On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-10-1327.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Sabatino and Ostrer.
Defendant Gary Suttle was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1), (2), and was sentenced to fifty-five years in prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. This was his second trial. Defendant's first trial resulted in a hung jury on the murder count and an acquittal on a charge of possession of a weapon (a hammer) for an unlawful purpose, N.J.S.A. 2C:39-4d. The re-trial resulted in the murder conviction.
On this appeal defendant raises three issues: the Double Jeopardy Clause barred a re-trial on the murder charge; the trial court erroneously excluded evidence of third-party guilt; and the court erroneously excluded evidence of the victim's statement of a present sense impression. We reject defendant's first argument, but agree with his second and third arguments. We reverse his conviction and remand this matter to the trial court for a re-trial on the murder charge.
We will discuss the pertinent facts when we address each legal issue, but we begin with the following brief overview. Lois Zukowitz,*fn1 a sixty-year-old woman, was beaten to death with a hammer. The crime occurred on the evening of March 11, 2004, in her apartment in Elizabeth. The police found her body after the tenant in the apartment next door called 9-1-1 to report a possible domestic violence incident. According to the tenant, he heard Lois screaming and yelling, a man's voice repeatedly telling her to "shut up," and the sound of someone "being hit."
When the police entered her apartment, they found the premises had been "ransacked," with drawers "all over the place." They found several bloody footprints, which were later matched to a pair of sneakers that defendant owned, and they found a jacket and a set of keys that were later traced to defendant. They also found a hammer with the victim's blood on it. They did not find defendant's DNA material or fingerprints on the hammer.
Lois was an addict who also sold drugs and was known to keep drugs in her apartment. Defendant was the middleman who obtained heroin for her. He admitted that on the day of the murder, he went to her apartment to arrange to buy some drugs for her. He left his jacket in her apartment, and returned some time later to deliver the drugs to her. He testified that when he arrived back at her apartment, he found her lying dead on the floor. Fearful that, if he called the police, he would be blamed for the murder and would get in trouble because he had drugs in his possession, he fled the apartment through a window and exited down the fire escape.
Defendant raises the following points for our consideration:
THE JUDGE INCORRECTLY DENIED DEFENDANT'S MOTION TO DISMISS THE MURDER PROSECUTION ON DOUBLE-JEOPARDY GROUNDS.
THE JUDGE IMPROPERLY PRECLUDED DEFENDANT FROM INTRODUCING TESTIMONY REGARDING THIRD-PARTY GUILT.
THE JUDGE'S RULING BARRING DEFENDANT FROM TELLING THE JURY THAT, JUST PRIOR TO HER DEATH, THE VICTIM TOLD HIM ON THE PHONE THAT SHE WAS "BUSY WITH HER PEOPLES [SIC]" IN HER APARTMENT WAS IN DIRECT CONFLICT WITH N.J.R.E. 803 (C)(1), WHICH ADMITS PRECISELY SUCH A "PRESENT SENSE IMPRESSION" INTO EVIDENCE.
We begin by addressing defendant's Double Jeopardy claim. As the United States Supreme Court held in Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S. Ct. 1189, 1195, 25 L. Ed. 2d 469, 476-77 (1970), the Double Jeopardy Clause of the Fifth Amendment includes the bar of collateral estoppel. Defining collateral estoppel as follows - "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit" - the Court explained that the doctrine applied "'to a former judgment in a criminal case.'" Id. at 443, 90 S. Ct. at 1194, 25 L. Ed. 2d at 475 (quoting United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961)). Collateral estoppel may bar a later prosecution where the jury's acquittal in a prior case necessarily demonstrated its rejection of the essential facts on which the State sought to base the second prosecution. See State v. Cormier, 46 N.J. 494, 509 (1966).
In Yeager v. United States, ___ U.S. ___, 129 S. Ct. 2360, 174 L. Ed. 2d 78 (2009), the Court held that when a defendant is acquitted on some charges and obtains a hung jury on others, collateral estoppel principles may apply to the State's attempt to retry the defendant on the "hung counts." Id. at ___, 129 S. Ct. at 2368-69, 174 L. Ed. 2d at 90. In deciding a collateral estoppel argument, the jury's failure to return a verdict must be treated as a "nonevent." Id. at ___, 129 S. Ct. at 2367, 174 L. Ed. 2d at 88. That is, the trial court must not speculate on the jury's reasons for being unable to return a verdict on some counts, and instead should focus on the significance of the acquittal. Id. at ___, 129 S. Ct. at 2367-68, 174 L. Ed. 2d at 89-90.
The Court cautioned that this focus should not be mechanical or technical, but practical, in light of the way the first case was actually tried. Id. at ___, 129 S. Ct. at 2367, 174 L. Ed. 2d at 88. Thus, a court hearing a Double Jeopardy motion based on collateral estoppel must closely scrutinize the record of the first trial to determine what was actually put in issue and necessarily decided by the jury:
In Ashe, we squarely held that the Double Jeopardy Clause precludes the Government from relitigating any issue that was necessarily decided by a jury's acquittal in a prior trial. In that case, six poker players were robbed by a group of masked men. Ashe was charged with--and acquitted of--robbing Donald Knight, one of the six players. The State sought to retry Ashe for the robbery of another poker player only weeks after the first jury had acquitted him. The second prosecution was successful: Facing "substantially stronger" testimony from "witnesses [who] were for the most part the same," Ashe was convicted and sentenced to a 35-year prison term. We concluded that the subsequent prosecution was constitutionally prohibited. Because the only contested issue at the first trial was whether Ashe was one of the robbers, we held that the jury's verdict of acquittal collaterally estopped the State from trying him for robbing a different player during the same criminal episode. We explained that "when an issue of ultimate fact has once been determined by a valid and final judgment" of acquittal, it "cannot again be litigated" in a second trial for a separate offense. To decipher what a jury has necessarily decided, we held that courts should "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." We explained that the inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." [Id. at ___, 129 S. Ct. at 2366-67, 174 L. Ed. 2d at 87-88 (emphasis added; internal citations omitted).]
Yeager was decided a year after the judge in this case decided defendant's Double Jeopardy motion. However, the motion judge, who had also presided over the prior trial, engaged in a similar analysis, considering what was in issue in the first trial. We have likewise read the record of the first trial, with an eye to how the case was tried, how the jury was charged, and whether "a rational jury" hearing that case could have acquitted defendant of possessing a weapon (in this case, the hammer) for an unlawful purpose, on a basis that would not be inconsistent with the State's theory that he killed the victim with the hammer. Ibid. Of course, in that analysis, we focus on the acquittal and do not speculate on why the jury deadlocked on the murder charge. Id. at ___, 129 S. Ct. at 2367-68, 174 L. Ed. 2d at 89-90.
In the first trial, the prosecutor set forth the State's theory of the murder charge in his opening statement: "this defendant beat Lois Zukowitz to death with a hammer." However, he said nothing about the charge of possession of a weapon for an unlawful purpose. Defense counsel's opening likewise focused solely on the murder charge, although he stressed that defendant's fingerprints and DNA evidence were not found on the hammer.
The only person who "witnessed" the crime was Jamie Brown, the tenant in the apartment next to the victim. Brown testified that on March 11, 2004, at around 11:00 p.m., he "heard the lady next door screaming," although the screaming sounded "muffled." He also heard a man's voice "telling her shut up, shut up, shut up." He then heard what sounded like someone being "punched." Believing that the ...