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State v. Russell


April 15, 2010


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-11-1563.

Per curiam.


Submitted on September 30, 2009

Before Judges Fuentes and Simonelli.

A jury convicted defendant James S. Russell of three counts of first-degree robbery, N.J.S.A. 2C:15-1, and one count of second-degree burglary, N.J.S.A. 2C:18-2. After the denial of defendant's motion for a new trial, the trial judge sentenced him to three concurrent eighteen-year terms of imprisonment with eighty-five percent periods of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. At sentencing, defendant also pled guilty to violating probation (VOP) on two unrelated offenses committed in 2003 and 2004, and was sentenced to two concurrent four-year terms of imprisonment consecutive to his eighteen-year sentences.


We gather the following facts from the record developed before the trial court.

On the evening of July 23, 2004, two assailants accosted Tyshaun and Antowan Fitzpatrick outside their home, forced them into the home at gunpoint, and bound them while ransacking and robbing the home. One of the assailants, later identified as co-defendant Shaquill B. Allah, put a bag over the head of Ebony Fitzpatrick, who had been asleep in the bedroom when Allah entered the home. Tyshaun was stabbed in the back during the robbery.

Three other individuals, one of whom brandished a gun, had approached Tyshaunda Fitzpatrick, who while sitting in a car outside the home saw what was happening to her brothers, and ordered her to remain quiet. In a taped statement given to the police shortly after the robbery, Tyshaunda identified defendant as one of those individuals.

In her taped statement also given to the police shortly after the robbery, Ebony identified Allah as the assailant who put the black plastic bag over her head. Ebony also said that she knew that defendant, who she identified by his first name and nickname, was involved in the robbery because Tyshaunda saw his face.

At trial, Ebony and Tyshaunda, who appeared pursuant to a subpoena, expressed their reluctance to testify. Ebony denied any recollection of the robbery. She recalled giving the statement; however, she denied memory of what she said and denied that the statement refreshed her recollection. Tyshaunda denied recollection of certain parts of the robbery, including the identity of the individuals involved and whether they had a gun. She, too, recalled giving the statement but denied it refreshed her recollection. Over defense counsel's objection, the trial judge permitted the State to read into the record, as past recollection recorded pursuant to N.J.R.E. 803(c)(5), Ebony's entire statement and those portions of Tyshaunda's statement that she could not recall. All defense counsel cross-examined these witnesses.

Against these facts, defendant raises the following arguments on appeal:








We are satisfied that the arguments presented in Points I through VI do not warrant a reversal of defendant's robbery and burglary convictions and sentence on those convictions. As to Pont VII, we vacate the sentences on the VOP convictions and remand for reconsideration of those sentences.


Defendant argues in Point I that the trial court's admission of Ebony's and Tyshaunda's taped statements deprived him of his right to confront and cross-examine witnesses as guaranteed by the Sixth Amendment of the Constitution of the United States. We disagree.

The United States Supreme Court has rejected this argument. In United States v. Owens, 484 U.S. 554, 559-60, 108 S.Ct. 838, 842-43, 98 L.Ed. 2d 951, 958 (1988), the Supreme Court held that the opportunity [to confront an adverse witness] is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief. It is sufficient that the defendant has the opportunity to bring out such matters as the witness' bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination, see 3A J. Wigmore, Evidence § 995, pp. 931-932 (J. Chadbourn rev. 1970)) the very fact that he has a bad memory. If the ability to inquire into these matters suffices to establish the constitutionally requisite opportunity for cross-examination when a witness testifies as to his current belief, the basis for which he cannot recall, we see no reason why it should not suffice when the witness's past belief is introduced and he is unable to recollect the reason for that past belief. In both cases the foundation for the belief (current or past) cannot effectively be elicited, but other means of impunging the belief are available. Indeed, if there is any difference in persuasive impact between the statement "I believe this to be the man who assaulted me, but can't remember why" and the statement "I don't know whether this is the man who assaulted me, but I told the police I believed so earlier," the former would seem, if anything, more damaging and hence give rise to a greater need for memory-testing, if that is to be considered essential to an opportunity for effective cross-examination. We conclude with respect to this latter example, as we did in [Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed. 2d 15 (1985)] with respect to the former, that it is not. The weapons available to impugn the witness's statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee.

The Court made clear that the Confrontation Clause only guarantees an opportunity for effective cross-examination, and simply because a witness does not remember his out-of-court statement while testifying does not infringe upon the defendant's Sixth Amendment Rights. Ibid.

The New Jersey Supreme Court has adopted a similar approach. In State v. Brown, 138 N.J. 481, 544 (1994), overruled on other grounds, State v. Cooper, 151 N.J. 326, 377 (1997), the Court held that the constitutional confrontation guarantees are not violated by a witness's lack of recollection regarding an introduced prior statement or the events described in such a statement. The finding of feigned recollection is essentially a finding by the court that the witness is lying about the statement and about the contents of the statement. That the lie is in the form of a loss of memory rather than an outright denial that the events occurred is not of constitutional significance for the purpose of cross-examination.

Here, defense counsel had the opportunity to cross-examine Ebony and Tyshaunda. Accordingly, no Confrontation Clause violation occurred.

We reject defendant's alternative argument in Point I that the statements were inadmissible hearsay not subject to the past recollection recorded exception. N.J.R.E 803(c)(5) provides as follows:

Recorded recollection. A statement concerning a matter about which the witness is unable to testify fully and accurately because of insufficient present recollection if the statement is contained in a writing or other record which (A) was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness, and (B) was made by the witness or under the witness' direction or by some other person for the purpose of recording the statement at the time it was made, and (C) the statement concerns a matter of which the witness had knowledge when it was made, unless the circumstances indicate that the statement is not trustworthy; provided that when the witness does not remember part or all of the contents of a writing, the portion the witness does not remember may be read into evidence but shall not be introduced as an exhibit over objection.

Tyshaunda and Ebony made their taped statements to the police shortly after the robbery; the statements concerned matters of which they had personal knowledge when the statements were made; they could not recall the details of the robbery at trial; they recalled making the statements but did not recall what they had said; and the statements did not refresh their memory. Accordingly, the statements met the requirements of past recollections recorded and were properly read to the jury.

We also reject defendant's remaining alternative arguments in Point I about Ebony's alleged hearsay knowledge of defendant's name and nickname and presence at the crime scene, and about a police officer's alleged hearsay testimony regarding Ebony's and Tyshaunda's identifications of Allah as the person who stabbed Tyshaun. Ebony testified that she knew defendant by his name and nickname because he dated Tyshaunda and he had come to her house. Because Ebony knew defendant directly, her statement about his name and nickname was not hearsay.

Also, although Ebony said in her statement that she knew defendant was at the crime scene because her sister saw him there, the judge charged the jury that they must disregard that statement and give it no weight. It is presumed that the jury faithfully followed this instruction. State v. Nelson, 173 N.J. 417, 447 (2002).

Further, there was other evidence of defendant's presence at the crime scene. Tyshaunda identified defendant at trial and said in her statement that she had no doubt he was one of the three individuals who confronted her while she sat in her car. Another witness, Kim Reynolds, also identified defendant at trial and testified that he was at the crime scene.*fn1

Accordingly, even if an error occurred, it was harmless.

Finally, the police officer's testimony about the out-of-court identifications of Allah did not concern defendant, had no bearing on defendant's defense, and did not prejudice him in any way. In fact, defendant benefited from the officer's testimony because it removed any doubt that he might have been the individual who stabbed Tyshaun.


Defendant contends for the first time on appeal in Point II that the judge's sua sponte examination of four witnesses denied him a fair trial. We review this contention under the plain error standard of review. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971). Under that standard, we must disregard any error unless it is clearly capable of producing an unjust result. State v. Castagna, 187 N.J. 293, 312 (2006); Macon, supra, 57 N.J. at 337. Reversal of defendant's conviction is required only if there was error sufficient to raise a reasonable doubt as to whether it led the jury to a result it otherwise might not have reached. Macon, supra, 57 N.J. at 336.

A trial judge has the authority to question a witness on his or her own initiative and with sound discretion to clarify testimony or even to elicit further facts that are material to a case. State v. Riley, 28 N.J. 188, 200 (1958); State v. Medina, 349 N.J. Super. 108, 130-31 (App. Div. 2002). When the trial judge's questioning is contested on appeal, "[we] should not evaluate the trial judge's conduct from the vantage point of twenty-twenty hindsight. Rather, [we] should recognize that trial judges often must act without the benefit of prolonged and objective research." Medina, supra, 349 N.J. Super. at 132.

Here, the judge asked the witnesses neutral questions in order to clarify their testimony. The judge also instructed the jury numerous times that they were the sole judges of the fact, that they were not to draw any inferences from the fact that he asked questions, that they could disregard his questions, and that his questions were not an indication that he had an opinion about how the case should be decided or how a witness's testimony should be viewed.

We are satisfied that the judge's questioning of witnesses was within his authority to clarify their testimony and did not bolster the witnesses' credibility or give the appearance of advocacy on the State's behalf. Id. at 131. There was no error, let alone plain error.


Defendant's arguments in Points III through VI are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add the following brief comments.

The judge properly exercised his "broad discretion" in refusing to inform the jury of the State's failure to produce an evidence report issued by the police officer who collected physical evidence from the crime scene, which omitted reference to the plastic bag placed over Ebony's head. State v. Marshall, 123 N.J. 1, 134 (1991); R. 3:13-3(g). Defendant provides no case law requiring trial courts to inform juries of the State's discovery violations. More importantly, defendant suffered no prejudice by the discovery violation and, in fact, may have benefited because the report bolstered his claim that the police conducted an incomplete investigation.

Reynolds's direct testimony about fearing for herself and her son was relevant to explain why she did not report the robbery until confronted by the prosecutor's office. "The party calling a witness may . . . attempt to support credibility through direct or redirect examination and through the introduction of extrinsic evidence" without waiting for an adversary to first attack the witness's credibility. State v. Frost, 242 N.J. Super. 601, 614 (App. Div.), certif. denied, 127 N.J. 321 (1990).

Reynolds's testimony about her fear of three other individuals who were not charged in this case, which was elicited on cross-examination and mentioned again during redirect examination, constituted invited error. See State v. McDavitt, 62 N.J. 36, 48 (1972) (holding that the defendant could not claim prejudice after "knowingly pursuing a subject fraught with the danger" of exposing damaging testimony); State v. Morse, 106 N.J. Super. 1, 4 (App. Div. 1968) (holding that the defendant cannot claim error where he introduced evidence that he admitted ownership of the heroin found on him), aff'd, 54 N.J. 32 (1969). Also, under the "opening the door" doctrine, defendant could not introduce this evidence and then prevent the State from addressing it. State v. James, 144 N.J. 538, 554 (1996) (citing United States v. Lum, 466 F. Supp. 328, 334-35

(D. Del.), aff'd, 604 F.2d 1198 (3rd Cir. 1979)).


Defendant contends in Point VII that his sentence is excessive because the judge improperly found aggravating factor N.J.S.A. 2C:44-1a(3) (the risk that the defendant will commit another offense) based on defendant's character and attitude; failed to weigh the aggravating and mitigating factors applicable to the VOP convictions; and based the consecutive sentences on the erroneous conclusion that defendant was on probation at the time of the robbery. We disagree.

The judge gave "[h]eavy weight" to aggravating factor 3, finding that there is a strong likelihood that defendant will continue to commit criminal acts based on the character and attitude he displayed at sentencing. At sentencing, defendant denied committing the crime and referred to it as "this little situation that got out of hand[.]" Noting his right to appeal, defendant said to the judge, "[s]o if everything goes well, you know what I mean, me, you, [the prosecutor], we back here in two years for a family reunion, and we'll try this thing again." We discern no error in the judge's finding of aggravating factor 3 based on his consideration of defendant's attitude at sentencing. State v. O'Donnell, 177 N.J. 210, 216 (1989).

We reach a contrary conclusion as to defendant's VOP sentences. When a defendant is sentenced for a probation violation, and "the court decides to incarcerate the defendant, it must weigh the original aggravating and surviving mitigating factors to determine the appropriate sentence." State v. Molina, 114 N.J. 181, 184-85 (1989) (citing State v. Baylass, 114 N.J. 169, 178 (1989)).

When sentencing defendant for the VOP convictions, the judge only briefly referred to mitigating factor N.J.S.A. 2C:44-1b(10) (the defendant is particularly likely to respond affirmatively to probationary treatment) in finding that it no longer applied. On remand, the judge must engage in a full weighing of all aggravating and mitigating factors. After doing so, if the judge finds incarceration appropriate for the VOP convictions, consecutive sentences may be imposed.

When a defendant is sentenced to imprisonment for an offense committed while released, with or without bail, pending disposition of a previous offense, the term of imprisonment shall run consecutively to any sentence of imprisonment imposed for the previous offense, unless the court, in consideration of the character and conditions of the defendant, finds that imposition of consecutive sentences would be a serious injustice which overrides the need to deter such conduct by others.

[N.J.S.A. 2C:44-5(h).]

The robbery occurred on July 24, 2004, and defendant was sentenced to a probationary term on October 29, 2004. Although in imposing the consecutive sentences the judge mistakenly found that defendant committed the robbery while on probation, the offenses for which defendant was placed on probation occurred on July 14, 2003 and January 5, 2004, and defendant was on bail pending disposition of those crimes. Accordingly, a consecutive sentence for defendant's VOP convictions is proper.

We affirm defendant's conviction and sentence for the robbery and burglary convictions; we vacate his sentence on the VOP convictions, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

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