STATE OF NEW JERSEY v. TYRON WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRON WILLIAMS,

Defendant-Appellant.

December 28, 2016

Submitted October 13, 2016 Decided

Before Judges Alvarez and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 13-07-0907.

Mark A. Fury, attorney for appellant.

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant Tyron Williams was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and acquitted of third-degree tampering with a witness, N.J.S.A. 2C:28-5(a)(2). The trial judge sentenced defendant on September 12, 2014, to eight years imprisonment subject to the No Early Release Act's eighty-five percent parole ineligibility. See N.J.S.A. 2C:43-7.2. Defendant appeals and we affirm.

The charges were brought as a result of an incident that occurred late at night on March 26, 2013. A ten-year-old child, R.L., called 9-1-1 to report an altercation between his mother, T.D., and defendant, his mother's then live-in boyfriend and now husband. R.L. said T.D. and defendant were "fighting each other . . . . and [they are] hitting each other with things."

When Patrolman Taylor F. Holba responded, R.L. met him at the door. There were four other children in the home, including R.L.'s older brother, thirteen-year-old T.L. Holba noticed R.L. cleaning cake from the dining room walls, saw no visible injuries on T.D., and observed that she was not "very forthright with information." He also saw a smashed television in the master bedroom and noted a strong smell of alcohol in the home. No charges were filed that evening.

T.D. was hospitalized during the early morning hours of March 27. A CAT scan revealed "an injury to her left kidney and injury to her small bowel and blood in her abdominal/pelvic cavity." Doctors removed a portion of her bowel; she told the medical staff that she hurt herself falling down some stairs.

While T.D. was in surgery, her mother and sister brought R.L. and T.L. to the Burlington Township Police Station. Detective Brandon Roberson recorded statements from both boys. R.L. said he saw T.D. pinned in a corner while defendant punched her in the side of her stomach. T.L. said he was asleep and therefore saw and heard nothing, but that defendant had left several notes in his room asking the child to call him. When T.L. called, defendant told him to tell R.L. not to say anything to police.

During a pretrial Gross hearing, the judge heard from both boys, who recanted their statements. See State v. Gross, 121 N.J. 1 (1990).1 In weighing the Gross factors, the judge found the recordings were reliable, although some portions were redacted because of Roberson's questions. The judge also found that when the boys were interviewed, they did not anticipate any future proceedings. The detailed statements were given within twenty-four hours of the incident, and "other than the few [questions and answers] that have been redacted[]," were volunteered and not the result of any suggestive questioning. He characterized R.L. and T.L. as "forthright and calm[,]" and observed that their responses had an "air of credibility[.]" The judge also opined that the 91-1 call, in addition to the details within the four corners of the statements, corroborated the information the boys gave when interviewed. He therefore ruled that, assuming the State could establish the appropriate foundation at trial, the statements would be admissible.

At trial, R.L. testified that he lied to police and later spoke with Roberson because "my aunt told me to tell . . . that my stepdad was hitting my mom and they were arguing." The State immediately requested a sidebar

The State: Your [h]onor, at this time, it's clear that the witness is giving a prior inconsistent statement. As we already deemed yesterday, the statement is reliable. At this time, I would seek to turn the witness over for cross-examination to defense counsel and seek to elicit his prior inconsistent statement as substantive evidence through [Roberson].

The Court: Any objection to proceeding?

Defense Counsel: No. I'm sorry. But are you saying that you're just going to you're done with him?

The State: He's already testified inconsistent --

The Court: I think she's established that he's inconsistent . . . . and that's really all that needed to happen in terms of you getting other information. And you can cross-examine in a way -- he's going to be your witness . . . . [a]nd then you are going to introduce the tapes.

The State: Exactly.

. . . .

Defense Counsel: But you're going to introduce the tapes through Roberson, not through him.

The State: Right. Correct.

. . . .

The Court: So do you have any problems proceeding in that fashion?

Defense Counsel: No. That would be the only way that she could proceed . . . . She can't get it in through through him, so, yeah.

On cross-examination, R.L. reiterated that he had never seen defendant hit his mother and that neither he nor T.D. had ever asked him to lie.

The prosecutor questioned T.L. about the notes he found in his room. He was also questioned about the subsequent conversation with defendant, and defendant's request that he tell R.L. not to talk to police. T.L. responded that he lied to police about the notes, and the call to defendant, because his grandmother said that if he did not "tell the police that [his] stepdad knocked [T.D.] down the stairs, which was a lie, that [they] would go to DYFS, and they would lock [T.D.] up." He was then cross-examined by defense counsel. T.L. denied seeing defendant strike his mother. The audio recordings of the boys' interviews were moved into evidence and played to the jury when Roberson testified.

During deliberations, the jury requested a playback of the 9-1-1 call. Counsel did not object, and the tape was played in the courtroom. The jury also inquired if they could take notes. When the judge asked the attorneys if they objected, both attorneys said they did not.

Thereafter, the jury requested a playback of R.L.'s recorded interview with Roberson, and of the boys' trial testimony. Those recordings were also played in the courtroom without objection from either attorney.

On appeal, defendant raises the following issues

I. THE COURT ERRED IN ALLOWING THE STATE TO PRESENT THE PRIOR INCONSISTENT STATEMENTS OF [R.L.] AND [T.L.] [THROUGH] ITS POLICE WITNESSES BECAUSE IT DEPRIVED THE DEFENDANT AN OPPORTUNITY TO CROSSEXAMINE EACH CHILD ON THE STATEMENTS.

II. THE COURT ERRED BY ALLOWING REPLAY OF RECORDED WITNESS TESTIMONY DURING JURY DELIBERATION WITHOUT ADHERING TO GUIDELINES SET FORTH IN STATE V. MICHAELS[2] AND STATE V. BURR[3].

III. THE COURT ERRED WHEN JURORS WERE ALLOWED TO TAKE NOTES DURING PLAYBACK OF RECORDED TESTIMONY.

"'Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal.'" State v. Corsaro, 107 N.J.339, 345 (1987) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J.574 (1974)).

The invited-error doctrine embodies "the common-sense notion that a 'disappointed litigant' cannot argue on appeal that a prior ruling was erroneous 'when the party urged the lower court to adopt the proposition now alleged to be error.'" State v. A.R., 213 N.J.542, 561 (2013) (quoting N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.328, 340 (2010). However, reversal is necessary if the "'particular error . . . cut mortally into the substantive rights of the defendant.'" Corsaro, supra, 107 N.J.at 345 (quoting Harper, 128 N.J. Super.at 277).

Claimed errors, to which no objection was made at trial, warrant reversal only if "of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2.

The decision to read "all or part of the testimony of one or more of the witnesses at a trial, criminal or civil, at the specific request of the jury during their deliberations is discretionary with the trial court." State v. Wolf, 44 N.J.176, 185 (1965). Under the abuse of discretion standard, an appellate court will not disturb the court's ruling unless "'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" State v. Brown, 170 N.J.138, 147 (2001) (quoting State v. Marrero, 148 N.J.469, 484 (1997)). "[A] trial court'sevidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" Ibid.

I.

Defendant contends that the court erred by admitting the recordings of the boys' statements through the officer who interviewed them, as opposed to when the boys were on the stand. It is now claimed that by proceeding in that manner, defendant was prevented from cross-examining the children about them.

The invited error doctrine applies to this issue. Defense counsel agreed that admission of the statements through the officer was "the only way" that the prosecutor could establish the necessary foundation. The comment clearly acquiesced to the manner of admission.

Even if the invited error doctrine did not apply, in the most literal sense, the record does not support the assertion that the procedure prevented defendant from meaningfully cross-examining R.L. and T.L. They were cross-examined, and in front of the jury, both adamantly denied defendant had struck their mother, or that any pressure had been put on them to deny that he had hurt her. Both insisted that they lied when they spoke to police at the behest of family members.

It is probable that for obvious strategic reasons, defense counsel would not have cross-examined the boys regarding the recordings before they were played to the jury. But counsel could have called the boys as defendant's witnesses after the admission of the statements. Counsel did not elect to do so; however, the opportunity clearly existed.

Additionally, the judge did not commit plain error by allowing the State to introduce the statements through Roberson. N.J.R.E. 611(a) vests in judges the authority to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence . . . ." We review those decisions for abuse of discretion. See Brown, supra, 170 N.J. at 147. We see no clear error of judgment in this case. See ibid. We see no error in the mode of admission at all.

The procedure did not prevent defendant from exploring the statements made to police. Thus, it did not "cut mortally into the substantive rights of the defendant[.]" See Corsaro, supra, 107 N.J. at 345. It did not produce an unjust result. R. 2:102. Nor was it the result of a "ruling so wide of the mark that a manifest denial of justice resulted." Brown, supra, 170 N.J. at 147.

II.

Defendant also asserts that playing the audio recording of the boys' trial testimony, the 9-1-1 call, and R.L.'s recorded statement on the record, at the jury's request, violated the guidelines set forth in Michaels and Burr. We do not agree.

Initially, defendant argues that the judge should have asked the jury the reason they wanted to hear a playback of the materials. This point lacks merit. Had the judge asked the jury to explain the reason for the request, the inquiry would have improperly intruded upon the jury's deliberations. It would have improperly risked disclosure of the jury's discussions.

Jurors are entitled to playbacks, and such requests should generally be honored. State v. Miller, 205 N.J. 109, 119-20 (2011). No precedent requires the trial judge to ask the jury for justification; if anything, the caselaw stands for the opposite conclusion. Requests for playbacks are honored because they are a sign of the importance of the evidence "to the deliberative process." Id. at 120.

The Court in Miller issued the current guidelines for trial courts to follow when video recordings of testimony are available and a jury requests a playback: (1) the request should ordinarily be granted, (2) the jury should hear the entire testimony, including direct and cross-examination, unless the judge determines, at his discretion, that to do so would be extensive, (3) courts should honor a request for only certain portions of a witness' testimony, (4) the playbacks should take place in open court, (5) once completed, the judge should remind the jury to consider all the evidence, (6) there should be a precise record of the material and (7) the judge should deny requests when necessary to guard against unfair prejudice. Id. at 122-23. Those guidelines were met in every respect. Thus the judge did not abuse his discretion in acceding to the jury's request or in the manner they heard the recorded material.

Defendant also contends that allowing the jury to hear the 9-1-1 tape was improper because the judge did not compel the jury to listen to a playback of T.D.'s testimony, even though her voice could be heard on the 9-1-1 tape. We consider the point to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-2.

Similarly lacking in merit is the argument that a replay of R.L.'s statement to police was improper because the jury had a transcript of the interview. That they had the transcript is irrelevant. Pursuant to Miller, the jury was entitled to hear the recording. See Miller, supra, 205 N.J. at 119-21.

Equally without merit is the argument that hearing T.L's testimony required a replay of his police interview. The jury was entitled to hear the material they requested and no more, absent some overriding concern.

III.

Finally, defendant now objects that the jurors should not have been permitted to take notes. If error, the error was invited. When asked if he objected to jurors taking notes, defense counsel, like the prosecutor, said he did not. Although it is true that the judge did not instruct the jurors as to the manner in which they should manage their notes, the heart of defendant's objection on appeal, defendant does not identify the harm allegedly flowing from the judge's failure to do so. The decision, we conclude, was simply not error, much less plain error. It was a reasonable response to the jury's reasonable request, and a sound exercise of the judge's discretion.

Affirmed.

1 "[A] prior inconsistent statement made by a declarant-witness while in police custody as a criminal suspect can be admitted . . . as substantive evidence provided its reliability has been established by a preponderance of the evidence in light of all surrounding relevant circumstances . . . ." Gross, supra, 121 N.J. at 29.

2 State v. Michaels, 264 N.J. Super. 579 (App. Div.), certif. denied, 134 N.J. 476 (1993).

3 State v. Burr, 195 N.J. 119 (2008).