July 6, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DWAYNE E. SLAUGHTER,
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 06-12-0549.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2011
Before Judges Fisher and Fasciale.
In this appeal of his conviction for aggravated manslaughter and other related offenses, we agree with defendant's argument that the trial judge erred in permitting the State to utilize a witness's statement without requiring that the witness testify and be cross-examined in front of the jury. We find, however, that defendant was not disadvantaged, and as a result, the error was harmless.
Defendant was charged, along with Pritchard L. Watts, Jr. (Watts), with the murder of Roosevelt Morrow in his Salem home on June 19, 2005. The indictment charged both defendant and Watts with: first-degree murder, N.J.S.A. 2C:11-3a(1); two counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; third-degree burglary, N.J.S.A. 2C:18-2; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; and fourth-degree possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5d.
Watts agreed to testify for the State as part of a plea agreement. His testimony provided a counterpoint to statements defendant gave to police regarding the manner in which Morrow's death was caused. In essence, although both defendant and Watts acknowledged their involvement, they each asserted the other was the primary actor.*fn1
According to Watts, defendant discussed with him the night before and
the morning of the killing that Morrow had $150,000 in his home. They
agreed to go to Morrow's home to "rough him up and try to find the
money." Watts testified that when they arrived at Morrow's home, Watts
knocked on the door and Morrow invited him in; defendant remained on
the porch. Watts then asked and paid for two sodas.*fn2
As Morrow went to retrieve the sodas, defendant entered. When
Morrow returned, Watts punched him in the face, knocking him down. As
Morrow started to get up, defendant kicked him in the head, again
knocking Morrow down. Watts then went into a bedroom and rifled
through drawers looking for money. He testified he could hear
"scuffling" and heard defendant tell Morrow to "stay down." When Watts
left the bedroom, he observed defendant kicking the victim and beating
him with a wooden object. Watts told defendant to stop hitting the
victim, who was on the floor and bleeding. Watts testified no money
was taken but acknowledged he took a box of cigars and defendant took
Watts also testified that after they left, they went to defendant's residence, where their girlfriends were. Watts told his girlfriend, Chanelle Armstead, that he assaulted Morrow but denied killing him. The next day, defendant called Watts to tell him that Morrow had died and that Watts should not "look suspicious."
As the result of a newspaper article, which referred to him as a suspect, defendant went to the police station on June 25, 2005, and told a detective he knew nothing about the incident; he admitted to having been in Morrow's home but only to buy a cigar. Defendant, however, agreed to give a taped statement, during which he again claimed he had nothing to do with the incident. After, defendant asked permission to speak with his mother and grandmother -- also Watts's grandmother -- who had come to the police station. After a thirty or forty-five minute conversation, defendant again spoke to the police. He tearfully apologized for lying in his earlier statement and offered to tell the truth.
In a second taped statement, defendant said he went to Morrow's home that day with Watts. He described how he waited on the porch, while Watts went in to purchase soda. Defendant heard a "thump" and Morrow yelling and went inside. According to defendant's statement, as Morrow was attempting to get up from the floor, Watts "stomped" his face and kicked him a second time in the face, causing Morrow to fall "in a puddle of blood."
Defendant also testified, asserting that he and Watts went to Morrow's residence to make a purchase and that, while waiting outside, he heard a commotion and entered to see Watts stomping on Morrow. Defendant disavowed any wrongdoing. He claimed that he neither assaulted nor stole from Morrow and that he did not help Morrow or call the police because he did not want Watts, his cousin, to get into trouble.
At the trial's conclusion, the jury found defendant guilty of first-degree aggravated manslaughter, second-degree conspiracy, and second-degree aggravated assault. At sentencing, the judge merged the manslaughter and assault convictions and sentenced defendant to a twenty-year prison term subject to an 85% period of parole ineligibility; in addition, the judge sentenced defendant to a concurrent seven-year prison term on the conspiracy conviction. Other penalties and assessments were also imposed.
Defendant appealed, presenting the following arguments for our consideration:
I. THE TRIAL COURT'S ADMISSION OF A RECORDED STATEMENT, FROM A CRUCIAL WITNESS WHO DID NOT TESTIFY AT DEFENDANT'S TRIAL, VIOLATED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10.
II. THE JUDGE'S FAILURE TO INSTRUCT THE JURORS THAT DEFENDANT COULD BE FOUND GUILTY OF ROBBERY OR THEFT AS AN ACCOMPLICE, ON THE BASIS OF HIS OWN MENTAL STATE, EVEN IF ANOTHER INVOLVED HAD THE MENTAL STATE FOR A GREATER OFFENSE, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (Not Raised Below).
III. THE ABSENCE OF A LIMITING INSTRUCTION CONCERNING THE GUILTY PLEA ENTERED BY AN ALLEGED ACCOMPLICE DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (Not Raised Below).
We find insufficient merit in Points II and III to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also reject the arguments contained in Point I for the following reasons.
In Point I, defendant argues that the trial judge erred in allowing a recording of a statement by defendant's girlfriend, Tanisha Day, to be played to the jury without requiring that she also testify in front of the jury. Although we agree that the procedure adopted by the judge was erroneous, we ultimately conclude that the error was harmless.
The record reveals that on the eighth day of trial, the judge conducted a hearing outside the jury's presence pursuant to N.J.R.E. 104, to determine whether or to what extent the State might use a sworn statement Day gave to police on June 23, 2005, about what she observed and what defendant said when he and Watts arrived on the morning of June 19, 2005 -- the day Morrow was murdered -- to the home defendant and Day shared. In the statement, Day said that defendant was "wearing bloody pants [with] blood at the bottom of his right pants leg" that "appeared to be wet," that Watts "had blood on his face," and that defendant told Watts "he had blood on his face."*fn3
When asked to recount her observations, Day said that defendant: came in, he told me to go upstairs and get the kids, put 'em in my room. I went upstairs, I went in my kids' room, my son was still 'sleep, but my youngest daughter was awoke. I took her in my bedroom, we layed [sic] across the bed and I slightly fell asleep. And . . . I opened my eyes and he was standing in front of me and asked him what did he do. And he didn't say anything, an[d], I asked him again and he told me to shut up, shush, be quiet. And then I asked him again and then he turned around, he started taking the clothes off.
I got up, put my daughter back in her room and I went downstairs and I sat on a chair, nervous. Got up, I looked out the window, I didn't see anybody. I opened the door, I cracked it, looked out the door and I didn't see anybody and went and sat back down.
I went back, got up, and went upstairs again. And I went in, I went in the room, in my bedroom. And I was asking him again what did he do. And he said he hope he didn't kill this nigga.
Q. What did you, what did you take him to mean by saying that?
A. That he had beaten somebody up.
Q. Was there anybody else with him at the time?
Q. Who was that?
A. Pritchard Watts. [Emphasis added.]
The statement emphasized above -- "he said he hope he didn't kill this nigga" -- is fraught with ambiguity. Although from the context, there is little doubt the first "he" Day referred to was defendant,*fn4 neither the second "he" nor the third "he" in the statement necessarily refers to defendant, thus generating a number of possible interpretations:
-- "[defendant] said [Watts] hope [Watts] didn't kill [Morrow*fn5 ]" -- "[defendant] said [defendant] hope [Watts] didn't kill [Morrow]" -- "[defendant] said [Watts] hope [defendant] didn't kill [Morrow]" -- "[defendant] said [defendant] hope [defendant] didn't kill [Morrow]" Perhaps, in light of the statement's ambiguity, one of the interrogating officers asked Day whether defendant "ever indicate[d] who he was referring to when he said he hoped he didn't kill that person?" Day apparently understood that the officer was seeking illumination about the identity of the victim -- and not the batterer -- because she responded: "No. I assume that that was, it was that person because when I came back from what I was doing from his mom's house and my friend's house, I found out that Mr. Roosevelt [Morrow] had been killed." The interrogators sought no further amplification about the identity of the individuals mentioned in the statement upon which we have focused.
At the N.J.R.E. 104 hearing, Day was asked whether she questioned defendant about what happened and whether defendant provided any responses; she said she did not remember. She did, however, recall giving a statement and that the police recorded her statement; she also remembered that police transcribed her statement, and that she made corrections and signed the written statement. In fact, Day was able to identify the statement as hers when placed before her at the hearing.
Day testified that the statement refreshed her recollection but that she could not recall what defendant said to her at that time:
Q. Well, you just told me that you read the statement, that's your statement and you signed it. Now, do you remember making that statement to the police?
A. Yes, I remember making this statement, but I don't remember what [defendant] said to me that day.
Upon further examination, Day testified that she "remember[ed] talking to [defendant]" that day but again could not recount what he said to her or "what [they] talked about."
During cross-examination at the N.J.R.E. 104 hearing, defense counsel elicited from Day that representatives of the prosecutor's office had shown her the written statement and played the videotaped statement for her a few weeks earlier. She testified that seeing the statement and video at that time also failed to refresh her recollection about what defendant may have said to her on June 19, 2005.
During this hearing, the judge also questioned Day:
Q. . . . And do you recall . . . [defendant] saying to you that he said he hoped he didn't kill that person?
Q. You don't remember that. Wouldn't that be a pretty --A. I don't remember him --Q. -- dramatic thing?
Q. That would be --A. Yeah.
Q. -- pretty important, right?
Q. And you told the police that's what he said.
Q. But you don't remember anything about that now?
With this, the State urged the admissibility of Day's prior statements. The defense objected, arguing that Day had not said anything inconsistent with her prior statement, only that she could not remember and, regardless, that Day had to be put on the stand in front of the jury if the State was to be permitted to use her prior statement. Defense counsel also argued that the statement contained inadmissible hearsay that had to be excluded. In responding to those arguments, the prosecutor stated that he assumed Day would testify in the presence of the jury.
The judge found that Day's "lapse of memory [was] feigned," and relied on State v. Brown, 138 N.J. 481, 544 (1994), overruled on other grounds, State v. Cooper, 151 N.J. 326, 371 (1997), in concluding that this false inability to recall rendered her testimony inconsistent from the statement --because, as the Court held in Brown, "[t]he 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[,]" ibid. -- and permitted the statement's admission pursuant to N.J.R.E. 803(a)(1).*fn6 With that, Day was asked to step down from the witness stand, the jury was brought into the courtroom, and the State called Sergeant Fred Parkell to lay a foundation for the statement's use.
Sergeant Parkell testified that, on June 23, 2005, he read Day her Miranda*fn7 rights, which she waived, and that he "told her that it was very important that she provide a truthful, informative statement . . . ." He also testified Day's recorded statement was inconsistent with what she said during a pre-interview; he was not asked to identify those inconsistencies. Sergeant Parkell identified the written statement, which Day swore was truthful when she signed it, and the cassette containing the video recording of the statement.
With the completion of the examination of Sergeant Parkell, the judge excused the jury, and the videotaped statement was played outside the jury's presence. Day, who was present in the courtroom while the tape was played, was then recalled to the witness stand, still out of the presence of the jury. The prosecutor asked Day whether, having watched the videotape, she "remember[ed] saying anything at all in that statement," and she said, "I don't." Defense counsel again cross-examined Day; he asked her whether -- having "just heard the statement" -- it "in any way [brought] to light what occurred on that date at the police station." She said, "[b]its and pieces." Day then testified that she remembered the drive to Camden, that she recalled "being at the police station," and that "the tape kind of brought back some of the things I talked to them about, too." Defense counsel elicited some of those remembered things, but Day continued to deny a recollection of the inculpatory aspects of her statement.
Once this part of the N.J.R.E. 104 hearing was concluded, the judge rendered an oral decision, determining that the videotaped statement could be played to the jury and that Day would not have to take the stand and testify in front of the jury. The judge recognized that "the classic way in which this is to be presented to a jury" would call for examination of the witness in front of the jury, so she could "be given an opportunity to respond," and if she professed an inability to recall and her recollection was not refreshed by the statement then the jury would be permitted to hear the statement. The judge, however, concluded that [i]t would appear . . . there's no need for that to be done in front of the jury because this witness has indicated, and I've listened to her, I recognize there is a passage of time, and passage of time dims memory, and we all know that, but in a circumstance where in a homicide investigation when the father of her children comes home with blood on his pants, says what he is alleged to have said, and for her to indicate she has no memory of that when it's alleged that she -- that he rather said when he came home, "And I was asking him again what did he do, and he said he hoped he didn't kill that person," well, for her to say now that I have no memory of that just is -- defies logic.
She simply is not credible. The lapse of memory is feigned. And I'm going to permit the tape to be played without the necessity of putting her through anymore torture, putting her on the stand and having no memory of anything that is germane to this case. [Emphasis added.]
The judge thereafter heard and rejected defendant's argument that only the written statement ought to be utilized. There was also a lengthy colloquy regarding the admissibility of some of the statements attributed to Day during the interview -- some being hearsay and others ambiguous*fn8 -- but the judge permitted the entire videotaped statement to be played. Defense counsel again asserted that Day should be required to testify in front of the jury, but the judge -- after again conceding that what defense counsel was suggesting was "the way it is done" --nevertheless concluded that Day was given "two opportunities outside the presence of the jury" to refresh her recollection and that "[t]o go through that exercise again and to show it to her again and have her say again that she doesn't remember, what purpose could possibly be served by that?"*fn9
The judge recognized there were "confrontation aspects" of what defendant was arguing but concluded that the right to cross-examine was satisfied during the N.J.R.E. 104 hearing. Defendant's arguments in this appeal relate solely to the judge's decision that Day not be required to testify in front of the jury in the State's case. The point has constitutional ramifications that are not entirely settled.
An accused is constitutionally guaranteed "a meaningful opportunity to present a complete defense," California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532, 81 L. Ed. 2d 413, 419 (1984), which includes the right "to be confronted with the witnesses against him," U.S. Const. amend VI; N.J. Const. art. I, ¶ 10. The right to confront and effectively cross-examine the State's witnesses is essential to the due process right to a "fair opportunity to defend against the State's accusations" and is one of "the minimum essentials of a fair trial." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297, 308 (1973).
The right to confront one's accusers has the goal of ensuring "reliability of evidence, but it is a procedural rather than a substantive guarantee" that "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." Crawford v. Washington, 541 U.S. 36, 61, 124 S. Ct. 1354, 1370, 158 L. Ed. 2d 177, 199 (2004). The Court held in Crawford that the Sixth Amendment's Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant has had a prior opportunity for cross-examination." Id. at 53-54, 124 S. Ct. at 1365, 158 L. Ed. 2d at 194. There is no doubt that Day's statement to police was a "testimonial statement"; indeed, it is the epitome of what the Court meant by that phrase. See Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006) (holding that testimonial statements are those "objectively indicat[ing] that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution"); see also Michigan v. Bryant, __ U.S. __, __, 131 S. Ct. 1143, 1154-55, 179 L. Ed. 2d 93, 106-07 (2011); State v. Basil, 202 N.J. 570, 592-96 (2010). Consequently, and regardless of the admissibility of Day's statement pursuant to our evidence rules, see Crawford, supra, 541 U.S. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192, the statement could not be constitutionally admitted "unless the person who made the statement is unavailable to testify at trial and the defendant had a prior opportunity to cross-examine that person." State ex rel. J.A., 195 N.J. 324, 328 (2008).
In considering the scope of this examination, we recognize that Day was unavailable for purposes of our evidence rules because she "testifie[d] to a lack of memory of the subject matter of the statement[.]" N.J.R.E. 804(a)(3). But what persists is the scope of unavailability for Confrontation Clause purposes. As a general matter, we think it unlikely that unavailability in the context of constitutional confrontation principles may be governed by a state evidence rule lest a state evidence rule's unduly broad definition of unavailability swallow constitutional confrontation requirements. We need not, however, attempt to resolve that question.
In considering the application of constitutional confrontation principles to the case at hand, we are instructed and bound by Brown, supra, 138 N.J. at 544, which recognized the right to confrontation is not violated by the admission of a statement of a witness who has feigned a lack of recollection. The Court, however, in recognition of the importance of cross-examination, concluded that the process required that the witness testify in front of the jury. In explaining its view on the impact of a feigned memory on a defendant's right to confrontation, the Court held:
[T]he 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. One objective of the New Jersey exception to the hearsay rule for prior inconsistent statements is to expose to the jury the possibility that the witness is lying, and to give the jury an alternative account of the events that it may choose to use as substantive evidence rather than the account offered by the witness. The jury, however, must observe the witness and make a decision about which account is true. [Ibid. (emphasis added); see also California v. Green, 399 U.S. 149, 156, 90 S. Ct. 1930, 1934, 26 L. Ed. 2d 489, 496 (1970).*fn10 ]
In essence, Brown demonstrates that -- for confrontation purposes --
prior cross-examination outside the jury's presence is insufficient.
Although a pre-Crawford case, we are bound not only to Brown's
interpretation of the requirements of our state constitution but also
its interpretation of the federal constitution until such time as the
Supreme Court of the United States determines otherwise.*fn11
Indeed, the trial judge recognized
-- presumably with Brown in mind -- that the "classic" way to deal
with a feigning witness is to put the witness before the jury and
permit the witness to be subjected to cross-examination, so the jury
might weigh the witness's credibility.
The trial judge's decision to permit admission of Day's statement without the requirement that she testify in front of the jury seems to have been generated by concerns for Day's comfort*fn12 or the potential that it would cause an undue expenditure of time.*fn13 We hold that these circumstances are of insufficient weight to override defendant's right to have this witness subjected to cross-examination in front of the jury, and that the judge erred in concluding otherwise.
The error was of constitutional dimension. As a result, it may be excused as harmless only if we are "able to declare a belief that it was harmless beyond a reasonable doubt." State v. Castagna, 187 N.J. 293, 312 (2006); accord Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967). Certainly, Day's out-of-court statement could have contributed to the guilty verdict. The State's case largely rested on the testimony of Watts, who was motivated by self-interest to lay the blame for the more heinous conduct on defendant, as well as forensic evidence that did not necessarily demonstrate defendant's responsibility for the actual killing of Morrow. The inculpatory aspects of Day's statement provided the jury with additional evidence by which it might choose the State's version over defendant's.
But that generalization of the evidence before the jury represents an oversimplification of the issue. Deeper analysis suggests the harmlessness of the error. For example, had Day been required to testify in front of the jury, the information contained in her out-of-court statement would still be heard by the jury. If Day maintained her inability to recall what defendant said to her on the day of the killing, the statement would have been admissible for the same reasons expressed by the trial judge at the conclusion of the N.J.R.E. 104 hearing. On the other hand, if the jury's presence, the force of counsel's examination, or other circumstances caused Day to set aside the pretense of memory loss, then the jury would have heard an in-court version of what defendant said to her at the time in question. And, if Day's suddenly restored memory generated a version different from that contained in the out-of-court statement, then the State could offer and gain the admission of the latter as an inconsistent statement. Defendant has not presented any plausible outcomes -- had Day been required to testify in front of the jury -- that would have improved his position.
Indeed, he may very well have benefited from Day's feigned memory loss and the use of her unexplained out-of-court statement. One of the more potentially damaging statements was Day's recounting of how defendant said "he hope he didn't kill [Morrow]." As we explained earlier, this statement could have been interpreted in a number of ways, at least one of which would suggest that defendant was expressing his hope that Watts had not killed Morrow; in fact, that is precisely what defendant asserted in his own trial testimony. Without Day's explanation to the jury about the statement's precise meaning -- either because of her feigned memory loss or the judge's decision to spare her from testifying in front of the jury -- defense counsel was free to argue to the jury, as he did, that defendant was referring in that statement to Watts as the killer, not himself.
Because defendant was not disadvantaged by the erroneous ruling that Day need not testify in front of the jury, we find that the error was harmless even under the enhanced burden applicable to errors of constitutional dimension.