State v. Twiggs, 445 N.J. Super. 23 (App. Div. 2016). In this conspiracy to commit robbery case, the Law Division dismissed the indictment because the State began the prosecution beyond the time allowed by the statute of limitations, N.J.S.A. 2C:1-6. The State appealed, contending that a provision of that statute that tolls the limitations period for situations involving identification by DNA evidence rendered the prosecution timely. In a 2-1 decision yesterday on that pure issue of law, the Appellate Division, though applying de novo review, rejected the State’s argument. Judge Whipple wrote the majority opinion, in which Judge Reisner joined. Judge Leone dissented, giving the State the ability to appeal to the Supreme Court as of right.
There was no dispute that N.J.S.A. 2C:1-6(c) provides a general rule that the statute of limitations begins to run “on the day after the offense is committed.” Everyone also agreed that the same section contains an exception “when the prosecution is supported by physical evidence that identifies the actor by means of DNA testing or fingerprint analysis,” in which case “time does not start to run until the State is in possession of both the physical evidence and the DNA or fingerprint evidence necessary to establish the identification of the actor by means of comparison to the physical evidence.” The question was the meaning and effect of “the actor” in that section.
In summary, the facts were these. On June 16, 2009, defendant met “S.T.” in a parking lot, with the intent to sell S.T. prescription painkillers. A masked man with a gun approached and robbed them, taking their cellphones, S.T.’s money, and defendant’s drugs. The police investigated and found a mask and gloves at the scene that S.T. identified as belonging to the robber. The mask and gloves were sent to a DNA lab in July 2010. Both S.T. and the police suspected defendant of involvement in the robbery, but there was no proof.
Four years later, on July 2, 2014, the DNA results came back, identifying one Dillon Tracy. Tracy was arrested, and he admitted on September 16, 2014 that he had been the gunman. Tracy also said that defendant had arranged the robbery so that he and Tracy could share in the drugs that Tracy had stolen.
On December 2, 2014, a grand jury indicted defendant and Tracy. Tracy pled guilty, but defendant moved to dismiss the indictment as untimely, because the grand jury had not commenced until more than five years after the June 2009 offense. The Law Division granted dismissal and the Appellate Division majority affirmed.
Judge Whipple found that N.J.S.A. 2C:1-6 was plain and led to a “clear and unambiguous result.” The DNA exception to the statute of limitations applies only “to persons whose DNA directly identifies them as criminal actors, and does not apply to those who are later named by those same criminal actors.” The natural reading of “the actor” in the statute is limited to “those criminal offenders who are directly identified by [DNA] evidence.” The majority went on to rule, however, that other statutory language, legislative history (if it were necessary to resort to sources beyond the statutory language), and the rule of lenity all supported defendant. as well.
The majority distinguished State v. Rumblin, 166 N.J. 550 (2001), which had construed “actor” more broadly in connection with a different section of the criminal code. Judge Whipple found that the “syntactical use of the term ‘actor'” was not the same in the two statutes, so that Rumblin did not govern.
Judge Leone dissented because he did not agree with the majority’s view of Rumblin. He also believed that the very statutory sources and legislative history discussed by the majority supported the State, not defendant. Judge Leone also found the majority’s result contrary to the Legislature’s intent to facilitate the investigation and resolution of “cold cases,” and that the majority’s view overlooked the fact that many crimes are committed by more than one person (including, by definition, conspiracy crimes, such as that involved here), so that the majority would allow one perpetrator to go free merely because it takes too long to get DNA results from another perpetrator.
It may be time for the Supreme Court to get ready for more Rumblin.