STATE OF NEW JERSEY v. RONALD BURNS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6273-01T46273-01T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD BURNS,

Defendant-Appellant.

_______________________________________________________________

 

Submitted March 7, 2006 - Decided

Before Judges Coburn, Lisa and S.L. Reisner.

On Appeal from the Superior Court of New Jersey,

Law Division, Burlington County,

Indictment No. 00-07-0531.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Frank J. Pugliese, Assistant Deputy

Public Defender, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for

respondent (Maura K. Tully, Deputy Attorney General,

of counsel and on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

COBURN, P.J.A.D.

On the streets of Mount Holly, on September 6, 1999, Tony Felder killed Ronald Patterson, Jr., in front of his father, Ronald Patterson, Sr. Felder pled guilty to aggravated manslaughter and testified in this case against his co-defendant, Ronald Burns. Felder's story, in short, was that he purposely shot Patterson that night at the specific request of Burns, and with a handgun provided by Burns. Patterson and Burns were competing drug dealers in this area of Mount Holly, and Burns wanted Patterson killed to eliminate competition. After the murder, Burns helped Felder in his attempt to avoid apprehension.

Felder's story was supported by a substantial body of corroborative evidence, and the jury found Burns guilty of murder, N.J.S.A. 2C:11-3a(1) and (2); possession of a firearm with a purpose to use it unlawfully against the person of another, N.J.S.A. 2C:39-4a; and hindering apprehension of another, N.J.S.A. 2C:29-3a(2). After merging the weapons offense, the judge sentenced Burns to life imprisonment with thirty years of parole ineligibility for the murder and to a five-year consecutive prison term on the hindering apprehension charge.

On appeal, Burns does not contend that the verdict was against the weight of the evidence. Rather, he claims in the brief submitted by his attorney, that he was denied a fair trial by the admission of hearsay evidence respecting statements by the victim's father and by Tifani Young. The father's statements were made when the police arrived immediately after the killing and were admitted as excited utterances. Young's statements were made when he gave statements to the police and were introduced based on the State's argument that they were inconsistent with his trial testimony. The attorney's brief also asserts that reversal is required under the plain error rule because the prosecutor repeatedly asked Burns to characterize the State's witnesses as liars, and challenges the sentences imposed. In a pro se brief, Burns offers the following points:

POINT I

(A) THE TRIAL COURT'S FAILURE TO REMOVE, FOR CAUSE, A JUROR WHO INITIALLY STATED THAT SHE COULD NOT BE FAIR AND IMPARTIAL VIOLATED APPELLANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below).

(B) THE FAILURE OF THE TRIAL COURT TO REMOVE FOR CAUSE A JUROR WHO FAILED TO DISCLOSE HIS RELATIONSHIP WITH LAW ENFORCEMENT OFFICIALS DENIED APPELLANT THE RIGHT TO UTILIZE A CHALLENGE AND VIOLATED HIS RIGHT TO A FAIR TRIAL. (Not Raised Below).

(C) THE FAILURE OF THE TRIAL COURT TO REMOVE OR SO MUCH AS VOIR DIRE A SLEEPING JUROR VIOLATED APPELLANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below).

POINT II

WHEN IT WAS CLEAR THAT APPELLANT WAS NOT THE PRINCIPAL, BUT AN ACCOMPLICE, THE TRIAL COURT ERRED AND DIRECTED A VERDICT BY ADVISING THE JURY THAT THE ACCOMPLICE CHARGE ONLY APPLIED TO THE MURDER, WHEN THE LESSER INCLUDED OFFENSES OF AGGRAVATED AND RECKLESS MANSLAUGHTER WERE CHARGED. (Not Raised Below).

POINT III

THE TESTIMONY OF BOBBY BRYANT THAT HE WAS IN FEAR FOR THE SAFETY OF HIS FAMILY IF HE TALKED WAS NOT ADMISSIBLE AND SHOULD HAVE BEEN EXCLUDED UNDER EVIDENCE RULE 403.

POINT IV

THE TESTIMONY OF CURTIS CALHOUN REGARDING AN ALLEGED ATTEMPT TO CREATE AN ALIBI SHOULD HAVE BEEN DECLARED INADMISSIBLE BECAUSE IT WAS NOT BY THE DEFENDANT'S DESIGN OR MADE WITH HIS KNOWLEDGE OR PARTICIPATION (Not Raised Below).

POINT V

THE TESTIMONY OF DEFENSE COUNSEL FOR TONY FELDER THAT HE WAS YOUTHFUL AND UNDERAGED, AND THAT IF THE DEFENDANT INFLUENCED TONY, IT WAS A MITIGATING FACTOR AT HIS SENTENCING SHOULD HAVE BEEN DECLARED INADMISSIBLE.

POINT VI

THE PROSECUTOR VIOLATED APPELLANT'S RIGHT TO A FAIR TRIAL WHEN HE ADVISED THE JURY DURING SUMMATIONS THAT IF THEY FOUND THE APPELLANT GUILTY OF MURDER, HE WAS AUTOMATICALLY GUILTY OF THE WEAPONS OFFENSES.

After carefully considering the record and briefs, we are satisfied that none of the defense arguments require reversal. But our duty does not end with that determination. We are obliged to notice plain error even if it has not been brought to our attention by the parties. R. 2:10-2. Here, reversal is required because of the trial judge's handling of the testimony of Tifani Young. Young was a critical witness for the State and was permitted to testify after the prosecutor and the trial judge knew he would refuse to answer questions when he believed his answers would support the State's case against Burns, who was his cousin. Each time he refused to answer such questions before the jury, Burns suffered prejudice. We reverse on that ground.

I

We begin by reviewing the State's case. Burns, who used the nickname "Black," began selling drugs on the street in this area of Mount Holly in 1988. Although he testified that by 1998 he was no longer selling drugs, contrary evidence from a number of witnesses showed that he had continued in the trade, but was suffering substantially from competition by Ronald "Bullet" Patterson, Jr., during the months preceding Patterson's murder. In 1999, Burns sold crack cocaine from the porch of 112 Joseph Place, where his friend, Bobby Bryant, lived. Patterson sold cocaine in front of his cousin Tonya Imes's house at 126 Joseph Place, which was less than one hundred feet from Bryant's house. Burns was losing customers to Patterson because Patterson was perceived to have a better quality and a greater quantity of cocaine than Burns.

In April 1999, Burns, then age thirty-one, began talking to his cousin, Tony Felder, then age seventeen, about killing Patterson, who was nineteen. Felder began selling drugs for Burns when he was fifteen, but had stopped doing so in late 1998 or early 1999 because Burns was no longer able to pay him as a result of the competition from Patterson. Felder, whose nickname was "Little Tone," looked to Burns as a mentor and father-figure, and because of their relationship, agreed to kill Patterson. Felder related that a few days before the shooting, Patterson approached him, poked him in the head, and questioned why he wanted to get involved in the dispute between him and Burns. Felder replied, "[Y]ou're dead and you don't even know it."

On the day of the shooting, September 6, 1999, while Burns and Felder were using drugs at Burns's apartment, Burns again told Felder that he wanted him to kill Patterson, saying that he should use a .9 millimeter handgun that Burns had lent to Bryant. Although Burns did not offer Felder money for the killing, he agreed that if Felder had to go "on the run," he would make sure that he received money and a lawyer.

Around 8:00 p.m., Burns's girlfriend drove him and Felder to Bryant's house in Mount Holly, where they met Burns's cousin, Tifani "Fani" Young, and others, including Lawrence "El Boogie" Hightower. While they were standing in the front yard drinking alcohol and smoking marijuana, Burns said to Felder, "You gonna kill him?" Felder replied, "Yeah." According to Felder, he went into Bryant's house and asked for the handgun, but Bryant claimed he did not have it. Felder said that when he reported that to Burns, Burns went inside and then came out with the .9mm handgun, which he put in Felder's pocket. According to Bryant, Felder never went into the house; rather Burns and Felder knocked on the front door, and when Bryant answered, Burns asked him for the gun. Bryant said he went upstairs, retrieved the gun and walked out of his house with the gun in his pocket. Then Burns took the gun and walked away with Felder. Bryant, and the other witnesses who testified, denied seeing Burns hand the gun to Felder at that time. As Felder walked out of the yard, he switched the handgun to his right pocket because he was right-handed, and Young grabbed him and asked what he was doing. Felder told Young to back off and walked up the street toward Imes's house, where Patterson was standing with his father, a drug addict who obtained his drugs by working for his son. When Felder passed between them, he pulled the trigger of the handgun concealed in his pocket, but the gun did not fire.

Felder returned to Bryant's house and told Burns that the gun had jammed. Burns quickly fixed the problem, handed the gun back to Felder, and told him to go back and kill Patterson. Bryant and Hightower saw Burns unjam the gun and hand it back to Felder. After a few minutes, Felder approached Patterson, who was then standing alone, asked to speak to him, and then began shooting. Felder shot Patterson seven times. As Felder ran, Patterson's father approached him and tried to hit him with a stick. Felder did not shoot Patterson's father because he was out of bullets. Shortly thereafter, Felder traded his jacket for a bicycle and began pedaling toward the meeting place arranged by Burns. After throwing the gun into a creek, he met Burns and Young, who said they were trying to arrange a ride for him. Felder remained behind in a nearby house while Burns and Young left to find a ride.

Curtis Calhoun testified that he was not at Bryant's house on the night of the shooting, but was around the corner sitting on the porch of a friend's home. He heard five or six gunshots but did not see anything related to the shooting. He remained at his friend's house for another five or ten minutes and then got into his car and started driving home. Someone called him and said that Young wanted Calhoun to drive him somewhere, so Calhoun turned around and parked the car to wait for Young. Calhoun stated that Young walked over to the car and told Calhoun that he would give him gas money if Calhoun agreed to take him to Burlington. Since Young had paid Calhoun to run errands and give him rides on numerous prior occasions and since Calhoun needed the gas, he agreed. He spoke to Young for two to three minutes, during which time, Burns walked over and stood behind Young. Calhoun understood that Young's request included giving Burns a ride as well.

Calhoun testified that Young got into the front seat and Burns got into the back. He began driving away, and Burns told him to turn into an alleyway, where he saw Felder and stopped the car to let him get in. According to Calhoun, once Felder was inside the car, Young turned around and began discussing the shooting. He told Burns and Felder, "You all shouldn't have done it like that" and said, "You all should have fought him." Felder did not reply, but Burns said, "Fuck that nigger" and, "[L]et's get out of here." Calhoun got the impression that when Burns "said the 'N' word," he did so "[a]s if he didn't care."

It took approximately ten minutes to reach the Burlington Court Apartments. Once there, Burns and Young got out of the car while Felder remained in the back seat. Burns went inside the apartment and emerged about five minutes later with car keys. Young remained outside the car during the time Burns was inside the apartment, and there was no discussion among the three men. Calhoun said that Burns got into a burgundy Chrysler LeBaron and that Felder joined him in that car. Young got back into his car, and both cars started driving towards the Burlington Bristol Bridge. Young indicated he wanted to go to Philadelphia, and so Calhoun planned on driving him there, but Burns pulled over into the OTG gas station by the bridge and Young got out, talked to Burns quickly and then told Calhoun to leave. Young got into the car with Burns and Felder, and Calhoun went home.

Ultimately, according to Felder, he, Young, and Burns drove to Philadelphia. He said that during the ride, Burns suggested they all go to a strip club so that Felder could use that as an alibi. But the car got a flat tire, and after they fixed it, Burns drove Felder to his grandmother's house, where he gave him $50 and told him he would get more money "in a couple of days." A few days after the murder, Felder met Burns, Bryant, and Bryant's cousin in Philadelphia. He asked for money, and Bryant gave him $700. Two weeks later, Bryant gave Felder $1,000. Thereafter, Felder repeatedly called Burns, asking for money. On each occasion, Burns would tell Felder where they would meet, but when Felder showed up, Burns was never there.

In January 2000, the police arrested Felder during a drug raid in Scranton, Pennsylvania. He quickly admitted killing Patterson and agreed to call Burns and have the conversation taped. During the conversation, Burns offered excuses for not making the previously arranged meetings. When Felder said, "the only reason I'm in this predicament is because of you, dog," Burns replied, "I got you man." When Felder said he killed Patterson "for you, man . . . and you folding on me, dog," Burns warned him not to say things like that on the telephone. When Felder asked Burns, "how business doing" since Patterson had been killed, Burns said, "I told you it's love-love, lovely."

Turning to the defense, we note initially that Burns denied telling Felder to kill Patterson and instead, focused his case on the possibility that someone else, such as Bobby Bryant, ordered the shooting. Burns testified, claiming that he had nothing to do with the murder. He admitted being at Bryant's house on the day of the killing and said Felder was there when he arrived, looking "mad" and refusing to speak to him. He also said he was at Bryant's house when he heard the shots Felder fired into Patterson. He admitted being in Calhoun's car, but denied that Young asked, "What did you all have to do that to him for?" or said, "You all could have fought him." Burns said Young "never said anything the whole time." He denied saying, "Fuck that Nigger."

Burns also denied that he, Felder and Young had driven together down to Philadelphia on the night of the shooting. He said Young told him, "[W]e's going to Philly" and thought he and Felder left with Calhoun while Burns was in the apartment getting the keys to his girlfriend's car. Burns said he drove to Tankers, but decided not to go in and ended up sitting in the parking lot for twenty minutes. He said he then drove to Philadelphia to go to his grandmother's house to "let them know that [Felder] had shot somebody in Jersey." He said he stopped at a convenience store in Pennsylvania near his grandmother's house and saw Felder and Young talking on the pay phone.

Burns said that it was Felder who came up with the idea of creating a false alibi for himself. He said Felder told him, "if anybody asks you where I was at, tell them I was in Philly." He said they only talked about saying that Felder had been in Philadelphia and not specifically that he had been at a strip club.

The defense focused on testimony indicating that Bryant may have told Felder to kill Patterson. Specifically, Bryant testified that up until just minutes before the shooting, he had possession of the gun Felder used to shoot Patterson and that when he went upstairs to retrieve the gun, he did not touch it with his bare hands, but rather used some sort of covering, such as a sock, to handle the gun and wipe it down to remove any of his fingerprints before handing it over.

Bryant also testified that he had "a beef" with Patterson because he suspected that Patterson may have been involved in breaking into Bryant's mother's house approximately one year before the shooting. He said he had been unable to sleep since the incident because he feared that whoever had committed the home invasion might come back, and he was concerned for his and his family's safety. He said he was particularly worried about his family since he was about to go to prison and would no longer be in the house to protect them. With respect to that incident, Felder testified that on the day of the shooting, Bryant expressly stated that he wanted Patterson "killed because he ran in his house."

Moreover, Bryant testified that he gave Felder money after the shooting. He said that either that night or the following night, he went to Philadelphia and gave Felder $700. Felder testified that two weeks later, Bryant went back to Philadelphia and gave him another $1000. Felder said $500 was for cocaine he had left at Bryant's house that Bryant sold for him and $500 was money Bryant had promised to give him two weeks before the shooting.

Thus, based in large part on the testimony cited above, the theory of the case offered by the defense was that it was Bryant who arranged for Felder to kill Patterson. Among other things, defense counsel said this during his summation:

Who had the gun right before the murder happened? Even by Bobby Bryant's own testimony, he had the gun before the murder happened and what did he do when he supposedly turned the gun over? He took a sock and he wiped his fingerprints off the gun. What do you think he's thinking when he's turning the gun over?

We also heard testimony with respect to potential motive by Bobby Bryant with respect to the home invasion and how the word out on the street was that Mr. Patterson had done the home invasion and, not only that, but it was about to happen again that his house -- and he was going -- he was going to be going away to prison and he had no way of stopping it if he went to prison. So, he had the gun. He had a motive.

And we also heard a statement from Tony Felder that on the night of the killing when Tony Felder was out there, Bobby Bryant was out there and what was Bobby Bryant saying? Bobby Bryant was saying, "I want Patterson dead." And the -- the [coup de grace], the -- the ultimate of all of this, is after Mr. Patterson is killed, who goes over to Pennsylvania and pays Tony Felder? He goes over and gives him $700 and a couple of weeks later gives him another $1,000, gave him -- gave him the gun, had the motive, paid the money.

II

In general, the Confrontation Clause of the Sixth Amendment to the United States Constitution requires reversal when inferences from a prosecution witness's refusal to answer questions in front of a jury add critical weight to the prosecution's case. Douglas v. Alabama, 380 U.S. 415, 420, 85 S. Ct. 1074, 1077, 13 L. Ed. 2d 934, 938 (1965). In all the cases cited by the parties, or uncovered during our own research, the refusal to answer was based on the witness's assertion of his Fifth Amendment right against self-incrimination. In that context, we have held that prejudice may occur whether or not the witness is entitled to claim a privilege because "the prejudice to the defendant is not dependent on the validity of the claim of privilege." State v. Jordan, 197 N.J. Super. 489, 503 (App. Div. 1984). Here the witness's refusal was based solely on his express desire not to incriminate Burns because of their familial relationship. His position, which is analogous to a witness improperly relying on the Fifth Amendment, violated the law, and the State was entitled to his testimony or to a determination that he was in contempt of court. But the State was not entitled to place him before the jury and have him refuse to answer questions in a manner clearly suggesting defendant's guilt. Id. at 501-04; State v. Cullen, 103 N.J. Super. 360, 364-65 (App. Div. 1968); State v. Fornier, 91 N.J. Super. 477, 480-81 (App. Div. 1966). Although prosecutorial fault, such as when the prosecutor calls the witness knowing he will likely refuse to testify, is sometimes given as a reason for reversal, Namet v. United States, 373 U.S. 179, 186-87, 83 S. Ct. 1151, 1154-55, 10 L. Ed. 2d 278, 283-84 (1963), we will reverse even when the prosecutor's conduct was innocent if the prejudice is sufficiently severe. Jordan, supra, 197 N.J. Super. at 501. We have also held that "each case is peculiarly dependent on its own facts, particularly with relation to the culpability of the prosecutor's tactical approach and as to the factor of actual prejudice." Id. at 502. Consequently, we now relate what occurred when the witness, Tifani Young, was called to the stand by the prosecutor.

The prosecutor arranged for Young to be brought into court outside the presence of the jury. He explained to the judge that Young, who was Burns's cousin, had confirmed the truth of his prior statements to the police during an interview that occurred three weeks before, but had thereafter refused to speak with the prosecutor "in preparation for trial." As a result, the prosecutor said he considered Young to be an adverse witness, and he asked for "some latitude under [N.J.R.E.] 611(c)" to conduct direct examination by leading questions. Without objection, the judge ruled that the prosecutor should "conduct the examination in the traditional manner" until the witness's answers showed "one or two of the characteristics described expressly in the Rule," presumably referring to "hostility" or "unresponsiveness." N.J.R.E. 611(c).

Young was sworn before the jury and immediately asked to address the "Court." The judge asked if Young wanted to address only him with the jury absent, and Young replied:

No, they can hear. Your Honor, I can't do this. I can't sit here. I can't testify against my family. I am sorry. I just have to deal with any charges that you all bring against me. Can I please be removed from this courtroom now?

The judge then suggested that Young "just answer a few questions." The judge started to ask a question about Young's relationship to Burns, and Young said, "[He] is my first cousin." The prosecutor then said he would like to ask "some background questions," and Young said, "I am not answering no questions, Your Honor." The judge replied, "Hold on." And defense counsel said, "I think we should go to sidebar at this point." The judge stopped the proceedings and excused the jury with this charge as to what had just occurred:

[T]he fact that Mr. Young said what he just said should not affect your impartiality one way or the other in this case. Do you understand? There is no inference that you should draw either for the State, against the State, for Mr. Burns or against Mr. Burns as a result of what Mr. Young said.

The issue is going to be explored. There are some legal implications to this. We are going to do that now.

Defense counsel advised the judge that he had asked for a sidebar because Young "started to get into his relationship with Mr. Burns," and he "saw that as being problematic." But he did not articulate what the problem was.

The prosecutor then offered this explanation at "sidebar," outside the hearing of Young and Burns:

Judge, given the very brief communication that we just had [from] Mr. Young, I am going to ask the Court to order him to testify outside of the presence of the jury. It's been communicated to me by representatives from our office that [Young] was under a lot of pressure from his family not to testify today. Yet he has told our detective recently -- I think it was earlier this week . . . that he would follow through and he would do the right thing. And that he once again was confirming the substance of his three taped statements that he has given to the detectives in the investigation.

Defense counsel agreed to having the prosecutor question Young outside of the presence of the jury to determine how Young would respond. Numerous questions were asked and answered, but, when the prosecutor asked to play the tape, Young said, "I don't have to answer these questions if I am not testifying. Why I should even have to listen to the tape?" The judge explained that it was "for the sake of creating a record. The contempt will come into play, Mr. Young, if at all, if you refuse to testify to a specific question in front of the jury." When the witness asked what would happen if he refused to answer a question during the hearing, the judge said, "We will take it question-by-question. But later you are going to have to make a decision about that in front of the jury." Young admitted that he had told the truth in his statements to the police.

Just before the lunch break, Young made this statement:

Your Honor, I just like to just say that a lot of things that was said were said out of anger. And like I said before, you know, I tried to stop my cousin [referring to Felder] from doing this. You know what I mean? I don't think that Burns probably did enough to try to stop him, you know. But I feel as though if you shoot somebody, you do it on your own. That's just my feelings about it. I don't really -- that is why I am not going to answer too many questions. I am telling you now a lot of things I see different. I am just telling the truth to the jury, to you all. That's why I am not going to answer no questions. Because things come about different. A lot of things happened in Philly that people don't know about. That [Burns] didn't have nothing to do about it. Who is to say? I feel as though if you do something, you do it on your own. That's what I want to say.

[Emphasis added.]

The judge's reply ended with this statement: "[I]f you refuse to answer a question when the jury's brought out later today, . . . you may be found guilty of contempt by me." The prosecutor then asked Young if he would answer the questions he had already answered in the hearing before the jury. Young replied, "I don't know, Your Honor." The judge described that as a "fair answer," and adjourned for lunch.

After the break, still outside the jury's presence, Young answered a number of questions but balked when the prosecutor asked, "Then you told the police you saw something happen between Black [Burns] and Little Tone or Pac [Felder], right?" Young said "I don't feel like answering these questions. . . . I refuse to answer." The prosecutor withdrew the question. Young answered another series of questions, but when the prosecutor asked, "You talk[ed] to the police about things that Black said in the car on the way to Sheila's house, right?," the following exchange occurred: Young said, "Yeah." The prosecutor said, "I have no further questions." And Young said, "I am not answering no more questions." The prosecutor then asked, "You talked about the ride to Philadelphia, didn't you?" And Young replied, "I am not answering no more questions." However, Young did agree to answer questions put by defense counsel, and he did so.

Before the jury was brought out, counsel and the judge discussed what would occur next. The judge indicated that the prosecutor would be allowed to ask leading questions "as to those areas that Mr. Young has demonstrated an uncooperative attitude or has refused to answer questions repeatedly in certain areas." Defense counsel then expressed the following objection:

Judge, my concern at this point is basically that the testimony that's been given at this point, everything that he said he said was true when he gave the statements. He hasn't indicated that there is any inconsistencies with what he said in the past. He also hasn't said that he doesn't remember.

So the out-of-Court hearsay statements that were given cannot be used at this time to either refresh his recollection --

The judge interrupted with this statement:

The State is not going to be permitted to introduce the statements, the prior statements. They're not going to be allowed to use those prior statements as substantive evidence because they're proceeding under a different theory of admissibility. They're proceeding under a theory of using leading questions to an adverse witness rather than the use of a prior statement.

Defense counsel then said this:

I was thinking about this over lunch. Here's my problem with that. You are permitted to lead a witness if they're a hostile witness for the purposes of eliciting the courtroom testimony. In other words, if . . . the Prosecutor[] were to ask the question, you know, didn't you see Black give the gun to Tony? An answer would be yes or no. He'd be leading him with respect to the testimony that's being given in the courtroom.

. . . .

But his intention at this point isn't, from my understanding, to do that. His question is going to be, didn't you tell the police out of Court that you had said to them if you saw Black give the gun to Tony. And I think that is impermissible because that is still hearsay without an exception. It's an out-of-Court statement that is not inconsistent with testimony that was given in the courtroom. It's not being used to refresh recollection. And there is no testimony at this point for which testimony is being neutralized.

So it doesn't fall within any of those exceptions.

The judge ruled that defense counsel's "objection is well taken," and reiterated that the prosecutor could ask leading questions when appropriate. The judge then asked defense counsel if he had "[a]nything else," to which counsel replied, "No, judge."

The jury was brought in, and Young began by answering all of the prosecutor's questions until he was asked how he felt about his aunt. He refused to answer, defense counsel objected to the relevance of the question, and the judge told the prosecutor to "[m]ove on to the next question." After answering some more questions, Young refused to answer this question: "Would it be fair to say that you felt back in that time frame that your cousin Black had a lot of control over you and your cousin[] [Felder]?" The judge reminded Young of the potential for a contempt finding, and the prosecutor said he would move on. Later on, the prosecutor returned to that subject, showing Young a portion of his prior statement to refresh his recollection. Young absolutely refused to respond. The prosecutor asked for his reason for refusing, and Young said, "Don't have to have one. Just refuse to do it. That's all." The judge instructed the prosecutor to move on to another question. Young answered a number of questions, but then refused to answer a series of questions relating to what occurred when Felder went into the house to get the gun on the night of the shooting. In response to a question about Felder starting to walk toward Imes's house, Young said this:

Your Honor, I am not answering any more questions. Whatever you all going to do. I am not answering no more questions to the jury. I am not answering no more questions. I ask to be excused.

The judge said they would proceed question by question, but although Young answered a few of the following questions relating to what occurred on the night of the shooting, he refused to answer most of them.

At this point, defense counsel asked for a sidebar and made the following statement before coming to sidebar:

Yes, Judge, with respect to continuing with the unanswered questions that are not going to be answered. I think we need to talk about it. Just very briefly. I will explain to you why at sidebar.

At sidebar, defense counsel said this:

My concern is he is making a record refusing to answer certain critical questions. Which, if he refuses to answer to me, will affect my ability to cross-examine him on the issues.

The following colloquy then occurred:

THE COURT: Yes. That's the way the process works. But he is answering some and he is not answering others. So it's impossible. If this was a continued course of no answer, then perhaps in a few more minutes I would agree with your point. But at this point he is answering some. He is not answering others.

It's impossible at least for me to predict he was going to answer, he was not going to answer. And, indeed, you are going to have the right to cross-examine him on everything if you wish. Even those areas that he's refused to answer if you want.

[DEFENSE COUNSEL]: My problem is if he is not answering questions with respect to when the Prosecutor is asking questions, there is going to be an instruction that questions are not evidence. The problem is that information is going to be before the jury. Like with respect to questions as far as did you leave the scene with Black . . . [or] questions along that vein.

THE COURT: Object as to the leading nature of the question if you wish. We will do it question-by-question. But as it stands right now, I intend on telling the jury [that when questions were not answered] . . . [t]hey're not to draw any inference whatsoever from anything relating to that. And I think that that hopefully will answer your concern. Hope it does.

[DEFENSE COUNSEL]: I think it does.

Thereafter, Young answered many questions on the continued direct examination but refused to answer others that implicated Burns. When he refused to say that Burns was jealous of the victim because he was making money, defense counsel asked that the question be stricken, and the judge gave the jury a charge advising them to ignore the question in their ultimate deliberations.

The examination of Young concluded with the following exchanges, starting with the redirect examination:

Q Isn't it a fact that your statement to the police on September 15, within nine days of the shooting, your statement to the police on page 17 was, "I don't really feel as though Tony is all responsible even though he pulled the trigger. I believe that . . . Shit, 90 percent of that was the person that gave the call to do it, you know. I mean, if you don't have no beef with nobody, you ain't going to bother them unless somebody tell you to do it. And I believe that Black told him to do it. And that's my cousin. They both my cousins, Black my older cousin, Tone my younger cousin." Isn't that in fact what you told the police?

A But I never heard Black tell Tone shoot him.

Q You did say this to the police, though, didn't you sir?

A May I say something, Your Honor?

THE COURT: Yes.

THE WITNESS: I said a lot of things because I was mad at both of my cousins. I know Tone shot him. That is no secret. I believe that Black probably could have stopped him like I tried to stop him. But I believe that Black didn't stop him. I mean, that's just where I am at with that. I was mad. I said a lot of things out of anger.

Q So you acknowledge on February -- on September 15, you said even though you loved your cousin, that you told the police that you believed that Black told Tone to do the killing. That's what you told the police, didn't you?

A That's what Tone told me.

Q No, no.

A I am not answering that question.

Q Sir, answer my question.

A I am not answering that question.

Q Excuse me?

A I am not answering that question.

Q You are now saying that your explanation for why you told the police that Black told Tone to do it was because you were mad at Black, right?

A I believe he could have stopped it.

Q Is that what you just said?

A You are asking me a question --

Q Please try to respond to my question.

THE COURT: He is answering the question.

Q The reason that you told the police something that now you are telling us that was false was because Black -- you were mad at both cousins?

A At that time -- let me explain this to you. I didn't know that Bullet [Patterson] slapped Tone [Felder] which you all told me that.

Q No. You --

A You want to hear me out?

Q I'd like you to answer my question yes or no.

A I am not answering the question.

Q On page 16 at the bottom. With respect to your being mad at both your cousins, about the -- page 16. "I was just kind of paranoid at first, you know. You was talking about my family that I grew up with and I do love. And I don't want to see them go to jail, but they took a life. They took a life, you know, and they did something that can't be justified, you know."

Did you say that because you were mad at both of them? Your cousins, too?

A It's obvious that Tone shot Bullet.

Q Did you say that because you were mad at both your cousins? Yes or no?

A I am not answering that question.

[PROSECUTOR]: Thank you. That is all I have.

THE COURT: [Defense counsel].

RECROSS EXAMINATION [DEFENSE COUNSEL]:

Q Mr. Young, in your statement you didn't say that Mr. Burns told Tony to kill Bullet; isn't that correct?

A Excuse me?

Q You didn't say that you heard Bullet -- you heard Mr. Burns tell Tone to kill Bullet?

A I didn't never hear him say that.

Q In fact, in your statement, what you said was, "I believe Black told him to do it." That was your belief at that time on September 15?

A Yes.

Q And you were angry at Tone and Black at that point?

A Yes.

Q And you said that you came to that belief because if you don't have a beef with nobody, you ain't going to bother them, right?

A Yes.

Q And you weren't aware of whether or not Tony had had a beef with Bullet, correct?

A Yes, I wasn't aware of that.

Q Did you become aware of that at some point in time?

A Over the time.

Q And who told you about that beef?

A I had heard it like on the street but never really believed it. Because Tone had got locked up. But the cops had told me that. I didn't know Bullet had slapped Tone upside the head.

Q Was that during the pretaped interview for the February 1st, 2000 statement?

A No, that was really recently. I can't recall. But I know they said it to me recently. Like couple weeks ago. Again, that -- did you know that Tone -- Bullet had slapped Tone upside the head. And I told him to stay the fuck out of his business.

Q And this is what the police were telling you?

A Yes. I didn't know that because Tone never really came to me and said nothing about it.

Q And you didn't know that as of the night of September 9th or September 15, 1999?

A No.

Q You were upset with Tone and with Mr. Burns, correct?

A Yes.

Q And you were upset with them because that put you at risk, didn't it? The fact that Bullet had been killed?

A Yes. Put all our family at risk.

Q Why did it put all your family at risk?

A Just because you never know what is going to happen next. If somebody kills somebody, they got family, too. You never know when your window is going to be shot out. Somebody going to be shooting at your kids or doing something like that.

Q Did you have reason to believe that that was going to happen?

A Yes.

Q Why?

A Just the nature of the neighborhood and the people he was surrounding himself with. People from Newark that already knew that was coming down there with guns looking for us. There was a lot of talk around there. People was telling me, Fani, watch your back because these guys from Newark down here. They got all these guns. And they walk around with trench coats. There was a lot of talk about stuff like that. That people had came down looking for us.

Q And you felt what had happened had put your family at risk?

A Yes.

[DEFENSE COUNSEL]: Thank you. I don't have any further questions.

[PROSECUTOR]: Just to follow up.

RE-DIRECT EXAMINATION BY [PROSECUTOR]:

Q So that is the explanation for why you told the police that Black told Tone to do it, correct, sir? That's the explanation for why you were mad and why you said something to the police that was false, right?

A At that time I didn't know that Tone was slapped by Bullet.

Q So now that you heard that Tone had gotten perhaps slapped in the head by Bullet two or three days before, that changes the fact that you told the police that Black told Tone to kill Bullet, correct?

A Well, I know Tone and I know for a fact that if you slap him, he is going to do something to you.

Q And that in your opinion in no way -- or the facts in no way are challenged by what you told the police? That you saw Black unjam the gun that evening?

A I am not answering that question.

[DEFENSE COUNSEL]: Objection, Judge.

THE COURT: What is the basis of the objection?

[DEFENSE COUNSEL]: I will withdraw the objection.

Q You are not going to answer any questions about Black unjamming the gun that night?

A I am not answering that question.

[PROSECUTOR]: No further questions.

THE COURT: Anything further, [defense counsel]?

CONTINUED RECROSS EXAMINATION BY [DEFENSE COUNSEL]:

Q Did you say -- when you gave the statement, did you say that you had seen a silver gun that night?

A I can't recall what color it was. I might have said it. I am not sure. I am not sure.

[DEFENSE COUNSEL]: I don't have any other questions.

CONTINUED RE-DIRECT EXAMINATION BY [PROSECUTOR]:

Q Now you are telling [defense counsel] that you did, in fact, see a gun that night where before you wouldn't answer my questions?

A I said I am not sure if I seen a gun. Never said I didn't see a gun. I said I am not sure if I seen the gun.

Q As opposed to what color the gun was?

A I said silver. I am not sure if I seen the gun, period.

Q Would reviewing your statements refresh your recollection whether you saw a gun or not that night?

A I am not answering the question.

Some preliminary observations are in order here. First, the prosecutor's initial statement to the judge, made outside the jury's presence, should have included the information that Young was under pressure from his family not to testify even though he had indicated he would do so. Cf. Cullen, supra, 103 N.J. Super. at 364-65; Jordan, supra, 197 N.J. Super. at 501-02. Had he followed that course, the judge might well have avoided the mistake of letting Young speak without a question in front of the jury. When Young was sworn and immediately asked to make a statement in front of the jury, the judge should have excused the jury. Had he done so, he would have avoided the prejudice to Burns that occurred when Young said he would refuse to testify because he did not want to be a witness against his family. As Chief Justice Weintraub noted in State v. Abbott, 36 N.J. 63, 79 (1961), "one vice" of an insufficiently leading "question, such as 'What is your position in this case?,' is that it does not lead enough, and thus would deny the opposing party an opportunity to guard against the rankest kind of improper proof." Obviously, the danger is even greater when there is no question at all, and the witness, as here, is simply permitted to make a statement before the jury. Although the judge properly instructed the jury not to draw any inference from Young's initial statement, the potential for prejudice could have been avoided entirely had the jury been excused before the witness was allowed to speak.

The judge further erred in telling Young that contempt "would come into play, . . . if at all, if [he] refuse[d] to testify to a specific question in front of the jury." The judge committed further error when he described as a "fair answer" Young's statement to the prosecutor that he did not know whether he would repeat the responsive answers he had given before the jury. Under the cases cited above, both sides were entitled to know whether Young would testify fully before he was presented to the jury. We reject the State's argument that the judge could not take any action against Young "until he actually refused to answer a question in the presence of the jury." For that proposition, the State relies on State v. Matos, 273 N.J. Super. 6, 17 (App. Div. 1994), which involved the question of whether a witness could be held in contempt before the trial, based on his statement that he intended not to testify. We held that the "[d]efendant should not have been adjudged guilty of contempt in anticipation of his future refusal 'to answer a question' not yet formulated or asked of him." Id. at 22. That rule has no application to the instant circumstances, where the prosecution was conducting an examination of the witness, albeit in a hearing outside the jury's presence, and the witness was refusing to answer specific questions that he had no right to refuse to answer.

The critical point, however, is that at the conclusion of the hearing the judge knew that Young would, in all probability, not answer questions that implicated Burns in the murder. And indeed, the questions he refused to answer in front of the jury almost all strongly supported the inference of guilt. Moreover, in no instance did the judge even order the witness to answer.

We are satisfied that Young's refusal to answer key questions improperly added critical weight to the prosecution's case. For example, he refused to answer these questions: whether Burns had a lot of control over Felder; whether his prior statement implicating Burns refreshed his recollection; whether Burns was jealous of the victim; whether he told the police that he believed Burns told Felder to shoot the victim; whether he told the police that "[t]hey took a life . . . and they did something that can't be justified . . . .;" whether he told the police that he had seen a gun; whether he told the police that he had seen Burns unjam the gun.

Young's refusal to answer questions about the gun was particularly prejudicial to Burns, who had denied involvement in the killing. Only Felder, who had entered into a plea bargain with the State, testified that Burns initially handed him the gun. And he claimed that Burns went into the house and came out with the gun, while Bryant said that he walked out of the house with the gun in his pocket and that Burns took it from his pocket and walked away with Felder. Neither Bryant nor Hightower saw Burns give the gun to Felder, although they both said they saw Burns later unjam it and give it back to Felder. Since Young's refusal to answer questions about the gun supported by inference Felder's story, and since Burns's guilt is more evident if one believes that he initially gave the gun to Felder, the unanswered questions were clearly prejudicial.

Similarly, only Calhoun testified that Young and Burns discussed the shooting in the car ride from Mt. Holly to Burlington. Even Felder stated that he was not paying attention and did not hear anything that might have been said. Like Young's refusal to answer questions about the gun, his refusal to answer questions regarding the car ride prejudiced Burns.

The prejudice was aggravated by Young's refusal to answer the other questions noted above. And, the jury was likely to infer from Young's repeated general statements that he would not provide testimony harmful to Burns, that he was present in the get-a-way cars with Burns and heard him make the statements noted above that implicated him in the murder.

In Jordan, supra, 197 N.J. Super. at 502-03, we reaffirmed that

once it was established that a witness intended to claim a privilege not to testify the court committed prejudicial error by permitting the prosecutor to continue his questioning and thereby place before the jury innuendo evidence or inferences of evidence which the State could not get before the jury by direct testimony of the witness.

[Citation omitted.]

That is precisely what occurred here. Moreover, the situation was exacerbated by the charge given to the jury at the conclusion of Young's testimony:

Finally, today we had a witness testify. Mr. Young testified as to some items and refused to answer questions on other items. I do not want you to draw any inference about facts that were contained in the questions that Mr. Burns refused to answer. And many of the questions and -- Mr. Young. I am sorry. That Mr. Young refused to answer. Many of the questions contained facts. You may find from independent sources, from independent witnesses, from exhibits in the case or from other evidence in the case that the facts that were contained in the questions either did exist or don't exist. Depending upon your assessment of those facts. Depending upon your evaluation of those exhibits.

If you believe, as in other instances, that the State has proven beyond a reasonable doubt the existence of those facts, then you should find the existence of those facts. Conversely, if you believe that the State hasn't proven the existence of those facts beyond a reasonable doubt, then you should not find the existence of those facts. The mere fact that Mr. Young didn't answer the questions is for your consideration as to the existence of those facts. Do you understand that?

Finally, I have sustained objections to questions asked -- to some questions asked by counsel which may have contained statements of certain facts. And you heard that. It occurred this afternoon much more than it had prior to this afternoon. The mere fact that someone asks a question and inserts facts or comments or opinions in that question in no way proves the existence of those facts. You will only consider such facts which, in your judgment, have been proven beyond a reasonable doubt by the State by the testimony of witnesses or from exhibits admitted into evidence by the Court.

[Emphasis added.]

A jury must be advised that it cannot use the refusal to answer as evidence of what the answer would have been. United States v. Maloney, 262 F.2d 535, 537-38 (2d Cir. 1959). Although the charge properly informed the jury that it should not draw inferences from the facts contained in unanswered questions put to Young, it improperly informed the jury that "[t]he mere fact that Mr. Young didn't answer the questions [was] for [the jury's] consideration as to the existence of those facts," thereby permitting the jury to infer that the refusal to answer could be taken as evidence that the answer would have supported the State's case. The judge did not return to this subject in his final charge, and thus the jury was left with the improper instruction noted above.

This case is unusual in that the witness did answer all but two of the questions put by defense counsel on cross-examination in front of the jury. But with respect to the critical questions the witness refused to answer on direct examination, cross-examination was not a reasonable course, and defense counsel understandably did not attempt to cover those areas. Since the witness had repeatedly said that he would not answer questions that might harm Burns, defense counsel was entitled to assume that if he asked any questions in those areas, the witness might refuse to answer, thereby increasing the prejudice against his client. We do not consider the right of cross-examination to be present when, as here, the trial judge has left to the witness the power to decide which questions he will answer.

We therefore reverse the conviction and remand for a new trial.

III

Since a retrial is likely to occur, some of the other issues raised warrant discussion. Burns's first point concerns a statement made by the victim's father after the shooting, which was presented to the jury by a police witness. The statement was offered as an excited utterance under N.J.R.E. 803(c)(2). Patterson's father had seen his son shot and killed less than ten minutes before the police arrived. Detective Mastrangelo described him as "extremely distraught" and "beside himself," "jumping up and down," running "back and forth," and "just screaming his outrage as to what occurred." Mastrangelo wrote in his report and ultimately read to the jury the following account of the father's words:

Mr. Patterson, while escorting him into the car, at that point, I was taking him by the elbow, he said to me Tone shot Bullet and ran down the alley way towards Rancocas Road and made a left into the alley behind 118 Joseph Place, that he was dressed in dark clothes with a lighter color shirt underneath. Mr. Patterson, Sr. then stated that he saw the shooting and chased after Tone, that Tone was originally with Black and those boys at Bobby's house, indicating the end with a nod of his head and pointing at the end of Joseph Place.

Burns argues that admission of that statement violated Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We disagree because the statement was neither formal nor testimonial, and clearly fell well within the excited utterance exception. Moreover, we perceive no prejudice to Burns whatsoever. The first part of the statement implicates only Felder, and the fact that Felder shot the victim in the manner described above was not in issue. The second part of the statement implicates Burns, but only to the degree that he implicated himself by his admission at trial that he was with Felder and the others in front of Bryant's house before and at the time of the shooting.

During his cross-examination of Burns, the prosecutor repeatedly asked that Burns characterize the testimony of other State's witnesses as lies. It is generally improper for one witness to be asked to assess another witness's credibility. State v. Bunch, 180 N.J. 534, 549 (2004), and we have specifically held that such a method of questioning a criminal defendant "is inappropriate and should not be countenanced." State v. T.C., 347 N.J. Super. 219, 238 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003) (citations omitted). There was no objection below, and we are satisfied that what occurred was not plain error. R. 2:10-2. Nonetheless, this form of questioning should not be repeated.

The Supreme Court has recognized the danger that a jury may view testimony about a co-defendant's guilty plea as substantive evidence of the guilt of the defendant who is on trial. State v. Stefanelli, 78 N.J. 418, 430-34 (1979). Such evidence was submitted here, and the judge was obliged to "give the jury a proper cautionary instruction as to the limited use of this testimony for credibility purposes, even in the absence of . . . a request therefor by defendant[]." Id. at 434 (citations omitted). Burns did not object to the lack of a charge on this subject. Although we are not convinced that sufficient prejudice flowed from this aspect of the case to require reversal, we trust that the charge will be given if the case is retried.

Since we are reversing on other grounds, we will not discuss the rather complex, and somewhat convoluted, charge to the jury on accomplice liability and the lesser included offenses, particularly since it was given at defendant's request and over the State's objection. However, we will note that on retrial the charge should more carefully comply with the requirements of State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993).

Because Young had no right to withhold his testimony and may decide to perform his civic duty by testifying at the re-trial, there is one aspect of the prosecutor's direct examination of him that deserves further comment. As quoted above, the prosecutor asked Young if he had made this statement to the police: "'I believe that Black [Burns] told him [Felder] to do it.'" He replied, "But I never heard Black tell Tone to shoot him." And the prosecutor asked, "You did say this to the police, though, didn't you sir?" Although Young then explained that he formed that opinion because that was what Felder told him, the expression of his belief was improper.

"A lay witness may give an opinion on matters of common knowledge and observation." State v. Johnson, 120 N.J. 263, 294 (1990). But, quite obviously, a lay opinion that someone is guilty of a crime is neither a matter of common knowledge nor a matter of observation. And while it is particularly improper if a police officer expresses an opinion that someone is guilty of a crime, State v. Landeros, 20 N.J. 69, 74-75 (1955), or if an expert witness does so, State v. Odom, 116 N.J. 65, 77 (1989), a lay opinion of that sort is equally inadmissible. Therefore, if Young testifies at the re-trial, the prosecutor may not elicit his opinion or belief as to Burns's guilt.

Reversed and remanded for re-trial.

 

After the case was submitted, we advised the parties of this issue and invited further briefing. Both sides filed supplemental briefs.

(continued)

(continued)

43

A-6273-01T4

May 11, 2006