On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Ind. No. 02-01-0137I.
Before Judges King, R.B. Coleman and Holston, Jr.
The opinion of the court was delivered by: King, P.J.A.D. (retired and temporarily assigned on recall)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 17, 2004
On October 23, 2002 Walter Townsend, now age sixty, was convicted of degree murder in violation of N.J.S.A. 2C:11-3a(2).
The homicide occurred in 1981. The victim was Townsend's girlfriend, Norma Williams. In March 2003 Townsend was sentenced to a custodial term of thirty years to life. He now appeals his conviction and sentence. We reverse the conviction because of error in the admission of expert testimony on Battered Women's Syndrome (BWS) and in the jury instruction on expert testimony.
On January 30, 2002 a Mercer County Grand Jury returned an indictment charging defendant with the knowing or purposeful murder of his girlfriend, Williams, also known as"Nicky," in violation of N.J.S.A. 2C:11-3a(2). The alleged murder occurred on December 12, 1981.
The trial judge held extensive pretrial evidentiary hearings over four different days between October 1 and October 8, 2002. The hearings involved the legality of the twenty-year delay between the crime charged and the indictment; the adequacy of the victim's dying declaration, in which she declared, through her head motions, that a car, not a truck, hit her and that defendant did not beat her; the admissibility of BWS expert testimony used to attack the credibility of the victim's dying declaration; and the admissibility of statements the defendant and other witnesses made to the police.
The trial was held between October 9 and October 23, 2002. At trial, the State sought to prove that around 6 p.m. on December 11, 1981 defendant drove to 64 Bond Street in Trenton where he and Williams lived together. He came into the house and told Williams's sons, Jason Williams, age seven, and Brian Williams, age three, to go upstairs. The sons said they only went up the stairs part-way and watched as defendant proceeded to beat Williams, sitting on a couch, with a two-by-four with a nail in it. Defendant beat Williams until she was motionless and groaning. He then picked her up to take her to the hospital; he told the two boys to come with him.
Defendant took Williams and the two boys to the hospital in his blue truck. Upon leaving, defendant crashed through a gate to the front yard of the house. When they arrived at the hospital, Williams was examined in the emergency room by a Dr. Abud. The doctor's notes indicated she was drowsy, with low blood pressure, alcohol on her breath, and no damage to her brain stem. Williams had a cut over her right eye, a compound fracture of her left femur, a fracture of her left tibia, and a fracture of the right femur. Her left upper thigh was grossly swollen and externally rotated. Williams had indications of internal injuries, and fractures of her right humerus and left humerus. The doctor also noted possible fractures of her left wrist and hand. The doctor prescribed 100-per-cent oxygen and intravenous fluids. Around 9:15 p.m., Williams received blood transfusions. At 11:45 p.m., her eyes were rolled back and she was moaning. At 11:50 p.m. she went into respiratory arrest and at 12:10 a.m. Williams was pronounced dead. The Mercer County medical examiner, Dr. Raafat Ahmad, performed an autopsy and identified shock and massive hemorrhage from multiple traumatic injuries as the cause of her death.
The State produced evidence that while Williams was at the hospital, various members of the Trenton police were dispatched to investigate the incident. Patrolman Joseph Salvatore arrived at the hospital and spoke to Williams around 6:45 p.m. She told him she had been struck by a car. Patrolman Salvatore then went to the waiting room to talk to defendant and the two children. Jason told the officer that a red truck hit his mother on Bond Street and then three white men got out and beat her with sticks. Defendant said he got home and saw Williams bleeding against the gate outside 64 Bond Street. He then took her to the hospital.
Another Trenton police officer, Detective Theodore Pogorzelski, arrived at the hospital around 9:30 p.m. He met with defendant and the two boys. Jason told the detective that a red tow truck ran over his mom but he did not see any white men. At around 11:30 p.m., Dr. Abud permitted Detective Pogorzelski to speak with Williams, although he warned communication would be difficult. The detective told Williams that things did not look good and he needed a statement from her. The detective asked her if defendant beat her, and she shook her head side-to-side indicating"no." Again she shook her head indicating"no" when the detective asked if she was hit by a truck. She nodded a"yes" when the detective asked if she was hit by a car.
While Detective Pogorzelski was at the hospital, Detectives Taylor and Paccillo investigated the area of 64 Bond Street for evidence of a hit-and-run accident. They found one of the gates by the driveway smashed; the damaged parts contained specks of blue paint, not red paint. The officers found no automobile debris or blood. Tire tracks went to the back of the house. When these officers looked for witnesses, all refused to speak. Two other officers, Officers Hoffman and Rowland, searched for defendant's blue pickup truck and found it in the hospital parking lot with damage to the left rear.
A few hours after Williams died, defendant and the two children were taken to Trenton police headquarters. At headquarters, defendant was separated from the two boys. Jason, the older boy, told Officer Hoffman and a Sergeant Golden that defendant and Williams got into a fight and defendant beat her with a stick. Detectives Pogorzelski and Taylor then interviewed Jason, and he again said defendant beat his mother with a stick. Jason said he told the story about the white men at the defendant's direction.
Detectives Pogorzelski and Taylor then interviewed defendant. Defendant told them he was at a bar when Jason came to tell him Williams was hit by a truck. Defendant said he found Williams in the driveway moaning that a red car smashed through the gate. At around 11:30 a.m. on December 12 defendant gave a written statement but in this recitation he said Williams was leaning against the house, not the gate. Around 1 p.m., Detective Pogorzelski obtained a formal statement from Jason. Defendant was not formally charged as a result of this investigation.
After Williams' death, Jason and Brian lived with Willilams' brother and his wife in Browns Mills. When Brian, the younger boy, turned eighteen, he moved to Trenton and sought to contact defendant, who was also living in Trenton. At one point, Brian visited defendant, and defendant asked what Brian thought happened to his mother. Brian said that defendant murdered her and defendant became hysterical.
In May 2001, Brian heard about a newspaper article discussing numerous unsolved homicides, including his mother's. He contacted Jason, who asked the Mercer County Prosecutor's Office to reopen the investigation, which it did on August 2, 2001. On August 10, 2001 Brian gave a formal statement detailing what he saw on the night his mother died. On the same day defendant was arrested for the murder. After defendant was arrested, he was placed in a cell and later was found naked hanging from the cell door with his pants around his neck. The police revived defendant after this apparent suicide attempt.
In addition to the testimony at trial of Jason, Brian, the several police officers, and the hospital personnel, the State produced the testimony of Freddie Williams, the brother of Jason and Brian, age fifteen at the time of Williams's death. Freddie had not been living with his mother at the time of her death. He testified to prior acts of violence by defendant against Williams. Annissa Gaines, who lived on Bond Street and was age thirteen when Williams died, testified that on the night of Williams' death she saw defendant ram through the front gate. Patricia Brevard, Williams' best friend, testified that defendant spoke to her after Williams died, and on one occasion said he beat Willilams and ran over her with the truck before he took her to the hospital. Brevard did not tell police because of her fear of the defendant. The State also presented testimony from a Battered Women's Syndrome (BWS) expert, Dr. Judith Kabus, in an effort to discredit Williams' putative dying declaration that she was hit by a car. Dr. Kabus could not conclude Williams had BWS.
Defendant's main trial strategies were to discredit the State's case by cross-examining its witnesses, to rely upon Williams' dying declaration, and to counter Dr. Kabus' BWS testimony. For this latter purpose defendant presented the testimony of Dr. Richard Coughlin, a licensed psychologist, who testified about BWS as part of Post-Traumatic Stress Disorder (PTSD). Dr. Coughlin was the only defense witness.
The jury found defendant guilty of murder. On March 28, 2003 the trial judge sentenced him to a term of thirty years to life. This appeal ensued.
Defendant raises these four points on this appeal.
POINT I THE TRIAL COURT ERRED TO DEFENDANT'S GREAT PREJUDICE BY PERMITTING TESTIMONY CONCERNING BATTERED WOMEN'S SYNDROME WHEN THE STATE'S OWN EXPERT DECLINED TO IDENTIFY THE PURPORTED VICTIM AS SUFFERING FROM THE SYNDROME, AS WELL AS BY FAILING TO DELIVER AN APPROPRIATE LIMITING INSTRUCTION (Partially Raised Below)
A. The Trial Court Erred Grievously by Permitting Testimony Concerning Battered Women's Syndrome When the State's Own Expert would Not State that the Purported Victim Suffered From the Syndrome
B. The Trial Court Failed to Deliver An Appropriate Limiting Instruction As To the Use of the Expert Testimony. (Not Raised Below)
POINT II THE DEFENDANT'S RIGHT TO DUE PROCESS WAS VIOLATED BY THE STATE'S DELAY OF NEARLY TWENTY YEARS IN PROSECUTING THIS MATTER. U.S. Const., Amend XIV; N.J. Const. (1947), Art. 1, par. 10
POINT III THE TRIAL COURT ERRED TO DEFENDANT'S GREAT PREJUDICE BY ADMITTING TESTIMONY CONCERNING ALLEGED PRIOR INSTANCES OF VIOLENCE BY THE DEFENDANT
POINT IV THE TRIAL COURT IMPOSED AN ILLEGAL SENTENCE, NECESSITATING REDUCTION
As noted, we reverse and remand for a new trial on defendant's first point. We also consider the claims raised in Points II and III because of their implications for a new trial.
We first consider whether the defendant's right to due process was violated because of the lapse of almost twenty years in prosecuting the case. U.S. Const., amend XIV; N.J. Const. art. I, ¶ 10. There is no time bar to a murder prosecution. See N.J.S.A. 2C:1-6a ("[a] prosecution for any offense set forth in N.J.S.A. 2C:11-3... may be commenced at any time.") The 1971 Commission Commentary to N.J.S.A. 2C:1-6 explains why there is no time bar for murder:
The Code provides for limitation for all offenses except for murder (§2C:1-6a), the view being that it is desirable to maintain the common police practice never to close the files on an unsolved murder case. Granting the fact that there are other crimes of comparable gravity, we believe that they are less likely to present equal obstacles to prompt discovery of evidence or to have comparably long continued impact on the sense of general security of the community. [See Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:1-6 (quoting 1971 Commission Commentary).]
Defendant presents the rare question of whether other principles, namely due process protections, may still bar a murder prosecution where a statutory time-bar does not exist.
The indictment charges Townsend with the murder of Williams on December 12, 1981. The date of the indictment was January 30, 2002. The time from the alleged murder to the indictment was just over twenty years. Because of this period, Defendant moved to dismiss the indictment under R. 3:25-3 which states:
If there is an unreasonable delay in presenting the charge to a grand jury or in filing an accusation against a defendant who has been held to answer upon a complaint, the Assignment Judge, or the Assignment Judge's designee, may dismiss the matter sua sponte or on motion of the defendant. If there is unreasonable delay in the disposition of an indictment or accusation, the judge to whom the case has been assigned may dismiss the matter sua sponte or on motion of the defendant.
The Law Division judge heard arguments on defendant's motion and denied defendant's request. The judge remarked that the relevant"delay" was from the date of the incident to the date of indictment, not from the date of indictment to the date of trial. As for the proper test to apply, the judge cited to State v. Cappadona, 127 N.J. Super. 555 (App. Div.), certif. denied, 65 N.J. 574, cert. denied, 419 U.S. 1034, 95 S.Ct. 518, 42 L.Ed. 2d 310 (1974). The judge acknowledged Cappadona was not directly on point; it dealt with the delay between indictment and trial. Still, the judge observed that the four factors Cappadona deemed relevant - length of delay, reason for delay, defendant's assertion of his right, and the prejudice from the delay - might be relevant to defendant Townsend's situation.
The judge then discussed State v. Alexander, 310 N.J. Super. 348 (App. Div.), certif. denied, 156 N.J. 408 (1998). In that case, the defendant faced many charges including attempted murder and armed robbery. This pre-indictment delay was nearly two-and-one-half years. Id. at 350-353. We there observed that the Sixth Amendment Speedy Trial Clause does not apply to pre indictment delay because the Sixth Amendment is not triggered until arrest or indictment. Alexander, 310 N.J. Super. at 352- 53 (citing United States v. Lovasco, 431 U.S. 783, 788-89, 97 S. Ct. 2044, 2048, 52 L.Ed.2d 752, 758 (1977); United States v. Marion, 404 U.S. 307, 313-23, 92 S.Ct. 455, 463-64, 30 L.Ed.2d 468, 474-80 (1971)). Alexander found the validity of a pre indictment delay is better measured by the due process clauses of the federal and state constitutions. For that analysis, Alexander quoted State v. Aguirre, 287 N.J. Super. 128, 132 (App. Div.), certif. denied, 144 N.J. 585 (1996):
The due process inquiry focuses on whether the delay"violates those'fundamental conceptions of justice which lie at the base of our sense of fair play and decency.'" United States v. Lovasco, [supra,] 431 U.S. at 790, 97 S.Ct. at 2049, 52 L.Ed.2d at 759 (citations omitted). Unlike analysis under the Sixth Amendment's Speedy Trial Clause, which involves a four-factor balancing test and under which prejudice to the defense is presumed from an unusually long delay between indictment and trial, [citations omitted], claims under the Due Process Clause arising from undue preindictment or pre-arrest delay are measured by a far more rigorous standard. In order to prevail, a defendant must demonstrate"both that (1) there was no legitimate reason for the delay and (2) [defendant] was prejudiced thereby." State v. Rodriguez, 112 N.J. Super. 513, 515, 271 A.2d 905 (App. Div. 1970). [Alexander, 310 N.J. Super. at 353 (quoting Aguirre, 287 N.J. Super. at 132).]
As for the first prong, the Alexander court noted a split in the federal circuits as to whether a defendant must show the delay was the"product of intentional governmental action to gain some tactical advantage over the accused or for some other impermissible, bad faith purpose." Id. at 353-355. Rather than determining whether the defendant Alexander met the first prong, the court assumed that prong was met and rested the decision on Alexander's failure to meet the second prong on actual prejudice. Judge Skillman there said:"The law is well-settled that actual prejudice, not possible or presumed prejudice, is required to support a due process claim." State v. Aguirre, supra, 287 N.J. Super. at 133, 670 A.2d 583."[T]he defendant must show'the delay caused"actual and substantial prejudice'" endangering his right to a fair trial and'must present concrete evidence showing material harm.'" Id. at 134, 670 A.2d 583 (quoting United States v. Anagnostou, 974 F.2d 939, 941-42 (7th Cir. 1992), cert. denied, 507 U.S. 1050, 113 S.Ct. 1943, 123 L.Ed.2d 649 (1993))."Vague assertions of lost witnesses, faded memories, or misplaced documents are insufficient to establish a due process violation from pre-indictment delay." United States v. Beszborn, 21 F.3d 62, 67 (5th Cir.), cert. denied, 513 U.S. 934, 115 S. Ct. 330, 130 L. Ed.2d 288 (1994)."A mere loss of potential witnesses is insufficient absent a showing that their testimony'would have actually aided the defense." [United States v. Crouch, 84 F.3d 1497, 1515 (5th Cir. 1996) (en banc), cert. denied, 519 U.S. 1076, 117 S.Ct. 736, 136 L. Ed.2d 676 (1997)] (quoting Beszborn, supra, 21 F.3d at 66). In fact, one federal circuit court has noted that"[t]he task of establishing the requisite prejudice for a possible due process violation is'so heavy' that we have found only two cases since 1975 in which any circuit has upheld a due process claim [based on pre-indictment delay]." United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992) (citing United States v. Barket, 530 F.2d 189 (8th Cir. 1976) and [Howell v. Barker, 904 F.2d 889 (4th Cir.), cert. denied, 498 U.S. 1016, 111 S.Ct. 590, 112 L.Ed.2d 595 (1990)]). Thus, in United States v. McGough, 510 F.2d 598, 604-05 (5th Cir. 1975), the court held that"the death of some six potential defense witnesses" failed to"meet the clear requirement of [United States v. Marion, supra, 404 U.S. 307, 92 S.Ct. 455, 30 L. Ed.2d 468] that actual prejudice be shown" because defendant's assertions concerning the testimony these witnesses could have given was"speculative." Similarly, in Beszborn, supra, 21 F.3d at 66, the court concluded that the death of"five potentially material witnesses" as well as the loss of alleged exculpatory documents was insufficient to establish actual prejudice. See also United States v. Lovasco, supra, 431 U.S. at 789-90, 97 S. Ct. at 2048, 52 L.Ed.2d at 759; United States v. West, 58 F.3d 133, 136 (5th Cir. 1995). [Alexander, 310 N.J. Super. at 355-56.]
The Alexander court applied this"stringent standard" for actual prejudice to the facts. 310 N.J. Super. at 356. Defendant said he was prejudiced because he could not call his brother as a witness. Defendant claimed he was with his brother at the time of the crimes and his brother had died. Defendant also said that on numerous prior occasions he had used the phone on which critical fingerprints were found, but the phone company only maintained phone records for up to eighteen months. We said there was no actual prejudice because even if defendant had been indicted promptly, his brother still could not have testified because he died shortly after the offense occurred. We also said defendant's brother likely would not have remembered defendant's prior calls from the fingerprinted phone, and there was no"direct evidence" the phone records would have shown the prior calls. Id. at 356-57.
Alexander makes several important points. First, pre- indictment delays are not subject to the Sixth Amendment speedy trial standards, since those are only implicated post-arrest. Second, the relevant test is a two-pronged analysis from Aguirre, which requires a defendant to show (1) there was no legitimate reason for the delay and (2) defendant was prejudiced. Third, assuming defendant had established the first prong, there was no actual prejudice established in a two-year delay. One witness' death would not have affected an undelayed trial and there was no real proof that the telephone records, if available, would have supported defendant's theory.
In this case now before us, the judge essentially applied Alexander. The judge said he was"not prepared to make a determination that no prejudice exists." The judge's hesitation was rather on the first prong of whether there was a legitimate reason for the delay. As the judge phrased it, his concern was"whether [the State] was irresponsible or if it contributed to the delay in an unreasonable sense." On this issue the judge concluded that an indictment could have been returned against Townsend in 1981. Still,"the evidence at that time was such that the [State] could not reasonably anticipate conviction given the evidence it had."
The judge observed that two of the State's main witnesses, Jason and Brian Williams, were seven and three, respectively, when the crime occurred. In the judge's view, these witnesses"are now in a much better position to verbalize what they did and did not experience." The judge also said"the so-called dying declaration was such in 1981 as to permit a reasonably informed determination to be made by the prosecutor then, that it would be unwise for the prosecutor to move the case with the state of the evidence that then existed... that declaration converted what would otherwise be a case more ripe for conviction to one less ripe for conviction, although in any circumstance, might have been sufficient to produce an indictment now." The judge recognized that there was no statute of limitations for murder. He stated:
I am moved by the fact that no indictment was delivered in'81 or'82, and this matter was allowed to languish this far, but the fact of the matter is that discretionary efforts were made by the prosecutor at that time, and this time, are, I think under all of the circumstances laudable. They are not a great example of what, and I should say they are not what we would like to see under due process, but there are times when that can't be helped. This is one of those times. This is one of the times that for purposes of this decision and assuming that delay, that the reason for the delay is reasonable, and therefore... the application of the defendant must fail.
The judge also cited State v. Cichetto, 144 N.J. Super. 236 (App. Div. 1976). There, the defendant was not indicted until 1974 on charges of bribery, extortion, and other crimes that allegedly occurred in 1969. The trial judge dismissed the indictment based on federal speedy trial standards. We reversed. We held federal speedy trial standards did not ...