On appeal from Superior Court, Law Division, Essex County.
Antell, Long and Thomas. The opinion of the court was delivered by Long, J.A.D.
The opinion of the court was delivered by
Essex County Indictment No. 31-8-10-88 charged defendant, Louis Nutter with murder, contrary to N.J.S.A. 2C:11-3a(1), (2) (count one); with fourth-degree unlawful possession of a knife, contrary to N.J.S.A. 2C:39-5d (count two); and with third-degree possession of a knife for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d (count three).
After a jury trial, defendant was convicted on all counts. The trial Judge merged count two into count three for sentencing and sentenced defendant as follows: on count one, to a custodial term of forty years with a thirty-year period of parole ineligibility and on count three to a concurrent five-year custodial term. An appropriate Violent Crimes Compensation Board penalty was also imposed.
Defendant appeals, contending that the following errors warrant reversal:
THE TRIAL JUDGE'S REFUSAL TO INSTRUCT THE JURY ON AGGRAVATED AND RECKLESS MANSLAUGHTER OR INTOXICATION DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRES THAT HIS CONVICTIONS BE REVERSED.
THE TRIAL JUDGE'S FAILURE TO CHARGE THE JURY ON THEIR DUTY TO DETERMINE IF DEFENDANT'S STATEMENT WAS CREDIBLE AND HER INSTRUCTION THAT THEY COULD CONSIDER THE STATEMENT "AS EVIDENCE AGAINST HIM" IF THEY FOUND THAT IT WAS VOLUNTARILY GIVEN DEPRIVED DEFENDANT OF A FAIR TRIAL. .
THE TRIAL JUDGE DENIED DEFENDANT A FAIR TRIAL BY UNDULY LIMITING HIS RIGHT TO PEREMPTORILY CHALLENGE PROSPECTIVE JURORS WHEN A VACANCY WAS FILLED ON A JURY JUDGES THAT HAD BEEN SELECTED BUT NOT YET SWORN.
THE USE OF CLOSED CIRCUIT TELEVISION TO TAKE THE TESTIMONY OF LATEEFAH AND AJA GAINES VIOLATED DEFENDANT'S STATE AND FEDERAL RIGHT TO CONFRONT WITNESSES BECAUSE TESTIMONY BY CHILDREN WHO WITNESS THE KILLING OF ANOTHER IS NOT WITHIN THE PURVIEW OF N.J.S.A. 2A:84A-32.4.
DEFENDANT'S CONVICTION AND SENTENCE FOR POSSESSION OF A KNIFE FOR AN UNLAWFUL PURPOSE MUST MERGE INTO HIS CONVICTION AND SENTENCE FOR MURDER.
We have carefully reviewed this record in light of these contentions and have concluded that the use of closed circuit television to take testimony of the child witnesses in a murder case conflicted with N.J.S.A. 2A:84A-32.4 and hence violated defendant's Sixth Amendment right to confrontation. This error requires reversal and remand for trial.
The case arose out of defendant's admitted stabbing of Angela Gaines on April 28, 1988. During the Spring of 1988, Angela Gaines was living with defendant in an apartment at 46-D Spruce Street in Newark. Three children were also living with them at the time: Lateefah, then age nine; Aja, then age five; and six-week old Charissa. Defendant was Aja's father; Lateefah characterized him as her "stepfather."
Lateefah testified to an incident which occurred about two months prior to Angela's death when Angela was eight or nine months pregnant with Charissa. At approximately ten or eleven o'clock in the evening, defendant and Angela were in their bedroom. Angela was on the bed and defendant was asleep on the floor. Angela, Lateefah and Aja began "pulling" defendant in order to wake him up to watch television with them. Defendant became angry and started "pushing" Angela. At this point, Cynthia Skelton, Angela's sister, arrived at the house to speak to defendant. Skelton and Angela tried to awaken defendant to no avail. The doorbell rang and Skelton went downstairs to answer it. As she went back upstairs, she "heard them fighting." Defendant was hitting Angela and she was fighting back. Lateefah testified that defendant pushed Angela causing her to fall over a bicycle. Skelton tried to break up the fight and defendant started swinging at both of them. Skelton went downstairs to get a frying pan and when she returned, Angela "was down on the floor and [defendant] was kicking and punching her" on her torso. While she was trying to break up the fight, defendant hit Skelton in the mouth, loosening her tooth. Skelton struck defendant with the frying pan on the back of the head, and defendant stopped hitting Angela. At that point, as defendant was leaving the bedroom, Skelton asked him why he fought with Angela when she was pregnant with his child. Defendant responded that "the little son-of-a-bitch wasn't his anyway." Lateefah testified that she saw defendant hit Skelton in the mouth and that she saw Skelton hit him with the frying pan. Skelton testified that Aja was in bed when this occurred and, at some point, Lateefah ran and locked herself in the bathroom.
Lateefah, along with Lorraine Baker (who lives in an apartment at 50-A Spruce Street in Newark), also testified concerning an incident which occurred on April 14, 1988, two weeks before Angela was stabbed. Shortly before 7:00 a.m., an argument erupted between defendant and Angela after she accused him of stealing two $500 money orders which she had
kept in a dictionary. Lateefah testified that the two came downstairs and were "pushing and punching and hitting each other and pushing each other on the floor." Defendant then punched Angela in the head and she fell to the floor. As Angela lay on the floor crying and bleeding, defendant sat her up and told her not to go to sleep but did not help her with the cut on her head and did not call the doctor. Rather, Angela told Lateefah to go to Baker's house to call an ambulance. Baker testified that Lateefah came to her apartment at approximately 7:00 a.m. and said that she wanted to use the phone to call an ambulance for her mother who had been hit in the head. Baker called the ambulance and then returned with Lateefah to the apartment. When Baker and Lateefah returned to the apartment, Lateefah observed that "stuff was all out and the table was turned upside down . . . and [Angela] was sitting there and there was a big patch of blood on the floor." Baker testified that when she arrived, defendant was sitting on the couch with Charissa in his arms and was not trying to help in any way. Baker testified that as Angela was laying on the floor with blood "gushing out of her head," she called out to her. When Baker asked her "what was the matter," Angela told her that defendant had hit her. Baker then told defendant to leave because she thought that the police would be arriving soon. The ambulance came and took Angela to the hospital where she received stitches to close a laceration. Baker stayed with the children until Angela's mother arrived.
Baker testified that she spoke to defendant on the telephone a couple of hours later when he called to ask how Angela was doing. Defendant explained to her what had happened:
"He told me that Angie had the table in front of the door and she asked him for her money. She accused him of [stealing] the money and all of a sudden, he told me that she picked up something, what, and then he just snapped."
Baker testified on cross-examination that she saw Angela and defendant the following night in the apartment together and that they were "getting high." Lateefah testified on cross-examination
that at the time of both of these incidents, her mother had been drinking "a little bit."
Catherine Gaines, Angela's mother, testified that on April 27, 1988, Angela had called her at work to ask her to bring her some money which she needed to pay her bills. Catherine Gaines brought $500 to her daughter at her ...