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State v. Frisby

December 11, 2002

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MONICA L. FRISBY, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal is whether the trial court admitted prejudicial hearsay testimony and, in addition, failed to provide the jury with an adequate unanimity instruction.

This matter arises out of defendant's guilty verdict of endangering the welfare of a child, in violation of N.J.S.A. 2C: 24-4(a), in connection with the death of her son Ma'D. Defendant told police investigators that on June 8, 1995, she had left Ma'D with his father, Richard Patterson, while she went into Penns Grove for the evening. She further told investigators that at around 11:30 p.m. she saw Patterson in Penns Grove and confronted him as to why he was not with Ma'D. She stated that she then tried to get a ride back to the motel where she was living and when she finally got there, at 1:30 a.m., she found that her son was not breathing. She called 911 and administered CPR. Ma'D was dead on arrival at the Salem County Memorial Hospital. The doctor at the emergency room observed a bruise on Ma'D's face and became suspicious that there had been some type of child abuse. The doctor performing the autopsy observed four injuries on Ma'D, including a bruise on the right side of the head and a larger bruise on the left side of the face. That doctor testified that, in his opinion, Ma'D had been the victim of child abuse.

Upon questioning by investigating officers, defendant stated that Patterson had promised to stay with Ma'D. When questioned, Patterson claimed that he had made no such promise and had not been with Ma'D that night. In fact, Patterson claimed that he saw defendant three times that evening, without Ma'D, in Penns Grove, and that he had asked her where she had left Ma'D. He also claimed to have received two phone calls from defendant that night, the first asking why he had left Ma'D, which he did not understand, and the second saying that Ma'D was dead. Patterson provided investigators with the names of a number of alibi witnesses that could attest to his whereabouts the night in question. These witnesses never took the stand, but the investigating officers testified that their statements "substantiated" Patterson's claims as to his whereabouts and that their statements were "more credible" than defendant's. The officers further testified that they could not charge Patterson with anything.

Defendant, who did not testify at trial, appealed her conviction and the Appellate Division affirmed in an unreported decision. Defendant filed a petition for certification in which she challenged the admission of prejudicial hearsay evidence and the adequacy of the trial court's jury unanimity instruction.

The Supreme Court granted defendant's petition for certification.

HELD: The admission of the challenged testimony constituted plain error and the trial court should have provided the jury with a more specific unanimity charge. The judgment of the Appellate Division is reversed.

1. The admission of the challenged testimony of the investigating officers constituted plain error. First, they recounted the out-of-court statements of non-testifying witnesses in contravention of our hearsay rules. Second, the officers told the jury outright that those statements "substantiated" Patterson's testimony when, in fact, they had absolutely no bearing whatsoever on the pivotal issue of whether Patterson had promised the defendant that he would care for Ma'D. Third, one of the investigating officers testified that Patterson was "more credible" than defendant when that was the ultimate question for the jury. Based on the hearsay evidence, the police essentially gave the jury their opinion regarding the innocence of Patterson and inferentially the guilt of defendant. That is not allowed. (Pp. 8-15)

2. The jury charge in the instant matter was correct as far as it went. The fundamental issue is whether a more specific instruction was required in order to avert the possibility of a fragmented verdict. Courts should remain alert to the necessity of tailoring jury instructions to the facts and of utilizing a specific unanimity charge in any case in which the danger of a fragmented verdict is even reasonably debatable. The instant case embodies the very circumstances warranting a specific unanimity instruction. (Pp. 15-23)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for further proceedings consistent with this opinion.

CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, VERNIERO, LaVECCHIA, ZAZZALI and ALBIN join in JUSTICE LONG's opinion.

The opinion of the court was delivered by: Long, J.

As amended December 19, 2002

Argued October 7, 2002

Tried to a jury, Monica Frisby was found guilty of second degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a), in connection with the death of her son, Ma'D. She was sentenced to a custodial term of seven years. Frisby appealed her conviction and the Appellate Division affirmed in an unreported decision. State v. Frisby, No. A-294-99T4 (App. Div. Oct. 3, 2001). We granted Frisby's petition for certification, 171 N.J. 444 (2002), in which she challenged the admission of prejudicial evidence at trial along with the adequacy of the trial court's jury unanimity instruction. We now reverse.

I.

At trial, the following evidence was adduced in the State's case. On June 28, 1994, defendant Monica Frisby gave birth to a son, Ma'D. The child's father was Richard Patterson. From birth, Ma'D had special medical needs and the Division of Youth and Family Services (DYFS) intervened to assist Frisby with his medical care. There were no allegations of abuse or neglect against Patterson. However, because he was uncooperative with DYFS, Frisby was instructed not to leave Ma'D with him. On June 7, 1995, the DYFS caseworker, Theresa McNellis, visited Frisby and Ma'D at the motel where they resided. McNellis testified that she regularly saw Frisby at the motel over a seven-month period both on a scheduled and on an unscheduled basis. Prior to that date, DYFS had no record of neglect or abuse by Frisby. According to McNellis, the motel room was clean and the baby was properly attired. Frisby directed McNellis' attention to two minor scratches on the right side of the child's face and one on the left, which she attributed to an injury while the child was crawling. Frisby already had made a pediatrician's appointment to have the scratches looked at the following day.

With the exception of the scratches, McNellis saw no injuries whatsoever on Ma'D's head or face. However, she acknowledged that Ma'D had an old finger injury that he had sustained when he caught his finger in a stroller and with respect to which he had received ongoing medical treatment. McNellis testified that the child appeared otherwise to be in good health, well cared for, and appropriately developed for his age.

On June 9, 1995, Detective Sergeant Bernard R. Buckley, of the Carney's Point Township Police Department, was involved in the investigation of Ma'D's death. Ma'D had been brought into Salem County Memorial Hospital on a call from the motel. The caller had indicated that the baby was unresponsive. Upon meeting with an investigator from the prosecutor's office, Buckley was informed that the baby was dead on arrival. In observing Ma'D's body, Buckley noted that the baby had a "long, narrow bruise on the . . . left cheek and temple area and what appeared to be ligature marks . . . around the wrist. . . . reflect[ing] that something had been placed on the wrist or was on the wrist snugly at some point." Buckley ...


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