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State v. Beacham

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 21, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BRUCE D. BEACHAM, JR., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-12-2830-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 3, 2009

Before Judges Skillman, Grall and Ashrafi.

Defendant Bruce Beacham appeals his conviction by a jury on charges of felony murder, armed robbery, and related offenses. He alleges that five distinct trial errors deprived him of his constitutional rights and a fair trial. He also contends that his sentence is excessive.

We agree with three of defendant's points regarding trial errors. The trial court was persuaded by the prosecution's mistaken legal arguments and erred in (1) barring the testimony of a defense witness offered to impeach the State's cooperating co-defendant, (2) threatening to give an adverse inference charge to the jury when the defense announced its intent not to call alibi witnesses, and (3) admitting some of the statements made to the police by a witness who had died before the trial.

The first of these errors by itself requires reversal of defendant's conviction. Cumulatively, the errors clearly cannot be deemed harmless beyond a reasonable doubt. See State v. Wakefield, 190 N.J. 397, 538 (2007)("where 'legal errors . . . in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial'")(quoting State v. Orecchio, 16 N.J. 125, 129 (1954)); see also Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed. 2d 705, 710-11 (1967)(where defendant's federal constitutional rights have been violated, court must find the violation was harmless beyond a reasonable doubt to sustain conviction); State v. Castagna, 187 N.J. 293, 312 (2006)(same). Defendant Beacham is entitled to a new trial.

I.

The twenty-two year old homicide victim, Luis Gonzalez, was shot in the head when he and his friends arrived home in the middle of the night and interrupted a burglary.

Gonzalez lived in a second floor apartment in Long Branch with Raul Arlequin. They were both involved in selling drugs and kept their stash of drugs and money in the apartment. Defendant Bruce Beacham had attended school with Gonzalez and Arlequin and had socialized with them on occasion in their apartment. Gonzalez had also sold drugs to cooperating co-defendant Rodney Jackson, who testified for the State against Beacham.

On the night of May 9, 2004, Gonzalez, Arlequin, and two friends, Ramon Santiago and Eric Vega, went to a bar to drink, shoot pool, and socialize. About 2:00 a.m., all four returned to the Long Branch apartment. Arlequin testified at trial that he entered the apartment first and immediately realized that something was wrong. Things were out of place. He told the others that someone had entered the apartment, and the four men spread out to investigate.

When Arlequin went toward the back door to see if entry had been gained there, a man dressed in black suddenly confronted him with a gun and ordered him to turn around. Arlequin obeyed and started to walk back into the living room. He was then struck on the back of the head and fell to the floor. As he knelt holding his head and recovering from the blow, he heard scuffling behind him and then a popping sound like a gunshot. He did not see who fired the shot or what happened.

Arlequin got up from the floor and saw Ramon Santiago dragging Luiz Gonzalez into the living room from the back deck. Santiago was very upset and crying. Arlequin gathered up his stash of marijuana and ran to his girfriend's house a block away to hide it there before the police came. At the same time, he called 911. When he came back to the apartment a few minutes later, the police had already arrived.

Questioned at the police station, Arlequin described the intruder that had confronted him at gunpoint as a stocky black man, about two inches taller than his own height, which was five feet eight inches. Arlequin also told the police that he believed he recognized the voice of the man as that of Rodney Jackson, whom he knew from the neighborhood. Arlequin did not see or describe a second intruder.

Eric Vega also testified at trial and described what he saw and heard. Following Arlequin into the apartment, he went into a bedroom and saw things out of place. After Arlequin went toward the back door, Vega started up the stairs toward Gonzalez's room, but then he saw Arlequin walking strangely back into the living room with his hands behind his head. Moments later, he saw a man with a gun pointed at Arlequin's head. He instinctively rushed toward the man and tried to tackle him. Fighting with the man, Vega felt something strike him hard on the head several times. The blows were not from the man he had tackled because he was holding that man in his grip. He looked up and saw a second man, skinny and taller than the first, hitting him with an object.

Vega fell to the ground. He then heard and saw Luis Gonzalez and Ramon Santiago screaming and jumping over him to follow the two assailants out the back door onto the deck. He heard a sound like a loud firecracker. He got up and walked out to the deck. He saw Gonzalez down and Santiago by the railing saying, "That's stupid, that's stupid." He tried to give mouth-to-mouth resuscitation to Gonzalez, but he felt a hole in the back of his head and realized he had been shot there. Ramon Santiago began crying. Vega called out to Arlequin to call 911. Vega and Santiago dragged Gonzalez back into the living room. When police questioned Vega later, he told them he believed the assailants were black men because of their voices and manner of speaking.

The first Long Branch police officer at the scene was Officer Bienvenido Cruz, who arrived at 2:20 a.m., about three minutes after dispatch reported someone being shot in the head. In front of the victim's apartment, Officer Cruz saw Ramon Santiago in the street waving his car down. He had known Santiago as a friend and schoolmate. He had never seen him so agitated and hysterical. He noticed that Santiago had blood on his ear and his shirt and he was crying. Officer Cruz asked him, "What happened?" Santiago was screaming and crying as he said, "Yo, two dudes shot my boy and ran out the back door. Please help him. He's upstairs." Officer Cruz grabbed his emergency medical equipment and hurried upstairs into the apartment, followed by another officer.

Officer Joshua Bard arrived at the scene immediately after Officer Cruz and also saw Ramon Santiago covered with blood and "shaking," "absolutely frantic," "terrified." Officer Bard also asked Santiago what happened. Santiago told him that he got blood on himself while trying to help his friend. He said again that two dudes shot his friend and fled out the back door.

As Officer Cruz entered the apartment, he noticed that it was in disarray. On the living room floor, he saw a black handgun, later identified as a .380 automatic. Officer Cruz continued on to where Luis Gonzalez was lying with blood visible around him. He quickly determined that Gonzalez had been shot in the head. He checked for and found no pulse, and he heard no heartbeat with his stethoscope. He told his fellow officer that there was no pulse and no heartbeat.

Ramon Santiago heard Officer Cruz and became extremely upset again. He punched a hole in the wall and began crying. Outside the apartment about ten minutes after the officers had arrived, Santiago was still sobbing and hysterical. Officer Cruz again asked Santiago what happened. Santiago described his activities earlier that evening with his friends. They had gone to the Springdale bar to drink and socialize. They all left to get some food and returned to the bar for last call. At about 2:00, they drove to the apartment of Gonzalez and Arlequin to eat their food. As they entered, Arelquin said, "Someone has been in my room."

Santiago went upstairs with Gonzalez to his loft bedroom. He then heard noises like a scuffle in the living room. As he and Gonzalez ran down the stairs, he saw Eric Vega rushing a black man wearing a ski mask and black clothing. He then saw a second black man in dark clothing, also wearing a ski mask, fighting with Vega. Gonzalez ran toward them to help Vega and they all moved toward the back door. As Gonzalez went out the door, Santiago heard a pop sound, like a loud firecracker.

Santiago saw Gonzalez fall to the deck, and he heard rustling outside as if the two intruders were running through bushes.

Several months before defendant's trial, Santiago died in a car accident. He never testified but his statements at the scene to Officers Cruz and Bard were admitted in evidence over defendant's objection.

The Monmouth County Prosecutor's Office determined that the .380 automatic handgun found on the living room floor was not the murder weapon. The autopsy revealed a .25 caliber bullet lodged in Gonzalez's brain, and the .380 could not fire such a bullet. The weapon used in the shooting was never found, but the State's weapons expert described the gun as either a two-shot Derringer or a revolver.

The police lifted a latent fingerprint from the .380 handgun and identified the print as that of Rodney Jackson. A cell phone had also been dropped in the apartment and police investigation determined that the cell phone was being used by Jackson.

On the night of the shooting, the police also found some bags outside the apartment that contained household items, including a small stereo, a video game system, a jar of coins, and some jewelry. Arlequin identified the items as taken from the apartment. The police were able to lift seventeen latent fingerprints from inside the apartment and the items found outside. On the stereo speakers found outside, investigators identified a fingerprint of Rodney Jackson and also a fingerprint of defendant Bruce Beacham.

No other latent prints led to identification of any suspects. The police were not able to lift any fingerprints from three air vent covers and an electric socket cover that had been removed from the walls in the apartment. The police viewed this disturbance as evidence of burglary because drug dealers often hide their drugs and money inside air vents or other hidden places in the walls and ceiling.

Even before identifying their fingerprints on the stereo speakers, investigators had believed Rodney Jackson and defendant Beacham were suspects in the crimes. Jackson and Beacham fit the descriptions provided by the victims, African-American males, Jackson about five feet ten inches tall and about 220 pounds, and Beacham about four inches taller and thinner. Neither suspect was in town after the burglary and homicide. Both had left the state. Detectives learned that defendant Beacham had taken a bus with his infant daughter the same evening as the homicide to visit his father in Chicago.

Defendant Beacham returned to Long Branch about a month after the homicide, in June 2004, and he agreed to speak to the police. He denied any involvement. He said that on the night of the burglary and homicide, he was in bed with his daughter at the home he shared with his mother and grandmother. He said that he knew Gonzalez and Arlequin and had visited their apartment one or two times to play video games or for other social reasons. When asked what he might have touched in the apartment while visiting socially, he mentioned door handles, a stereo, and a jar of coins. The police had learned from Arlequin that the jar of coins found in a bag outside had been hidden inside his closet. When the police asked defendant Beacham what reason he might have had to touch an air vent cover, defendant became irritated and uncooperative and ended the voluntary interview.

Prosecutor's detectives learned from Ahmed Youmans, a cousin of defendant in Georgia, that defendant had called him on the day of the homicide and said, "I want to get out of here. Some sh** popped off. I had to do what I had to do." Ahmed Youmans was subpoenaed by the State to testify at trial. He admitted that he had told detectives about the call from defendant but also said at trial that he understood defendant to be talking about a problem with his girlfriend, not a shooting. Despite several previous interviews, he had not given that explanation until about two weeks before trial.

The State presented the testimony of Brandi Jackson, another relative of defendant who testified reluctantly and tearfully. She testified that she had spoken to Ahmed Youmans the day after the homicide about defendant Beacham, and Youmans had been very upset and crying during the conversation.

In September 2004, the prosecutor's office charged defendant Beacham with robbery and murder. He was arrested without incident at his girlfriend's home in Detroit. Rodney Jackson had been found and arrested in July 2004. When detectives later told Jackson that he had been charged with murder along with defendant Bruce Beacham, he denied knowing who defendant was.

In June 2005, investigators interviewed Jackson with the approval of his attorney as part of plea negotiations. By this time, Jackson knew that his fingerprint had been found on the gun recovered after the shooting and his cell phone had also been found in the apartment. Jackson admitted his participation in the burglary and implicated defendant Beacham as his accomplice. But he told detectives that he and defendant were not armed when they went to the apartment and that one of the men who interrupted the burglary came at him with a gun. He said he touched the gun while struggling to wrest it from the man and to get away. Detectives did not believe his statements and discontinued the interview and plea negotiations.

In January 2006, Jackson was again interviewed in the presence of his attorney and this time admitted that he and defendant were armed when they entered the apartment. He also told investigators for the first time about a third participant, Anthony Tucker, and about how the three of them planned the burglary and Tucker brought the two handguns. The prosecutor's office entered into a plea agreement with Jackson under which he agreed to cooperate and testify truthfully and to plead guilty to armed robbery and a weapons offense in exchange for a sentence of seventeen years imprisonment, with eighty-five percent to be served before parole, and dismissal of the homicide charges against him.

Jackson was the first witness to testify at trial. He described defendant Beacham as a "cousin," not literally but in a familiar sense. He said that on May 9, 2004, Anthony Tucker called him and asked if he wanted to join Beacham and him in burglarizing the apartment of Gonzalez and Arlequin to get drugs and money. Jackson agreed because he needed money.

Jackson picked up Anthony Tucker in Asbury Park. Tucker brought a .380 handgun, which he put in the trunk of Jackson's car. They picked up defendant and discussed plans for the burglary. Defendant had been to the apartment and described it to the others. During the evening, Tucker retrieved a smaller handgun from another location and put that gun in the trunk, too. They spent several hours in a parking lot drinking beer, smoking marijuana, and listening to music.

Late at night, Jackson, Tucker, and defendant drove to the area of the apartment and parked nearby. They took the two guns from the trunk, Tucker taking the .380 and defendant the smaller handgun. They went around the back and up a staircase to the back deck of the apartment. Jackson found a window unlocked. Tucker and defendant boosted him up to get in the window. He opened the back door for them. They decided that Tucker would remain outside as a lookout. Jackson took the .380 from Tucker. He and defendant began searching the apartment for drugs and money, but they did not find any at that time. They decided to take other items. Jackson got a laundry bag from a closet and put some items inside. He took it out and left it in the backyard, telling Tucker to put it into the car if he found a chance.

Jackson returned to the apartment and this time found an envelope containing cocaine and $5,000 cash under a mattress. He put the envelope in his pocket and did not tell defendant what he had found. Then he heard noises of people coming into the apartment.

Jackson went to the back door but did not want to leave defendant alone in the apartment. When a man came toward him, Jackson pointed the .380 handgun at the man and told him to turn around. As they were walking back into the living room, the man kicked the gun out of Jackson's hand, and a struggle ensued. He was fighting with some men when defendant appeared. They all struggled out onto the deck. He saw and heard a shot fired by the defendant, and they ran down the stairs and through the yards to the car. They did not get the bags of items left outside because there was no time.

In the car, as Tucker drove away, Jackson said to defendant, "Why did you shoot?" Defendant answered, "Don't worry about it. It's not my first time." Jackson fled to North Carolina later that morning.

Defendant Beacham stood trial in May 2006 on seven counts: second degree conspiracy to commit armed burglary and robbery, in violation of N.J.S.A. 2C:5-2; third degree possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b); second degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a); second degree armed burglary, in violation of N.J.S.A. 2C:18-2; first degree armed robbery, in violation of N.J.S.A. 2C:15-1; first degree felony murder, in violation of N.J.S.A. 2C:11-3(a)(3); and first degree purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3.

After seven days of trial, the jury deliberated for more than a full day before returning a verdict of guilty on all counts except purposeful or knowing murder, instead convicting defendant on the lesser-included offense of aggravated manslaughter.

On September 6, 2006, the court sentenced defendant to forty years imprisonment on the felony murder charge, with eighty-five percent of the term to be served before parole eligibility. The court also sentenced defendant to concurrent terms of twenty years for aggravated manslaughter and four years for possession of a handgun without a permit. The other charges were merged into the felony murder conviction.*fn1 This appeal followed.

II.

At trial, the defense attacked Rodney Jackson's credibility. It focused on Jackson's changing statements to detectives. It sought to show that Jackson had falsely implicated Anthony Tucker and, therefore, his implicating defendant Beacham should not be believed. In cross-examination of Detective Sergeant Meaney of the prosecutor's office, the defense elicited testimony about Jackson's naming Tucker as an accomplice. Counsel then began asking Detective Meaney about information he had received from Tucker's girlfriend, a woman named Jennelle Morris. The prosecutor objected.

At sidebar, the attorneys informed the court that Jennelle Morris had provided an alibi for Anthony Tucker. She told Detective Meaney that at the time of the homicide, Tucker was with her. She and Tucker had taken their daughter to the hospital and remained there for most of the night. Defense counsel also had hospital records containing the names of the child and Jennelle Morris, but not Anthony Tucker's name. As corroboration for Jennelle Morris's alibi for Anthony Tucker, defense counsel pointed to one of the hospital documents containing discharge instructions and its single handwritten reference to "parents" of the child, that is, parents in plural.

The court correctly sustained the prosecutor's hearsay objection to Jennelle Morris's statements being offered through Detective Meaney. The court remarked that Morris's knowledge of relevant facts would have to be developed through Morris herself.

Recognizing the relevance of Anthony Tucker's alibi to Rodney Jackson's credibility, the court commented that the evidence "seriously undermines what Rodney Jackson has to say." Defense counsel then said he would get Jennelle Morris as a witness. The court responded, "That's not a problem at all, that's the way to do it. . . . It's too critical of a fact."

Following a short recess after the sidebar, the prosecutor withdrew his hearsay objection to the proffered cross-examination of Detective Meaney. Defense counsel then developed testimony from the detective that he had taken statements from Jennelle Morris in September 2004 and May 2005. Defense counsel's cross-examination continued as follows:

Q: Now, in the September statement you get information about Anthony Tucker. Right?

A: Yes, sir.

Q: And Jennelle Morris tells you that she and Anthony Tucker take their daughter to Jersey Shore Medical Center, correct?

A: Yes, sir.

Q: That in fact they took their daughter to Jersey Shore Medical Center on May 10, 2004. Correct?

A: Yes, sir.

Q: And that they were there at or about 2:30 in the morning. Is that right?

A: Well, actually she said she took her there about midnight. That's when they took the child there.

Q: And did she tell you how long that she and Anthony Tucker were at Jersey Shore Medical Center?

A: I'm going to have to look at this.

Q: If it refreshes your recollection, let me know.

[PROSECUTOR]: Somebody else's statement. He's going to need to look at something, Judge.

THE COURT: That's right. Only reason it's coming in is because [the prosecutor] hasn't objected.

A: She told us they were at the hospital that evening.

THE COURT: This is hearsay, folks.

A: She said that he was here.

Q: In fact you went to the hospital to check it out, right?

A: Yes, sir.

Q: You went to get the hospital records, right?

A: Yes, sir.

Q: And reviewed those hospital records, correct?

A: Yes, sir.

Q: And these were records supposedly prepared in the ordinary course of the hospital's business. Isn't that right?

A: Yes, sir.

Q: Among those records was a discharge report, correct?

A: Yes, sir.

Q: And a discharge report indicates information was given to, quote, "parents," unquote. Correct?

A: That's what the nurse handwrote there or somebody handwrote in there.

Q: In the hospital's records?

A: Yes, sir.

Q: And they also wrote a time down there, correct?

A: Yes, sir.

Q: 02:30?

A: Correct.

Q: 2:38 a.m., correct?

A: Yes, sir.

Q: Time of the murder.

A: Shortly thereafter.

On redirect examination of Detective Meaney, the prosecutor adeptly neutralized the damaging defense evidence as follows:

Q: Now, Jennelle Morris, you spoke to her on numerous occasions, correct?

A: Yes, sir.

Q: Did you have any problems with some of the things she said?

A: Yes. She admitted to saying she wasn't truthful with us on different occasions.

Q: You spoke to her? You took statements from her?

A: Yes, sir.

Q: Did she later speak to you again?

A: Yes Sir.

Q: Did she admit or acknowledge that what she said to you the first time on more than one instance was wrong?

A: Yes.

Q: Was a lie?

A: Yes.

Q: And at some point did she not indicate that one of the things she was trying to do was to protect Anthony Tucker?

A: Father of her children, yes, sir.

Q: Look at these medical records. The child went in for a cough.

A: She had a kind of chest cold or something.

Q: I count besides the release form, one, two, three, four, five, six, seven, eight, nine, 10 pages. Does that sound right?

A: Yes, sir.

Q: Jennelle Morris, her name appears on here?

A: Yes, it is.

Q: More than once?

A: Yes, sir.

Q: On one of those papers, just one of them, does Anthony Tucker's name appear?

A: No, sir.

Q: Anywhere?

A: No, it does not.

Q: Did Anthony Tucker tell you he was at the hospital on the night of the homicide?

A: No, he did not.

Q: Did Jennelle Morris identify a handgun, the one that Rodney Jackson's print is on, as being the one supplied and used in this crime?

A: Yes, sir, she did.

A week later in the trial, defense counsel announced his intention to call Jennelle Morris to the stand to testify about Anthony Tucker's alibi. The prosecutor objected, repeatedly arguing that Morris's testimony was "not competent evidence" because Tucker was not the defendant at trial and had not even been charged at that point. The court questioned the relevancy of the proffered evidence in defendant Beacham's trial and, contrary to its prior assessment, now referred to the proposed testimony as "far-afield" and "a heck of a stretch" for purposes of impeaching Jackson's testimony. Accepting the prosecutor's argument and applying New Jersey Rule of Evidence 403, the court ruled that Jennelle Morris's testimony would be "confusing, misleading in the extreme" and "prejudicial." The court barred Morris from testifying for the defense.

Rule 403 of the Rules of Evidence states in pertinent part:

[R]elevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.

The trial court may exercise its discretion in performing the balancing required by this rule, and appellate review of the trial court's ruling is subject to the abuse of discretion standard. State v. Lykes, 192 N.J. 519, 534 (2007). The ruling will normally be sustained "unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide [of] the mark that a manifest denial of justice resulted." Ibid. (quoting Verdicchio v. Ricca, 179 N.J. 1, 34 (2004)).

We conclude that the trial court abused its discretion in barring Jennelle Morris's testimony, even under this deferential standard of review. The court failed to give adequate consideration to the right of defendant to present evidence in his case to discredit crucial testimony of an important State witness.

A defendant must be afforded "a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed. 2d 636, 645 (1986). Calling or compelling witnesses to testify in his defense is a fundamental right of the accused protected by the due process clause of the Fourteenth Amendment. Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed. 2d 297, 312-13 (1973); Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 353, 34 L.Ed. 2d 330, 333 (1972); see also State v. Feaster, 184 N.J. 235, 250 (2005) ("An accused in a criminal case has a constitutional right to present witnesses in his defense, pursuant to the due process and the compulsory process provisions of the federal and state constitutions.").

A rule of evidence that interferes with the right, arbitrarily or disproportionately to the purpose of the rule, may infringe upon the defendant's Fourteenth and Sixth Amendment rights. Holmes v. South Carolina, 547 U.S. 319, 324-25, 126 S.Ct. 1727, 1731, 164 L.Ed. 2d 503, 509 (2006).

Rule of Evidence 403 itself is neither arbitrary nor disproportionate to its purpose and does not on its face violate constitutional rights. See Holmes v. South Carolina, supra, 547 U.S. at 326-27, 126 S.Ct. at 1732-33, 164 L.Ed. 2d at 510; Crane v. Kentucky, supra, 476 U.S. at 689-90, 106 S.Ct. at 2146, 90 L.Ed. 2d at 644; Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed. 2d 674, 683 (1986). But application of the rule requires recognizing the probative value of proffered evidence and a balancing that takes into account the defendant's right to present evidence establishing reasonable doubt of his guilt. See State v. Fulston, 325 N.J. Super. 184, 190-91 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000). In conducting that balancing here, the trial court did not give adequate weight to the probative value of the proffered testimony of Jennelle Morris as compared to its potential for undue prejudice, confusion, or delay.

During the first week of trial, the court assessed correctly the importance to the defense of Anthony Tucker's alleged alibi, describing it as "critical" evidence that "seriously undermines Jackson's testimony." From the time of the court's original assessment until the defense case a week later, the only change arguably affecting the probative value of that evidence was that the prosecutor withdrew his objection and Detective Meaney gave a hearsay version of Jennelle Morris's statement. Not only was that hearsay version soon effectively impeached by the prosecutor's redirect examination but the court gratuitously informed the jury that Detective Meaney's testimony was hearsay and only admitted because the prosecutor was not objecting. Under those circumstances, the defense rightfully sought another opportunity to present Tucker's alibi through direct testimony of Jennelle Morris that would not be subject to such criticism.

The defense proffer of Morris's live testimony was not "far afield" of the issue of Jackson's credibility. Nor was it a "stretch" for the defense to ask the jury to use Tucker's alibi to conclude that if Jackson was lying about Tucker, there was reasonable doubt about the truth of his naming Beacham as an accomplice.

While discussing Morris's proposed testimony at length out of the jury's presence, the attorneys and the court were simultaneously immersed in colloquy about defendant Beacham's own alibi evidence. The court may have feared that the jury would confuse defendant Beacham's anticipated alibi evidence with Tucker's alibi, but the two were sufficiently distinct and clear-cut that there was little risk of jury confusion.

Morris would have testified about a discrete subject, Anthony Tucker's alleged presence with her at the hospital on the night of the homicide. The jury would not have confused that testimony with defendant's contention that he was home sleeping with his daughter. Also, Morris's testimony cannot be considered needlessly cumulative after the court informed the jury that Detective Meaney's testimony contained hearsay and after the prosecutor discredited Morris's statements through Detective Meaney. The trial court was correct initially in recognizing the importance of Morris testifying herself so that the jury might assess her credibility as compared to Jackson's.

The prosecutor seemed confused when he complained repeatedly that the State should not have to respond to Tucker's alibi in the trial of Beacham and, therefore, that Jennelle Morris's testimony was "not competent." There was no question of Jennelle Morris's competency as a witness, which is addressed in Rule of Evidence 601. The issues were the relevance and probative value of her proposed testimony as compared to a substantial risk of confusing the jury, causing undue delay, or prejudicing the State. Morris's testimony would not have caused undue delay in the trial or a waste of time through exploration of minimally probative evidence.

The court should also have rejected the prosecutor's complaint that the State would be prejudiced if it had to respond to Tucker's alleged alibi in defendant Beacham's trial. From the time that Jackson first implicated Tucker in January 2006, the prosecution was aware that Tucker had an alleged alibi. The prosecution had ample time to investigate the truth of that alibi and in fact took steps to do so by obtaining hospital records. The prosecutor was more than adequately prepared to address the truth of Morris's testimony, as he demonstrated in his redirect examination of Detective Meaney. There would have been no unfair prejudice to the State had the defense been permitted to call Morris to the stand for the jury to hear her evidence directly.

In sum, the defense had a right to test the credibility of its witness against the State's witnesses before the jury. The probative value of its proffered testimony was clear, as the court had previously recognized. Depriving the defense of the right to call Jennelle Morris to testify violated defendant's due process right to present a full defense.

III.

The trial court also erred by compelling the defense to call a witness it had decided not to call to the stand, defendant's mother.

Before trial, several deadlines for discovery passed and defense counsel was asked repeatedly whether he intended to present an alibi defense for defendant Beacham. Finally, just days before the trial, defendant's attorney notified the prosecutor that he intended to call defendant's mother and grandmother as alibi witnesses to say that defendant was home in bed on the night of the shooting.

In his opening statement, defense counsel told the jury about defendant's alibi in the following words:

The State can't prove Bruce Beacham was even there. The evidence may show in this case that Bruce Beacham was home with his mother and his grandmother and his 10-month-old baby daughter.

On direct examination of Detective Meaney, the prosecutor developed testimony that the detective had contacted defendant's mother and grandmother, and they declined to speak with him about their proposed testimony. The court informed the jury that they had a right to decline.

On cross-examination, defense counsel asked Detective Meaney about his interview of defendant Beacham in June 2004. He then developed the following testimony without objection from the prosecutor:

Q: You asked him where he was at the time of the murder, correct?

A: Yes, sir.

Q: And he told you he was at home in bed. Isn't that right?

A: Yes, sir.

Q: Specifically he told you he was home in bed with his 10-month-old daughter, correct?

A: Yes, sir.

As the trial wound down in the following week, defense counsel informed the court and the prosecutor that he did not intend to call defendant's mother or grandmother to support his alibi defense. Counsel said that because Detective Meaney had already testified about defendant's alibi, he felt no need to call any other witness to argue alibi to the jury.

The prosecutor vehemently objected, stating that he had withheld an objection to Detective Meaney's hearsay testimony about defendant's alibi because the defense had opened with an alibi defense and the prosecutor did not want to appear obstructive in front of the jury, since he believed that alibi witnesses would soon testify to the same information. The court was also troubled by the defense's shifting of positions, even labeling the abandonment of proposed alibi witnesses as "sharp practice." The prosecutor requested that the court strike Detective Meaney's hearsay testimony and instruct the jury that alibi was not in the case for the defense. When the court rejected that application, the prosecutor asked in the alternative for an adverse inference instruction under State v. Clawans, 38 N.J. 162 (1962). The court agreed that it would give an adverse inference charge to the jury unless the defense called either defendant's mother or grandmother to support his alibi. After a recess, defense counsel announced that he would call defendant's mother, Marilyn Laws, as an alibi witness.

Marilyn Laws testified, stating that defendant was home all night from about 7:00 p.m. on May 9, 2004, until the next morning. She testified that he went to bed at about 11:00 with his daughter on a pull-out bed in the living room of their home. Laws came downstairs and saw defendant again in bed at about 12:30 a.m. when her nephew, Oral Youmans, came home, and once again at 2:30 a.m. when she came down to check on the baby. She woke up about 6:30 the next morning and he was still in bed with his daughter.

Concerning his going by bus to Chicago later on May 10th, Laws testified that defendant had planned to go visit his father the previous month, but she had asked him to stay with her until after Mother's Day, which was May 9th.

The prosecutor then cross-examined Laws at length about many subjects,*fn2 including her love for her son and her need to protect him when he makes mistakes; her teaching him right from wrong but the fact that children do not always follow their parents' teachings; her close involvement in her son's defense of the criminal charges, in particular, through her review of discovery materials provided to defense counsel and her speaking to family members that were contacted by detectives; her discussions of the case with her sisters, who were the parents of Ahmed and Oral Youmans, witnesses who had allegedly tailored their testimony shortly before the trial to help defendant; her disdain for Brandi Jackson who had testified tearfully for the State; her potential violations during trial of the court's sequestration order; her willingness to care for defendant's ten-month-old daughter, her granddaughter, on nights when her youthful son went out of the house, including to play video games; and several other subjects designed to elicit helpful evidence to the State's case. In his closing argument, the prosecutor drove home the implications of Marilyn Laws' cross-examination testimony.

Defendant argues that the court's threat to give a Clawans adverse inference charge was error and deprived him of the constitutional due process right to alter his defense strategy and not to call alibi witnesses. We agree.

In State v. Clawans, supra, 38 N.J. at 170, the Supreme Court held that "Generally, failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him." For such an inference to be drawn, "it must appear that the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved." Id. at 171. Here, we acknowledge that favorable testimony from defendant's mother and grandmother was within defendant's power to produce, especially because they had declined to be interviewed by the State's detectives, see State v. Carter, 91 N.J. 86, 127-28 (1982), and their testimony would have been superior to the hearsay from Detective Meaney that defendant intended to rely upon to establish his alibi.

But approximately a year after defendant Beacham's trial, we held that a trial court must be particularly cautious in evaluating whether a Clawans adverse inference charge should be given against a criminal defendant. State v. Velasquez, 391 N.J. Super. 291, 307-09 (App. Div. 2007). The court must avoid infringing upon defendant's constitutional rights to rely on the presumption of innocence and on the State's burden to prove defendant's guilt beyond a reasonable doubt. Id. at 309.

As we said in Velasquez, a defendant may have reasons other than fear of unfavorable testimony for deciding not to call a witness. Id. at 308. Therefore, the underlying rationale for the adverse inference charge is not always present when a defendant chooses not to call a witness within his control.

We also recognized in Velasquez that an adverse inference may still be appropriate where the defendant has injected an issue such as alibi into the trial. Id. at 309; see State v. Irving, 114 N.J. 427, 442-43 (1989). Nevertheless, the charge should not be given where defendant can rely on other evidence supporting that defense or rationally conclude that the omitted witness will not help in presenting his defense. Velasquez, supra, 391 N.J. Super. at 309-10.

Our holding in Velasquez has now been approved by the Supreme Court in State v. Hill, ___ N.J. ___, ___ (2009)(slip op. at 21-24). The Supreme Court held that "Clawans charges generally should not issue against criminal defendants." Id. at ___ (slip op. at 27). Reasoning that "inclusion in a criminal trial of a Clawans charge from the court risks improperly assisting the State in its obligation to prove each and every element of a charged crime beyond a reasonable doubt," the Court said, "it would be the rare case, if any, that would warrant a Clawans charge." Id. at ___ (slip op. at 27-28). Defendant Beacham's decision not to call alibi witnesses is not such a rare case.

The trial court acknowledged the right of defendant to adjust his trial strategy as the trial progressed. However, the court believed that a remedy was necessary in response to an unfair advantage for defendant because the jury had heard only inadmissible hearsay to support defendant's alibi. The court may also have been swayed by the prosecutor's argument that he had been unfairly lured into withholding objection to the hearsay evidence. While we do not fault the prosecutor's strategic decision to withhold objection, the better practice would have been to object to the hearsay elicited from Detective Meaney rather than assume that alibi witnesses would necessarily be called.

The court, too, had a better option to address the change of position by the defense than threatening to give a Clawans charge. As the prosecutor requested initially, the court could have stricken the hearsay testimony and instructed the jury to disregard it. At the same time, the court could have directed defense counsel not to argue alibi to the jury unless he presented admissible evidence to support that defense. Had those steps been taken, defense counsel may have been in precisely the same position of feeling compelled to call Marilyn Laws as he was with the threat of a Clawans charge. With the prospect of the hearsay alibi evidence being stricken, the defense would have had to choose between subjecting Laws to potentially damaging cross-examination or abandoning the alibi defense.

That choice, however, would have been different from the one that the court imposed upon the defense - either Laws or defendant's grandmother being subjected to cross-examination or the court instructing the jury it could infer that defendant's mother and grandmother would not support his alibi. The choice that the court gave to defense counsel was, in our view, more severe than necessitated by the defense change of strategy in mid-trial.

Our standard of review is plenary with respect to the trial court's ruling as to the proposed Clawans charge. We have the same record as the trial court did to consider whether circumstances justified the charge, and no credibility or factual findings are involved. We conclude that the trial court erred legally in threatening to give a Clawans adverse inference charge if defendant did not call alibi witnesses to testify.

IV.

The third point of trial error is the court's admission as excited utterances of all statements made to the police by Ramon Santiago at the scene of the crime. Rule of Evidence 803(c)(2) provides a hearsay exception for:

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate.

Before the trial began, the court conducted a hearing under Rule of Evidence 104 in which officers Cruz and Bard testified. Based on their testimony, the court ruled that Santiago's statements met the requirements of the quoted rule for excited utterances. The court commented that Santiago's initial statements when the officers arrived, that two dudes shot his boy and ran out the back door, were unquestionably made during the stress and excitement of a startling event, the interruption of the burglary and the shooting of Santiago's friend.

The court then went on to distinguish State v. Branch, 182 N.J. 338 (2005), from the facts it found in this case. In Branch, the Supreme Court held that the excited utterance exception does not apply where the passage of time provides an opportunity for the declarant to deliberate or fabricate. Id. at 365-66. The court in this case noted that Santiago's excited state of mind was compounded by a second startling event, hearing from Officer Cruz that Gonzalez had no pulse or heartbeat. Upon learning that his friend was dead, Santiago punched a hole in the wall and began sobbing again. Some ten minutes after the police had arrived, Santiago was still visibly shaken and crying outside in the street when he made his later statements describing the events of the night and what happened inside the apartment.

The court's factual finding with respect to Santiago's emotional and mental state was supported by ample, credible evidence. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The court reasonably concluded that Santiago was speaking to the police under the stress and excitement of both startling events during the entire ten to fifteen minutes in which he made statements at the scene. The court did not abuse its discretion in concluding that Santiago had no realistic opportunity to fabricate or deliberate about what he was telling the police and that all statements made to Officers Cruz and Bard qualified as excited utterances. See Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (appellate court is limited to reviewing trial court's evidentiary rulings for abuse of discretion).

The court also considered the separate constitutional ground for excluding Santiago's out-of-court statements in a criminal trial, the right of a criminal defendant to confront witnesses against him. See Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365-66, 158 L.Ed. 2d 177, 194 (2004). In Crawford, the United States Supreme Court held that the Sixth Amendment's confrontation clause forbids the use of "testimonial" out-of-court declarations if the declarant is not a witness at trial subjected to cross-examination. Id. at 59, 124 S.Ct. at 1369, 158 L.Ed. 2d at 197. Here, the trial court found that the police officers' asking "What happened?" was not police interrogation and Santiago's statements were otherwise not like formal testimony. The court concluded that the statements at the scene were not "testimonial."

Unfortunately, when it made that ruling, the trial court did not have the benefit of Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed. 2d 224 (2006), decided a month after defendant's trial, or State ex rel. J.A., 195 N.J. 324 (2008), issued two years later. In J.A., our Supreme Court characterized the holding of Davis v. Washington as setting "a standard . . . distinguish[ing] between non-testimonial and testimonial statements":

Non-testimonial statements are those "made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." . . . Testimonial statements are those made in "circumstances objectively indicat[ing] that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."

[Id. at 345 (quoting Davis v. Washington, supra, 547 U.S. at 822, 126 S.Ct. at 2273-74, 165 L.Ed. 2d at 237).]

Furthermore, the Court held that actual interrogation in the form of formal police questioning is not required to characterize out-of-court statements as testimonial. Ibid.

The Court illustrated application of the standard for distinguishing testimonial from non-testimonial statements by describing the facts of the two consolidated domestic violence cases considered by the United States Supreme Court in Davis v. Washington. In one case, the excited utterances of the victim to the 911 operator were admissible in evidence because the victim was reporting her ex-boyfriend's assault as it was happening, and her primary purpose was to get help for an ongoing emergency. J.A., supra, 195 N.J. at 345-46 (citing Davis v. Washington, supra, 547 U.S. at 827-29, 126 S.Ct. at 2276-77, 165 L.Ed. 2d at 240-41). Those statements, including identification of the assailant by name, were non-testimonial and their admission did not violate the defendant's Sixth Amendment right of confrontation. Ibid.

In the second case, however, the police had come to the victim's home immediately after the domestic violence and questioned her and her husband separately in different rooms about what had happened. The police were in control of the situation. There was no immediate threat to the victim and no emergency in progress. The primary purpose of the victim's statements was to tell the police about past events, what had happened. The police were investigating potential criminal conduct for the purpose of charging and prosecuting the wrongdoer. Id. at 346-47. In the second case, the victim's statements to the police at the scene were testimonial and barred from admission in evidence by the defendant's right of confrontation. Id. at 346 (citing Davis v. Washington, supra, 547 U.S. at 829-32, 126 S.Ct. at 2278-80, 165 L.Ed. 2d at 242-43).

Applied to the circumstances of this case, Santiago's initial statements to the police that two dudes had shot his friend and run out the back door were non-testimonial and their admission did not violate defendant Beacham's Sixth Amendment right of confrontation. The later statements, however, describing what Santiago and his friends had done that night and what Santiago saw when he and Gonzalez came down the stairs into the living room were describing past events after the emergency was under police control and the immediate threat had passed. The primary purpose of the latter statements was to aid the police investigation and the prosecution of a crime. Those statements were testimonial and should have been barred under the Sixth Amendment, even though they were not hearsay because they were excited utterances.

V.

Next, defendant contends that the trial court erred in admitting the prior statement of a recanting witness because it was hearsay. We find no error in the admission of the statement.

A few days after the homicide, detectives interviewed defendant's sixteen-year-old cousin, Oral Youmans, who lived with defendant and defendant's mother and grandmother in Long Branch. Oral told the detectives that on the day of the shooting, Monday, May 10, he came home from school and saw defendant Beacham in the laundry room apparently looking for something. When he questioned what defendant was doing, defendant became "snooty" with him, which was unusual because they had a good relationship. About six months earlier, Oral had seen a revolver in the laundry room and questioned defendant about it. Oral told defendant to get the gun out of the house, and defendant apparently did so.

Subpoenaed to testify at trial, Oral said that the police had taken him out of school and questioned him alone without a parent present and that he had been high on drugs. He said he did not remember anything he had said to the police about a handgun or defendant being "snooty" with him on the day of the shooting. However, he acknowledged his signature on a written statement prepared on the date he was interviewed. The prosecution offered Oral's signed statement in evidence under Rule of Evidence 803(a)(1)(A) as a prior inconsistent statement. Defense counsel objected.

In a hearing outside the presence of the jury, the State presented the testimony of Detective Johantgen, an experienced detective who had a personal and friendly relationship with Oral and who had taken his statement. Detective Johantgen testified that Oral was brought for an interview in the presence of his mother and her boyfriend. His mother agreed to the interview but then had to go to work. Her boyfriend stayed throughout the questioning and statement and signed the written statement along with Oral. He also said Oral did not appear to be under the influence of drugs.

Rule of Evidence 803(a)(1)(A) provides a hearsay exception for:

A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement:

(1) is inconsistent with the witness' testimony at the trial or hearing . . . . However, when the statement is offered by the party calling the witness, it is admissible only if, in addition to the foregoing requirements, it (A) is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability . . . .

The trial court followed precisely the procedure outlined in State v. Gross, 121 N.J. 1 (1990), for such disputes. It conducted a hearing outside the presence of the jury to determine the circumstances in which the statement was made. The court credited the testimony of Detective Johantgen refuting Oral's claims. The court applied the multiple factors listed in State v. Gross and found that Oral's statement was obtained in circumstances establishing its reliability. See id. at 10. We conclude that there was substantial credible evidence to support the court's findings. See State v. Locurto, 157 N.J. 463, 471-72 (1999); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., supra, 65 N.J. at 484.

Also, admission of the statement did not violate defendant's right of confrontation because Oral was a witness at trial available for cross-examination. See U.S. v. Owens, 484 U.S. 554, 559, 108 S.Ct. 838, 842, 98 L.Ed. 2d 951, 957 (1988). The defense was given the opportunity but chose not to cross-examine Oral.

VI.

Defendant argues for the first time on appeal that his right to a fair trial was violated by Rodney Jackson's prejudicial testimony that defendant made a comment in the getaway car regarding prior criminal activity. Jackson testified that he asked defendant, "Why did you shoot?" Defendant answered, "Don't worry about it. It's not my first time." Defendant argues now that the trial court should have immediately stricken that testimony and instructed the jury not to consider it, but defense counsel made no objection at trial, and within minutes of the testimony, the court did exactly what defendant urges now. It struck the testimony by instructing the jury:

Ladies and gentlemen, the statement by Mr. Jackson where he said that Mr. Beacham was alleged to have said, "This isn't my first time shooting," disregard that part about "this isn't my first time shooting" because there's no evidence about any prior shootings or anything like that in this case. We're dealing with the case at hand.

The trial court acted promptly in defusing any prejudice. The jury is presumed to follow the court's instructions. State v. Burns, 192 N.J. 312, 335 (2007). The defense believed the court's curative instruction adequate. We conclude there was no plain error, an error capable of producing an unjust result, see State v. Hunt, 115 N.J. 330, 363 (1989); R. 1:7-5; R. 2:10-2, in the manner that the trial court addressed the reference to prior wrongdoing of the defendant.

Because a new trial is necessary, and because the prosecutor argued at trial that defendant's alleged admission was relevant and admissible, we add the following. Before allowing Jackson to testify about defendant's comment, the prosecutor should have alerted the court and defense counsel about his intention. With the assistance of both attorneys, the court could then have determined whether any admissibility issue under Rule of Evidence 404(b) had to be decided outside the presence of the jury.

On retrial, the testimony implying a prior shooting should not be offered or admitted without a prior determination by the trial court that it meets the requirements for admission under Rule of Evidence 404(b). On the present record, Jackson's testimony did not satisfy the four-part test established in State v. Cofield, 127 N.J. 328 (1992), for admission of other crimes evidence. If the State seeks testimony from Jackson that defendant in effect admitted he had shot Gonzalez, the reference to a prior similar act must be "sanitized" from the admission. See State v. Barden, 195 N.J. 375, 390 (2008); State v. Collier, 316 N.J. Super. 181, 195 (App. Div. 1998), aff'd o.b. 162 N.J. 27 (1999).

VII.

Having decided that defendant is entitled to a new trial, we need not address his challenge to the sentence.

Defendant's conviction is reversed and the matter is remanded for a new trial.


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