On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 97-10-2469-I.
Before Judges Pressler, Ciancia and Parrillo.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following a jury trial, defendant John Taylor was found guilty of murder (N.J.S.A. 2C:11-3a(1) and (2)) (Count 1); second-degree conspiracy to commit aggravated assault (N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1(b)(1)) (Count 2); second-degree aggravated assault (N.J.S.A. 2C:12-1(b)(1)) (Count 3); third- degree conspiracy to commit aggravated assault with a deadly weapon (N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1(b)(2)) (Count 4); third-degree aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1(b)(2)) (Count 5); fourth-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5(d)) (Count 6); third-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(d)) (Count 7); and fourth-degree obstructing justice (N.J.S.A. 2C:29-1) (Count 12).*fn1 After merging the convictions on counts two through seven into count one, the trial court sentenced defendant to a life term of imprisonment with a thirty-year parole disqualifier on the surviving murder count and a concurrent eighteen-month term on count twelve. On the same day, the trial court sentenced defendant on a violation of probation*fn2 to a four-year term of imprisonment, which was to run consecutively to the sentence imposed for the murder conviction. Defendant appeals. We reverse defendant's conviction for purposeful or knowing murder and for the offenses merged therein because: (1) the prosecutor elicited testimony from the investigating police officer that other unidentified, non-testifying individuals had implicated defendant in the murder; (2) the trial court erroneously admitted into evidence a videotape depicting the last three and one-half minutes of the victim's life on the basis of a brief "dying declaration" that was testified to by three other witnesses; and (3) the trial court failed to charge the jury on passion- provocation manslaughter even though the evidence clearly indicated a basis for that charge. These errors affect the remaining conviction for obstruction of justice, which we also reverse.
Gregory Hendricks died as a result of a single stab wound to the chest, penetrating the heart and lung. He was stabbed shortly before 6:00 p.m. on May 19, 1997 on the street outside the Atlantic City apartment of Margenese Bell, his ex-girlfriend and mother of his two children. Bell was pregnant at the time, but she did not know whether the father was Hendricks or defendant, her then boyfriend.
Apparently there had been animosity between the two men, as defendant had expressed concern to his friends over a prior incident in which Hendricks and his brothers supposedly tried to jump him. On the evening before the stabbing, defendant was at Bell's apartment when he overheard Bell's mother say that she had seen Hendricks poke Bell in the ribs. The next day, May 19, 1997, defendant informed his friends Kevin Stevenson and Dwayne Roberts that he had a "problem" with Hendricks that he needed to "handle." Stevenson and Roberts agreed to back defendant up in a fight if Hendricks brought other people with him. Both Stevenson and Roberts assured defendant that they were not "going to let nobody jump him," and that "it was going to be a fair fight . . ." They arranged to meet at Bell's apartment later that day, where defendant had learned Hendricks would be arriving at around 5:00 p.m. Earlier that morning, at about 7:00 a.m., Bell had telephoned Hendricks' mother, Bernice Livingston, to ask her to have Hendricks drop off a box of Pampers for the children after work.
As planned, defendant, Stevenson, Roberts, and another friend, Marvin Burke, along with Bell and defendant's sister, fifteen-year-old Stephanie Taylor, were at Bell's apartment later that afternoon. Defendant and his three friends were "having a session" drinking, smoking marijuana, and playing video games in the second floor apartment. While they were "chilling," the conversation turned to what was going to happen during the fight with Hendricks, and defendant pulled a knife from his pocket and said, "if shit gets hectic, I'll shake him." This was interpreted by Roberts as meaning defendant might use the weapon defensively if necessary. Stevenson "just thought it was going to be a fight."
At about 5:30 that afternoon, Bernice Livingston drove up to the apartment parking lot in her red pickup truck accompanied by her son, Gregory Hendricks, and a relative, Seaford "Tony" Brody, the three of them having finished work at the Atlantic City Press where they were all employed. Ms. Livingston took the package of Pampers and headed for the stairs that led up to Bell's apartment, while Hendricks and Brody stayed in the truck. Meanwhile, Stephanie Taylor, who had been standing by the window, advised defendant that Hendricks had arrived. According to Stevenson, defendant grabbed what appeared to be a steak knife, put it in his waistband, and ran downstairs, followed by Stevenson and Roberts. The three men ran by Livingston, who did not see any of them with weapons. By then, Burke had left Bell's apartment before Hendricks arrived.
The versions of the ensuing confrontation differ, but by all accounts it started as a verbal engagement. Either Roberts or defendant approached the truck first, with the other two staying behind in the alley, "like hiding." According to Stevenson and Roberts, defendant ran up to the passenger side of the truck where Hendricks was sitting and began arguing with him about "why he put his hands on his girl or his baby's mom." According to Brody, who was sitting in the cab of the truck with Hendricks, a "short guy" in dark-colored clothes first approached and said "what is this bull crap that you were telling my baby's mother." Roberts was wearing a dark-colored shirt and black pants, whereas defendant was wearing a red or orange shirt and fatigue pants. Roberts had fathered a child with a woman named Tammy White, whom Hendricks was then seeing. In any event, eventually both defendant and Roberts were arguing with Hendricks.
At this time, Hendricks reached into the glove compartment and appeared to retrieve an object that he put under his shirt. In fact, Hendricks kept putting his hand under his shirt, acting as if he may have had a gun, and kept telling the trio to move away from the truck. In the meantime, Brody, who had been sitting in the middle seat, got out of the truck from the driver's side. Hendricks also exited the truck from the driver's side, holding an object in his hand that turned out to be an E&J Brandy bottle. Hendricks and the trio began circling the truck. It was at this time that the confrontation escalated from verbal to physical, and the accounts grow even more disparate.
According to Roberts, Hendricks started the physical altercation when he "cracked me in my face with the [brandy] bottle." Stevenson testified the confrontation became physical when he picked up a metal pipe from the back of the truck and hit Hendricks with it on the legs. Roberts then took hold of the pipe from Stevenson and hit Hendricks twice in the knees, only to lose control of the pipe temporarily in a struggle with Brody. Stevenson and defendant "started jumping" Hendricks. At around this time, a car driven by Ricky Williams pulled up to the scene and its occupant, Bobby Clark, a member of the same gang as defendant and his friends, got out and briefly joined in the fight, throwing a few punches at Hendricks. Clark saw defendant swinging "a sharp object" at Hendricks while Hendricks was trying to "go for [defendant's] head" with the bottle. In fact, according to Clark, Hendricks was about to hit defendant with the bottle when Clark intervened and "smashed the bottle" over Hendricks' head instead. Stevenson also witnessed Hendricks swinging the bottle, but said the victim did not connect. At some point the bottle dropped to the ground.
At some point, Hendricks tried to back into the truck's open driver's side door. According to Stevenson, as Hendricks struggled to get into the truck, defendant pulled the knife out of his pocket, told Stevenson to move out of the way and, as Hendricks's legs were dangling "halfway to the ground," stabbed him in the chest. Stevenson was the only participant who witnessed the stabbing. By that time, Clark had returned to the car and had not seen Hendricks get stabbed. His driver, Ricky Williams, did not see the stabbing nor anyone with a knife. The victim's cousin, Tony Brody, who participated in the melee, saw neither the stabbing nor anyone wielding a knife. Neither did Roberts witness the stabbing. The victim's mother, Bernice Livingston, saw some of the fracas from Bell's window but, by the time she got outside, her son was fleeing and someone other than defendant was pursuing him, swinging a pipe. There was a fifteen-year-old boy, Lewis Johnson, who was playing basketball nearby, who saw someone from the group, wearing a red shirt, pull "something shiny" out of his back pocket and swing it three times at the victim. Although Johnson apparently later selected defendant's photo from a photo array, which included photos of all the participants, as the person who stabbed Hendricks, he did not identify defendant at trial, nor did he say that he had seen Hendricks being stabbed. The knife used to stab Hendricks was never recovered.
After being stabbed, Hendricks "broke loose" and ran across the parking lot into a nearby grocery store where the owner, Farub Kahn, called an ambulance and turned on the store video to document the event. Roberts, who had chased Hendricks into the grocery store, striking him with the pipe four or five times, ran out when he realized the victim, covered with blood, had been stabbed. Hendricks, bleeding profusely from his chest, fell to the floor behind the counter. Police arrived at the store moments later and found Hendricks behind the counter trying to get up, looking "very, very, very scared," and having a "very hard time breathing." Hendricks, however, was able to tell the officers his name and, when his mother entered the store screaming, managed to tell her that he "was going to die." The officers asked Hendricks who had stabbed him, and his mother urged him to "[t]ell them who did it." Twice, Hendricks stated that "Johnny" had stabbed him. One of the officers asked him if "John" was "white or black," and the victim replied that he was "black." At that point, his "eyes rolled back in his head and he lost consciousness." This entire ordeal was captured on the grocery store's video camera, which was confiscated by police a short time later.
The police investigation began immediately. Ms. Livingston directed police to Bell's apartment, where she said the suspect lived and where in fact Stevenson had retreated after the stabbing. When police first came to the apartment asking for "Johnny," both Bell and Stevenson gave them false names at first, although Stevenson eventually gave his real name. Bell, however, did not. When asked who "Johnny" was, Bell told police he was "nothing to her." She proceeded to give a "totally different" description of him, and told them that the man they were looking for was really named "Jack."
The next morning, Roberts and defendant together telephoned Stevenson from a home in Pleasantville and told him to tell the police that Clark had stabbed Hendricks. Apparently, at that time Roberts believed they were telling Stevenson the truth because, immediately after the incident, that is what defendant had told him had happened. Stevenson, however, witnessed the stabbing and knew otherwise. Nevertheless, Stevenson called the police that morning and turned himself in. He gave two statements that day, both implicating Clark. However, in a third statement to the police two days later, Stevenson said that defendant stabbed Hendricks.
Defendant was interviewed two days after the incident, on May 21, but was not yet considered a suspect. He denied any involvement in the assault and said that, in addition to Roberts, Stevenson, and Clark, another individual named "John" was involved in the fight. He provided a physical description of that man as "a black male, eighteen to twenty, wearing a red shirt, green Army pants, and boots," but claimed to know nothing else about him. Actually, this description matched that given by the other participants, and Johnson as an eyewitness, of defendant's clothing. From the various physical and clothing descriptions given, police ultimately determined that defendant was the "John" who committed the stabbing. Defendant was arrested two weeks after the murder.
On October 23, 1997, Clark was arrested for his participation in this incident, while he was incarcerated in the Atlantic County jail for unrelated reasons. At the time of his arrest, Clark turned over to the Atlantic County Prosecutor's Office two letters he had received from defendant via another inmate. The first letter instructed Clark to sign the second letter and then send it to the prosecutor. The second letter was a statement that Roberts stabbed Hendricks, not defendant. Clark did not comply because he did not witness the stabbing.
Valerie Mack, a neighbor who witnessed the fight and worked with defendant's mother, testified for the defense. She testified that she saw defendant participate in the fight, but that at some point he was no longer involved and that another man made a "threatening motion" to the victim, after which the victim ran away. She could not remember what any of the men were wearing. In addition, she gave two statements to the police; the first was general and did not make mention of defendant because, she asserts, she both had not yet realized that it was he and did not want to get involved.
Defendant testified on his own behalf. He admitted that he was involved in a fight with Hendricks, but did not have a knife in his possession at the time and did not stab Hendricks. Instead, he testified that Roberts stabbed Hendricks.
It is against this factual backdrop that we address defendant's arguments. Defendant, through counsel, raises the following issues:
I. THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WHEN THE PROSECUTOR HAD A DETECTIVE TESTIFY THAT "OTHER PEOPLE" HAD GIVEN POLICE DESCRIPTIONS OF THE ...