July 23, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DARIEN WESTON, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-01-0209.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Axelrad, Sapp-Peterson and Haas.
After the court waived juvenile defendant Darien Weston for prosecution as an adult, a grand jury returned a multi-count indictment charging him with first-degree murder, first-degree kidnapping, tampering, hindering, and weapons offenses. Two trials followed. At the first trial, the jury convicted defendant of third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5b (Count Two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Three); first-degree kidnapping, N.J.S.A. 2C:13-1b(1) and (2) (Count Five); third-degree terroristic threats, N.J.S.A. 2C:12-3a (Count Seven); fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (Count Eight); and third-degree hindering apprehension, N.J.S.A. 2C:29-3b(3) (Count Nine). The jury was unable to reach a verdict on first-degree murder, N.J.S.A. 2C:11-3a(1) or (2) (Count One); first-degree carjacking, N.J.S.A. 2C:15-2a(1-4) (Count Four); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (Count Six); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (Count Eleven). A second trial commenced at which the jury convicted defendant of first-degree murder (Count One), first-degree carjacking (renumbered Count Two), and first-degree felony murder (renumbered Count Three), and acquitted defendant of fourth-degree aggravated assault (renumbered Count Four).
At sentencing, the court imposed a life sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the first-degree murder conviction, to be served consecutive to the thirty-year custodial sentence on the kidnapping conviction, which was also subject to NERA, and the five-year custodial sentence imposed on the terroristic threats conviction. The court merged the felony murder and possession of a weapon for an unlawful purpose convictions and imposed five-year terms of imprisonment on each of the remaining convictions to be served concurrent to each other and to the greater offenses.
On appeal, defendant raises the following points:
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE JURY WAS WRONGLY ALLOWED TO TAKE THE VIDEOTAPED STATEMENTS OF TWO EYEWITNESSES INTO THE JURY ROOM AND PLAY THEM REPEATEDLY OUTSIDE THE PRESENCE OF THE COURT, COUNSEL, AND THE DEFENDANT. (Not Raised Below).
THE INSTRUCTION ON TERRORISTIC THREAT (COUNT 7) FAILED TO CLEARLY STATE THE CRIME OF VIOLENCE THREATENED. (Not Raised Below).
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENSE COUNSEL, IN BOTH THE FIRST AND SECOND TRIAL, FAILED TO FILE A MOTION FOR A WADE HEARING WHERE JUVENILE EYEWITNESSES IDENTIFIED THE DEFENDANT FROM A SINGLE PHOTOGRAPH. (Not Raised Below).
THE COURT ERRED IN IMPOSING AN AGGREGATE SENTENCE OF LIFE WITH A 35-YEAR CONSECUTIVE SENTENCE AS IT WAS IN PART ILLEGAL, IMPROPERLY MADE CONSECUTIVE, AND MANIFESTLY EXCESSIVE. (Not Raised Below).
A. THE SENTENCE ON COUNT 8 IS ILLEGAL BECAUSE IT EXCEEDS THE SENTENCE RANGE FOR FOURTH-DEGREE CRIMES.
B. THE CONSECUTIVE SENTENCE ON KIDNAPPING (COUNT 5) MUST BE VACATED.
C. THE QUANTUM OF SENTENCE IS MANIFESTLY EXCESSIVE.
In his pro se supplemental brief, defendant raises the following additional points:
PROSECUTION'S SUMMATION EXCEEDED BOUNDS OF PROPRIETY BY INFLAMING THE JURY WITH TALES OF A "COMMUNITY PARALYZED BY FEAR" NOT IN EVIDENCE[, ] THUS VIOLATING DEFENDANT'S RIGHT TO AN IMPARTIAL JURY AND FAIR TRIAL; CONSEQUENTLY HIS 6TH AND 14TH AMENDMENTS.
DEFENDANT'S 6TH AMENDMENT CONFRONTATION CLAUSE WAS VIOLATED IN HIS FIRST AND SECOND TRIAL WHEN MEDICAL EXAMINER[, ] DR. PEREZ[, ] ADOPTED AND RECOUNTED (TESTIFIED TO) THE FINDINGS OF DR. ALEX ZHANG, WHO CONDUCTED THE AUTOPSY, JUST BY READING HIS REPORTS.
DEFENDANT'S CONFRONTATION CLAUSE WAS VIOLATED WHEN DETECTIVE PETER CHIRICO WITH HEARSAY TESTIFIED ABOUT INFORMATION CONTAINED IN THE MEDICAL EXAMINER REPORT THAT TWO PROJECTILES WERE RECOVERED FROM THE BODY OF THE VICTIM AND AUTHENTICATED THE EVIDENCE IN THE COURT VIOLATING DEFENDANT'S 6TH AMENDMENT RIGHT TO CONFRON[T] AND HIS 14TH AMENDMENT RIGHT TO DUE PROCESS AND A FAIR TRIAL.
THE TRIAL COURT ABUSED ITS DISCRETION BY ADMITTING HIGHLY PREJUDICIAL AUTOPSY PHOTOS OF THE VICTIM'S BLOODY HANDS BECAUSE THE AUTHENTICITY OF THE PHOTOS WAS NEVER ESTABLISHED EXCEPT THROUGH THE USE OF INADMISSIBLE HEARSAY AND STATE NEVER ESTABLISHED THEIR RELEVANCE AND THE PREJUDICE WAS OUTWEIGHED BY NON[-]ESTABLISHED PROBATIVE VALUE[, ] VIOLATING DEFENDANT'S RIGHT TO A FAIR TRIAL UNDER STATE AND FEDERAL LAW AND DUE PROCESS RIGHTS.
We agree the jury's unfettered access to the videotaped statements of witnesses violated defendant's right to a fair trial and, when reviewed under the plain error standard, requires reversal if defendant's convictions in both trials on all charges. In light of our reversal, we need not address the remaining points raised by defendant.
The videotaped statements were taken from two juveniles, D.C. and Q.M., who, at the time they reportedly witnessed defendant shooting the victim, were ten and twelve years old, respectively. During the jury-charge conference at the first trial, the State represented that it had a machine for the jury to use during deliberations if it wanted to view the videotaped statements of the two witnesses. Defense counsel did not object to this procedure and the court noted "both counsel have reviewed the DVDs already [as did the court]; therefore, there's nothing improper or prejudicial on those DVDs. . . . The [c]ourt has no problem with those DVDs being in the jury room."
In summation, the State urged the jury to watch the videos during its deliberation. The prosecutor said:
I want to take you through these witnesses. . . . In the jury room, in evidence, you will have the audio/video statement of [Q.M.]. Watch it. Watch it again. Watch it again. Rewind it. Fast forward. Go to the back. Go to the front. Look at it.
You will have in evidence in this jury room the audio/video statement of [D.C.]. Watch it. Start at the beginning. Go to the end. So I'm not going to go through each and every thing that's said on those statements. You can see it. You're going to have a machine in there, you're going to have the DVDs in there, and you can throw them in there.
After the jury had deliberated for two days, defense counsel moved for a mistrial on a ground that is not at issue in this appeal. During argument on that motion, he raised the issue of the jury's access to the videos during deliberations. He explained that while he had not objected to the tapes being shown to the jury during trial, he now believed that "perhaps" he had made a mistake. He argued that if the jury were going to watch the Q.M. video, then the jury should also hear a read-back of Q.M.'s trial testimony because his testimony was inconsistent with his statement. The court responded that removing the videos from the jury would be "highly prejudicial, " but was unable to definitively decide which side would suffer the prejudice. The court stated:
I don't even know to which side it would be prejudicial. It would just be prejudicial that we're now removing a video that's been in evidence for two days. Whether, in fact, they would think it was prejudicial to the defendant or the State[, ] I don't know what would be in jurors' minds at this point in time. But to just take one piece of evidence and remove it from the [j]ury's consideration at this point in time without some instruction -- I don't know how it could be appropriately crafted -- would seem to be inappropriate.
The court resolved the issue by taking no action. The jury convicted defendant of all charges except murder, carjacking, kidnapping, and aggravated assault.
The second trial commenced one year later in September 2009. One month earlier, the trial judge who presided over the first trial announced, during a pretrial proceeding, that he was being transferred to another division and that a different judge would preside over the trial. When the second trial commenced the following month, not only was a new judge presiding, but defendant was also represented by a different attorney. His prior counsel had to withdraw for health reasons. His new attorney was not from the same office. At this trial, only
Q.M.'s videotaped statement was admitted into evidence. Once again, without objection from the defense, the court provided the jury with a machine to view Q.M.'s video-recorded pretrial statement during its deliberations.
During the State's summation, the prosecutor urged the jury to review Q.M.'s video-recorded statement. After noting the inconsistencies between the statement and testimony, the prosecutor told the jury:
So he [Q.M.] comes in and now it's, you know, with video, a picture tells a thousand words because in the old days we would have a transcript. We'd have a detective saying, [w]ell, he says this. And he says, [w]ell, I didn't say that. When you've got a video, you're on it, you're saying this, there is really not too much wiggle room, okay, out of that so you come up with this story about, you know, they threatened my mother so that's what I said.
In the video, note this, at the end of it, where he is being asked, I think by Detective Prachar, would you testify about this in a court of law, his mother kicks him under the table. Just another thing to show you, it's another mother protecting her child. No, you won't. You're not putting yourself out there. But we have the video. You can look at it.
The prosecutor then discussed the evidence, which the State urged corroborated Q.M.'s video-recorded pretrial statement, stating: "So does that show you what he said on the video . . . was true?" The prosecutor continued to urge the jurors to view Q.M.'s videotaped statement:
Look at all the evidence in the case very, very carefully. Watch that video --watch it a couple of times -- of [Q.M.]
Did he look like somebody who has been threatened on it?
Did he look like somebody that was just threatened to lock his mother up?
Does she look like that?
Relying upon State v. Burr, 195 N.J. 119 (2008), decided three months before the first trial, defendant now argues the court erred in allowing the jurors unfettered access to the videotaped statements during both trials. He also contends the prosecutor's repeated urgings to the jury, in both trials, to view the videotaped recordings during its deliberations denied him a fair trial.
Because defendant did not object to the jurors' access to the videotaped recordings of the witnesses' statements at either trial, we review the claimed error under the plain error standard. Plain error is simply not any error but an error of such magnitude "to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]" State v. Taffaro, 195 N.J. 442, 454 (2008) (citations and internal quotations omitted). Measured under this standard, we are satisfied the jurors' unfettered access to the videotaped statements may have led the jury to a verdict it may not have otherwise reached.
We begin by reviewing our decision in State v. Michaels, 264 N.J.Super. 579, 642 (App. Div. 1993), aff'd, 136 N.J. 299 (1994). There, the defendant, a nursery school teacher, was convicted of sexually molesting numerous children in her care. Among the issues raised on appeal was her contention that the court erred in granting the jury's request to review the closed circuit television testimony (CCTV) of the children witnesses during its deliberations. We stated:
We agree with the line of cases holding that it is error to allow the jury to have videotaped testimony and a means of playing it in the jury room. However, we refuse to hold that it is never permissible, at a jury's request during deliberations, to replay a videotape of testimony in its entirety for the jury, with the defendant present, in open court.
[Id. at 643-44 (internal citations and quotations omitted).]
It is clear that videotaped testimony provides more than conventional, transcribed testimony. The witness' actual image, available in a video replay, presents much more information than does a transcript reading. In essence, the witness is brought before the jury a second time, after completion of the defense case, to repeat exactly what was testified to in the State's case. The witness' words and all of the animation, passion, or sympathy originally conveyed are again presented to the jury. It is difficult to deny that there is an advantage that may be gained in such circumstances. However, we cannot say that the replay of child-testimonial videotapes is prejudicial per se or that because of the impact of the visual image, the trial judge should be divested of discretion to accede to a jury's request for a replay. A court exercises wide discretion in granting or denying a jury's request to rehear testimony during deliberations.
[Id. at 644 (internal citations and quotations omitted).]
While we ultimately deferred to a trial court's exercise of its discretion in determining whether video-recorded testimony should be replayed to the jury during its deliberations, we "caution[ed] against" trial courts routinely replaying video-recorded testimony for deliberating juries. Id. at 644. We instructed that when faced with a request to view video-recorded testimony, the trial court should first "offer a reading of the transcript of the testimony" and ask the jury if "there is something the jurors are seeking from the videotape which would be unavailable to them from an impartial reading of the witness' testimony." Id. at 644-45. If the court decides that "the jury's request for a replay of the tape appears reasonably necessary to its deliberations, " we stated that the court should then engage in a weighing analysis "to balance that need against any possible prejudice in each particular case." Id. at 645.
In Burr, supra, the defendant was convicted of second-degree assault and third-degree endangering the welfare of a child. 195 N.J. at 122. On appeal before this court, among the issues raised was defendant's contention that the trial court "impermissibly allowed the jury to view the videotape of [his accuser] at trial and during their deliberations." State v. Burr, 392 N.J.Super. 538, 573 (App. Div. 2007). We therefore once again had occasion to consider a jury's unfettered access to videotaped recordings in the jury room during deliberations.
Referencing the direction we gave to trial courts in Michaels, we observed that the trial judge granted the jury's request to have access to the video-recorded statement of the witness in the jury room during its deliberations "without first offering an impartial reading of the transcribed interview." Id. at 575. We noted further that "[t]he judge did not inquire as to what the jurors were seeking by viewing the tape again and did not balance the jury's need against possible prejudice to [the] defendant." Id. at 575-76.
We concluded the court erred when, at a minimum, it failed to "inquire into the jury's need for a video replay and balance that need against any resulting prejudice." Id. at 576. Because we reversed on other grounds, namely, that the exclusion of expert testimony concerning the defendant's diagnosis of Asperger's Disorder constituted reversible error, we did not determine whether the jury's unfettered access to the video-recorded testimony was an error, which, standing alone, was sufficient to warrant a new trial. Ibid.
The Supreme Court granted the State's petition for certification on both issues and affirmed our decision as modified. Burr, supra, 195 N.J. at 124. The Court noted that we analogized the circumstances surrounding the jury's access to the video-recorded statement of the accuser to the jury's access to the CCTV testimony of the victim in Michaels. The Court concluded, however, that the facts in Michaels were distinguishable because the video recording at issue there was of the accusers' trial testimony, albeit via closed circuit television, whereas the video recording at issue in Burr was the video-recorded interview taken of the accuser by the Middlesex County Prosecutor's Office's Sex Crimes and Child Abuse Unit, which the trial court admitted into evidence as an exhibit over defendant's objection. Id. at 132-33.
With these distinctions in mind, the Court first observed that "[g]enerally, once an exhibit has been admitted into evidence, the jury may access it during deliberations, subject to the court's instructions on its proper use." Id. at 133-34. It then stated that the "videotaped pretrial statement at issue" was "significantly different from a demonstrative exhibit." Id. at 134. The Court explained that
[a]lthough it is evidence, it is also testimony. It is, in effect, a hybrid of the two. Unlike a demonstrative exhibit, the videotape contains hearsay statements offered for the truth of the matter asserted. Moreover, the videotape is powerful evidence for the jury to see again, if it is not placed into context. We therefore share the Appellate Division panel's concern that allowing a jury unfettered access to videotaped witness statements could have much the same prejudicial effect as allowing a jury unrestricted access to videotaped testimony during deliberations. The danger posed is that the jury may unfairly emphasize [the accuser's] videotaped statements over other testimony presented at trial, including her own cross-examination.
Thus, the Court held that when such a request is made regarding a videotaped interview that has been introduced into evidence, "the precautionary procedures adopted in Michaels must apply to the videotaped out-of-court statements." Ibid. The Court expressly stated that the new rule it announced would be applied prospectively. Ibid. As we previously mentioned, defendant's first trial commenced three months after the Court decided Burr.
The facts here are further distinguishable from those in Michaels and Burr. Although, here, as in Burr, the video-recorded statements of Q.M. and D.C. were also taken prior to trial and introduced, without objection, as exhibits, the jury here did not request to view the videotaped recordings during its deliberations, as did the jury in both Michaels, supra, 264 N.J.Super. at 642, and Burr, supra, 392 N.J.Super. at 574. Rather, they were provided as a matter of course, presumably because they had been introduced into evidence and marked as exhibits, without initial objection from defense counsel in the first trial, and without any objection from the defense in the second trial. As noted earlier, while the prosecution team remained the same for both trials, the second trial involved a different judge and different defense counsel. Moreover, defense counsel did not affirmatively consent to the jury's access to the video-recorded statements during deliberations. Nor did either defense counsel encourage the jury to view the video-recorded statements during deliberations.
There are also additional factors that are probative of the potential prejudice defendant may have suffered by virtue of the jury's unfettered access to the video-recorded statements during its deliberations. There was no physical evidence linking defendant to the victim's death. Consequently, the credibility of the witnesses was critical. D.C. was ten years old and Q.M. was twelve years old at the time the two youths gave their videotaped statements. The inconsistencies between their prior video-recorded statements and trial testimony was explored during the trial. Yet, only their video-recorded statements were in the jury room. The jury was able to watch and listen to their statements as many times as it wanted, without those statements being placed in context with the witnesses' trial testimony, for which the jury apparently relied upon its recollections, since no read-back of their trial testimony was conducted in open court.
We recognize there was other testimony linking defendant to the victim's death and testimony linking the murder weapon to defendant, specifically, the trial testimony of Nahaaj Hunter. Hunter's trial testimony was fairly consistent with the out-of-court statement he gave to police. However, he waited seven days before speaking to police and telling them that he had been an eyewitness to the incident. At the same time he was implicating defendant in the shooting, he also told police that defendant had previously held a gun to his head for fifteen minutes in broad daylight over a girl. However, at the time this incident is alleged to have occurred, he did not report the matter to police. Additionally, at the time of his testimony, he was a convicted felon on probation and awaiting sentencing on another charge which had been scheduled during the time of defendant's trial but then adjourned. Thus, there was evidence before the jury that Hunter may have had a motive to implicate defendant, not only over the incident involving a girl, but also to curry favor with the State in anticipation of his upcoming sentencing. As for testimony linking defendant to the weapon, that testimony was also conflicting, with no direct physical evidence tying the weapon to defendant.
We are mindful of our Court's recent decision in State v. A.R., 213 N.J. 542 (2013). There, the defendant was convicted of sexual assault. In an unpublished opinion, we reversed based upon the jury's unfettered access to a pretrial video-recorded statement. State v. A.R., No. A-3405-08 (App. Div. August 10, 2011) (slip op. at 2-3). In reversing this court and reinstating the defendant's conviction, the Supreme Court held that the procedure utilized by the trial court, which resulted in the jury's unfettered access to the video-recorded statements of the child, though flawed, "simply did not implicate either defendant's right to confront evidence or witnesses against him or to assure a fair trial process." A.R., supra, 213 N.J. at 559.
The Court first found it was clear from the record that "defense counsel considered the video recording of defendant's interview as an element of defense strategy" and during summation encouraged the jury to view the defendant's video-recorded statement. Id. at 562. Second, the Court noted "the trial judge anticipated that the jury would view the video-recorded statements during deliberations" and mentioned that fact both during trial and during its final charge to the jury. Id. at 562-63. Third, defense counsel did not object to the jury's viewing of this evidence when it requested to do so during deliberations. Id . at 563. Finally, when the trial court inquired of counsel regarding the use of the machine in the jury room, defense counsel expressed the opinion that he considered the video-recorded statements the "'equivalent of statement[s] on paper that are marked into evidence and brought back there. They might be able to look at that.'" Ibid.
These are not the circumstances here. While defendant's ability to confront D.C. and Q.M. was not compromised, as noted earlier, the jury did not request to view the video-recorded statements. Neither defense counsel in either trial affirmatively consented to the jury's access to the video-recorded statements in the jury room. During the first trial, when defense counsel, after two days of deliberations, moved for a mistrial on an unrelated matter, he expressed that he may have made a mistake in not objecting to the jury's access to the video-recorded statements. He proposed that the jury hear a read-back of Q.M.'s trial testimony. The trial judge, properly concerned about prejudice to either side, chose to take no action. Moreover, in neither trial did defense counsel invite or urge the jury to view the video-recorded statements during its deliberations. On the other hand, in both trials the prosecution repeatedly urged the jury to view the video-recorded statements.
When the absence of adherence to the procedural dictates of Michaels and the absence of any direct physical evidence linking defendant to the crimes are balanced against the substantial prejudice to defendant that may have resulted from the jury's unfettered access to the video-recorded statements, we cannot conclude that the error in permitting the jury unfettered access to the video-recorded statements under these particular facts was harmless. We are therefore constrained to reverse defendant's convictions on all charges from both trials and remand for a new trial. Reversed and remanded for further proceedings. We do not retain jurisdiction.