On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-12-2830-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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.
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.
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?
Q: And Jennelle Morris tells you that she and Anthony Tucker take their daughter to Jersey Shore Medical Center, correct?
Q: That in fact they took their daughter to Jersey Shore Medical Center on May 10, 2004. Correct?
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 ...