STATE OF NEW JERSEY VS. DAVID CONNOLLY (17-11-0976, MORRIS COUNTY AND STATEWIDE)
A-1867-19
| N.J. Super. Ct. App. Div. | Jun 24, 2021Background
- Defendant David Connolly was convicted by a jury of third-degree receiving stolen property after twice selling jewelry taken from a storage locker to a shop that buys gold and jewelry.
- Victim Hera hired Leto (pseudonym) to help clean storage units; Connolly assisted Hera on August 25, 2017, and receipts show sales to the gold store on August 26 and 28, 2017.
- Hera testified that she and Leto spoke before they went to the gold store on September 8, 2017; Leto did not testify and defendant claimed this testimony violated the spousal privilege.
- Defendant proceeded pro se (with standby counsel), made an opening statement that conceded certain facts (e.g., he transacted with the gold store and the ID belonged to him), then did not testify; the State introduced receipts, photos, and the ID card as direct evidence.
- At sentencing the court imposed a seven-year extended term as a persistent offender with 3.5 years parole ineligibility; defendant appealed raising three main grounds: spousal-privilege violation, improper use of his opening statement as evidence, and sentencing errors including the extended term and parole-disqualifier findings.
- The Appellate Division affirmed the conviction, rejecting the evidence and summation claims, but remanded for resentencing because the court did not make sufficiently clear findings regarding extended-term predicates, the weighing required for imposing parole ineligibility, and whether any double-counting of prior convictions occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Spousal-privilege: whether testimony about a conversation between Hera and defendant's wife effectively admitted wife's testimony | Hera's testimony about speaking with Leto did not disclose Leto's communications; no spousal-privilege breach | State elicited substance of Leto's testimony without her appearing, violating N.J.R.E. 501(2) | No violation; testimony did not reveal marital communications or the substance of Leto's statements and court did not abuse discretion |
| Use of defendant's opening statement as evidence | Prosecutor only highlighted uncontested concessions to frame direct evidence; opening was not used as proof | Prosecutor used defendant's opening (non-evidence) to sustain burden | Rejected; prosecutor's references responded to defense themes and pointed to actual evidence; no prejudicial error |
| Jury instruction about opening statements not being evidence | Court followed model charge and twice instructed jury that statements are not evidence | Instruction was cursory and inadequate, presumed reversible | No reversible error; instruction tracked model charge and defendant did not object |
| Sentencing: imposition of extended term and parole ineligibility; potential double-counting of priors | Court properly found persistent-offender status and aggravating factors supporting extended term and parole bar | Court failed to specify all predicate convictions, did not state it was "clearly convinced" aggravating factors substantially outweighed mitigating, and may have double-counted priors | Conviction affirmed; remand for resentencing to clarify predicate convictions used, articulate weighing for extended term and parole ineligibility, and avoid double-counting |
Key Cases Cited
- Feaster v. State, 156 N.J. 1 (abuse-of-discretion review for evidentiary rulings)
- Rose v. State, 206 N.J. 141 (discussion of spousal-privilege and limits on testimony)
- Mauti v. State, 208 N.J. 519 (purpose of spousal privilege to protect marital tranquility)
- Carter v. State, 91 N.J. 86 (contextual review of summation statements)
- Frost v. State, 158 N.J. 76 (failure to object to summation limits appellate review and curative opportunity)
- Timmendequas v. State, 161 N.J. 515 (standard for prejudice from prosecutorial remarks)
- Whitaker v. State, 402 N.J. Super. 495 (model jury charge as persuasive authority)
- Dunbar v. State, 108 N.J. 80 (procedures and weighing required before imposing an extended term and parole ineligibility)
- Roth v. State, 95 N.J. 334 (appellate review limits and reasonableness standard for sentencing findings)
- Vasquez v. State, 374 N.J. Super. 252 (prohibition against double-counting prior convictions in sentencing)
- O'Donnell v. State, 117 N.J. 210 (appellate deference to sentencing factual findings supported by substantial evidence)