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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...