December 2, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DEWAN DENNIS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-03-0328.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 5, 2011
Before Judges Carchman, Graves and St. John.
Appellant Dewan Dennis submitted a pro se supplemental brief.
Following a jury trial, defendant Dewan Dennis was convicted of first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1) (count one); and first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), and N.J.S.A. 2C:2-6 (count two). At sentencing on March 28, 2008, the trial court merged count one with count two, and sentenced defendant to life imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, consecutive to the sentence defendant was serving for other offenses.*fn1
On appeal, defendant's attorney presents the following arguments:
THE STATE HAVING TRIED THIS CASE ON THE SOLE THEORY THAT DEFENDANT WAS AN ACCOMPLICE BECAUSE HE HAD SOLICITED A MURDER, THE COURT COMMITTED REVERSIBLE ERROR IN GIVING A CHARGE ON ACCOMPLICE LIABILITY WHICH OMITTED SOLICITATION. (Not Raised Below)
THE TRIAL [COURT] ERRED IN GIVING A CLAWANS INSTRUCTION ALLOWING THE JURORS TO INFER FROM DEFENDANT'S FAILURE TO PRODUCE CHRISTOPHER SMITH AS A WITNESS THAT SMITH WOULD HAVE TESTIFIED ADVERSELY TO THE INTERESTS OF THE DEFENDANT, SINCE THERE WAS NO REASON TO BELIEVE THAT SMITH COULD PROVIDE INFORMATION THAT WOULD BE HELPFUL TO EITHER PARTY. IN ADDITION, THE INSTRUCTION VIOLATED DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW BY SUGGESTING THAT HE HAD A BURDEN TO PRESENT WITNESSES TO SUPPORT HIS ALIBI DEFENSE.
THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO CHARGE THE JURY ON [DEFENDANT'S] ALIBI. (Not Raised Below)
THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PRESENT HIGHLY PREJUDICIAL RULE 404(B) EVIDENCE IN REBUTTAL BECAUSE "THE SCOPE AND DEPTH OF THE DEFENDANT'S AUTHORITY IN THE BOUNTY HUNTER BLOODS" WAS NEVER AN ISSUE IN THE CASE AND BECAUSE THE STATE'S EVIDENCE WENT FAR BEYOND THAT "RELEVANT TO THE ISSUE OF CREDIBILITY."
A. THE FACTUAL BACKGROUND
B. THE LAW
Defendant also presents the following points in a pro se supplemental brief:
DID THE STATE DENY THE GRAND JURY ACCESS TO SIGNIFICANT CONTRADICTORY EVIDENCE THAT INTERFER[ED] WITH THE GRAND JURY DECISION-MAKING FUNCTION.
A. ORDER TO KILL.
C. THEORY CHANGE OF CIRCUMSTANCES.
DID THE STATE MAKE INACCURATE FACTUAL ASSERTIONS DURING TRIAL THAT AMOUNTED TO PROSECUTORIAL MISCONDUCT, DENYING APPELLANT A FAIR TRIAL; AND VIOLATED N.J. CONST. art. 1, par. 8.
TRIAL COURT COMMITTED CONSTITUTIONAL ERROR BY NOT INTERVENING WHEN THE STATE ELICITED INACCURATE FACTUAL ASSERTION FROM JOSEPH WELCH AT TRIAL.
After considering these contentions in light of the record and the applicable law, we agree the trial court committed reversible error by giving the jury an adverse inference charge under State v. Clawans, 38 N.J. 162 (1962). We therefore reverse and remand for further proceedings.
According to the State's proofs, defendant was the leader of a street gang in Trenton known as the Bounty Hunter Bloods (BHB) and, on April 21, 2005, he ordered gang members to kill Denneshia Ledbetter. The State's main witnesses were Joseph Welch and William Lane,*fn2 who testified that they were "foot soldiers" in the BHB. Welsh and Lane were originally named as co-defendants, but they pled guilty to aggravated manslaughter and agreed to testify truthfully at defendant's trial. In accordance with their negotiated pleas, Welch was sentenced to fifteen years in prison, and Lane was sentenced to twenty-eight years in prison. Both sentences are subject to an eighty-five percent parole ineligibility term under NERA.
Welch testified that on the day of the murder, April 21, 2005, he was with defendant on Walnut Avenue in Trenton, when defendant observed a man, later identified as Ledbetter, enter a store. Defendant followed Ledbetter into the store, approached him, and asked him what he was doing in town. Ledbetter explained he was visiting a female friend. Before leaving the store, defendant told Ledbetter "be safe out there."
According to Welch, "everything seemed to be okay" while they were in the store, and he thought that defendant and Ledbetter were friends. However, after Welch and defendant left the store, defendant "seemed nervous" and "kept looking over his shoulder." As they were walking from the store, defendant told Welch that Ledbetter was from New Brunswick and that he had been sent to Trenton by a rival gang to kill defendant. Welch said that defendant told him to get David Law, another gang member, and to "put some work in," which meant they were "to kill Ledbetter."
Welch drove around Trenton for about forty-five minutes looking for Law but was unable to locate him. Welch then saw William Lane, who was also a member of the BHB. After Welch explained the situation, Lane responded, "I'll roll with you," and they drove to East Trenton to speak to defendant.
Welch and Lane testified they found defendant on Monmouth Street. According to Welch, he explained that he was unable to find Law and defendant did not have a problem with Lane taking his place. Lane asked defendant what "the guy" looked like and what he was wearing, and defendant said that Welch "would inform him on that." Welch also testified that defendant said he wanted Ledbetter "taken care of," but there were no specific directions "to kill him, [or] to shoot him."
Welch and Lane then went looking for Ledbetter and eventually saw him on "Hamilton Avenue sitting on a porch." When Welch was asked at trial to estimate the time that Ledbetter was sighted, he testified: "It was becoming dark. Street lights were starting to come on."
Welch parked the car and remained in it while Lane, armed with a .38 caliber revolver, got out of the vehicle. At some point, Ledbetter left the porch and Lane followed him on foot. Welch and Lane kept in contact with cell phones. When Lane saw Ledbetter walking toward Poland Alley, Welch picked up Lane. Welch then drove down Poland Alley and as the vehicle approached Ledbetter, Lane rolled down his window and said, "What's good?" to get Ledbetter's attention. As Ledbetter turned towards the vehicle, Lane shot him in the head.
While responding to a 9-1-1 call, the police found the victim's body in Poland Alley at approximately 9:10 p.m. Denneshia Ledbetter was pronounced dead at the scene. After the shooting, Welch and Lane drove back to Monmouth Street to report to defendant. Welch testified that when he told defendant "the situation was handled," defendant "smiled and said fo sho," meaning "for sure, all right." In addition, Lane testified that defendant asked him if he was alright, and Lane said, "I'm good. I'm all right."
Welch and Lane both testified that a few days later, they were at defendant's house with some other members of the BHB when there was a discussion about a newspaper article that mentioned the shooting. According to Lane, defendant told the other members that they needed to "put [their] work in like [Lane] put his work in." Lane also said defendant promised to get him a red flag, which Lane described as "a type of status" when you kill somebody. In addition, Welch testified that defendant told the group they needed to "step their game up" meaning that when orders were given, they were to be carried out "with no questions asked. Just get it done."
Defendant took the stand in his own defense. He testified he met Ledbetter once when they were both at a recording studio, but defendant denied ordering anyone to shoot him or to hurt him. Defendant testified he joined the BHB in New Brunswick in 2001, and he admitted that after he moved to Trenton in 2002 or 2003, he held "a position of authority in the gang."
Defendant testified he was involved in the production of rap and hip-hop music, and he worked with Christopher Smith, a "recorder/engineer" from Willingboro, New Jersey. According to defendant, Smith picked him up in Trenton sometime between 11:00 a.m. and 12:00 noon on the day that Ledbetter was murdered, and they drove to a recording studio in Willingboro. Although defendant did not know exactly when he arrived in Willingboro, he testified he recorded four or five songs that day and did not leave the studio until around midnight. Defendant also testified that Smith was with him the entire time. When defendant left the studio, he went to Philadelphia and did not return to Trenton until the next morning.
Defendant denied all involvement in Ledbetter's murder. Defendant testified he did not see or speak to Ledbetter, Welch, or Lane on April 15, 2005, the day Ledbetter was murdered; and he never told anyone to "do anything" to Ledbetter. Defendant also said he never discussed a newspaper article about Ledbetter's death with anyone, and he never promised to give Lane a red flag for killing Ledbetter.
On cross-examination, the prosecutor established that defendant and Smith were friends and that Smith knew defendant was on trial:
Q. Okay. Now, who is Chris Smith to you?
A. He's -- I met him through -- I would say he's a friend now.
Q. Okay. How long have you been dealing with him or friendly with him?
A. Oh, 2004. I met him through a mutual friend in the music business.
Q. So he's a friend of yours?
A. I'd say now, yes.
Q. Okay. You talk?
Q. You see each other?
Q. In the last few months, you've seen each other, yes?
Q. Several times?
Q. You've had contact with him as recently as this weekend?
Q. And certainly, Chris Smith knows that you are on trial, yes?
After the State rested its rebuttal case, the State requested a Clawans jury charge based on defendant's failure to produce Smith as a witness. The prosecutor advised the court that detectives from the prosecutor's office had gone to Smith's residence and spoken with him, but Smith would not provide his date of birth or social security number and would not cooperate with the State. In response, defense counsel explained that he did not call Smith as a witness because an alibi "[w]ithout a specific date . . . is not an alibi," and Smith could not provide "any specific information" regarding when he was with defendant. Defense counsel also argued that the prosecutor's office "could have subpoenaed the witness."
The trial court granted the State's request for a Clawans charge and also ruled that the prosecutor could comment in summation on defendant's failure to produce Smith:
The Court is asked to resolve whether the prosecutor shall be permitted to comment on the failure of the defendant to produce Christopher Smith as a witness, in effect, an alibi witness during this trial. At the outset of the trial back on January 21st or 22nd, the Court was faced with a request by defense counsel . . . for an adjournment of the trial, the Court being informed that the defendant had an alibi witness predicated upon late discovery received from the prosecutor's office.
The Court reluctantly at that time adjourned the matter from January 22 to January 28. In doing so, it entered a formal order. That order, entered January 22, provided that the defendant was to produce not later than January 29, 2008 at 4:00 p.m., the following information to be given to the prosecutor: The name, address, date of birth, and social security number of the alibi witness; a signed statement by the alibi witness in compliance with the rules; and copies of all documents, including videotapes upon which the alibi witness may rely or offer testimony.
The witness, Christopher Smith, was not called at the trial. All of this would have been moot but for the defendant's testimony that he was with Christopher Smith during the critical hours of April 21, 2005. The defendant testified that Smith was a friend. In fact, they met as recently as this past weekend and the defendant's mother knows how to contact him.
Smith's relationship with the defendant demonstrates that he is a person closely aligned with the defendant, and the Court finds that he is available for trial. Everyone has been able to contact him. He simply refuses to cooperate.
The Court is satisfied that all of the requisites of Clawans have been met.
Accordingly, the Court will give to the jury, an adverse inference charge tomorrow.
In summation, the prosecutor highlighted that Smith was the only person who could confirm defendant's whereabouts on the day of the murder and repeatedly asked, "Why isn't he here?":
According to Dewan Dennis, there is only one man that could account for his whereabouts during the period of time that he gave the order and during the period of time that Denneshia Ledbetter was killed, and that is Chris Smith. Why isn't he here? If that's truly, if he was able to do that, why isn't he here?
You heard Dewan Dennis. He spoke to him as lately as last weekend. He has been speaking with him in the last few months in preparation of this trial. He spoke to him over the weekend. He is a friend. And he could come in and tell you, according to Dewan Dennis, yes, he was with me. Couldn't have had anything to do with this. Where is he? Why isn't he here?
I'll let you decide.
When the court instructed the jury on February 7, 2008, it included the following Clawans charge:
Reference has been made to the defendant's failure to call as a witness, Christopher Smith, a person who could place the defendant in Willingboro between noon and midnight of April 21, 2005. Our rules require that where a defendant fails to produce as a witness, a person whom he would naturally be expected to call to testify, you have a right to infer that had the witness been produced, he would have testified adversely to the interests of the defendant.
The reason for the rule is that where you would normally expect a party to call a person as a witness and that party, without reasonable explanation, fails to do so, it leaves a natural inference that the nonproducing party fears exposure of facts which would be unfavorable to him.
This inference, however, cannot be considered to be affirmative evidence of either the defendant's guilt or his consciousness of guilt.
The inference simply permits you to assign more or less weight to the evidence concerning the defendant's whereabouts on April 21, 2005. The Court reminds you that the State bears the burden of proving the defendant's guilt beyond a reasonable doubt.
In State v. Velasquez, 391 N.J. Super. 291, 306-08 (App. Div. 2007), we stressed the need for trial courts to exercise caution when the State seeks a Clawans charge against a criminal defendant, who has no burden to produce evidence in his defense. Additionally, we noted that in many cases, "the only rational inference is that the [absent] witness's testimony would not have been helpful, which is quite different than unfavorable or adverse." Id. at 308. We also concluded that "whenever it is reasonable to infer that the defendant's decision to do without a witness can be explained by the defendant's reliance on the presumption of innocence, the inference is improper." Id. at 309.
Subsequently, in State v. Hill, 199 N.J. 545 (2009), our Supreme Court observed that "[t]he prejudicial effect from an improper Clawans charge is exponentially higher for a criminal defendant." Id. at 562. Consequently, the Court ruled that the charge should not generally be used against a criminal defendant:
We now hold that Clawans charges generally should not issue against criminal defendants. The inclusion in a criminal trial of a Clawans charge from the court risks improperly assisting the State in its obligation to prove each and every element of a charged crime beyond a reasonable doubt. It is difficult to foresee a situation where a Clawans charge might play a proper role in a case against a criminal defendant. Indeed, any reference to a negative inference against a criminal defendant must be carefully scrutinized to ensure that the comment does not mislead or have the capacity to confuse the jury into believing that a defendant had an obligation to produce the witness and the substantive evidence that the witness would have provided. Although we will not engage in hypothetical discussions of possible situations in which a negative inference might be argued to arise, suffice it to say that it would be the rare case, if any, that would warrant a Clawans charge from the court.
[Id. at 566-67.]
The Court also stated:
It may be one thing for the State to argue for an adverse inference when a defendant has voluntarily asserted some proof to create an affirmative defense, see N.J.S.A. 2C:3-4(a) (self-defense or defense of others); State v. Williams, 168 N.J. 323, 334 (2001), or asserts new facts about an alibi in defense, see [State v. Irving, 114 N.J. 427, 442-43 (1989)], but we do not address such circumstances here.*fn3
[Id. at 569.]
The State acknowledges that an adverse inference charge "should generally not issue against a defendant." Nevertheless, the State contends that such an inference was proper in this case because defendant advanced an alibi defense. We do not agree.
In Hill, the Court determined that a Clawans charge was improper because it impermissibly allowed the jury to believe that the defendant "bore some burden to prove that he had an innocent state of mind." Id. at 568. The Court explained that the adverse inference charge violated the defendant's due process rights because the charge had the capacity to undermine the presumption of innocence and to circumvent the State's obligation to prove each and every element of the charged crimes beyond a reasonable doubt. Id. at 568-69.
This case is comparable to Hill because an alibi defense, like the absence of a mens rea element, is "merely a direct denial of the State's charge." State v. Garvin, 44 N.J. 268, 273 (1965). Moreover, the Clawans charge in the circumstances of this case was clearly capable of producing an unjust result because (1) the charge suggested that defendant had an obligation to produce Smith even though Smith was unwilling to cooperate with either the defense or the prosecution; (2) there was no reason to believe that Smith could provide "any specific information"; and (3) defendant did not assert "an affirmative defense" or "new facts about an alibi defense" when he testified. Hill, supra, 199 N.J. at 569.
We acknowledge the strength of the State's proofs. But "a defendant's right to a fair trial cannot be measured by, or weighed against, the quantum of evidence bearing upon his or her guilt." State v. Frost, 158 N.J. 76, 87 (1999). Consequently, we reverse and remand for a new trial. This ruling makes it unnecessary to address defendant's remaining contentions. Reversed and remanded for further proceedings consistent with this opinion.