On appeal from the Superior Court of New Jersey, Law Division, Essex County. Editors Note: This opinion was originally published at 220 N.J. Super. 187. It is published here as corrected.
Michels, O'Brien and Skillman. The opinion of the court was delivered by O'Brien, J.A.D.
Defendant appeals from his conviction of aggravated manslaughter (N.J.S.A. 2C:11-4a),*fn1 upon which he was sentenced to a term of 20 years with a ten-year period of parole ineligibility, and third degree endangering the welfare of a child (N.J.S.A. 2C:24-4a), upon which he was sentenced to a concurrent term of five years with a two and one-half year period of parole ineligibility. A penalty of $1,025 payable to the Violent Crimes Compensation Board was also imposed. We affirm.
Defendant is 25 years of age. He met codefendant Renee Nicely (Nicely) when they were both about 14 years of age. Although unmarried, they had an ongoing relationship which produced five children. Their first child, Davell, was born in
December 1977, and their second, Shawn, was born on February 19, 1979.*fn2 On September 26, 1982, Shawn was brutally beaten to death. Defendant and Nicely*fn3 were charged with his murder. In addition, defendant was charged with having, on or about September 26, 1982, caused Shawn harm that would make him an abused or neglected child, defendant having a legal duty to care for him (N.J.S.A. 2C:24-4a).
Testimony at the joint trial of defendant and Nicely revealed a variety of acts of mistreatment of Shawn by Nicely. During a period when Nicely and her two children were residing with defendant's mother, Nicely conceived the idea, upon the suggestion of defendant's mother, that Shawn was not her child. It was suggested that the wrong child had been delivered to her by the Division of Youth & Family Services (DYFS). There was substantial testimony from friends and neighbors that Nicely abused Shawn and had a conception that she could treat him as she saw fit. However, the friends and neighbors also indicated that, before the murder, defendant treated Shawn as he did the other children and was not cruel or abusive to him. One exception was testimony*fn4 that defendant burned Shawn on his buttocks sometime between April and July 1982. In addition, Davell testified that defendant killed his brother. He said:
He (defendant) took him (Shawn) by his hand and jumped on him and then stepped on his back with 2 feet. He took one foot then put his other foot, stepped on him.
Davell also testified that defendant punched Shawn in the eye and "then he throwed him in the tub with full of water trying to drown him." Davell further testified that defendant had
injured Shawn on a prior occasion when pushing him through a door on "a little horsey" with wheels. Furthermore, according to Davell, defendant got Shawn drunk on occasions by giving him liquor and beer.
On the day of his death, Shawn was beaten unmercifully. The extensive injuries which he suffered were testified to by the medical examiner and included subcutaneous hemorrhage on the back of the head, hemorrhage on both sides of the head, ecchymosis of the left eye, lacerations and cuts involving both ears and subcutaneous hemorrhage involving the chin. Shawn's brain was swollen as a result of concussion. There was hemorrhage on both sides of his buttocks, recent injuries of his left shoulder and left upper back, right middle back, lesions of the exterior chest, left shoulder, middle area of the chest, right upper chest, abrasions of the right side of the abdomen, bruise of the anterior portion of the left thigh, contusion and abrasion of the left genital, three burn marks on the chest and a burn mark on the left shoulder. He had sustained a painful fracture of the distal end of the elbow, between six days and 24 hours before his death. There were many internal injuries, as well as a recent fracture of the eighth rib. Due to the substantial number of injuries Shawn sustained, it was impossible to accurately pinpoint the particular blow that caused his death. The medical examiner described it as a homicide by assault.
After defendant's indictment on December 20, 1982, a number of proceedings were conducted by the trial judge, productive of an extensive record.*fn5 It is only necessary for us to refer to those proceedings involving the issues raised on this appeal, which are as follows:
POINT I THE DEFENDANT'S MOTION TO PROHIBIT DEATH QUALIFICATION OF PROSPECTIVE JURORS AS VIOLATIVE OF THE CONSTITUTION SHOULD HAVE BEEN GRANTED BY THE COURT.
POINT II THE DEFENDANT'S MOTION FOR SEVERANCE SHOULD HAVE BEEN GRANTED BY THE COURT.
POINT III THE ADMISSION OF THE TESTIMONY OF A WITNESS TAKEN OUTSIDE THE PRESENCE OF THE DEFENDANT AND THE JURY DENIED THE DEFENDANT HIS RIGHT OF CONFRONTATION.
POINT IV IT WAS ERROR FOR THE COURT TO ADMIT THE TESTIMONY OF DOLORES MORTON AND LYNNE LEIBERMAN PURSUANT TO EVID.R. 63(4).
POINT V THE TESTIMONY OF JANIE BENNETT SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.
POINT VI THE TESTIMONY OF PROSECUTOR DETECTIVES CONCERNING PRIOR STATEMENTS OF DAVELL NICELY SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.
POINT VII THE JURY CHARGE CONCERNING ACCOMPLICE LIABILITY AND OMISSION TO ACT WAS ERRONEOUS.
POINT VIII THE DEFENDANT'S MOTIONS FOR JUDGMENT N.O.V. AND FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED BY THE COURT.
POINT IX THE FAILURE OF THE COURT TO MERGE THE OFFENSES OF AGGRAVATED MANSLAUGHTER AND ENDANGERING THE WELFARE OF A CHILD AT SENTENCING WAS ERROR.
POINT X DEFENDANT WAS INDICTED, TRIED AND CONVICTED BY A GRAND AND PETIT JURY SYSTEM IN ESSEX COUNTY WHICH WAS UNREPRESENTATIVE IN VIOLATION OF THE FEDERAL AND STATE CONSTITUTIONS AND THE APPLICABLE NEW JERSEY STATUTES.
We address these issues separately.
A. COMPOSITION, DEATH QUALIFICATION AND SELECTION OF JURY
Initially, by order dated February 12, 1986, we suspended decision on the issues raised in Point I as to "death qualification" of prospective jurors and Point X concerning the alleged unrepresentative composition of juries in Essex County, pending resolution of those issues by the Supreme Court. However, by order of February 5, 1987, we vacated our order of February 12, 1986, and directed the State to file a responding brief as to those issues, which it has done.
Among the pretrial motions filed by defendant was an application to have the court preclude "death qualification" of prospective jurors. In a written opinion, the trial judge denied defendant's motion. State v. Bass, 189 N.J. Super. 461 (Law Div.1983). The issue has since been decided adversely to defendant's position by the New Jersey Supreme Court in State v. Ramseur, 106 N.J. 123, 248-261 (1987), see also Lockhart v. McCree, 476 U.S. 162, 163-65, 106 S. Ct. 1758, 1760, 90 L. Ed. 2d 137, 142 (1986).
Defendant filed his notice of appeal on October 27, 1983. On his motion we remanded the case, by order dated August 8, 1984, for a ruling on his challenge to the jury composition. Defendant was one of 13 defendants who joined in Thomas Ramseur's motion challenging the jury selection system in Essex County. Defendant sought to reverse his conviction. After a lengthy evidentiary hearing, Judge Richard Newman denied the motions. State v. Ramseur, 197 N.J. Super. 565 (Law Div.1984). Defendant's motion to the Supreme Court for direct certification to join in the appeal in State v. Ramseur on the sole issue of jury selection was denied by the Supreme Court on March 5, 1985.
The Law Division decision in Ramseur was affirmed by the Supreme Court on March 5, 1987. State v. Ramseur, 106 N.J. at 212-239. There is no merit to defendant's contention concerning excuses to students and teachers which were based largely on statutory requirements. The decision of the Supreme Court in State v. Ramseur is dispositive of Points I and X urged by defendant on this appeal.
Defendant's motion for severance from prejudicial joinder under R. 3:15-2(b) was denied. Such a motion is entrusted to the sound discretion of the trial judge. See State v. Scioscia, 200 N.J. Super. 28, 42 (App.Div.1985), and the cases cited therein. We will not reverse the denial of such a motion
unless there is a clear showing of abuse of discretion. See State v. Moriarty, 133 N.J. Super. 563, 569 (App.Div.1975), certif. den. 68 N.J. 172 (1975). Relying upon State v. Pickles, 46 N.J. 542 (1966), defendant contends that his incrimination of Nicely in order to exculpate himself caused the jury to react unfavorably to him. In addition, he contends that the substantial evidence of Nicely's repeated abusive conduct towards Shawn and the court's repeated admonition to the jury that such testimony could only be used against Nicely was prejudicial to him. Further, he contends the prejudice to him was greatly enhanced by Nicely's defense of diminished capacity, since the psychiatrists attributed much of her conduct to her isolation and despair which reflected unfavorably upon defendant. For this proposition he relies upon State v. Sinclair, 49 N.J. 525 (1967), where, although the Court found that the trial judge had not abused his discretion in denying a severance, it nonetheless concluded that on retrial justice would be better served by a severance, if requested by either defendant. Id. at 550. We have thoroughly reviewed defendant's contentions concerning the denial of his motion for severance in light of the applicable law and affirm the denial substantially for the reasons given by Judge Edwin H. Stern in his oral opinion of May 16, 1983.
As noted, the victim's five year old brother, Davell, was an eyewitness to the murder. After hearing the testimony of a clinical psychologist who examined Davell at the request of the defense, and Davell's treating psychologist, the trial judge made findings based upon those opinions and concluded that the testimony of Davell should not be given in the presence of his parents, the defendant and Nicely. He further concluded that the jury need not, in all instances, physically observe the witness. Therefore, the trial judge held that a video observation is constitutionally adequate and there is no constitutional
right to face-to-face confrontation between the witness and the accused.
The procedure ultimately used was that Davell testified on closed circuit television in the judge's chambers, in the presence of his foster mother, the trial judge, counsel for defendant, and one of Nicely's attorneys. This live testimony was simultaneously transmitted audibly and visually to both the jury and defendants, with the camera focused on the witness. Defendant and Nicely, and Nicely's second attorney, were located in the chambers library with a two-way telephone communication system to secure the right of cross-examination. At the request of defendant, the jury was given the impression that defendants were physically present in chambers.
Defendant contends that this procedure violated his right to be confronted with the witness, as guaranteed by both the Sixth Amendment to the United States Constitution and Article 1, par. 10 of the New Jersey Constitution. We disagree, substantially for the reasons given by Judge Stern in his oral opinion of May 13, 1983.
At a pretrial competency hearing, Dr. Edward Arnow, a psychologist called by the defense, testified that it would be "disastrous" for Davell to testify in the presence of his parents. Dr. Walter Duryea, the treating psychologist, agreed that confronting his parents in court would have "a serious negative effect" on Davell, although he may be able to do it. Not only did the murder involve extensive physical abuse to Shawn, but the psychologist's testimony revealed substantial psychological trauma suffered by Davell in witnessing this tragic event. The trial judge's decision, based upon the opinion of the psychologists, was clearly warranted. To the extent that United States v. Benfield, 593 F.2d 815 (8th Cir.1979), and Herbert v. Superior Court of California, 172 Cal.Rptr 850, 117 Cal.App. 3d 661 (Cal.Ct.App.1981), relied upon by defendant, are inconsistent with our ruling, we disapprove of them in this jurisdiction.
We held recently that admission of an "unavailable" witness' videotaped deposition in a criminal trial did not violate defendant's
right of confrontation under the United States and New Jersey Constitutions. See State v. Washington, 202 N.J. Super. 187 (App.Div.1985), where we said:
The right of an accused 'to be confronted with the witnesses against him' is protected in New Jersey not only by the application of the Sixth Amendment to the United States Constitution to the States through the Fourteenth Amendment, but by a parroting of that language in the Constitution of New Jersey. N.J.Const. (1947), Art. I, par. 10. Distilled in the relatively recent case of Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), the purposes of the constitutional protection afforded by the confrontation clause are 'a preference for face-to-face confrontation at trial' and a securing of the right of cross-examination. 448 U.S. at 63, 100 S. Ct. at 2537. At the outset we observe that the United States Supreme Court thereby distinguishes between the desirability, expressed in terms of 'preference,' of face-to-face courtroom confrontation and the 'secured' right of cross-examination. This alone suggests that the confrontation guaranteed by the clause is not necessarily one in a courtroom. But see California v. Green, 399 U.S. 149, 157-158, 90 S. Ct. 1930, 1934-1935, 26 L. Ed. 2d 489 (1970). But the matter was not left to inference in Ohio v. Roberts. There it is expressly held that 'competing interests, "if closely examined," [citation omitted], may warrant dispensing with confrontation at trial.' 448 U.S. at 64, 100 S. Ct. at 2538.
We further note N.J.S.A. 2A:84A-32.4, adopted by the Laws of 1985, c. 126, § 1, effective April 11, 1985, authorizes a similar procedure to that used in this case in prosecutions for aggravated sexual assault, sexual assault, aggravated criminal sexual assault, criminal sexual contact, or child abuse, or in any action alleging an abused or neglected child. N.J.S.A. 9:6-8.21. We perceive no error in the procedure used for Davell's testimony at trial.
(1) Testimony of Dolores Morton
Points IV, V and VI concern evidential rulings. The first deals with the testimony of Dolores Morton. Shawn had lived
with Mrs. Morton from May 1981 until April 1982 and a close relationship developed between them. Shawn returned to the Nicely household in April 1982 where Mrs. Morton visited with him occasionally. In July 1982, Mrs. Morton, her husband and a girlfriend, went to Paterson where Mr. Morton was going to repair Mrs. Morton's bible instructor's refrigerator. Nicely granted permission for Shawn to go with them. In Paterson while helping Shawn go to the toilet, Mrs. Morton observed "what appeared to be burns on his buttocks." In response to her question, "Shawn, tell Momma what happened to your heiney," Shawn replied, "Allah (defendant) burned me with the light Momma."*fn6 Not long after, Shawn climbed on to Mrs. Morton's lap. When she flicked a lighter to light a cigarette he asked her "to please not burn him with the lighter."
After a Rule 8 hearing, the trial judge ruled this testimony admissible as an exception to the hearsay rule under Evid.R. 63(4). He explained the reasons for his ruling as follows:
I do so because there was apparently a very close strong relationship with Ms. Morton on the one hand and Shawn Nicely on the other. Shawn remained in the Morton home for approximately 11 months, and that ...