STATE OF NEW JERSEY v. ARTHUR BYARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4668-04T44668-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARTHUR BYARD,

Defendant-Appellant.

 

Submitted October 5, 2006 - Decided November 20, 2006

Before Judges Cuff and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 96-07-0718-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jean B. Bennett, Designated Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial before Judge Clark starting March 10, 1998 and ending March 27, 1998, defendant Arthur Byard was convicted of second-degree aggravated arson for the September 15, 1995, fire at Nanny's Grocery Store in Paterson; disorderly persons criminal mischief arising out of an incident at Nanny's Grocery Store on September 5, 1995; and fourth-degree retaliation against a witness for conduct occurring between September 5, 1995 and September 15, 1995. Defendant was acquitted of other charges, including charges arising out of another fire at Nanny's Grocery Store and a fire at another grocery store, the M & B Grocery Store, also in Paterson.

At sentencing, the court imposed a twenty-year persistent offender term with a ten-year period of parole ineligibility on the arson conviction; a term of eighteen months with nine months of parole ineligibility for the retaliation offense; and a term of six months for the criminal mischief offense. The latter two sentences were imposed concurrent with each other and consecutive to the sentence on the arson conviction. On direct appeal, we affirmed. State v. Byard, 328 N.J. Super. 106 (App. Div. 2000). The Supreme Court denied defendant's petition for certification. State v. Byard, 165 N.J. 490 (2000).

Defendant petitioned for post-conviction relief (PCR). Judge Clark reviewed the trial transcripts, and following three days of argument, denied the petition. On appeal from the order denying his application, defendant raises the following issues:

POINT I

THE JUDGE ERRED IN HOLDING THAT THE DEFENDANT FAILED TO ESTABLISH THAT HE HAD RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND AN EVIDENTIARY HEARING SHOULD HAVE BEEN GRANTED.

POINT II

THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AND AN EVIDENTIARY HEARING SHOULD HAVE BEEN GRANTED.

We have considered all of the arguments raised in light of the record and conclude that they are without merit. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Clark over the course of the PCR proceedings. We address only the issue of videotaping the testimony of Teresa Whitfield.

To place that issue in context, we briefly review the facts. In September 1995, defendant had a dispute with the owner of Nanny's Grocery Store. Subsequently, three separate fires were set to the store. A fire was also set to the M & B Grocery Store. Defendant was charged with setting the fire at M & B and two of the fires at Nanny's.

The primary issue raised in defendant's PCR petition concerns the trial court's decision to permit Teresa Whitfield, a key State's witness, to testify by videotape. The judge made that determination based on medical information she had received indicating that Whitfield may have had tuberculosis.

At the time, the trial had been ongoing for more than a week. The morning of Whitfield's proposed testimony, Thursday, March 19, 1998, the prosecutor informed the judge that according to Whitfield's radiologist, an x-ray showed that Whitfield had a spot on her lung that may have been tuberculosis. Whitfield had been given a sputum test, but it would have taken ten to fourteen days to receive the results. If the results were positive, Whitfield would have potentially required additional treatment. Though the judge also received information that the risk of Whitfield's transmitting the disease to others would be negligible, she nevertheless did not believe the jury should be placed at risk of contracting tuberculosis. Consequently, the judge ordered that Whitfield's testimony be taken in an adjoining courtroom. The judge, the prosecutor, defendant and his attorney would be present; and the proceedings would be videotaped. While she was testifying, Whitfield would wear a protective mask.

Before the jury viewed the videotape, the judge instructed the jury as follows:

Miss Teresa Whitfield . . . is going to . . . testify to one of the counts [relating] to, allegedly Mr. Byard hiring her to set the first grocery store on fire. . . .

There has been some question in the last week as to whether she has tuberculosis, and obviously I would never ever put the jury in any risk. We have been gathering records, attempting to gather records, attempting to have her tested.

My understanding is that . . . an x-ray this morning indicates that there is a spot on her lung which could be tuberculosis, and there's an x-ray in January that could be indicative, but we're not sure and it would take testing that would take at least another two weeks.

Now, I am satisfied from the medical information that I have that it is a negligible risk. If she is wearing a mask[;] however . . . you didn't sign on . . . for a negligible risk. . . . Since I am satisfied it's a negligible risk, what we are going to do this afternoon is videotape her testimony in another courtroom without the jury there, and we're going to play the testimony for you tomorrow morning.

I am not putting the jury in even a negligible risk . . . . My responsibility is to protect everyone. She may or may not have it. If she does have it my understanding [is] it's a very negligible risk and wearing a mask will minimize it further.

So we're going to do the testimony, but I don't want the jury worrying about it, so we're going to videotape her testimony. . . . [I]t will be done in another courtroom. I will be on the bench. The defense attorney and the Prosecutor will question her; the defendant will be here. It will be completely videotaped and played for you tomorrow morning. We're going to do that at 1:30.

. . . .

. . . The credibility of Miss Whitfield is entirely up to you. The State will conduct direct and the defense will conduct cross and it will be the jury's decision.

This is simply my decision regarding the health issue. The attorneys can ask questions related to what may have happened in the last week, both of them can ask questions and you will have the full testimony for your consideration. . . .

Whitfield testified according to the procedure established by the court. In our prior decision, we summarized her testimony as follows:

Teresa Whitfield (Whitfield) testified about the events surrounding a fire at the M & B Grocery Store on September 11, 1995. She testified that in the early morning hours of September 11, 1995, defendant was smoking blunts - cigars filled with marijuana and laced with cocaine - with her and another woman identified only as "Chickie."1 Whitfield was a long-time drug addict who claims to have known defendant from grammar school and from the Christopher Columbus Projects (CCP) where they both resided at the time. According to Whitfield's testimony, the three were smoking the blunts near the M & B Grocery Store located at One Circle Avenue in Patterson about one block from Nanny's.

Whitfield testified that defendant complained to the two women about being harassed by the grocery store owner who called the police on him. Defendant complained about losing his drug stash as a result of the incident and expressed his desire to "get the m....r f....r," and that he wanted to "torch the place." Although at the time defendant did not indicate which place he wanted to torch, Whitfield offered to do it for $75.

According to Whitfield, defendant urged her to use gasoline but she refused, instead retrieving alcohol from an acquaintance living in the CCP. Whitfield testified that she then proceeded to the M & B Grocery Store, splashed the alcohol on the side of the building and lit it with a match. Upon returning to CCP, Whitfield was confronted by defendant who said "it was the wrong f.....g store." Defendant then demanded that Whitfield return to burn the "right store." She refused.

__________________

1 At the time of trial, Ms. Whitfield was suffering from AIDS and Tuberculosis. As a result, her testimony was videotaped and then later showed to the jury.

Defendant claims the trial judge's decision to allow Whitfield to testify by videotape was error, and appellate counsel was ineffective because he failed to raise the issue on direct appeal. We agree that this issue should have been raised on direct appeal, but conclude that the failure to do so did not constitute ineffective assistance of counsel, as the court's decision to permit Whitfield to testify by videotape was not an abuse of discretion.

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). The New Jersey Constitution affords defendants the same right to counsel. N.J. Const. art. I, 10.

To establish a prima facie case of ineffective assistance of counsel, a defendant must first show that defense counsel's performance was indeed deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, a defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The Supreme Court of New Jersey has adopted the Strickland test and its precepts. State v. Fritz, 105 N.J. 42, 58 (1987). Because "prejudice . . . is not presumed," id. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

Here, we agree with the trial judge that under the circumstances presented, Whitfield qualified as an unavailable witness so as to permit taking her testimony by videotape. See R. 3:13-2. Defendant was not deprived of his right to confrontation. As we have explained in the past:

Although the confrontation clause reflects a preference for face-to-face confrontation and the importance of the right of cross-examination, it does not guarantee an absolute right to a face-to-face meeting. Occasionally, this preference must give way to considerations of public policy and the necessities of the case. The confrontation clause does not mandate eye-to-eye contact between the jury and the witness. Rather, it is to allow the defendant to confront witnesses against him.

[State v. Rodriguez, 264 N.J. Super. 261, 274 (App. Div. 1993) (citations and quotations omitted).]

In Rodriguez, supra, a key State's witness was hospitalized following a heart attack. Id. at 270-71. Before being hospitalized, the witness had testified on direct examination. Ibid. The judge permitted his cross-examination to take place in the hospital and be videotaped to be shown to the jury at another time. Id. at 273. The defendants challenged that decision. We affirmed, concluding that

a clear public policy was furthered in allowing the trial to proceed where a material witness could not testify in court, particularly in the circumstances of this case where his testimony is interrupted by illness, perhaps precipitated by threat or fear, during the course of the trial in which he had already testified in part. There was no violation of any state or federal constitutional right of the defendants, . . . and hence no violation of defendants' confrontation rights in this case.

[Id. at 274 (citations omitted).]

Here, we arrive at the same conclusion. While the witness was not literally unavailable, the court did not abuse its discretion in permitting the videotaped testimony under the circumstances. Defendant was present in the courtroom when the witness testified and was able to confront and cross-examine her. The judge and both counsel were present. Only the jury was not in the courtroom at the time. Nevertheless, the jury had an opportunity to observe the entire proceeding as if it had been present.

The trial judge reasoned that the jury should not be exposed to tuberculosis. The trial had been in progress for more than a week. The court did not find that a postponement was warranted, especially because, if tuberculosis was confirmed by the sputum test, the witness would likely have required additional treatment, further delaying her testimony. Nor, given the length of the trial and the availability of a solution to the problem, did the court consider it necessary to declare a mistrial. These were reasonable decisions.

The medical information provided to the judge was sufficient to support the court's conclusion that the witness was for all intents and purposes unavailable. The judge was entitled to rely on what were essentially uncontested representations concerning the witness's medical condition. The court adequately instructed the jury as to the reasons for the videotaped testimony. Under these circumstances, the judge protected the rights of all parties to the proceedings. She did not abuse her discretion.

Affirmed.

 

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A-4668-04T4

November 20, 2006