On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-01-0086.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Fisher and Baxter.
In this appeal, we reverse defendant's conviction for first-degree murder and remand for a new trial because the trial judge mistakenly failed to instruct the jury regarding the lesser-included offenses of aggravated and reckless manslaughter and mistakenly precluded defense counsel's cross-examination into a key witness's possible motivation for testifying favorably for the State.
Defendant was indicted and charged with the first-degree murder, N.J.S.A. 2C:11-3(a)(1), of his estranged wife, Tracy Wright, on July 14, 2004. A trial took place over the course of nine days in January 2006, at the conclusion of which the jury found defendant guilty. On March 17, 2006, the trial judge sentenced defendant to a fifty-year prison term, with a ten-year period of parole ineligibility. Seven days later, before a judgment of conviction was entered, the judge stated on the record that he had neglected to apply the No Early Release Act, N.J.S.A. 2C:43-7.2, and amended the sentence to a fifty-year term, with an 85% period of parole ineligibility, and an additional five-year period of parole supervision upon release.
Defendant appealed, raising the following arguments for our consideration:
I. GIVEN THE ALMOST TOTAL ABSENCE OF EVIDENCE ABOUT THE MANNER AND CIRCUMSTANCES OF DEATH, THE TRIAL COURT'S REFUSAL TO CHARGE THE JURY ON AGGRAVATED AND RECKLESS MANSLAUGHTER WAS REVERSIBLE ERROR AND DENIED DEFENDANT HIS RIGHT TO DUE PROCESS OF LAW.
II. THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE TRIAL COURT PRECLUDED DEFENSE COUNSEL FROM CROSS-EXAMINING CHRIS MORRIESON ABOUT THE FACT THAT HE WAS ON LIFETIME PAROLE PURSUANT TO THE COMMUNITY SUPERVISION FOR LIFE STATUTE.
III. THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO BE FREE FROM DOUBLE JEOPARDY WHEN, IN ORDER TO CORRECT AN ILLEGAL SENTENCE, IT INCREASED HIS PAROLE DISQUALIFIER BY OVER TWELVE YEARS AND ADDED A SPECIAL PAROLE TERM.
We agree that the jury should have been instructed on aggravated and reckless manslaughter, N.J.S.A. 2C:11-4, and that defense counsel should have been permitted to cross-examine regarding the interest a key witness may have had in testifying favorably for the State. These holdings, either separately or in confluence, require the reversal of the judgment of conviction and a new trial. As a result, we need not reach the argument raised in Point III.
During the trial, the jury heard the testimony of numerous witnesses regarding the circumstances surrounding the death of Tracy Wright. That evidence revealed the following.
On the morning of Wednesday, July 14, 2004, Tracy dropped her children off at daycare at approximately 8:30 a.m., and then went to a rooming house in Newark, where she arrived at defendant's third-floor room a short time later. After her arrival, Christopher Morrieson, who lived in another room on the third floor, overheard Tracy say to defendant, "I didn't come over here for that," followed by a scream and then "dead silence." When Morrieson asked later that night about the scream, defendant told him that he "just roughed her up a little bit."
Tracy did not pick her children up from daycare that evening, and her stepfather reported her missing the next day. A police investigation ensued. When questioned, defendant told police he had not seen Tracy for about two weeks.
On Tuesday, July 27, 2004, the owner of the rooming house, who resided on the first floor, contacted the police to report a decomposing body in his basement. The police observed that the body, which had reached an advanced stage of decomposition from the waist up, was covered with maggots and insects, clothed in a t-shirt, bra, and panties, laid-out on plastic bags, sprinkled with a "white powdery substance", covered with a blanket, and hidden behind an unused door that rested against the wall. The police also found a lit, scented candle near the body.
The owner and defendant were questioned at the scene. Defendant indicated he did not know who the person was, suggesting it could be a homeless girl who had stayed with him on a number of occasions. Defendant did not then tell the police that Tracy was missing.
Both the owner and defendant accompanied police to the station house to answer additional questions as the police began gathering evidence in an attempt to ascertain the dead woman's identity. At the station house, the officers who were conducting the missing-person investigation overheard the homicide detectives, and indicated that Tracy, defendant's estranged wife, was missing. Detectives confronted defendant about his omission, read him his Miranda*fn1 rights, and secured a search warrant. In searching defendant's room, police found women's jewelry, a woman's watch, and a scented candle that matched the candle found lit next to the body in the basement. The police also gathered clothing, bedding, and other materials from defendant's room and the adjoining common hallway for analysis.
In comparing dental records, the body in the basement was identified as that of Tracy Wright. A friend identified the woman's watch as belonging to Tracy. Also, the white powdery substance found on and around the body was analyzed and determined to be chemically consistent with a carpet deodorizer.
Defendant was arrested for Tracy's murder and held in the county jail, where his cellmate was Eric Jones. During their conversations, defendant allegedly told Jones that he "choked the life out of" Tracy because he thought she was "playing with his feelings" and he wanted "to fix that bitch" for acting that way. Defendant said that Tracy came to his room that morning to get money for the children's school pictures. He allegedly told Jones he wanted to have sex with her, but she refused, so he pushed her on the bed, and "when he was finished with her" he began to "choke the life out of her." According to Jones, defendant reported that he initially stopped and let Tracy go, but as she proceeded toward the door, he walked up behind her and choked her again with his arm until she died. He laid the body on his bed, where it remained for the rest of that day. Defendant allegedly told Jones that the following day he moved Tracy's body to the basement where he attempted to conceal the smell with a lit candle and laundry detergent.
Forensic analysis of the materials seized from defendant's room revealed that the carpet in front of defendant's bed all the way to the doorway of the bedroom "contained a positive reaction for blood stains," as did some t-shirts, two pillows and pillow cases, and a flat beige bed sheet. The police also found a blood smear "on a third floor hallway wall just outside the [defendant's] bedroom door . . . [a]nd . . . a small section of carpet containing blood stains which was found on the third floor landing."
A forensic DNA scientist was not able to extract DNA from the body. As a result, the initial analysis of the seized materials yielded limited conclusions. However, after analyzing DNA samples from both of Tracy's parents, the scientist was able to identify a DNA profile for Tracy and testified that she was unable to exclude Tracy as being a minor contributor to a blood stain found on one of the t-shirts. She also testified that statistically, the "number of people who cannot be excluded . . . is approximately 1 in 466 of the African-American population, 1 in 321 of the Caucasian population and 1 in 831 of the Hispanic population." However, the scientist testified that she "either could not generate a result or [Tracy] was excluded" as being a contributor in the samples of all the remaining seized items.
A pathologist called by the State testified about the results of an autopsy. He described Tracy's skull as "badly decomposed" and indicated that it had "become separate[d]" from her body when moved from the basement. He also found "no fractures and no defects to the bony portion of the skull" and "no evidence of fractures on any of the bony parts of the body."
The pathologist testified that the condition of the hyoid bone, which was described as a very small bone in the neck, is "a key" factor in determining strangulation, asserting that in "half" the cases where a female has been strangled, the hyoid is broken. However, due to the advanced stage of decomposition, the hyoid was missing and, thus, the pathologist could only conclude that "the cause of death was a violent death of undetermined etiology and that the manner of death [was] a homicide."
We conclude that the judge's failure to provide the jury with the opportunity to consider whether defendant committed aggravated or reckless manslaughter was erroneous.*fn2 Because the testimony of Morrieson relating to what was heard from defendant's room and the testimony provided by Jones as to defendant's description of what had occurred were subject to interpretation, we conclude there was a rational basis for a finding of either aggravated or reckless manslaughter and the judge's refusal to give such instructions was erroneous and of significant magnitude to warrant a new trial.
In rejecting the State's arguments that a charge of lesser-included offenses was not proper, we conclude that (a) defendant's failure to clearly request an instruction on aggravated or reckless manslaughter does not bar the relief he now seeks, (b) there was a rational basis for a jury determination of a lesser offense than purposeful murder, and (c) the nature of Tracy's death did not necessarily bespeak only purposeful murder.
We first consider the State's argument that at trial defendant only sought a jury instruction on passion/provocation murder, N.J.S.A. 2C:11-4(b)(2), and he should not now be heard to complain that the trial judge erred in failing to charge aggravated or reckless manslaughter.
The colloquy during the charge conference largely supports the State's view of defendant's contentions at the time, but we also observe that at one point during the conference, defense counsel argued that Morrieson's testimony suggested he heard arguing or fighting inside defendant's room that "elevate[d] the level of emotions in that room to where at least a charge of manslaughter, if not passion/provocation, would be involved." Although the point could have been made with greater clarity, we are satisfied that defendant raised the issue with the trial judge and our review is not limited to a determination of whether the judge's failure to instruct the jury on this point constituted plain error. Indeed, the record reveals that the trial judge correctly recognized that he had an independent obligation to determine whether the facts rationally supported the finding of a lesser-included offense, as was also the case in State v. Jenkins, 178 N.J. 347, 360 (2004), where the Court found that this independent obligation overrode any contention that the defendant there, who had urged that lesser-included offenses not be charged, was barred from urging as error the failure to charge lesser-included offenses; instead, the Court held that, despite the entirely contrary position defense counsel took at trial, defendant was entitled to have the matter reviewed through application of the plain-error standard. Ibid.
Here, defense counsel's comment, which we quoted above, would suggest that defendant had requested instructions on aggravated and reckless manslaughter. However, we need not further consider the sufficiency of defendant's objection to the charge ultimately given because the application of the plain-error standard mandates reversal. "[E]rrors in the charge to the jury on material issues are viewed as 'poor candidates for rehabilitation under the harmless error philosophy.'" State v. Garretson, 313 N.J. Super. 348, 355 (App. Div. 1998) (citations omitted), certif. denied, 156 N.J. 428 (1998). That is, the plain error standard requires reversal if the error was "clearly capable of producing an unjust result." State v. O'Carroll, 385 N.J. Super. 211, 224 (App. Div.), certif. denied, 188 N.J. 489 (2006). Even if we were to strictly interpret defendant's arguments during the charge conference and assume that a manslaughter instruction was not requested, we would remain convinced that the plain-error standard was met and that the failure to charge the lesser-included offenses of aggravated and reckless manslaughter was capable of producing an unjust verdict. In short, it is a truth ...