Two important holdings came from the case of State v. James E. Jones, Docket No. a-3600-13 (App. Div. 2016), decided on June 15, 2016. First, the five-year criminal statute of limitations is not tolled under the “DNA exception” of N.J.S.A. 2C:1-6c when the DNA evidence in the possession of the State is used to identify the victim of the crime rather than the perpetrator.
Second, a “conspiracy of silence” constitutes a continuing course of conduct. Therefore, the statute of limitations does not begin to run until the conspirators admit their involvement.
Iyonna Jones, the victim’s sister, gave a statement to the police on August 23, 2012, concerning her knowledge of the victim’s death on August 14, 2002. The five year statute of limitations did not begin to run until Iyonna gave that statement. Therefore, the prosecution was allowed to pursue the case even though the crime occurred more than ten years earlier. The most relevant language of the Court’s holding is as follows:
The language in the statute creating an exception for DNA evidence does not encompass its use in order to identify persons other than the actor, even if the match may ultimately lead investigators to the perpetrator of the crime. The dispositive question is whether the DNA evidence itself identifies the perpetrator.
When the prosecution is supported by physical evidence that identifies the actor by means of DNA testing time does not start to run until the State is in possession of both the physical evidence and the DNA necessary to establish the identification of the actor by means of comparison to the physical evidence. N.J.S.A. 2C:1-6(c). Any grammatical, logical construction of this language leads inescapably to the conclusion that the DNA in question must be that of the person or persons who committed the offense.
There is no meaningful distinction between this case and any other in which disclosures are made after the statute has expired that point the finger at an alleged perpetrator. To suggest a distinction exists would eliminate in one stroke the protection found in the statute of limitations. The use of a DNA match to someone other than the perpetrator does not come within the exception.
A conspiracy may continue beyond the actual commission of the object of the conspiracy if it is shown that a conspirator enlisted false alibi witnesses, concealed weapons, or fled in order to avoid apprehension.
Additionally, once the prosecution demonstrated the defendant’s involvement in a conspiracy, the defendant’s continued involvement is presumed until the defendant proves termination or withdrawal. This includes statements relating to past events where necessary to prompt one not a member of the conspiracy to respond in a way that furthers the goals of the conspiracy.
Therefore, as to the conspiracy, because the statute and caselaw define it as a continuing offense, the question we must answer is “when the last act occurred.” Overt acts keep a conspiracy alive so long as committed by a person with whom the person charged conspired.
That a jury may convict on overt acts omitted from an indictment lends authority to the notion that the State can withstand a motion to dismiss where other overt acts may be proven that are not found in the charging document itself. A defendant facing an indictment which he considers not sufficiently specific to enable him to prepare a defense has the right to move for a bill of particulars pursuant to Rule 3:7-5.
Thus the overt acts which made this a continuing conspiracy which obscured the crimes they committed by helping Elisha in 2002 when Jon-Niece died include: the family meeting in 2002 and the direction to Iyonna to lie if asked about the child’s whereabouts, Likisha’s 2006 threats, James’s discussion with Iyonna in 2010 when he described the events, and Gibson’s threats.
So long as the co-conspirators kept quiet, and successfully kept Iyonna from making any disclosures, everyone’s wrongdoing was hidden. Theirs was a continuing course of conduct, a true conspiracy of silence that began in 2002, was reaffirmed over the years, and did not stop until Likisha and James confessed. Hence the last act occurred the year of the indictment. The five-year statute of limitations does not compel dismissal of this charge.
