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State of New Jersey v. Timyan Cabbell

July 26, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TIMYAN CABBELL, A/K/A TIMYAH CABBELL, TIMYAH S. CABBELL, TIMYAN S. CABBELL, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN YANDAIN CALHOUN, A/K/A JOHN CALHOUN, JOHN Y. CALHOUN, JR., JOHN V. CALHOUN, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Albin delivered the opinion of the Court.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. Timyan Cabbell/State of New Jersey v. John Calhoun (A-89/90-09) (065129)

Argued December 1, 2010 Decided July 26, 2011

ALBIN, J., writing for a majority of the Court.

The primary issue in this appeal is whether defendants were provided the opportunity to cross-examine two key State's witnesses, consistent with the confrontation-clause requirements of the Federal and State Constitutions.

After closing his bar at approximately 3:00 a.m. on April 3, 2004, Luis Lecaros proceeded to drive home several of his employees in his pickup truck, including Sandra Narvarro and his son Paul. At some point, Luis' truck slid on the rain-slicked road and slammed into the rear of a black Honda, shattering its back window and causing its rear bumper to fall off. The State's theory was that defendant Timyan Cabbell was driving the Honda and that defendant John Calhoun was a passenger in the rear of the vehicle. Immediately after the collision, Cabbell and Calhoun, armed with handguns, opened fire on the pickup truck, and then fled in the Honda. Forensic experts testified that a total of eleven shots were fired from the two handguns. One of the bullets penetrated the truck's windshield, killing Paul almost immediately.

A Union County Grand Jury indicted the two defendants for first-degree murder, third-degree unlawful possession of a handgun without a permit, and second-degree possession of a handgun for an unlawful purpose. Defendants were jointly tried before a jury. The central issue at trial was the identification of the shooters. Two key State's witnesses were Karine Martin and Tyson Privott. Both witnesses gave statements to the police about the shooting. In front of the jury, Martin repeatedly stated, "I do not wish to testify." The reluctant witness, when pressed by the prosecutor, admitted that she was in custody for a drug-related offense, that she had given a statement to the police about the shooting, and that the statement was truthful. Because the witness continued to insist that she did not want to testify, the court decided to conduct a Rule 104 hearing out of the presence of the jury to determine the admissibility of Martin's out-of-court statement. To this point, defendants were not given the opportunity to cross-examine Martin before the jury.

Outside the jury's presence, the court expressed its belief that asking Martin further questions would be "fruitless." Most of Martin's responses concerning what and whom she saw were simply "I don't remember" and "I wish not to testify." Martin stated that she gave a truthful statement to police describing the shooting, but that she was under the influence of crack cocaine. On cross-examination by Cabbell's counsel, Martin stated that she did not remember whether she was under the influence at the time of the shooting or police questioning. Cabbell's counsel asserted the right to cross-examine Martin before the jury if her prior statement were to be read to it.

The court determined that Martin's statement was admissible under the past-recollection-recorded exception to the hearsay rule. N.J.R.E. 803(c)(5). When Cabbell's counsel objected on the ground that she had not been given an opportunity to cross-examine Martin about the statement, the court retorted: "You had your opportunity to cross-examine her in front of the jury, outside the presence of the jury and you waived the opportunity." Martin was not returned to the courtroom. Instead, her statement was read to the jury. After the State rested, the prosecutor prodded the court to give defense counsel "an opportunity to cross-examine [Martin]" if they wanted to do so since she was available in the county jail. The court rejected the prosecutor's suggestion, commenting, "We already ruled on that."

A Rule 104 hearing was also conducted to determine the admissibility of two out-of-court statements made by Tyson Privott, the second key State witness, who at first indicated in the presence of the jury that he did not want to testify. At the hearing, Privott testified that he knew Cabbell, but denied knowing anything about the Lecaros shooting. At another point, he stated that he did not remember giving his initial statement in 2004. Both defendants declined to cross-examine Privott at that time. The court ruled that Privott's two statements would be admissible, after appropriate redactions, as prior inconsistent statements. N.J.R.E. 803(a)(1). Privott testified before the jury and was cross-examined by defense counsel.

The jury acquitted both defendants of murder, but convicted them of lesser-included offenses. The jury convicted Cabbell of first-degree manslaughter, Calhoun of second-degree manslaughter, and both of the weapons offenses. Both Cabbell and Calhoun appealed their convictions. In an unpublished opinion, the Appellate Division affirmed the convictions. The panel held that both defendants had the opportunity to cross-examine Martin at the Rule 104 hearing, thus satisfying their confrontation rights. The panel also held that Privott's statement to the police was properly admitted because defendants had the opportunity to cross-examine Privott at the Rule 104 hearing and before the jury.

The Supreme Court granted both defendants' petitions for certification to decide whether Martin's and Privott's statements were admitted into evidence in violation of their confrontation rights.

HELD: Both defendants were denied their federal and state constitutional rights to confront Karine Martin, a key State's witness, before the jury. For that reason, Martin's out-of-court statement to the police incriminating defendants should not have been read to the jury and the admission of that statement was not harmless error.

1. The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution provide that the accused in a criminal prosecution has the right "to be confronted with the witnesses against him." The Confrontation Clause prohibits the use of a witness's out-of-court testimonial hearsay statement as a substitute for in-court testimony when a defendant has never been given the opportunity to cross-examine the witness. Because it is the jury that must determine the reliability of the witness's testimony, it should be self-evident that, when the witness is available, direct- and cross-examination must be done "before the trier of fact" -- the jury. Because it is the jury that decides his ultimate fate, a defendant's right of confrontation would be rendered meaningless if cross-examination of a witness before a judge were deemed an adequate constitutional substitute when the witness is available. (pp. 17-21)

2. The trial court was clearly mistaken when it responded that defendant had "waived the opportunity" to cross-examine Martin. Martin's testimonial statement was given to the jury even though Martin was available at the time of trial and defendants were not given an opportunity to cross-examine her before the jury. Defendants' right of confrontation was not satisfied by giving defendants the opportunity to cross-examine Martin before the judge. Moreover, a court has no authority to deny defendants their constitutional right of confrontation merely because it believes that cross-examination will be of little use. The Court thus reaffirms the basic tenet that a witness who testifies on direct examination before a jury must be subject to cross-examination before that jury. The admission of Martin's testimonial statement incriminating defendants -- without giving defendants the opportunity to cross-examine the witness before the jury -- violated the Sixth Amendment of the Federal Constitution and Article I, Paragraph 10 of the State Constitution. (pp. 21-26)

3. The Court rejects the State's argument that it should find that the admission of Martin's statement -- without giving defendants the opportunity to cross-examine Martin -- was permissible under the not-yet-adopted forfeiture-by-wrongdoing exception to the hearsay rule, N.J.R.E. 804(b)(9), which became effective on July 1, 2011. To state the obvious, this now-codified rule did not exist five years ago when defendants were tried, and therefore even the most prescient court can be forgiven for not applying it. Moreover, the Court finds no merit in defendant Cabbell's claim that the admission of Privott's out-of-court statements to the police violated his confrontation rights. The introduction of Privott's prior statements to the police did not violate the Confrontation Clause because Privott, while before the jury, answered questions on direct and cross-examination concerning the events contained in those statements. (pp. 26-31)

4. The violation of defendants' federal constitutional right is a fatal error, not harmless beyond a reasonable doubt, mandating a new trial. The same "harmless beyond a reasonable doubt" standard applies to the determination under the State Constitution. The error had the clear capacity to cause an unjust result. R. 2:10-2. The Court is therefore compelled to overturn defendants' convictions and remand for a new trial. (pp. 32-35)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial consistent with the Court's opinion.

JUSTICE RIVERA-SOTO filed a separate opinion CONCURRING IN PART and DISSENTING IN PART, agreeing with the majority to the extent it affirms the admissibility of Privott's pre-trial statement, but expressing the view that the Appellate Division's analysis and results in respect of the propriety of admitting Martin's pre-trial statement are unassailable.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, and HOENS join in JUSTICE ALBIN's opinion. JUSTICE RIVERA-SOTO filed a separate opinion concurring in part and dissenting in part.

Argued December 1, 2010

The primary issue in this appeal is whether defendants were provided the opportunity to cross-examine two key State's witnesses, Karine Martin and Tyson Privott, consistent with the confrontation-clause requirements of our Federal and State Constitutions. We conclude that defendants were denied their constitutional right to confront Martin, but not Privott.

In a recorded statement to the police, Martin identified the two defendants as participants in the shooting death of Paul Lecaros. Before the jury, she admitted that the prior statement was truthful but refused to respond to further questions posed by the prosecutor. At a hearing out of the presence of the jury, she testified that she was under the influence of crack cocaine both when she observed the shooting incident and when she gave the statement to the police.

The court admitted the witness's damning out-of-court statement without allowing defense counsel the opportunity to cross-examine her before the jury. Both defendants were convicted of various crimes related to the killing of Lecaros. The Appellate Division affirmed those convictions.

The opportunity to question Martin at a hearing out of the presence of the jury was not a proper substitute for defendants' right to cross-examine the witness before the jury -- the factfinder responsible for determining whether defendants were guilty of the crimes charged. Both defendants were deprived of their federal and state confrontation rights, an error that was not harmless. We therefore must reverse and remand for a new trial.

I.

A.

Defendants Timyan Cabbell and John Calhoun were charged with various crimes related to the killing of Paul Lecaros. A Union County grand jury indicted the two defendants for first-degree murder, N.J.S.A. 2C:11-3(a)(1) and/or (2), third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b), and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendants were jointly tried before a jury. The relevant facts presented at trial follow.

B.

After closing his bar at approximately 3:00 a.m. on April 3, 2004, Luis Lecaros proceeded to drive home several of his employees in his pickup truck. Seated next to Luis was Sandra Narvarro and to her right was Luis's son, Paul, a disc jockey at the bar; in the backseat was another employee. At some point, as Luis traveled on Plainfield Avenue in the City of Plainfield, he was behind a black Honda with four occupants. As the Honda prepared to make a left-hand turn onto West Second Street, Luis's truck slid on the rain-slicked road and slammed into the rear of the Honda, shattering its back window and causing its rear bumper to fall off.

The State's theory was that defendant Cabbell was driving the Honda and that defendant Calhoun was a passenger in the rear of the vehicle. Immediately after the collision, Cabbell and Calhoun, armed with handguns, opened fire on the pickup truck. Cabbell, Calhoun, and a passenger then fled in the Honda, while another passenger fled on foot.

Forensic experts testified that a total of eleven shots were fired from two separate handguns. One of the bullets penetrated the truck's windshield, killing Paul almost immediately. A police investigation later determined that the Honda was owned by Cabbell's girlfriend. The police found Cabbell's school-tuition receipts inside the car. The central issue at trial was the identification of the shooters. The State's two key witnesses were Karine Martin and Tyson Privott.

Karine Martin

After the prosecutor called Martin to the stand, she repeatedly stated in front of the jury, "I do not wish to testify." The court and prosecutor both warned Martin that her refusal to testify could subject her to contempt and a jail sentence. The reluctant witness, when pressed by the prosecutor, admitted that she was in custody for a drug-related offense, that she had given a statement to the police about the shooting, and that the statement was truthful. Because the witness continued to insist that she did not want to testify, the court decided to conduct a Rule 104 hearing out of the presence of the jury to determine the admissibility of Martin's out-of-court statement.*fn1 To this point, defendants were not given the opportunity to cross-examine Martin before the jury.

Outside the jury's presence, the court expressed its belief that asking Martin further questions would be "fruitless." The court indicated that the next step was to decide whether Martin's statement to the police was reliable and, if so, to read it to the jury. Cabbell's counsel asserted the right tocross-examine Martin before the jury if her prior statement were to be read to it.

On the stand at the Rule 104 hearing, Martin persisted in refusing to testify until the court warned her that she would be subject to citations for contempt and consecutive eighteen-month sentences for each question she refused to answer. Most of her responses concerning what and whom she saw were simply, "I don't remember." This much was extracted through the prosecutor's questioning: she was on Plainfield Avenue when she heard shots, and she gave a truthful statement to Plainfield police officers describing the shooting.

When the prosecutor attempted to refresh Martin's recollection with the statement, she replied, "I wish not to testify," but when ordered by the court to answer, she reverted to, "I don't remember." The prosecutor then asked her again whether the six-page statement to the police was the truth. Martin responded that she was under the influence of crack cocaine "[w]hen [she] gave the statement and when [she] saw what happened." When questioned yet again whether her statement was truthful, she said, "I don't remember," and when asked whether she saw "the boy get killed," she maintained, "I don't wish to testify."

On cross-examination by Cabbell's counsel, Martin stated that she did not remember whether she was under the influence at the time of the shooting or police questioning. Calhoun's counsel told the court he had no questions of the witness "at this time." In response to the court's question, "Are you through with this witness," the prosecutor replied, "For the 104, yes."

At the 104 hearing, the court also took testimony from Sergeant Lawrence Brown, to whom Martin gave her April 2004 signed statement. Brown noted that although Martin was "very nervous and in fear" when she gave her statement, she did not appear to be under the influence. The court also reviewed a DVD of an interview Martin gave to the police in February 2006. During that 2006 interview, Martin averred the truthfulness of the account given in her April 2004 statement.*fn2

After Martin testified, the court observed: "[W]e had an extremely traumatized witness here who was shaking, crying, obviously in fear of something . . . . I can only surmise what the genesis of that fear is . . . ." The court later concluded -- without reference to evidence in the record -- that the basis for Martin's fear was that "she ha[d] been threatened by at least one of the defendants."

The court determined that Martin's statement was admissible under the past-recollection-recorded exception to the hearsay rule. See N.J.R.E. 803(c)(5). When Cabbell's counsel objected on the ground that she had not been given an opportunity to cross-examine Martin about the statement consistent with the dictates of Crawford v. Washington,*fn3 the court retorted:

She was out in front of the jury where she denied even making the statement and I asked you if you had any questions and you didn't have any. You had your opportunity to cross-examine her in front of the jury, outside the presence of ...


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