STATE OF NEW JERSEY v. JAMES S. RUSSELL
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2981-06T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES S. RUSSELL,
Defendant-Appellant.
______________________________
Submitted on September 30, 2009 - Decided April 15, 2010
Before Judges Fuentes and Simonelli.
On appeal from the Superior Court of New
Jersey, Law Division, Ocean County,
Indictment No. 05-11-1563.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Frank M. Gennaro,
Designated Counsel, of counsel and on the
brief).
Marlene Lynch Ford, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella,
Supervising Assistant Prosecutor, of
counsel; William Kyle Meighan, Assistant
Prosecutor, on the brief).
PER CURIAM
A jury convicted defendant James S. Russell of three counts
2C:15-1, and one count of
of first-degree robbery, N.J.S.A.
second-degree burglary, N.J.S.A. 2C:18-2. After the denial of
defendant's motion for a new trial, the trial judge sentenced
him to three concurrent eighteen-year terms of imprisonment with
eighty-five percent periods of parole ineligibility pursuant to
the No Early Release Act, N.J.S.A. 2C:43-7.2. At sentencing,
defendant also pled guilty to violating probation (VOP) on two
unrelated offenses committed in 2003 and 2004, and was sentenced
to two concurrent four-year terms of imprisonment consecutive to
his eighteen-year sentences.
I.
We gather the following facts from the record developed
before the trial court.
On the evening of July 23, 2004, two assailants accosted
Tyshaun and Antowan Fitzpatrick outside their home, forced them
into the home at gunpoint, and bound them while ransacking and
robbing the home. One of the assailants, later identified as
co-defendant Shaquill B. Allah, put a bag over the head of Ebony
Fitzpatrick, who had been asleep in the bedroom when Allah
entered the home. Tyshaun was stabbed in the back during the
robbery.
Three other individuals, one of whom brandished a gun, had
approached Tyshaunda Fitzpatrick, who while sitting in a car
outside the home saw what was happening to her brothers, and
ordered her to remain quiet. In a taped statement given to the
A-2981-06T4
2
police shortly after the robbery, Tyshaunda identified defendant
as one of those individuals.
In her taped statement also given to the police shortly
after the robbery, Ebony identified Allah as the assailant who
put the black plastic bag over her head. Ebony also said that
she knew that defendant, who she identified by his first name
and nickname, was involved in the robbery because Tyshaunda saw
his face.
At trial, Ebony and Tyshaunda, who appeared pursuant to a
subpoena, expressed their reluctance to testify. Ebony denied
any recollection of the robbery. She recalled giving the
statement; however, she denied memory of what she said and
denied that the statement refreshed her recollection. Tyshaunda
denied recollection of certain parts of the robbery, including
the identity of the individuals involved and whether they had a
gun. She, too, recalled giving the statement but denied it
refreshed her recollection. Over defense counsel's objection,
the trial judge permitted the State to read into the record, as
past recollection recorded pursuant to N.J.R.E. 803(c)(5),
Ebony's entire statement and those portions of Tyshaunda's
statement that she could not recall. All defense counsel cross-
examined these witnesses.
A-2981-06T4
3
Against these facts, defendant raises the following
arguments on appeal:
Point I. THE TRIAL COURT'S ADMISSION OF
HEARSAY STATEMENTS DENIED DEFENDANT A FAIR
TRIAL
Point II. DEFENDANT WAS PREJUDICED BY THE
TRIAL COURT'S REPEATED SUA SPONTE
QUESTIONING OF WITNESSES
Point III. DEFENDANT WAS PREJUDICED BY THE
TRIAL COURT'S RESPONSE TO THE STATE
DISCOVERY VIOLATION
Point IV. THE TRIAL COURT IMPROPERLY
CURTAILED THE CROSS-EXAMINATION OF OFFICER
PRETTY
Point V. DEFENDANT WAS PREJUDICED BY THE
ADMISSION OF TESTIMONY INDICATING THAT KIM
REYNOLDS FEARED THE DEFENDANTS
Point VI. DETECTIVE STILLWELL'S TESTIMONY
REGARDING HIS COMPILING OF A PHOTO ARRAY
WHICH PORTRAYED CO-DEFENDANT SHAQUILL ALLAH
TO THE JURY AS A CRIMINAL DENIED DEFENDANT A
FAIR TRIAL
Point VII. DEFENDANT RECEIVED AN EXCESSIVE
SENTENCE
We are satisfied that the arguments presented in Points I
through VI do not warrant a reversal of defendant's robbery and
burglary convictions and sentence on those convictions. As to
Pont VII, we vacate the sentences on the VOP convictions and
remand for reconsideration of those sentences.
A-2981-06T4
4
II.
Defendant argues in Point I that the trial court's
admission of Ebony's and Tyshaunda's taped statements deprived
him of his right to confront and cross-examine witnesses as
guaranteed by the Sixth Amendment of the Constitution of the
United States. We disagree.
The United States Supreme Court has rejected this argument.
In United States v. Owens,
484 U.S. 554, 559-60,
108 S. Ct. 838,
842-43,
98 L. Ed. 2d 951, 958 (1988), the Supreme Court held
that the
opportunity [to confront an adverse witness]
is not denied when a witness testifies as to
his current belief but is unable to
recollect the reason for that belief. It is
sufficient that the defendant has the
opportunity to bring out such matters as the
witness' bias, his lack of care and
attentiveness, his poor eyesight, and even
(what is often a prime objective of cross-
examination, see 3A J. Wigmore, Evidence ยง
995, pp. 931-932 (J. Chadbourn rev. 1970))
the very fact that he has a bad memory. If
the ability to inquire into these matters
suffices to establish the constitutionally
requisite opportunity for cross-examination
when a witness testifies as to his current
belief, the basis for which he cannot
recall, we see no reason why it should not
suffice when the witness's past belief is
introduced and he is unable to recollect the
reason for that past belief. In both cases
the foundation for the belief (current or
past) cannot effectively be elicited, but
other means of impunging the belief are
available. Indeed, if there is any
difference in persuasive impact between the
A-2981-06T4
5
statement "I believe this to be the man who
assaulted me, but can't remember why" and
the statement "I don't know whether this is
the man who assaulted me, but I told the
police I believed so earlier," the former
would seem, if anything, more damaging and
hence give rise to a greater need for
memory-testing, if that is to be considered
essential to an opportunity for effective
cross-examination. We conclude with respect
to this latter example, as we did in
[Delaware v. Fensterer,
474 U.S. 15,
106 S.
Ct 292,
88 L. Ed. 2d 15 (1985)] with
respect to the former, that it is not. The
weapons available to impugn the witness's
statement when memory loss is asserted will
of course not always achieve success, but
successful cross-examination is not the
constitutional guarantee.
The Court made clear that the Confrontation Clause only
guarantees an opportunity for effective cross-examination, and
simply because a witness does not remember his out-of-court
statement while testifying does not infringe upon the
defendant's Sixth Amendment Rights. Ibid.
The New Jersey Supreme Court has adopted a similar
138 N.J. 481, 544 (1994),
approach. In State v. Brown,
overruled on other grounds, State v. Cooper,
151 N.J. 326, 377
(1997), the Court held that
the constitutional confrontation guarantees
are not violated by a witness's lack of
recollection regarding an introduced prior
statement or the events described in such a
statement. The finding of feigned
recollection is essentially a finding by the
court that the witness is lying about the
statement and about the contents of the
A-2981-06T4
6
statement. That the lie is in the form of a
loss of memory rather than an outright
denial that the events occurred is not of
constitutional significance for the purpose
of cross-examination.
Here, defense counsel had the opportunity to cross-examine Ebony
and Tyshaunda. Accordingly, no Confrontation Clause violation
occurred.
We reject defendant's alternative argument in Point I that
the statements were inadmissible hearsay not subject to the past
recollection recorded exception. N.J.R.E 803(c)(5) provides as
follows:
Recorded recollection. A statement
concerning a matter about which the witness
is unable to testify fully and accurately
because of insufficient present recollection
if the statement is contained in a writing
or other record which (A) was made at a time
when the fact recorded actually occurred or
was fresh in the memory of the witness, and
(B) was made by the witness or under the
witness' direction or by some other person
for the purpose of recording the statement
at the time it was made, and (C) the
statement concerns a matter of which the
witness had knowledge when it was made,
unless the circumstances indicate that the
statement is not trustworthy; provided that
when the witness does not remember part or
all of the contents of a writing, the
portion the witness does not remember may be
read into evidence but shall not be
introduced as an exhibit over objection.
Tyshaunda and Ebony made their taped statements to the
the statements concerned
police shortly after the robbery;
A-2981-06T4
7
matters of which they had personal knowledge when the statements
were made; they could not recall the details of the robbery at
trial; they recalled making the statements but did not recall
what they had said; and the statements did not refresh their
memory. Accordingly, the statements met the requirements of
past recollections recorded and were properly read to the jury.
We also reject defendant's remaining alternative arguments
in Point I about Ebony's alleged hearsay knowledge of
defendant's name and nickname and presence at the crime scene,
and about a police officer's alleged hearsay testimony regarding
Ebony's and Tyshaunda's identifications of Allah as the person
who stabbed Tyshaun. Ebony testified that she knew defendant by
his name and nickname because he dated Tyshaunda and he had come
to her house. Because Ebony knew defendant directly, her
statement about his name and nickname was not hearsay.
Also, although Ebony said in her statement that she knew
defendant was at the crime scene because her sister saw him
there, the judge charged the jury that they must disregard that
statement and give it no weight. It is presumed that the jury
faithfully followed this instruction. State v. Nelson,
173 N.J.
417, 447 (2002).
Further, there was other evidence of defendant's presence
at the crime scene. Tyshaunda identified defendant at trial and
A-2981-06T4
8
said in her statement that she had no doubt he was one of the
three individuals who confronted her while she sat in her car.
Another witness, Kim Reynolds, also identified defendant at
scene.1
trial and testified that he was at the crime
Accordingly, even if an error occurred, it was harmless.
Finally, the police officer's testimony about the out-of-
court identifications of Allah did not concern defendant, had no
bearing on defendant's defense, and did not prejudice him in any
way. In fact, defendant benefited from the officer's testimony
because it removed any doubt that he might have been the
individual who stabbed Tyshaun.
III.
Defendant contends for the first time on appeal in Point II
that the judge's sua sponte examination of four witnesses denied
him a fair trial. We review this contention under the plain
R. 2:10-2; State v. Macon, 57 N.J.
error standard of review.
325, 336 (1971). Under that standard, we must disregard any
error unless it is clearly capable of producing an unjust
result. State v. Castagna,
187 N.J. 293, 312 (2006); Macon,
supra,
57 N.J. at 337. Reversal of defendant's conviction is
1
Reynolds had driven Allah to and from the crime scene and was
aware that a robbery had occurred. She testified that she did
not report the robbery until confronted by the prosecutor's
office in October 2005, because she was afraid for herself and
her son.
A-2981-06T4
9
required only if there was error sufficient to raise a
reasonable doubt as to whether it led the jury to a result it
Macon, supra,
57 N.J. at 336.
otherwise might not have reached.
A trial judge has the authority to question a witness on
his or her own initiative and with sound discretion to clarify
testimony or even to elicit further facts that are material to a
case. State v. Riley,
28 N.J. 188, 200 (1958); State v. Medina,
349 N.J. Super. 108, 130-31 (App. Div. 2002). When the trial
judge's questioning is contested on appeal, "[we] should not
evaluate the trial judge's conduct from the vantage point of
twenty-twenty hindsight. Rather, [we] should recognize that
trial judges often must act without the benefit of prolonged and
objective research." Medina, supra,
349 N.J. Super. at 132.
Here, the judge asked the witnesses neutral questions in
order to clarify their testimony. The judge also instructed the
jury numerous times that they were the sole judges of the fact,
that they were not to draw any inferences from the fact that he
asked questions, that they could disregard his questions, and
that his questions were not an indication that he had an opinion
about how the case should be decided or how a witness's
testimony should be viewed.
We are satisfied that the judge's questioning of witnesses
was within his authority to clarify their testimony and did not
A-2981-06T4
10
bolster the witnesses' credibility or give the appearance of
advocacy on the State's behalf. Id. at 131. There was no
error, let alone plain error.
IV.
Defendant's arguments in Points III through VI are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2). However, we add the following brief comments.
The judge properly exercised his "broad discretion" in
refusing to inform the jury of the State's failure to produce an
evidence report issued by the police officer who collected
physical evidence from the crime scene, which omitted reference
to the plastic bag placed over Ebony's head. State v. Marshall,
123 N.J. 1, 134 (1991); R. 3:13-3(g). Defendant provides no
case law requiring trial courts to inform juries of the State's
discovery violations. More importantly, defendant suffered no
prejudice by the discovery violation and, in fact, may have
benefited because the report bolstered his claim that the police
conducted an incomplete investigation.
Reynolds's direct testimony about fearing for herself and
her son was relevant to explain why she did not report the
robbery until confronted by the prosecutor's office. "The party
calling a witness may . . . attempt to support credibility
through direct or redirect examination and through the
A-2981-06T4
11
introduction of extrinsic evidence" without waiting for an
adversary to first attack the witness's credibility. State v.
Frost,
242 N.J. Super. 601, 614 (App. Div.), certif. denied,
127 N.J. 321 (1990).
Reynolds's testimony about her fear of three other
individuals who were not charged in this case, which was
elicited on cross-examination and mentioned again during re-
direct examination, constituted invited error. See State v.
McDavitt,
62 N.J. 36, 48 (1972) (holding that the defendant
could not claim prejudice after "knowingly pursuing a subject
fraught with the danger" of exposing damaging testimony); State
v. Morse,
106 N.J. Super. 1, 4 (App. Div. 1968) (holding that
the defendant cannot claim error where he introduced evidence
that he admitted ownership of the heroin found on him), aff'd,
54 N.J. 32 (1969). Also, under the "opening the door" doctrine,
defendant could not introduce this evidence and then prevent the
State v. James,
144 N.J. 538, 554
State from addressing it.
(1996) (citing United States v. Lum,
466 F. Supp. 328, 334-35
(D. Del.), aff'd,
604 F.2d 1198 (3rd Cir. 1979)).
V.
Defendant contends in Point VII that his sentence is
excessive because the judge improperly found aggravating factor
N.J.S.A. 2C:44-1a(3) (the risk that the defendant will commit
A-2981-06T4
12
another offense) based on defendant's character and attitude;
failed to weigh the aggravating and mitigating factors
applicable to the VOP convictions; and based the consecutive
sentences on the erroneous conclusion that defendant was on
probation at the time of the robbery. We disagree.
The judge gave "[h]eavy weight" to aggravating factor 3,
finding that there is a strong likelihood that defendant will
continue to commit criminal acts based on the character and
attitude he displayed at sentencing. At sentencing, defendant
denied committing the crime and referred to it as "this little
situation that got out of hand[.]" Noting his right to appeal,
defendant said to the judge, "[s]o if everything goes well, you
know what I mean, me, you, [the prosecutor], we back here in two
years for a family reunion, and we'll try this thing again." We
discern no error in the judge's finding of aggravating factor 3
based on his consideration of defendant's attitude at
State v. O'Donnell,
177 N.J. 210, 216 (1989).
sentencing.
We reach a contrary conclusion as to defendant's VOP
sentences. When a defendant is sentenced for a probation
violation, and "the court decides to incarcerate the defendant,
it must weigh the original aggravating and surviving mitigating
factors to determine the appropriate sentence." State v.
A-2981-06T4
13
Molina,
114 N.J. 181, 184-85 (1989) (citing State v. Baylass,
114 N.J. 169, 178 (1989)).
When sentencing defendant for the VOP convictions, the
judge only briefly referred to mitigating factor N.J.S.A. 2C:44-
1b(10) (the defendant is particularly likely to respond
affirmatively to probationary treatment) in finding that it no
longer applied. On remand, the judge must engage in a full
weighing of all aggravating and mitigating factors. After doing
so, if the judge finds incarceration appropriate for the VOP
convictions, consecutive sentences may be imposed.
When a defendant is sentenced to
imprisonment for an offense committed while
released, with or without bail, pending
disposition of a previous offense, the term
of imprisonment shall run consecutively to
any sentence of imprisonment imposed for the
previous offense, unless the court, in
consideration of the character and
conditions of the defendant, finds that
imposition of consecutive sentences would be
a serious injustice which overrides the need
to deter such conduct by others.
[N.J.S.A. 2C:44-5(h).]
The robbery occurred on July 24, 2004, and defendant was
sentenced to a probationary term on October 29, 2004. Although
in imposing the consecutive sentences the judge mistakenly found
that defendant committed the robbery while on probation, the
offenses for which defendant was placed on probation occurred on
July 14, 2003 and January 5, 2004, and defendant was on bail
A-2981-06T4
14
pending disposition of those crimes. Accordingly, a consecutive
sentence for defendant's VOP convictions is proper.
We affirm defendant's conviction and sentence for the
robbery and burglary convictions; we vacate his sentence on the
VOP convictions, and remand for further proceedings consistent
with this opinion. We do not retain jurisdiction.
A-2981-06T4
15
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
