A Hypothetical Question of pro se Defendant = Not Evidence

From State v. Selecky, 2012 WL 75088 (Jan. 11, 2012) (unpublished opinion):
Lorraine M. Selecky "drove with her thirteen-year-old daughter to a 7–Eleven store in Roselle Park to rent a video from an automated Redbox video vending machine located outside the store. As they approached the Redbox, defendant and the daughter were engaged in an intense argument. Once there, they encountered off-duty police officer James Cantrell, who was renting a video with his children. At this point, a heated argument occurred between defendant and Cantrell, either because defendant thought Cantrell's children were taking too long in making their choice or because Cantrell interjected himself in defendant's mother-daughter dispute. In any case, the exchange escalated to the point that defendant threatened to call the police, but she did not do so, nor did Cantrell disclose that he was a police officer. Two days later, defendant received in the mail a summons, issued by Cantrell, for parking in the handicapped parking spot located next to the Redbox vending machine.

"[Lorraine M. Selecky], appearing pro se, contested the ticket in municipal court. At the trial held in the matter, Cantrell testified that he had observed defendant parking illegally and that he notified dispatch of the violation. However, he did not personally raise the subject of defendant's allegedly illegal conduct with her at the time."

"On cross-examination, [Ms. Selecky] asked Cantrell why, if she had parked in a handicapped spot, Cantrell did not ask her to move her vehicle. Her question was as follows:

Officer, since you took an oath that it is your honor to[,] you know [,] protect the public and dispatch anything that you see [as] wrongdoing, why would you not have approached me at that time if you in fact say this is what I did, parked in the handicapped spot right next to this red box, having seen I made this violation, why would you not interject and say to me, Ma‘am, why are you parking there, you don't have the handicapped sticker?

"When directed to rephrase her question, defendant asked:

Let's say I'm parked in the handicap spot such as Officer Cantrell is saying here that I'm parked there, and you see me coming out of the car and I approach the red box, why would you not stop me then and say, Ma‘am, you shouldn't park there, move your car. Why would you not do that if that were the case as you're suggesting?

"Cantrell responded that defendant was deemed to know the law, so there was no need on his part to inform her of her violation. In the circumstances presented, he could nonetheless do so, or he could issue a summons. He chose the latter course."

In a bench trial in a municipal court, Ms. Lorraine M. Selecky was convicted. "In reaching his decision on the matter, the municipal judge observed that, in this case, he was required to determine that “somebody's facts are right and somebody's facts are wrong.” He then held: 'Based upon the inferences that are to be given to the State and to the police, I find Officer Cantrell's testimony to be credible.' The judge continued by stating:

The one thing that I did find interesting to your [defendant's] detriment is when you asked the officer, I guess it was a hypothetical, but you asked him, well even if a person had parked in that spot, would you not interject with the person and ask him to simply pull—basically pull out of that spot rather than issue them a summons.

My—it made me think a little bit what would trigger that question and it made me think possibly, possibly that you were in that spot and that you were hurt or offended by the fact that a simple courtesy would have been to say hey, why don't you back out of the handicapped spot.

I don't know if that happened or not. But it made me have a thought process of why you would ask that particular question.

"Following some additional musings on the import of defendant's question, the judge determined to accept Cantrell's testimony regarding the episode, and he ruled that the State had met its burden of proving a statutory violation.

"Defendant retained counsel and appealed to the Law Division. On appeal, counsel argued that no deference should be given to the municipal judge's credibility finding, which was based upon his erroneous conclusion that deference had to be accorded to the State and its police witness.
"...
"Following issuance of an order stating that defendant's appeal was “denied,” defense counsel moved for an order granting defendant a new trial or permitting defendant to supplement the record with the testimony of her daughter. In a written opinion denying counsel's motion, the judge addressed an argument by counsel, set forth in a certification accompanying the motion, that neither judge had made a credibility finding with respect to defendant. The judge stated:

On the merits of defendant's claim, I, along with [the municipal court judge] did, in fact, take into account her testimony. Both courts took note of the surprising hypothetical that defendant posed when she asked Officer Cantrell why, in lieu of issuing a ticket, he would not have just asked an individual parked in a handicapped spot if they would simply move from the spot. [The municipal court judge] found the hypothetical suspect, as if she 'were hurt or offended by the fact that a simple courtesy would have been to say hey, why don't you back out of the handicapped spot.' I adopted [the judge's] concerns.

... I properly took the testimony of both the defendant and Officer Cantrell into account in coming to the determination that the State properly met its burden in proving that defendant illegally parked the vehicle in a handicapped spot."

Defendant appealed to the Appellate Division of the New Jersey Superior Court. The Appellate Division reversed Ms. Selecky's conviction for parking in a hnadicapped parking spot. The Appellate Division explained:

"[W]e are particularly concerned by statements by the judge in his opinion denying defendant's motion for a new trial or supplementation of the record, indicating that in determining credibility he, like the municipal judge, considered defendant's hypothetical questions as an admission that she, in fact, had parked illegally. We know of no precedent that would permit a hypothetical question posed by a pro se party during cross-examination of a witness at trial to be considered as substantive evidence in the proceeding. Indeed, for it to be so construed would present an unlawful trap to a defendant, untutored in the law, representing his or herself in a legal proceeding. Moreover, evidence has been defined as:

Any knowable fact or group of facts, not a legal or a logical principle, considered with a view to its being offered before a legal tribunal for the purpose of producing a persuasion, positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law or of logic, on which the determination of the tribunal is to be asked.

[1 Wigmore on Evidence § 1 at 8 (Tillers Revision 1983).]

"Defendant's hypothetical question cannot be considered a 'fact' as that concept has been defined. Moreover, we do not regard defendant's hypothetical question either 'suspect' or 'surprising .' Rather, it constituted an entirely logical inquiry designed to test the officer's credibility.

"We thus conclude that, because a basis for the judge's credibility determination was plainly improper, the determination thus reached was sufficiently lacking in foundation as to warrant judicial intervention and correction. State v. Johnson, 43 N.J. 146, 162 (1964). Retrial is therefore required.

"Given the well-recognized importance of a municipal judge's evaluation of witness credibility, and out of concern that the evidentiary mistakes occurring in that regard in the initial municipal trial in this case would infect future proceedings if held before the same municipal judge, we direct that a different judge be assigned to the retrial of this matter."

....

Of course, probably the real reason for Ms. Selecky's victory was that the Appellate Division felt that Officer Cantrell abused his authority by punishing Ms. Selecky for getting into an argument with him in the Redbox store. This is, in any event, a completely reasonable conjecture. And Officer Cantrell will think twice before doing again what he did to Ms. Selecky. And Ms. Selecky had reason to be gratified with the outcome in the Appellate Division. We should all be grateful to have citizens who  have as much grit as Ms. Selecky did.

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