On certification to the Superior Court, Appellate Division.
(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).
In this appeal, the Court must determine whether defendant was deprived of a fair trial when the trial court permitted a witness to express before the jury that he refused to answer specific questions.
Ronald Burns, defendant, and Ronald Patterson, Jr. were rival drug dealers in Mt. Holly. Felder is Burns's first cousin and was eighteen years old at the time of the incident. Burns sold drugs from Bobby Bryant's house at 112 Joseph Place, while Patterson sold drugs in front of his cousin's house at 126 Joseph Place. Because Patterson was selling a better quality of cocaine product, Patterson caused Burns's business to decline. Burns was upset with Patterson and, in April 1999, he initially raised the thought of killing Patterson.
On Labor Day, September 6, 1999, Burns told Felder he wanted Patterson dead. Felder said he would kill Patterson that night. Burns had previously given a gun to Bryant and told Felder to use that gun to kill Patterson. Around 8 p.m., Burns's girlfriend drove Burns and Felder to Bryant's house where they met Bryant, Tifani Young, Lawrence Hightower, and others. Felder entered Bryant's house to get the gun, but returned saying Bryant did not have it. Burns then entered Bryant's house, retrieved the gun, and gave it to Felder. Felder then crossed the street, approached Patterson, and attempted to fire the gun, but it did not discharge. Felder returned to Bryant's house where Burns unjammed the gun and returned it to Felder, instructing him to kill Patterson. Felder again approached Patterson and discharged the weapon several times. Patterson's father was nearby and threw a stick at Felder, who fled the scene. Patterson was taken to the hospital where he died from multiple gunshot wounds to the chest and abdomen.
Felder was subsequently arrested in Pennsylvania. He confessed that he shot Patterson. Felder consented to allow the State to tape record a telephone call he agreed to make to Burns. Felder then telephoned Burns and blamed him for his predicament. During the conversation, Burns mentioned that Young had told the police the entire story, including that Burns had unjammed the gun.
In July 2000, a Burlington county Grand Jury indicted Burns with first-degree murder, second-degree possession of a weapon for an unlawful purpose, third-degree unlawful possession of a weapon (handgun), and third-degree hindering apprehension of another. Co-defendant Felder was also charged in counts one through three of the indictment. Prior to trial, Felder pled guilty to aggravated manslaughter and agreed to testify against Burns.
During the police investigation, Young gave three statements to the police, each one indicating that he thought Burns told Felder to kill Patterson and that he saw Burns unjam the gun for Felder. Upon being sworn in, Young immediately informed the court that he would not testify against Burns or Felder because they were his relatives. Young was questioned outside the presence of the jury and admitted his statements to the police were true, and responded to most of the prosecutor's questions. At various time, however, Young indicated that he did not know whether he would answer the same questions before the jury. The trial court ordered Young to testify before the jury. The court also ruled that the prosecutor was permitted to ask leading questions before the jury in those areas that Young was uncooperative.
Before the jury, Young answered the prosecutor's questions regarding his plea, sentence, and his familial relationships to defendant and Felder, but he refused to answer questions concerning the influence that Burns had over Felder. At one point, Young said that he would not answer any more questions. The trial court ordered Young to testify and questioning continued. Young answered some questions, but refused to answer others concerning Burns. The court indicated that the jury would be instructed not to draw any inference whatsoever from anything relating to Young not answering a question. At the conclusion of Young's testimony, the trial court reminded the jury that it should draw no inferences from facts contained in questions that Young refused to answer. Out of the presence of the jury, the trial court found Young guilty of contempt for refusing to answer questions.
The jury convicted Burns of murder, possession of a weapon for an unlawful purpose, and hindering apprehension of another, but acquitted him of possession of a weapon. The trial court merged the weapons offense into the murder offense and sentenced Burns to life in prison with a thirty-year period of parole ineligibility for his murder conviction. The court also imposed a consecutive five-year prison term for the hindering apprehension offense.
Burns appealed. In an unpublished opinion, the Appellate Division concluded that the trial court committed plain error by permitting Young to testify when it was known that he would not answer questions posed to him. The panel also found that although the trial court properly told the jury it could not infer anything from the facts in unanswered questions, it was error for the court to say that "[t]he mere fact that [the witness] didn't answer the questions [was] for [the jury's] consideration as to the existence of those facts."
The State filed a petition for certification and defendant filed a cross-petition contending that there were other issues in his brief warranting reversal of his convictions. The Supreme Court granted the State's petition for certification and denied defendant's cross-petition.
HELD: When faced with the difficult dilemma of handling a recalcitrant witness who had no valid basis to refuse to testify, the trial court did not abuse its discretion by allowing the prosecutor to call a witness who declined to answer specific questions before the jury. In addition, the trial court properly instructed the jury not to consider the facts in the questions that the witness declined to answer, and that any error not objected to in the charge does not require reversal of defendant's conviction.
1. Because this case does not involve an asserted constitutional or statutory right to refuse to testify, the Court applies an abuse of discretion standard to the trial court's treatment of the evidentiary issues. Whenever the court is informed that a witness may not respond to questions, the trial court should conduct a hearing outside the presence of the jury. If the court determines that the witness has no valid right to refuse to testify, the court should order the witness to testify and, if the witness refuses, the witness may be held in contempt and imprisoned until he or she testifies. Once a witness refuses to testify, the trial court should instruct the jury not to draw any inference against the defendant from that refusal. Even when appropriate instructions are given, however, there may be occasions when a witness's refusal to testify will be unduly prejudicial to a defendant. A reviewing court should consider all of the surrounding circumstances to determine whether the conduct of the witness requires a new trial. In making that determination, courts generally focus on prosecutorial misconduct and any "added critical weight" to the prosecution's case from the witness' refusal to answer. (Pp. 21-23)
2. The witness's potential to refuse to testify did not prohibit the prosecutor from calling the witness to testify. The Court finds no misconduct in the prosecutor's effort to have Young testify and neither was there any abuse of discretion by the trial court in allowing Yung to take the stand to be questioned before the jury. Because parts of Young's testimony implicated defendant in Patterson's murder, the State was entitled to present that evidence to the jury. The trial court properly instructed the jury to disregard the conduct of the witness, not to draw any inferences from the witness's refusal to testify, and not to consider the facts within the unanswered questions unless the jury found those facts from other evidence. (Pp. 24-26)
3. In making the critical weight evaluation, a court should look at the strength of the state's case against the defendant. The prosecutor is permitted to ask questions in an effort to prove the State's case and to explore the inconsistencies between a witness's prior statements and his trial testimony. After reviewing each instance of Young's refusal to testify, the Court concludes that the trial court did not abuse its discretion in allowing the prosecutor to read the relevant portions of Young's statements as prior inconsistent statements. Faced with a recalcitrant witness who answered most questions, but declined to answer others that directly related to defendant, the Court finds no abuse of discretion in the trial court permitting both sides to examine the witness. It is for the jury to observe the witness and determine which account of the witness's statements and testimony is true. Based on the overwhelming evidence of defendant's role in the shooting of Patterson, the proper admission of Young's prior inconsistent statements, and the lack of objections to the trial court's instructions to the jury, Young's refusal to testify to certain questions did not add critical weight to the State's case in a form not subject to cross-examination that unfairly prejudiced defendant. (Pp. 26-34)
4. The failure of either defendant or the State to object to an inappropriate comment in the jury charge influences our view that the jury understood it could only consider evidence that the witness testified to, that it could not draw any inference for or against defendant for the witness's refusal to answer certain questions, and that it was not to consider facts in questions that the witness did not answer. The Court concludes that, viewing the instructions as a whole, and in light of the overwhelming evidence of defendant's guilt, the brief inadvertent error in the instructions does not require a new trial. (Pp. 35-39)
The judgment of the Appellate Division is REVERSED. The matter is REMANDED to reinstate the judgment of conviction.
CHIEF JUSTICE ZAZZALI and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO, and HOENS join in JUSTICE WALLACE's opinion.
The opinion of the court was delivered by: Justice Wallace, Jr.
In this appeal, we must determine whether defendant was deprived of a fair trial when the trial court permitted a witness to express before the jury that he refused to answer specific questions. The Appellate Division concluded that although the witness's refusal to testify was not based on a Fifth Amendment privilege, it was error to permit the witness to refuse to answer specific questions in front of the jury because that procedure improperly added critical weight to the State's case. We disagree and reverse. We conclude that, faced with the difficult dilemma of handling a recalcitrant witness who had no valid basis to refuse to testify, the trial court did not abuse its discretion by allowing the prosecutor to call a witness who declined to answer specific questions before the jury. We also conclude that the trial court properly instructed the jury not to consider the facts in the questions that the witness declined to answer, and that any error not objected to in the charge does not require reversal of defendant's conviction.
In July 2000, a Burlington County Grand Jury indicted defendant, Ronald Burns, with first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (count three); and third-degree hindering apprehension of another, N.J.S.A. 2C:29-3a(2) (count four). Co-defendant Tony Felder was also charged in counts one through three of the indictment.
Felder is defendant's first cousin and was eighteen-years old at the time of the incident. He began selling drugs for defendant when he was fifteen-years old. Prior to trial, Felder pled guilty to aggravated manslaughter and agreed to testify against defendant.
At trial, the State presented evidence to show that defendant and Ronald Patterson, Jr. were rival drug dealers in Mt. Holly. Defendant sold drugs from Bobby Bryant's house at 112 Joseph Place, while Patterson sold drugs in front of his cousin's house at 126 Joseph Place. Because Patterson was selling a better quality of cocaine product, Patterson caused defendant's business to decline. Defendant was upset with Patterson and, in April 1999, he initially raised the thought of killing Patterson.
On Labor Day, September 6, 1999, Felder was smoking marijuana and watching television in defendant's apartment when defendant said he wanted Patterson dead. Felder said he would kill Patterson that night. Defendant had previously given a gun to Bryant and told Felder to use the gun Bryant had in his possession. Although defendant did not offer to pay Felder for killing Patterson, Felder understood that defendant would protect him after the shooting.
Around 8 p.m., defendant's girlfriend drove defendant and Felder to Bryant's house at 112 Joseph Place where they met Bryant, Tifani Young, Lawrence Hightower, and others. At some point, defendant whispered to Felder, "You gonna kill him?" Felder responded, "Yeah." Felder entered Bryant's house to get the gun, but Bryant said he did not have it. When Felder reported to defendant that Bryant did not have the gun, defendant went into the house and returned with the gun. Defendant placed the gun in Felder's left jacket pocket. Because Felder was right-handed, Felder switched the gun to his right pocket.
As Felder started to leave, Young stopped him and asked what he was doing. Defendant told Young to mind his own business. Felder then crossed the street, approached Patterson and his father, and attempted to fire the weapon through his jacket, but the gun failed to discharge. Patterson was unaware of Felder's attempt to shoot him. Felder returned to Bryant's house and told defendant that the gun misfired. Defendant took the gun, removed the clip, unjammed the gun, handed it back to Felder, and told Felder to kill Patterson. Bryant and Hightower saw defendant unjam the gun and hand it back to Felder. Felder again approached Patterson. This time the gun operated. Felder shot Patterson several times before poking him in the head and saying, "I got the last laugh." Patterson's father was nearby and threw a stick at Felder, who fled the scene.
Felder threw the gun in a nearby lake and rode a bike to the location where he had planned to meet defendant. Felder met Young and defendant, who left to get a ride. Young then made arrangements with Curtis Calhoun to drive them to defendant's apartment in Burlington. A short while later, defendant and Young returned in Calhoun's car.
According to Calhoun, he was sitting on a friend's porch that evening when he heard five or six shots. He remained there a short while before leaving. On his way home, Calhoun ran into Young who asked him for a ride, and Calhoun agreed to drive him to Burlington. Calhoun picked up Young and defendant, and drove them to another location to pick up Felder. Calhoun heard Young state that they should have physically fought with Patterson instead of shooting him. Defendant disagreed and told Calhoun to drive to defendant's apartment. At the apartment, defendant exited the car, entered his apartment, and returned with the keys to his girlfriend's car. Young and Felder eventually entered defendant's vehicle, and Calhoun drove away.
Defendant proposed that they go to a strip club in Philadelphia and use that as an alibi. However, before they reached the club, the car had a flat tire. After fixing the flat tire, defendant decided to drive Felder to his grandmother's house. Defendant gave Felder fifty dollars and said he would get back to him in a couple of days.
Bryant testified that following a break-in of his home, defendant gave him a nine-millimeter, semi-automatic gun for protection. Bryant said that shortly before the murder, defendant told him that he needed his gun. Bryant went upstairs, retrieved the gun from under his mattress, put it in his pocket, and returned downstairs. He signaled to defendant that the gun was in his pocket, and defendant removed the gun. Bryant returned inside and did not see what, if anything, defendant did with the gun. A short while later, Bryant saw Felder walk over to where Patterson was standing, remain there about one minute, and return to the group. Bryant observed Felder huddle with defendant just before defendant unjammed the gun and handed it back to Felder. Bryant saw Felder walk away and, five minutes later, he heard gunshots.
Hightower was eighteen-years old at the time of the incident. Hightower testified that he was at Bryant's house on Labor Day when defendant and Felder arrived. A few minutes later, Young joined them. Hightower heard defendant say that he wanted Patterson dead. Fifteen minutes later, Hightower heard Felder ask for a gun. Hightower saw defendant and Felder follow Bryant into Bryant's house and return a couple of minutes later. Hightower claimed that Felder walked over to where Patterson and his father were standing, but returned shortly thereafter and said the gun jammed. Hightower observed Felder as he handed the gun to defendant, who unjammed it and gave it back to Felder. Felder then walked back to Patterson's location. Hightower next heard shots and saw Patterson's father chasing Felder.
The police were called. Detective Thomas Mastrangelo testified that when he arrived at the scene the victim's father was distraught. As Detective Mastrangelo escorted the father to the car, the father accused Felder of shooting his son. He said that Felder had been with defendant and others at Bryant's house. Patterson was taken to the hospital where he died from multiple gunshot wounds to the chest and abdomen.
A few days after the murder, Felder met with defendant, Bryant, and another cousin in Philadelphia. Felder asked for money, and Bryant gave him $700. Two weeks later, Bryant gave Felder $1000 that he claimed he received from the sale of cocaine that Felder had left at Bryant's house.
When Felder was arrested in Scranton, Pennsylvania, he confessed that he shot Patterson. Felder consented to allow the State to tape record a telephone call he agreed to make to defendant. Felder then telephoned defendant. Felder blamed defendant for his predicament, and asserted that he killed Patterson for defendant and received nothing in return. Defendant replied that Felder should not be talking like that.
During the conversation, defendant mentioned that Young had told the police the entire story, including that defendant had unjammed the gun. Felder asked defendant how business was, and defendant replied it was "lovely."
Defendant testified in his defense. He admitted that he was at Bryant's house on the evening of the shooting, but he denied any involvement in Patterson's death. He claimed that Felder was already at Bryant's house when he arrived, and that Felder looked "mad" and would not speak to him. After Felder left the group and walked up Joseph Street, defendant heard gunshots. Defendant asserted that he never requested nor encouraged Felder to shoot Patterson. He further denied that he provided the gun to Felder or that he unjammed it. The defense tried to blame Bryant for Patterson's death because Bryant disliked Patterson.
We turn now to recite the trial procedure necessary to place the legal issue in context. During the police investigation of the shooting, Young gave three statements to the police, each one indicating that he thought defendant told Felder to kill Patterson and that, on the night of the murder, he saw defendant unjam the gun for Felder.
At trial, prior to Young's testimony, the prosecutor told the trial court that within the last three weeks, Young confirmed the truth of his prior statements to the police but refused to speak to the prosecutor in preparation for trial. The prosecutor asked the court if he could treat Young as an adverse witness during questioning. The trial court denied that request. Young was sworn in before the jury and immediately informed the court that he would not testify against defendant or Felder because they were his relatives. Defense counsel requested a sidebar conference. The trial court then instructed the jury that the fact that Mr. Young said what he just said should not affect your impartiality one way or the other in this case. Do you understand? There is no inference that you should draw either for the State, against the State, for [defendant] or against [defendant] as a result of what Mr. Young said.
At sidebar, defense counsel explained that he found it problematic that Young mentioned his relationship with defendant. The prosecutor replied that, although Young was under pressure from his family not to testify, he confirmed the substance of his statements and told the police that "he would follow through and . . . do the right thing." Defense counsel agreed that Young should be questioned outside the jury's presence. Defense counsel and the prosecutor agreed that the trial court could order Young to testify.
Young was then questioned outside the presence of the jury. When the prosecutor proposed to play the tape recorded statements that Young had made to the police, Young stated that he did not have to answer the questions because he would not testify and he questioned why he should have to listen to the tape. The court explained, "It's for the sake of creating a record. The contempt will come ...