, J.G. called her then-boyfriend, B.C., in Florida to tell
him she "was[ not] feeling good" and "want[ed] to leave." After she spoke with
B.C., she "got up from the sofa and . . . was looking for somewhere to lay
down." She "went into the very first room. There was a mattress. It did[ not]
have sheets on the bed, but [she] laid down on the bed." She called B.C. again
and "then [she] just kind of knocked out. [She] just fell asleep."
Defendant woke her up and said she "should[ not] lay on that bed because
it [did not] have sheets." He "guide[d her] from the first bedroom into . . . the
master bedroom that he share[d] with his wife." Defendant "was kind of like
holding [her]. . . . [Her] arm and the other arm . . . around [her] waist." J.G.
"was[ not] really saying much." She felt like "[she] was floating . . . like if [she]
was on clouds.
"
6 A-2049-23She was "on [her] right side at the edge of the bed" with"[her] head on the
pillow." Defendant "c[ame] from behind [her] and la[id] next to [her] and he
start[ed] stroking" her "thigh." "[I]t was really difficult to move. [She] kind of
said stop and [she] kind of put [her] arm behind [her]." She "remember[ed]
trying to do . . . a pushing motion with [her] arm, but . . . [her] arms were like
jelly."
Defendant "pull[ed] down [her] underwear[] and start[ed] . . . thrusting.
The whole time [her] legs were closed." At first, J.G. "could feel his penis
between [her] legs, but not inside of [her]." She was wearing "[her] Apple
watch[] on [her] left arm, and it just kept going off. [Her] mo[ther] was calling,
[B.C.] was calling, even [her] daughter's grandfather called. It just kept buzzing
and buzzing, but . . . [she] could[ not] answer the phone."
"He was . . . thrusting and thrusting, and then he was able to put his penis
vaginally inside [her]. And then [she] said stop again and then within like a
minute or so, just a few minutes, it just stopped. . . . [H]e just stopped." He
asked "[her], are you okay? And [she] . . . did[ not] say anything. [She] was
just frozen. [She] could[ not] move. And he kept saying[,] are you okay, girl?
Are you okay, girl? And then he offered [her] . . . water and coffee[,] and he
kept saying, get up, girl, get up." "[H]e went to the kitchen and he got water."
7 A-2049-23"[W]hen [she] did sit up and . . . tried to drink a little bit of water . . . [she]
was . . . frozen" and "could[ not] even move."
"[A] few minutes later, [she] heard [her] mo[ther]'s voice in the house. At
that point, [defendant] le[ft] the room and . . . [she] sat up and drank water."
She still felt "[d]izzy. Like, woozy. Not as bad as [she] did coming into the
room, but really woozy."
Her mother "c[ame] into the room and she ha[d her] phone in her hand
and she passe[d J.G.] the phone. And when she pass[ed] [her] the phone, it[
was] B.C. on the phone." J.G. "got really emotional. [She] took the phone.
[She] went into the bathroom and [she] was just crying." She spoke with B.C.
in the bathroom for "two or three minutes." She told B.C. defendant "raped
[her,]" but "did not get into details." She did not "disclose in detail what
happened . . . until [she] got to the hospital."
After speaking with B.C., "[she] got up . . . used the bathroom. . . . And
then [she] got up . . . left the bathroom and . . . walked out of the house." "As
[she] was walking out of the house, [she] passed the phone to her [mother.]"
J.G. did not say anything to her mother. She "got in" her mother's car and "just
laid in the back seat."
8 A-2049-23B.C. told her mother what J.G. told him. Based on that, J.G.'s mother
drove her to the hospital to "get [her] checked out." At the hospital, J.G. told
the nurse "[she] was sexually assaulted and [the nurse] explained that they were
going to do a rape kit[.]" They also collected blood and urine samples. J.G. still
felt "that cloudy feeling, kind of feeling . . . in and out . . . just completely out
of it[,]" but she "was getting better."
The following morning J.G. was interviewed by law enforcement and gave
a recorded statement. She also showed the detectives defendant's text messages
from the night before and again that morning asking her to call him. She did not
respond to defendant's messages. She also showed the detectives call logs on
her phone that revealed a four-minute outgoing call to B.C. at 6:49 p.m. on July
4, and a series of missed incoming calls from 6:56 p.m. to 7:28 p.m. on July 4
from B.C., J.G.'s sister, and J.G.'s daughter's grandfather.
J.G. did not "give consent [to defendant] to have sexual intercourse with
[her,]" there was nothing "that [she] can recall doing[] . . . that was non-verbal
that may have conveyed . . . consent[,]" and she "[d]id [not] want to have sex
with [defendant.]" At the time of the trial, J.G. and B.C. were no longer together.
On cross-examination, defense counsel asked J.G. if "the investigator or
the prosecutor [told her] that [her] blood alcohol was only [0.059], which is way
9 A-2049-23under the limit to even drive?" She testified she was not aware of her blood test
results until defense counsel told her during cross-examination. Defense
counsel also elicited that in July 2019, J.G. had a prescription for Fluoxetine to
treat anxiety and depression and did not "self-medicate with ketamine" or any
other drug.
J.W. is J.G.'s mother and defendant's sister. She testified that on July 4,
2019, she left her mother's assisted care facility around 5:00 or 6:00 p.m. J.G.
did not leave with her. Around 7:00 or 8:00 p.m., J.W. spoke with B.C. by phone
and based on that conversation, decided to go to defendant's house with another
one of her daughters to pick up J.G. J.W. "stayed on the phone with [B.C.]" for
twenty to twenty-five minutes while they drove to defendant's house.
Upon arrival, J.W. "walked in[to] the house" without knocking and saw
defendant "coming out of his bedroom." She did not see J.G. Defendant told
J.W. she was in the bedroom and J.W. entered the room. J.G. "did[ not] make
any eye contact with [J.W.]. She was . . . leaning over looking in the mirror."
J.W. was still on the phone with B.C. and told J.G. that B.C. "want[ed] to talk
to [her]." Either J.W. or defendant handed J.G. the phone. Defendant then
"turned [J.W.] around and brought [her] into the kitchen."
10 A-2049-23While they were talking in the kitchen, J.G. "pass[ed]
by . . . quickly[,] . . . did[ not] say anything . . . [and] just handed [her] phone
and she left." J.W. "rushed out after her." Defendant "c[ame] out after [J.W.].
As [she] look[ed,] J.G. [was] . . . rushing getting into the back seat of the car.
[Defendant] . . . went . . . around towards where [J.G.] had gotten into the car.
But [J.G.] . . . closed the door really fast." "[Defendant] was trying to talk to
[J.G.]. She would[ not] talk."
They did not discuss what happened because J.W.'s younger daughter was
in the car. After J.W. dropped her younger daughter off at a friend's house, she
"turned to [J.G.] and . . . asked her what happened." J.G. responded "something
had happened between her and . . . [defendant]" and "that [defendant] raped
her." J.W. asked "if she wanted to go to the hospital and she said yes. And
[they] went to . . . Mountainside Hospital in Glen Ridge."
At the hospital, J.W. told a nurse "[her] daughter had been sexually
assaulted[.]" J.W. did not speak with J.G. about what happened, and she was
not present when J.G. was examined. The next day, she took J.G. to the
Woodbridge Police Department where they both gave statements separately.
Prior to trial, the State intended to call Susan Sechrist, the toxicologist at
the New Jersey State Police Office of Forensic Sciences who performed forensic
11 A-2049-23testing on J.G.'s blood and urine samples, as an expert witness. As a result of a
scheduling conflict caused by a power outage at the courthouse, Sechrist was
not available to testify. Instead, the State proposed to call her supervisor,
Bridget Verdino, as an expert in toxicology.
The State argued, "[t]he testimony would be the same, but it would be
coming from the supervisor as opposed to the actual toxicologist." Defendant
objected because the State did not serve her resume at least thirty days before
trial and they would need "to have a hearing prior to her going in front of the
jury to see what her knowledge is in this particular case." The court determined
it would "conduct a [N.J.R.E.] 104 hearing" to give the State "an opportunity to
lay the groundwork."
At the outset of the N.J.R.E. 104 hearing, defense counsel stipulated to
Verdino's qualifications as an expert in toxicology, but "just want[ed] to know
how she[ was] qualified to fill in for" Sechrist. Verdino testified she is a
"forensic scientist . . . , a toxicology supervisor, and the [quality assurance and
quality control] coordinator for toxicology[,]" and she "over[saw] all four labs
[in the New Jersey State Police Office of Forensic Sciences.]" Sechrist was a
forensic scientist who worked in one of the labs under Verdino's supervision.
12 A-2049-23Verdino peer reviewed the toxicology report prepared by Sechrist in
connection with forensic testing of samples of J.G.'s blood and urine taken at
the hospital. As a peer reviewer, Verdino "review[ed] all of the notes, all of the
data associated with the report, and ensure[d] that the supporting documents
[were] present, they[ were] appropriate, and that they support[ed] the report."
She initialed the report, signifying that she "agree[d] with [Sechrist's]
conclusions and . . . the data within the case reflect[ed] the report
appropriately." In her capacity as peer reviewer, she independently "looked at
all of the data and determined that the . . . results reported out [were] correct."
Verdino reviewed "approximately [one hundred] pages of notes" kept by
Sechrist. Based on her review of the notes, she was able to "ascertain
whether . . . Sechrist conducted the testing correctly." She also concluded the
testing was done correctly because
[they] have controls, positive controls . . . that [they]
use simultaneously when [they are] analyzing a case,
and there is no reason to believe that the test was done
incorrectly if the negative control, the positive
control . . . reflect the results that they are supposed to.
Following the hearing, defendant did not renew his objection to Verdino's
testimony.
13 A-2049-23The State called Verdino as an expert in the field of "toxicology analysis"
without objection. She testified she "was the technical reviewer" for Sechrist's
work in this case and saw "all of her notes." She "peer review[ed] every page
of [the] case file[.]" Verdino identified Sechrist's "laboratory report of
toxicology analysis for a drug-facilitated sexual assault[,]" which was marked
for identification, but not admitted as evidence.2
Verdino testified that Sechrist's report reflects "blood alcohol analysis was
performed, drug analysis was performed on blood . . . [and] urine, and . . . an
amino assay screen was also performed on both . . . blood and urine." "To
perform a screen on the blood, there was an ELISA [enzyme-linked
immunosorbent assay] and what[ is] called an EMIT [enzyme multiplied
immunoassay technique]." She continued:
[Prosecutor]: And when used by . . . Sechrist in
this particular case, what results were found?
[Verdino]: Based on this report, I would be
assuming which screens were positive, because I do not
have the report for the immunoassay in front of me.
[Prosecutor]: . . . Well, then let's deal with this
report. What specific information does the report
contain?
2 Sechrist's report is not included in the record on appeal.
14 A-2049-23[Verdino]: So this report, we start with
immunoassays. It lists the drugs . . . that we screened
the blood and urine matrices for. It also lists that we
used a gas chromatograph headspace to analyze the
blood alcohol content as well as what[ is] called a gas
chromatograph mass spectrometer . . . to confirm the
drug content.
Verdino explained:
A gas chromatograph headspace is specific for volatile
analyses, and, given that common ethyl alcohol or
drinking alcohol is volatile, it can be analyzed on this
type of instrument. So the gas chromatograph portion
of this instrument is . . . a technological instrument that
contains what[ is] called a "column." The column looks
like a garden hose that[ is] coiled, and it[ is] inside an
oven, and as the sample moves through this
oven . . . different components of the sample would
exit the column at different times based on their boiling
point and their structural composition, and then it
enters . . . a detector, and we would get a graph, a
chromatograph.
According to Sechrist's report, the "results of the blood alcohol analysis
was 0.059 percent grams per [one hundred] milliliters with an uncertainty of
0.002 grams per [one hundred] milliliters ethyl alcohol." This meant the value
of J.G.'s blood alcohol content "would be[ . . . ].059 plus or minus .002. So the
range would be .061 down to [.]057."
Sechrist also performed "confirmatory testing for drug [analysis]."
According to Verdino, "usually [they] would perform a blood alcohol analysis
15 A-2049-23first, and then [they] would move on[]to amino assay screening, which is an
antigen antibody reaction where [they] would screen the blood and [or] the
urine." "[A]fter that [they] would perform what[ is] called a GCMS analysis to
confirm any of the drugs that were present." In this case, the confirmatory tests
identified "norketamine and fluoxetine" in the blood and "ketamine and
fluoxetine" in the urine.
Verdino testified "the natural progression of metabolism is for the
ketamine to convert or break down into something called norketamine. That is
structurally[, the ketamine] is losing a portion of its structure, and the
norketamine represents the remainder of the drug." Norketamine and ketamine
"would be normally found in both" urine and blood. Verdino did not have
Sechrist's "notes in front of [her]" and was "unsure why [norketamine] was[ not]
listed on the report" as having been identified in the urine. Based on her review
of Sechrist's notes, Verdino was satisfied "the results reported in" Sechrist's
report were "accurate.
"
On cross-examination, defense counsel established that the lab could have
performed a "retrograde BAC [blood alcohol content] extrapolation" to
"estimate what the alcohol level in somebody's body was . . . prior [to the time
the blood sample was drawn], based on an average metabolism rate." A
16 A-2049-23retrograde extrapolation was not conducted in this case because it was not
requested. Also, the testing Sechrist performed only detected the presence of
certain drugs. She did not "check for concentration of a specific drug" because
that was not requested.
Prior to trial and again during the charge conference, defendant objected
to the proposed jury charge and verdict sheet because they incorporated the 2020
amendment to N.J.S.A. 2C:14-2(c)(1). At that time, the court and the parties
mistakenly believed the amended statute was effective at the time of the alleged
offense. Defendant objected "because it was [not] in the original indictment."
He argued "it has to be the old [version of the statute] because . . . that [is] what
[the State] charged." The court overruled the objection because the "accusation
ha[d] . . . the correct statute."
Defendant also requested the court include the Model Jury Charge
(Criminal) "Witness-Failure of the State to Produce," (approved June 14, 2010),
commonly referred to as a Clawans3 charge, because the State did not call B.C.
as a witness. Applying the factors set forth in State v. Hill, 199 N.J. 545 (2009),
the court denied defendant's request.
3 State v. Clawans, 38 N.J. 162 (1962).
17 A-2049-23It concluded "[f]actor number one, . . . whether the witness is purely
within the control or power of only one party, or if there is a special relationship
between the party and the witness," weighed in favor of the State because B.C.
and J.G. were no longer dating. Factor "[t]wo, that the witness is available to
that party both practically and physically[,]" was neutral because "either side
could [have] subpoena[ed] that witness." Factor three weighed in the State's
favor because B.C.'s testimony would not have "elucidate[d] relevant and
critical facts." Factor four, the "testimony appears to be superior to that already
utilized[,]" also weighed in the State's favor because "[B.C. was] not in a
position . . . and could not testify to" whether J.G. consented to sexual
intercourse with defendant. On July 31, 2023, the jury found defendant guilty
on both counts in the accusation.
II.
On January 12, 2024, defendant filed a motion for a new trial contending
he "was found guilty of an ex post facto statute" as a result of the court's
"misunderstanding . . . about the date of the [2020] amendment" to the sexual
assault statute. On March 11, 2024, after hearing oral argument, the court
entered an order denying defendant's motion supported by an oral opinion.
The court concluded its
18 A-2049-23confusion at the time of the trial regarding the date of
the enactment of the statutory change, is not crucial to
the resolution of the issue here.
The verbatim change of the statutory language
merely adopted the understanding of the term physical
force in the sexual assault statute that had been
proscribed by the Supreme Court three decades ago in
M.T.S.4
The language in the [A]ccusation under which
defendant was charged and tried is consistent with the
understanding of the sexual assault statute as it existed
at the time of defendant’s offense. And consistent with
how a jury would have been charged at the time of the
offense.
The Stat[e] alleged that defendant did not have
[J.G.'s] consent to the sexual assault penetration. That
theory persisted throughout the course of this case.
The State never alleged nor argued that defendant
employed any force in addition to that entailed in the
act of sexual penetration. The pre[-]2020 statute did
not require it. And nothing about the 2020 amendment
changed that understanding.
Frankly, force or physical force under the pre[-
]2020 statutory amendment is defined as without the
affirmative and freely[-]given permission of the victim
as articulated in the [A]ccusation.
The failure of the [A]ccusation to use the term
physical force resulted in no adverse consequence to
defendant and would not have changed the outcome of
4 State in the Int. of M.T.S., 129 N.J. 422 (1992).
19 A-2049-23the trial. Therefore, defendant has failed to establish an
ex post facto constitutional violation.
Defendant was sentenced to five years in prison subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2, and Megan's Law reporting requirements
pursuant to N.J.S.A. 2C:7-1 to -23, for second-degree sexual assault. His
conviction for third-degree criminal sexual contact was merged with the sexual
assault conviction. This appeal followed.
III.
On appeal, defendant raised the following points for our consideration.
POINT I
DEFENDANT’S CONVICTION MUST BE
REVERSED, BECAUSE THE JURY WAS
PRESENTED WITH AN EX POST FACTO
STATUTE, IN VIOLATION OF DEFENDANT’S
RIGHTS UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND ARTICLE IV, SECTION VII,
PARAGRAPH 3 OF THE NEW JERSEY
CONSTITUTION.
POINT II
DEFENDANT’S CONFRONTATION RIGHTS
UNDER THE SIXTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ARTICLE
I, [PARAGRAPH] 10 OF THE NEW JERSEY
CONSTITUTION WERE VIOLATED BY THE
TESTIMONY OF A SUBSTITUTE ANALYST
DESCRIBING ANOTHER ANALYST’S
20 A-2049-23TOXICOLOGY TEST RESULTS, IN THE SAME
MANNER RULED UNCONSTITUTIONAL IN
UNITED STATES SUPREME COURT’S DECISION
IN SMITH V. ARIZONA, 144 S.CT. 1785 (2024).5
POINT III
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN DENYING DEFENDANT A CLAWANS
CHARGE FOR THE STATE’S FAILURE TO CALL
[B.C.] AS A WITNESS.
IV.
We are unpersuaded by defendant's claim that he was convicted based on
an ex post facto law. Defendant argues the retroactive application of the 2020
amendment to N.J.S.A. 2C:14–2(c), which was not in effect at the time of the
alleged sexual assault in this case, violated the Ex Post Facto Clause of the
United States and New Jersey Constitutions. See U.S. Const. art. I, § 10; N.J.
Const. art. IV, § 7, ¶ 3. This question is a legal one and our review is de novo.
State v. Revie, 220 N.J. 126, 132 (2014).
New Jersey's ex post facto jurisprudence follows the federal
jurisprudence. State v. Perez, 220 N.J. 423, 439 (2015) (citing State v. Fortin,
178 N.J. 540, 608 n.8 (2004)). "The Ex Post Facto Clause was intended to
5 602 U.S. 779 (2024).
21 A-2049-23interdict the retroactive application of criminal laws that harm the accused."
Fortin, 178 N.J. at 608.
"An ex post facto penal law is defined by 'two critical elements . . . it must
be retrospective, that is, it must apply to events occurring before its enactment,
and it must disadvantage the offender affected by it.'" State v. Natale, 184 N.J.
458, 491 (2005) (alteration in original) (quoting Weaver v. Graham, 450 U.S.
24, 29 (1981)). The United States Supreme Court identified "four categories of
laws that violate the ex post facto doctrine if applied retroactively to conduct
that occurred before the challenged law was in effect." State v. Bailey, 251 N.J.
101, 122-23 (2022) (citing Carmell v. Texas, 529 U.S. 513, 521-30 (2000)
(discussing Calder v. Bull, 3 U.S. 386, 389-91 (1798))). Those categories are:
(1) "[e]very law that makes an action done before the
passing of the law, and which was innocent when done,
criminal; and punishes such action"; (2) "[e]very law
that aggravates a crime, or makes it greater than it was,
when committed"; (3) "[e]very law that changes the
punishment, and inflicts a greater punishment, than the
law annexed to the crime, when committed"; and (4)
"[e]very law that alters the legal rules of evidence, and
receives less, or different, testimony, than the law
required at the time of the commission of the offen[s]e,
in order to convict the offender."
[Id. at 123 (quoting Carmell, 251 N.J. at 522 (emphasis
omitted) (quoting Calder, 3 U.S. at 390)).]
22 A-2049-23The "fourth category encompasses both 'laws that lower the burden of
proof and laws that reduce the quantum of evidence necessary to meet that
burden.'" Ibid. (quoting Carmell, 251 N.J. at 541).
Prior to the 2020 statutory amendment and at the time defendant
committed the alleged sexual assault, N.J.S.A. 2C:14-2(c)(1) provided:
An actor is guilty of sexual assault if he commits an act
of sexual penetration with another person under any one
of the following circumstances:
(1) The actor uses physical force or coercion, but
the victim does not sustain severe personal
injury.
[Sex Offenses—Aggravating Circumstances (May 10,
2019) (L. 2019, c. 108, § 1, eff. May 10, 2019).]
More than thirty years ago, our Supreme Court determined the statutory
crime of sexual assault defined in N.J.S.A. 2C:14-2(c)(1) did not "require
physical force in addition to that entailed in an act of involuntary or unwanted
sexual penetration[.]" M.T.S., 129 N.J. at 443.
The Court held:
any act of sexual penetration engaged in by the
defendant without the affirmative and freely-given
permission of the victim . . . constitutes the offense of
sexual assault. Therefore, physical force in excess of
that inherent in the act of sexual penetration is not
required for such penetration to be unlawful.
23 A-2049-23. . . .
The term "physical force," like its companion
term "coercion," acts to qualify the nature and character
of the "sexual penetration.
"
. . . Hence, as a description
of the method of achieving "sexual penetration," the
term "physical force" serves to define and explain the
acts that are offensive, unauthorized, and unlawful.
[Id. at 444-45.]
The Court concluded "'physical force' as an element of sexual
assault . . . requires the absence of affirmative and freely-given permission[.]"
Id. at 449. Therefore, in cases
in which the State does not allege violence or force
extrinsic to the act of penetration, the factfinder must
decide whether the defendant's act of penetration was
undertaken in circumstances that led the defendant
reasonably to believe that the alleged victim had freely
given affirmative permission to the specific act of
sexual penetration.
[Id. at 447-48.]
In such cases, "the State must prove beyond a reasonable doubt that there was
sexual penetration and that it was accomplished without the affirmative and
freely-given permission of the alleged victim." Id. at 448.
At the time of the trial in this case, the applicable Model Jury Charge
stated:
24 A-2049-23In order to convict defendant of the [sexual assault], the
State must prove the following elements beyond a
reasonable doubt:
1. That defendant committed an act of sexual
penetration with another person.
2. That defendant acted knowingly.
3. That the defendant used physical force or
coercion.
4. injury.
That the victim did not sustain severe personal
Physical force is defined as the commission of
the act of sexual penetration without the victim’s freely
and affirmatively given permission to the specific act
of penetration alleged to have occurred.
[Model Jury Charges (Criminal), "Sexual Assault
(Force/Coercion) (N.J.S.A. 2C:14-2(c)(1))" (rev. Jan.
24, 2005).]6
Effective January 21, 2020, the Legislature amended N.J.S.A. 2C:14-
2(c)(1) by replacing the words "physical force" with the phrase "without the
victim's affirmative and freely-given permission." N.J.S.A. 2C:14-2(c)(1)
currently provides:
6 After the trial, Model Jury Charges (Criminal), "Sexual Assault (N.J.S.A.
2C:14-2(c)(1)) (certain offenses arising after January 21, 2020)" (approved Aug.
18, 2025) was adopted.
25 A-2049-23An actor is guilty of sexual assault if the actor commits
an act of sexual penetration with another person under
any one of the following circumstances:
(1) The actor commits the act using coercion or
without the victim's affirmative and freely-given
permission, but the victim does not sustain severe
personal injury[.]
[Sex Offenses—Assault and Battery (Jan. 21, 2020) (L.
2019, c. 474, § 1, eff. Jan, 21, 2020).]
In this case, the court instructed the jury on the charge of sexual assault
in relevant part as follows:
The [A]ccusation provides . . . that [K.W.] on or
about July 4[], 2019 in the Township of Woodbridge
did commit an act of sexual penetration upon [J.G.]
without her affirmatively and freely[-]given
permission.
That section of our statutes provides in pertinent
part: An actor is guilty of sexual assault if he commits
an act of sexual penetration with another person
without the victim’s affirmative and freely[-]given
permission. . . .
In order to convict [d]efendant of the charges, the
State must prove . . . beyond a reasonable
doubt . . . that [d]efendant committed the act [of sexual
penetration] without the victim’s affirmative and
freely[-]given permission.
. . . .
Now, in determining whether an act of sexual
penetration occurred without the victim’s freely and
26 A-2049-23affirmatively given permission to the specific act of
penetration, you must decide whether the [d]efendant’s
alleged act of penetration was undertaken in
circumstances that led the [d]efendant reasonably to
believe that the victim had freely[-]given affirmative
permission to the specific act of sexual penetration.
There is no dispute the Accusation, and as a result, the court's jury
instruction, referred incorrectly to the statutory language effective January 21,
2020, after the alleged sexual assault in this case. Based on our de novo review,
however, we are convinced defendant's claim that the court's instruction
required "less or different[] testimony" than the law in effect at the time of the
offense lacks merit.
In M.T.S., our Supreme Court established the element of "physical force"
in the pre-2020 version of N.J.S.A. 2C:14-2(c)(1) was satisfied if the defendant
committed an act of sexual penetration "without the affirmative and freely-given
permission of the victim" and that the statute did not "require physical force in
addition to that entailed in an act of involuntary or unwanted sexual
penetration." 129 N.J. at 443-44. Consistent with M.T.S., the Model Jury
Charge applicable to the pre-2020 version of the statute instructed that
"[p]hysical force is defined as the commission of the act of sexual penetration
without the victim's freely and affirmatively given permission to the specific act
of penetration alleged to have occurred."
27 A-2049-23In this case, the court instructed the jury that the State was required to
prove beyond a reasonable doubt "[d]efendant committed the act [of sexual
penetration] without the victim’s affirmative and freely[-]given permission."
Had the court used the correct Model Jury Charge, it would have instructed the
jury that the State was required to prove beyond a reasonable doubt defendant
used "physical force" defined as "the commission of the act of sexual penetration
without the victim’s freely and affirmatively given permission."
Under either version of the statute, the State was required to prove exactly
the same thing – that defendant committed the act of sexual penetration "without
the victim’s freely and affirmatively given permission." Nothing more was
required under the pre-2020 statute because the statute never required "a
showing of force in addition to that entailed in the [act of sexual penetration]
itself[.]" M.T.S., 129 N.J. at 444. Because the jury instruction the court gave
in this case did not require less or different evidence or testimony than was
required under the pre-2020 version of the statute, defendant was not convicted
under an ex post facto law.
V.
We are also unpersuaded by defendant's Confrontation Clause argument,
which he raised for the first time on appeal. Defendant's claim that his
28 A-2049-23Confrontation Clause argument could not have been raised at the time of trial is
incorrect. Verdino's testimony violated existing New Jersey and United States
Supreme Court precedent at the time of trial, and defendant chose not to assert
his right to confrontation. Defendant did not object to Verdino's testimony at
the time of trial and then strategically used the underlying test results that were
the subject of her testimony in support of his defense. As a result, his
Confrontation Clause challenge is waived on appeal.
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee that, in a criminal trial,
the accused has the right "to be confronted with the witnesses against him." The
Confrontation Clause "prohibit[s] the use of out-of-court testimonial hearsay,
untested by cross-examination, as a substitute for in-court testimony." State ex
rel. J.A., 195 N.J. 324, 342 (2008) (discussing Crawford v. Washington, 541
U.S. 36, 51-61 (2004)). The Confrontation Clause guarantees the accused the
right to confront "those who bear testimony" against him. Crawford, 541 U.S.
at 51 (internal quotation marks omitted). The Confrontation Clause "expresses
a preference for the in-court testimony of a witness, whose veracity can be tested
by the rigors of cross-examination." J.A., 195 N.J. at 342.
29 A-2049-23In State v. Michaels, 219 N.J. 1 (2014), our Supreme Court, applying and
interpreting the United States Supreme Court decisions in Melendez-Diaz v.
Massachusetts,
7 Bullcoming v. New Mexico,
8 and Williams v. Illinois,
9 held that
"the State's presentation of [a substitute expert's] signed and certified report,
based on [their] independent review of machine-generated data, through [their]
live testimony, did not violate defendant's confrontation rights." Id. at 45.
In Michaels, the defendant was charged with vehicular homicide and
related offenses including driving while intoxicated. 219 N.J. at 5. "Laboratory
results of gas chromatography/mass spectrometry tests performed on defendant's
blood sample . . . drawn . . . the evening of her motor vehicle accident[]
revealed the presence of cocaine, alprazolam . . . and benzoethylene (a cocaine
metabolite)." Ibid. "At trial, the State introduced testimony from Edward
Barbieri, Ph.D., an assistant supervisor and toxicology technical leader from the
private laboratory that had performed the testing on defendant's blood sample."
Ibid.
Dr. Barbieri "supervis[ed] the technicians and analysts who were involved
in the gas chromatography/mass spectrometry testing.
" Ibid. He "had reviewed
7 557 U.S. 305 (2009).
8 564 U.S. 647 (2011).
9 567 U.S. 50 (2012).
30 A-2049-23the machine-generated data from the testing, had determined that the results
demonstrated that defendant had certain drugs present in her system, and had
certified the results in a report that he had prepared and signed." Id. at 6. Dr.
Barbieri testified that based on his "independent review" of "the voluminous
machine-generated data[,]" he was "satisfied . . . the testing had been done
properly" and was able to "certify the results." Id. at 11.
The Court recognized that Dr. Barbieri's "forensic report [was]
'testimonial' and . . . the type of document subject to the Confrontation Clause."
Id. at 6. The Court, however, "concluded that a defendant's confrontation rights
are not violated if a forensic report is admitted at trial and only a
supervisor/reviewer testifies and is available for cross-examination, when the
supervisor is knowledgeable about the testing process, reviews scientific testing
data produced, concludes that the data indicates the presence of drugs, and
prepares, certifies, and signs a report setting forth the results of the testing."
Ibid.; see also State v. Roach, 219 N.J. 58, 82 (2014) (following Michaels and
concluding defendant's confrontation rights were satisfied where an independent
reviewer reached an independent opinion by creating a DNA profile based on
machine-generated raw data).
31 A-2049-23The Court determined this conclusion was consistent with the United
States Supreme Court's decisions in Melendez-Diaz and Bullcoming. The Court
noted in Melendez-Diaz, the United States Supreme Court found the defendant's
confrontation rights were violated because "no witness was offered to support
and be cross-examined in respect of the statements contained in the forensic
document that was admitted into evidence without live testimony." Michaels,
219 N.J. at 32. Our Supreme Court distinguished Melendez-Diaz, because in
Michaels the forensic report "was admitted through the live testimony of Dr.
Barbieri, the person who prepared, signed, and certified the report, and Dr.
Barbieri was available for cross-examination on his report." Id. at 41.
In Bullcoming, the United States Supreme Court determined the
defendant's confrontation rights were violated when "[t]he trial court admitted
[a] blood report as a business record . . . during the testimony of [a] . . . scientist
who had neither observed nor reviewed the" testing. Id. at 21 (internal quotation
marks omitted). Our Supreme Court distinguished Bullcoming because in that
case, unlike in Michaels, "a forensic report was admitted into evidence through
the testimony of a co-worker who did not observe the work of the analyst who
performed the testing, serve as the analyst's supervisor, or certify the results
32 A-2049-23obtained by the analyst whose work was contained in the report as a second
independent reviewer." Id. at 32.
In Michaels, the State presented "testimony by a supervisor who was
qualified as an expert in the relevant subjects, and who analyzed the machine-
generated data and produced the certified report in issue." Id. at 42. The Court
determined as "the author of the report, it was proper for [Dr. Barbieri] to testify
to its contents and to answer questions about the testing it reported." Id. at 43.
Importantly, the Court concluded "[t]he fact that Dr. Barbieri was testifying in
respect of his own report distinguishes him from the co-analyst in Bullcoming
who merely presented a blood alcohol report prepared by
another . . . employee." Ibid.10
Ultimately, the Court in Michaels concluded defendant's confrontation
rights were not violated because "Dr. Barbieri was not repeating the findings
and conclusions of the analysts who manned the gas chromatography/mass
spectrometry devices. Rather, the findings and conclusions contained in the
report and to which he testified were his own." Id. at 45. He "was not parroting
the testimonial hearsay of another analyst. Rather, he testified to the findings
10 Our Supreme Court found "Williams's force, as precedent[] at best unclear"
because "there [was] no narrow rule that would have the support of a majority
of the" court. Michaels, 219 N.J. at 31.
33 A-2049-23and conclusions that he reached based on test processes that he independently
reviewed and verified." Id. at 46.
There is no serious dispute that Verdino's testimony violated the rules set
forth in Michaels and Bullcoming. While Verdino independently reviewed the
data and agreed with Sechrist's reported conclusions based on the machine-
generated data, Verdino impermissibly testified repeatedly about Sechrist's
conclusions contained in the report.
11 For example, she testified:
[Prosecutor]: And when used by . . . Sechrist in
this particular case, what results were found?
[Verdino]: Based on this report, I would be
assuming which screens were positive, because I do not
have the report for the immunoassay in front of me.
[Prosecutor]: . . . Well, then let's deal with this
report. What specific information does the report
contain?
[Verdino]: So this report, we start with
immunoassays. It lists the drugs . . . that we screened
the blood and urine matrices for. It also lists that we
used a gas chromatograph headspace to analyze the
blood alcohol content as well as what[ is] called a gas
chromatograph mass spectrometer . . . to confirm the
drug content.
11 The State concedes the "record does not address whether the toxicology
results were machine generated.
" We need not reach that question because
Verdino's testimony was improper whether they were or not.
34 A-2049-23Verdino also testified that Sechrist determined the "results of the blood
alcohol analysis was 0.059 percent grams per [one hundred] milliliters with an
uncertainty of 0.002 grams per [one hundred] milliliters ethyl alcohol." This
meant the value of J.G.'s blood alcohol content "would be[ . . . ].059 plus or
minus .002. So the range would be .061 down to [.]057."
Unlike the expert in Michaels, Verdino's testimony exceeded her expert
opinion and included inadmissible testimony regarding Sechrist's findings in her
absence. Because Verdino repeated Sechrist's findings and conclusions and
parroted Sechrist's testimonial hearsay, her testimony violated defendant's right
to confrontation.
Defendant, however, never objected to Verdino's testimony on that basis.
In fact, defendant's only objection was the State did not identify her as an expert
at least thirty days before trial and, for that reason, he requested a "hearing . . . to
see what her knowledge [was] in this particular case." Following the N.J.R.E.
104 hearing, counsel did not raise any objection to Verdino's anticipated
testimony and did not object when she was called as an expert in the field of
"toxicology analysis."
Defendant made the tactical decision to use Verdino's testimony in
support of his defense. For example, defense counsel confronted J.G. on cross-
35 A-2049-23examination with the results of the toxicology report that showed her BAC was
.059. Counsel then argued in his closing that the legal BAC limit for operating
a motor vehicle is higher and asked ".059, how could she be so messed up?"
Counsel used other aspects of Verdino's testimony to argue the State
conducted a flawed investigation and to cast doubt on when J.G. ingested the
ketamine, implying it could have been before she arrived at defendant's home.
Finally, he used the fact that Verdino testified J.G. had Fluoxetine in her blood
to argue she was suffering from depression or anxiety and may have self-
medicated with ketamine to treat those conditions.
"The right of confrontation, like other constitutional rights, may be waived
by the accused." State v. Williams, 219 N.J. 89, 98 (2014). "Defense counsel,
many times as a matter of trial strategy, will refrain from objecting to hearsay
that may inure to the advantage of the defendant." Id. at 99. It therefore makes
perfect sense that "[t]he defendant always has the burden of raising [a]
Confrontation Clause objection." Ibid. (quoting Melendez-Diaz, 557 U.S. at
327). Pursuant to Rule 3:10-3(b), a defendant "must specify the grounds for
[any objection to the State's expert witnesses], including any Confrontation
Clause grounds under either the United States or New Jersey State Constitution."
36 A-2049-23We are convinced, under the facts and circumstances of this case,
defendant waived his right to confrontation. The court conducted an extensive
N.J.R.E. 104 hearing before Verdino testified and defense counsel questioned
her at length about the substance of her anticipated testimony. Defendant
withdrew his objection after Verdino's testimony during the 104 hearing and did
not object during Verdino's testimony before the jury. He cannot now be heard
to complain because his chosen strategy was unsuccessful.
We are also convinced, had Verdino's testimony not strayed from
complying with the requirements of Michaels, there would have been no
Confrontation Clause violation based on Smith.
In Smith, the Court held defendant's right of confrontation was violated
when the State called a forensic scientist who had no previous connection to the
case to testify about his "independent opinion" that samples tested by another
analysist were methamphetamine, marijuana, and cannabis. 602 U.S. at 790.
The testifying expert based his opinion on "a set of typed notes and a signed
report" prepared by the analyst who performed the testing. Ibid.
"After . . . telling the jury what [the testing analyst's] records conveyed about
her testing of the items, [the testifying expert] offered an 'independent opinion'
of their identity." Id. at 791.
37 A-2049-23The Court determined "the State used [the testifying expert] to relay what
[the testing analyst] wrote down about how she identified the seized substance"
and the testifying expert "effectively became [her] mouthpiece." Id. at 800. The
Court concluded the analyst's notes and report were "out-of-court statements"
offered for the truth of what they stated. Id. at 799-800. The Court held "[a]
State may not introduce the testimonial out-of-court statements of a forensic
analyst at trial, unless she is unavailable and the defendant has had a prior chance
to cross-examine her." Id. at 802-03.
However, the fractured Court was unable to determine if the analyst's
notes and report were "testimonial." Id. at 800-02. It, therefore, remanded the
matter to the trial court to address whether "the primary purpose of the out-of-
court statements" was testimonial. Id. at 802.
Importantly, the United States Supreme Court did not consider in Smith
or any other case whether machine-generated data like that at issue in Michaels
constitutes testimonial hearsay. See Bullcoming, 564 U.S. at 673 (Justice
Sotomayor concurring) (noting "this is not a case in which the State introduced
only machine-generated results, such as a printout from a gas chromatograph").
We are convinced our Supreme Court's decision in Michaels remains
sound after Smith because it permits a substitute or surrogate expert witness to
38 A-2049-23testify only after forming an independent opinion based on machine-generated
data, not conclusions and opinions contained in the notes of a non-testifying
analyst. Such reliance on machine-generated data does not run afoul of the
Confrontation Clause because machine-generated data is not the equivalent of a
testimonial statement.
In State v. Chun, our Supreme Court held "the essential elements of
testimonial evidence are a report of a past event, given in response to police
interrogation, with the purpose of establishing evidence that a defendant
committed an offense." 194 N.J. 54, 147 (2008). Applying that standard, the
Court determined the machine-generated report from an Alcotest machine is
"not testimonial in the sense that was intended by the . . . Confrontation Clause."
Ibid. The court reached that conclusion because the report was "a present, and
not a past, piece of information or data," "nothing that the operator does can
influence the machine's . . . report of the data," and "the machine has
no . . . intent [to establish evidence of guilt] and may as likely generate a result
that exonerates the test subject as convicts him or her." Ibid.
The Court in Michaels necessarily reached the same conclusion. The
Court held Dr. Barbieri's report was "testimonial, both in his conclusion and in
his use of the test results indicating that defendant had specific amounts of
39 A-2049-23certain drugs in the blood sample[.]" Michaels, 219 N.J. at 44. Yet, the Court
permitted Dr. Barbieri to reach his independent opinions based on the underlying
machine-generated data. As the Court observed, "defendant could not cross-
examine the machines themselves." Ibid.
Likewise, in Roach, the Court concluded it was the "independent
interpretation of the machine-generated data [that] converted raw data into
unmistakably testimonial material subject to the Confrontation Clause." 219
N.J. at 81. "The subjective analysis involved in creating the DNA profile from
the machine-generated graphs marks a clear turning point, at which the raw data
becomes testimonial material[.]" Ibid.
Based on our Supreme Court's decisions in Chun, Michaels, and Roach,
we conclude machine-generated data is not the equivalent of a testimonial
statement. Therefore, when a testifying expert reaches an independent opinion
based on machine-generated data created by another person, a defendant's right
to confrontation is not violated.12 Accordingly, if an expert testifies to
independent opinions reached based on machine-generated data as permitted by
12 Of course, as required by Michaels, the State must establish "the testifying
witness is knowledgeable about the testing process" and "independently verified
the correctness of the machine-tested processes and results." 219 N.J. at 46.
40 A-2049-23Michaels, there would not be a Confrontation Clause violation under the rule
established in Smith.
In this case, had defendant raised a Confrontation Clause objection to
Verdino's testimony and compelled the State to comply with Michaels, there
would be no grounds to claim a violation based on Smith. Because defendant
failed to object and waived his right to confrontation at the time of trial, he
cannot be heard to complain now that his confrontation right was violated based
on Smith.
VI.
Defendant's claim that the court improperly denied his request for a
Clawans charge13 because the State did not call B.C. as a witness is not
convincing. We review the trial court's failure to give an adverse inference
charge, commonly known as a Clawans charge, under an abuse of discretion
standard. State v. Dabas, 215 N.J. 114, 132 (2013).
Under certain circumstances, the State's failure to produce a witness who
would "elucidate the facts in issue, raises a natural inference that the party so
failing fears exposure of those facts would be unfavorable to him." Clawans, 38
13 Model Jury Charge (Criminal),
(rev. June 14, 2010).
"Witness – Failure of the State to Produce"
41 A-2049-23N.J. at 170. For the inference to be drawn, it must appear that the individual
"was within the power of the party to produce and that his testimony would have
been superior to that already utilized in respect to the fact to be proved." Id. at
171. The inference is not proper if the individual is unavailable or whose
testimony would be "cumulative, unimportant[,] or inferior to what had already
been utilized." Ibid. In addition, the "failure to call a witness available to both
parties . . . preclude[s] the raising of an inference against either." Ibid.
Thus, in determining whether to give a Clawans charge, the court must set
forth on the record its findings on these issues:
(1) that the uncalled witness is peculiarly within the
control or power of only the one party, or that there is
a special relationship between the party and the witness
or the party has superior knowledge of the identity of
the witness or of the testimony the witness might be
expected to give; (2) that the witness is available to that
party both practically and physically; (3) that the
testimony of the uncalled witness will elucidate
relevant and critical facts in issue[;] and (4) that such
testimony appears to be superior to that already utilized
in respect to the fact to be proven.
[Hill, 199 N.J. at 561 (quoting State v. Hickman, 204
N.J. Super. 409, 414 (App. Div. 1985)).]
We are convinced the court correctly denied defendant's request for a
Clawans charge. The court thoroughly evaluated each of the Hill factors. It
found factor one weighed in favor of the State because J.G. and B.C. were no
42 A-2049-23longer dating. As a result, there was no special relationship between the State
and B.C., and B.C. was not peculiarly within the control or power of the State.
Relatedly, the court found factor two was neutral because "either side could have
subpoenaed" him.
The court determined factor three weighed in the State's favor because
B.C. would not have "elucidate[d] relevant and critical facts." B.C. was not in
New Jersey on July 4, 2019, and did not personally witness the events before,
during, or after the crime was committed. Finally, the court found factor four
weighed in favor of the State because B.C. "was not in a position . . . and could
not testify to" whether J.G. consented to sexual intercourse with defendant.
There is no basis for us to conclude the court misapplied its discretion by
denying defendant's request for a Clawans charge.
To the extent we have not addressed any remaining arguments, it is
because they lack sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
43 A-2049-23
