STATE OF NEW JERSEY v. WILLIAM CHISOLM A/K/A WILLIAM JORDAN

This case can also be found at 198 N.J. 311.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4914-05T44914-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM CHISOLM A/K/A WILLIAM JORDAN,

Defendant-Appellant.

____________________________________________________

 

Argued October 22, 2008 - Decided

Before Judges Cuff, Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-01-0086.

James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Smith, of counsel and on the brief).

Sara A. Friedman, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Ms. Friedman, of counsel and on the brief).

PER CURIAM

In this appeal, we reverse defendant's conviction for first-degree murder and remand for a new trial because the trial judge mistakenly failed to instruct the jury regarding the lesser-included offenses of aggravated and reckless manslaughter and mistakenly precluded defense counsel's cross-examination into a key witness's possible motivation for testifying favorably for the State.

I

Defendant was indicted and charged with the first-degree murder, N.J.S.A. 2C:11-3(a)(1), of his estranged wife, Tracy Wright, on July 14, 2004. A trial took place over the course of nine days in January 2006, at the conclusion of which the jury found defendant guilty. On March 17, 2006, the trial judge sentenced defendant to a fifty-year prison term, with a ten-year period of parole ineligibility. Seven days later, before a judgment of conviction was entered, the judge stated on the record that he had neglected to apply the No Early Release Act, N.J.S.A. 2C:43-7.2, and amended the sentence to a fifty-year term, with an 85% period of parole ineligibility, and an additional five-year period of parole supervision upon release.

Defendant appealed, raising the following arguments for our consideration:

I. GIVEN THE ALMOST TOTAL ABSENCE OF EVIDENCE ABOUT THE MANNER AND CIRCUMSTANCES OF DEATH, THE TRIAL COURT'S REFUSAL TO CHARGE THE JURY ON AGGRAVATED AND RECKLESS MANSLAUGHTER WAS REVERSIBLE ERROR AND DENIED DEFENDANT HIS RIGHT TO DUE PROCESS OF LAW.

II. THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE TRIAL COURT PRECLUDED DEFENSE COUNSEL FROM CROSS-EXAMINING CHRIS MORRIESON ABOUT THE FACT THAT HE WAS ON LIFETIME PAROLE PURSUANT TO THE COMMUNITY SUPERVISION FOR LIFE STATUTE.

III. THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO BE FREE FROM DOUBLE JEOPARDY WHEN, IN ORDER TO CORRECT AN ILLEGAL SENTENCE, IT INCREASED HIS PAROLE DISQUALIFIER BY OVER TWELVE YEARS AND ADDED A SPECIAL PAROLE TERM.

We agree that the jury should have been instructed on aggravated and reckless manslaughter, N.J.S.A. 2C:11-4, and that defense counsel should have been permitted to cross-examine regarding the interest a key witness may have had in testifying favorably for the State. These holdings, either separately or in confluence, require the reversal of the judgment of conviction and a new trial. As a result, we need not reach the argument raised in Point III.

II

During the trial, the jury heard the testimony of numerous witnesses regarding the circumstances surrounding the death of Tracy Wright. That evidence revealed the following.

On the morning of Wednesday, July 14, 2004, Tracy dropped her children off at daycare at approximately 8:30 a.m., and then went to a rooming house in Newark, where she arrived at defendant's third-floor room a short time later. After her arrival, Christopher Morrieson, who lived in another room on the third floor, overheard Tracy say to defendant, "I didn't come over here for that," followed by a scream and then "dead silence." When Morrieson asked later that night about the scream, defendant told him that he "just roughed her up a little bit."

Tracy did not pick her children up from daycare that evening, and her stepfather reported her missing the next day. A police investigation ensued. When questioned, defendant told police he had not seen Tracy for about two weeks.

On Tuesday, July 27, 2004, the owner of the rooming house, who resided on the first floor, contacted the police to report a decomposing body in his basement. The police observed that the body, which had reached an advanced stage of decomposition from the waist up, was covered with maggots and insects, clothed in a t-shirt, bra, and panties, laid-out on plastic bags, sprinkled with a "white powdery substance", covered with a blanket, and hidden behind an unused door that rested against the wall. The police also found a lit, scented candle near the body.

The owner and defendant were questioned at the scene. Defendant indicated he did not know who the person was, suggesting it could be a homeless girl who had stayed with him on a number of occasions. Defendant did not then tell the police that Tracy was missing.

Both the owner and defendant accompanied police to the station house to answer additional questions as the police began gathering evidence in an attempt to ascertain the dead woman's identity. At the station house, the officers who were conducting the missing-person investigation overheard the homicide detectives, and indicated that Tracy, defendant's estranged wife, was missing. Detectives confronted defendant about his omission, read him his Miranda rights, and secured a search warrant. In searching defendant's room, police found women's jewelry, a woman's watch, and a scented candle that matched the candle found lit next to the body in the basement. The police also gathered clothing, bedding, and other materials from defendant's room and the adjoining common hallway for analysis.

In comparing dental records, the body in the basement was identified as that of Tracy Wright. A friend identified the woman's watch as belonging to Tracy. Also, the white powdery substance found on and around the body was analyzed and determined to be chemically consistent with a carpet deodorizer.

Defendant was arrested for Tracy's murder and held in the county jail, where his cellmate was Eric Jones. During their conversations, defendant allegedly told Jones that he "choked the life out of" Tracy because he thought she was "playing with his feelings" and he wanted "to fix that bitch" for acting that way. Defendant said that Tracy came to his room that morning to get money for the children's school pictures. He allegedly told Jones he wanted to have sex with her, but she refused, so he pushed her on the bed, and "when he was finished with her" he began to "choke the life out of her." According to Jones, defendant reported that he initially stopped and let Tracy go, but as she proceeded toward the door, he walked up behind her and choked her again with his arm until she died. He laid the body on his bed, where it remained for the rest of that day. Defendant allegedly told Jones that the following day he moved Tracy's body to the basement where he attempted to conceal the smell with a lit candle and laundry detergent.

Forensic analysis of the materials seized from defendant's room revealed that the carpet in front of defendant's bed all the way to the doorway of the bedroom "contained a positive reaction for blood stains," as did some t-shirts, two pillows and pillow cases, and a flat beige bed sheet. The police also found a blood smear "on a third floor hallway wall just outside the [defendant's] bedroom door . . . [a]nd . . . a small section of carpet containing blood stains which was found on the third floor landing."

A forensic DNA scientist was not able to extract DNA from the body. As a result, the initial analysis of the seized materials yielded limited conclusions. However, after analyzing DNA samples from both of Tracy's parents, the scientist was able to identify a DNA profile for Tracy and testified that she was unable to exclude Tracy as being a minor contributor to a blood stain found on one of the t-shirts. She also testified that statistically, the "number of people who cannot be excluded . . . is approximately 1 in 466 of the African-American population, 1 in 321 of the Caucasian population and 1 in 831 of the Hispanic population." However, the scientist testified that she "either could not generate a result or [Tracy] was excluded" as being a contributor in the samples of all the remaining seized items.

A pathologist called by the State testified about the results of an autopsy. He described Tracy's skull as "badly decomposed" and indicated that it had "become separate[d]" from her body when moved from the basement. He also found "no fractures and no defects to the bony portion of the skull" and "no evidence of fractures on any of the bony parts of the body." The pathologist testified that the condition of the hyoid bone, which was described as a very small bone in the neck, is "a key" factor in determining strangulation, asserting that in "half" the cases where a female has been strangled, the hyoid is broken. However, due to the advanced stage of decomposition, the hyoid was missing and, thus, the pathologist could only conclude that "the cause of death was a violent death of undetermined etiology and that the manner of death [was] a homicide."

III

We conclude that the judge's failure to provide the jury with the opportunity to consider whether defendant committed aggravated or reckless manslaughter was erroneous. Because the testimony of Morrieson relating to what was heard from defendant's room and the testimony provided by Jones as to defendant's description of what had occurred were subject to interpretation, we conclude there was a rational basis for a finding of either aggravated or reckless manslaughter and the judge's refusal to give such instructions was erroneous and of significant magnitude to warrant a new trial.

In rejecting the State's arguments that a charge of lesser-included offenses was not proper, we conclude that (a) defendant's failure to clearly request an instruction on aggravated or reckless manslaughter does not bar the relief he now seeks, (b) there was a rational basis for a jury determination of a lesser offense than purposeful murder, and (c) the nature of Tracy's death did not necessarily bespeak only purposeful murder.

A

We first consider the State's argument that at trial defendant only sought a jury instruction on passion/provocation murder, N.J.S.A. 2C:11-4(b)(2), and he should not now be heard to complain that the trial judge erred in failing to charge aggravated or reckless manslaughter.

The colloquy during the charge conference largely supports the State's view of defendant's contentions at the time, but we also observe that at one point during the conference, defense counsel argued that Morrieson's testimony suggested he heard arguing or fighting inside defendant's room that "elevate[d] the level of emotions in that room to where at least a charge of manslaughter, if not passion/provocation, would be involved." Although the point could have been made with greater clarity, we are satisfied that defendant raised the issue with the trial judge and our review is not limited to a determination of whether the judge's failure to instruct the jury on this point constituted plain error. Indeed, the record reveals that the trial judge correctly recognized that he had an independent obligation to determine whether the facts rationally supported the finding of a lesser-included offense, as was also the case in State v. Jenkins, 178 N.J. 347, 360 (2004), where the Court found that this independent obligation overrode any contention that the defendant there, who had urged that lesser-included offenses not be charged, was barred from urging as error the failure to charge lesser-included offenses; instead, the Court held that, despite the entirely contrary position defense counsel took at trial, defendant was entitled to have the matter reviewed through application of the plain-error standard. Ibid.

Here, defense counsel's comment, which we quoted above, would suggest that defendant had requested instructions on aggravated and reckless manslaughter. However, we need not further consider the sufficiency of defendant's objection to the charge ultimately given because the application of the plain-error standard mandates reversal. "[E]rrors in the charge to the jury on material issues are viewed as 'poor candidates for rehabilitation under the harmless error philosophy.'" State v. Garretson, 313 N.J. Super. 348, 355 (App. Div. 1998) (citations omitted), certif. denied, 156 N.J. 428 (1998). That is, the plain error standard requires reversal if the error was "clearly capable of producing an unjust result." State v. O'Carroll, 385 N.J. Super. 211, 224 (App. Div.), certif. denied, 188 N.J. 489 (2006). Even if we were to strictly interpret defendant's arguments during the charge conference and assume that a manslaughter instruction was not requested, we would remain convinced that the plain-error standard was met and that the failure to charge the lesser-included offenses of aggravated and reckless manslaughter was capable of producing an unjust verdict. In short, it is a truth universally acknowledged that "[e]rroneous instructions on matters or issues that are material to the jury's deliberation are presumed to be reversible error in criminal prosecutions." State v. Jordan, 147 N.J. 409, 422 (1997); see also Jenkins, supra, 178 N.J. at 361; State v. Warren, 104 N.J. 571, 579 (1986).

B

N.J.S.A. 2C:1-8(e) provides that a "court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." This statute has been interpreted to require both "a rational basis in the evidence for a jury to convict the defendant of the included offense" and "a rational basis in the evidence for a jury to acquit the defendant of the charged offense before the court may instruct the jury on the uncharged offense." Garretson, supra, 313 N.J. Super. at 353-54. An offense is lesser-included if it can be "established by proof of the same or less than all the facts required to establish the commission of the offense charged." N.J.S.A. 2C:1-8(d)(1).

As we have observed, even when neither party requests such a charge, the trial judge "has an independent obligation" to instruct the jury about lesser-included offenses "when the evidence 'clearly indicate[s] that a jury could convict on the lesser while acquitting on the greater offense.'" O'Carroll, supra, 385 N.J. Super. at 224 (quoting Jenkins, supra, 178 N.J. at 361). In determining the proper scope of a jury charge, the trial judge should examine the adequacy and sufficiency of the evidence, draw "all inferences that 'logic and common sense' will allow," and consider that, once properly charged, the jury "has the power to disregard even overwhelming proof of culpability and either acquit entirely or convict of a lesser-included offense." State v. Crisantos, 102 N.J. 265, 273, 281 (1986).

In applying these principles here, we must turn to the Legislature's definition of the various types of homicide. Murder occurs when an actor "purposely . . . [or] knowingly causes the death or serious bodily injury resulting in death" of another. N.J.S.A. 2C:11-3(a). Aggravated manslaughter occurs when the actor causes death under circumstances "manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a). Reckless manslaughter occurs when the homicide is either committed "recklessly," N.J.S.A. 2C:11-4(b)(1), or "in the heat of passion resulting from a reasonable provocation," N.J.S.A. 2C:11-4(b)(2).

Our Supreme Court has explained the different elements of these offenses in the following way:

In State v. Cruz, 163 N.J. 403 (2000), . . . we addressed the differences between the state-of-mind requirement for aggravated manslaughter and the state of mind required for murder premised on the infliction of serious bodily injury, i.e., "SBI murder." We explained that SBI murder involves a higher degree of culpability than does aggravated manslaughter. Id. at 417. Aggravated manslaughter requires the State to prove that "the defendant was aware of and consciously disregarded a substantial risk of death, i.e., a probability that death would result, and that the defendant manifested extreme indifference to human life." Ibid. (emphasis added). However, to obtain a conviction for "purposeful" SBI murder, the State must do more. It must demonstrate that "defendant's conscious object [was] to cause serious bodily injury that then resulted in the victim's death" and that defendant "knew that the injury created a substantial risk of death and that it was highly probable that death would result." Id. at 417-18 (emphasis added). Similarly, to prove "knowing SBI murder, the State must make the same showing, except that, rather than proving that serious bodily injury was defendant's conscious objective, it need only demonstrate that he "was aware that it was practically certain that his conduct would cause serious bodily injury." Id. at 418 (emphasis added).

Thus, the following key distinctions emerge. To be guilty of SBI murder, the defendant must have knowingly or purposely inflicted serious bodily injury with actual knowledge that the injury created a substantial risk of death and that it was "highly probable" that death would result. In aggravated manslaughter, by contrast, the defendant must have caused death with an "awareness and conscious disregard of the probability of death." If, instead, the defendant disregarded only a "possibility" of death, the result is reckless manslaughter. State v. Breakiron, 108 N.J. 591, 605 (1987); State v. Pearson, 318 N.J. Super. 123, 136 (App. Div. 1999).

[Jenkins, supra, 178 N.J. at 362-63.]

In concluding that the jury here should have been instructed on more than purposeful murder, we are guided by the Jenkins Court's application of these principles.

In Jenkins, defendant and some friends were approached by Arthur Thomas who sought to purchase drugs. Id. at 354. Once the transaction occurred and Thomas walked away, defendant recognized Thomas. Ibid. Defendant had once been tried for murder, for which he was acquitted, and Thomas had testified against him. Ibid. Upon recognizing Thomas, defendant then

picked up a brick, and slammed it into the back of [Thomas's] head. Reeling from the blow, Thomas fell down a flight of stairs and landed headfirst on the concrete below. Autopsy evidence indicated that being struck by the brick likely caused Thomas to lose consciousness, but that he ultimately died from skull and brain injuries resulting from his fall to the pavement.

[Ibid.]

At the charge conference in Jenkins, the defendant successfully convinced the judge not to instruct on lesser-included offenses, preferring to take his chances on the jury's choice between purposeful murder or acquittal. Id. at 356. The defendant changed his tune, however, after he was convicted of first-degree murder; he argued on appeal that the judge should have charged the lesser-included offenses of aggravated and reckless manslaughter.

The Court held that the doctrine of invited error had no application because of the trial judge's independent obligation to instruct on lesser-included offenses that are rationally supported by the evidence. Id. at 360. However, the Court held that because defendant had not objected to the lack of instructions on lesser-included offenses, the matter should be reviewed under the plain-error standard. Ibid.

In so examining the failure to charge aggravated or reckless manslaughter, the Jenkins Court observed that the trial judge had "focused on the purposeful, knowing, and intentional nature of defendant's alleged striking of the victim," but held that "the proper inquiry in distinguishing murder from the two degrees of manslaughter relates to defendant's state of mind as to the risk of death." Id. at 363. The Court recognized that a jury could have drawn different conclusions about defendant's state of mind:

A jury could have concluded that defendant struck Thomas in order to kill him or with knowledge that death was certain or highly probable. However, the facts indicate that the jurors also could have rationally concluded that defendant struck the victim not knowing that serious bodily injury would result in the victim's death, or not knowing that the injury created a substantial risk of death and that it was highly probable that death would result. That is, the jurors could have found that defendant consciously disregarded a known risk that created the possibility or probability that death would follow from his conduct.

The expert testimony indicating that it was not defendant's blow but rather the subsequent fall to the pavement that caused Thomas's death provides significant support for that conclusion inasmuch as the jury need not have concluded that defendant struck Thomas intending or knowing that the blow would cause him to fall down the stairs. That being the case, the trial court was obligated to instruct on manslaughter and aggravated manslaughter as well as murder. As the Appellate Division held, the failure to do so constitutes reversible error warranting a new trial.

[Id. at 363-64.]

We have quoted from Jenkins at length not only because of its obvious importance in emphasizing the trial judge's independent obligation to instruct on lesser-included offenses regardless of a defendant's tactical position, but also in its careful analysis of the different requirements of the statutory offenses and how -- even when a defendant's acts are readily ascertainable -- a defendant's mens rea may remain uncertain. As Jenkins instructs, when the defendant's state of mind is debatable, a jury must be given the opportunity of determining the offense that best fits its understanding of the facts. In adhering to the Jenkins Court's analysis, we conclude that the trial judge mistakenly failed to provide the jury with the opportunity to properly fix the nature of the offense once it ascertained what had factually occurred.

Here, defendant's alleged actions are less clear than they were in Jenkins. Witnesses saw Jenkins strike Thomas with a brick; no one saw what transpired between defendant and Tracy. Expert testimony in Jenkins indicated that the blow from the brick probably caused unconsciousness and Thomas's subsequent fall caused the neck and skull injuries that brought about Thomas's death; here, expert testimony could not provide a precise description of the cause of death, only that it was "a violent death of undetermined etiology." Despite the clear understanding of the cause and manner of death in Jenkins, the Court concluded that Jenkins's state of mind remained subject to interpretation and the jury should have been entitled, through instructions regarding lesser-included offenses, to determine what that state of mind was. Here, the cause and manner of Tracy's death were nowhere near as clear as the circumstances in Jenkins. In light of the uncertainty about the precise cause of death, the testimony regarding overheard words and sounds from another room, and a fellow inmate's claim of what defendant told him about the incident, we conclude that defendant's state of mind here, like Jenkins, was a matter of dispute to be resolved by the jury.

The only indications of what had occurred, assuming Tracy's death came at the hands of defendant, were provided by the testimony of Morrieson, who claimed to have heard sounds coming from defendant's room, and by the testimony of Jones, who recounted what defendant allegedly told him while they were incarcerated together. The jury could have believed some, none or all of this evidence. And, depending upon what the jury might have found credible, it could have found defendant guilty of aggravated or reckless manslaughter. The trial judge, however, unduly restricted the jury's deliberations by providing it with only two choices: purposeful murder or acquittal.

That is, the potential for a jury finding that defendant committed a lesser-included offense or purposeful murder turned on whether or to what extent the jury either credited or interpreted the meaning of the testimony of Morrieson and Jones. Explaining that his room was on the same floor and near defendant's room, Morrieson asserted he had a "[g]ood relationship" with defendant and they spoke daily about defendant's situation with his wife. He claimed to know that defendant and Tracy "were having some difficulties" because defendant "had been violent towards his son." With this as a backdrop, defendant argued during the charge conference that Morrieson's testimony suggested he had heard arguing or fighting inside the room, which would "elevate the level of emotions in that room to where at least a charge of manslaughter, if not passion/provocation, would be involved." We agree that the jury could have rejected Morrieson's testimony or, if accepted, could have interpreted what Morrieson allegedly overheard as suggestive of something less than a purposeful murder.

The jury could have also rejected Jones's testimony or derived an interpretation different from what the State advocated. That is, Jones testified that defendant said he "choked the life out of" Tracy. The State forcefully argues that this testimony reveals that defendant intended to kill her. However, the statement could also reasonably be interpreted as simply stating a fact -- that defendant had caused Tracy's death by choking her -- not necessarily that he intended to choke the life out of her. The judge's instructions, however, limited the jury to rendering only one of two findings, i.e., either defendant committed purposeful murder or he was not guilty. As defendant has correctly argued, the evidence rationally allowed for defendant's conviction on a lesser-included offense, and he was entitled to have the jury instructed about his theory of the case so long as the jury could rationally make such a finding, Mathews v. United States, 485 U.S. 58, 63, 108 S. Ct. 883, 887, 99 L. Ed. 2d 54, 66 (1988); State v. Martin, 119 N.J. 2, 16 (1990); State v. Sloane, 111 N.J. 293, 303 (1988); State v. Echols, 398 N.J. Super. 192, 210-11 (App. Div.), certif. granted, 195 N.J. 522 (2008), even when that theory is supported only by "[v]ery slight evidence," State v. Powell, 84 N.J. 305, 317 (1980); Echols, supra, 398 N.J. Super. at 211; State v. Moultrie, 357 N.J. Super. 547, 556 (App. Div. 2003). We are satisfied from the content and nature of the evidence that there was a rational basis for the jury to find that Tracy's death was the result of aggravated or reckless manslaughter, and the judge's decision not to instruct the jury on these offenses was erroneous.

C

We lastly make mention of the State's argument that the matter at hand is distinguishable from Jenkins because the very nature of the homicide provides persuasive evidence of defendant's state of mind. That is, the State relies upon State v. Bey, 129 N.J. 557, 579-80 (1992), cert. denied, 513 U.S. 1164, 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995), where the Court observed that "strangulation is commonly understood as a form of violence designed and likely to kill a victim, and hence would ordinarily not be used by one whose purpose was only to inflict serious bodily injury," and that it is an "essentially brutal means of killing because it requires the murderer to witness the victim's gradual death throes." The State contends that defendant strangled Tracy to death and that this conduct bespeaks only an intent to kill or inflict serious bodily injury.

We reject State's argument that the nature of Tracy's death precludes defendant's right to have the jury consider whether defendant committed aggravated or reckless manslaughter. First, the medical examiner did not conclude that Tracy's death was the product of strangulation, but could only say she suffered "a violent death of undetermined etiology." Thus, the premise for the State's argument was not established through expert testimony and depended upon Jones, defendant's cellmate, who testified, as we have mentioned, that defendant told him that he "choked the life out of" Tracy.

Moreover, it is neither the trial judge's role, nor ours, to judge the credibility of the testimony regarding the precise cause of death in determining the type of offense that may have occurred here. It was the jury's role. Jenkins, supra, 178 N.J. at 363; O'Carroll, supra, 385 N.J. Super. at 231. If the jury rejected Jones's credibility or interpreted it differently than the State advocates, which the jury had the right to do, then the persuasiveness of the State's theory that this was a purposeful murder would have been dealt a serious blow.

In addition, we reject the State's argument that a strangulation is solely determinative of the actor's state of mind. In O'Carroll, supra, 385 N.J. Super. at 232, we held that a similar contention by the State -- that "the 'only' possible mens rea in a strangulation case is 'knowing and purposeful' murder" -- was "simply inaccurate." In so holding, we relied upon Justice Handler's discussion of the issue in his dissenting opinion in Bey, and the empirical data there provided:

[T]his case should not be made to turn on an unenlightened discourse on strangulation, particularly among judges who know little about it . . . choking -- like beating -- is used commonly to overpower people without killing them . . . jury verdicts and prosecutorial charging decisions suggest that New Jerseyans often believe that strangulation deaths are unintended. . . .

Data collected by the Administrative Office of the Court and Professor David Baldus, Special Master of our Proportionality Review Project, indicate the following: of the eighty strangulation homicide cases occurring over the last decade in which strangulation was the leading cause of death and there was no doubt about the identity of the person who had committed the homicide, only forty-four resulted in convictions for knowing or purposeful or serious-bodily-injury murder. Thirty-six resulted in convictions for lesser crimes; five of those resulted in convictions for manslaughter, twenty-five for aggravated manslaughter, and eight for felony murder.

[O'Carroll, supra, 385 N.J. Super. at 232-33 (quoting Bey, supra, 129 N.J. at 629-30 (Handler, J., dissenting).]

We continue to adhere to this view.

In the final analysis, it is for the jury to ascertain not only what actions were taken but the state of mind of the actor. Here, as in O'Carroll, "we are neither predicting what a new jury would do nor suggesting credibility of the witnesses," but conclude that the jury was not required to accept only the State's theory that defendant intended Tracy's death or knew that her death was the likely result of his alleged actions. Id. at 233. Instead, as we held in O'Carroll, and as we hold here as well, the jury could have determined that defendant "consciously disregarded a known risk with either a probability or possibility that death would follow from his conduct." Ibid. As a result, the judge's failure to charge the jury on aggravated and reckless manslaughter "had a reasonable likelihood of leading [the] jury to an unjust result." Ibid.

IV

Defendant argues that his Sixth Amendment right of confrontation was unduly restricted when he was not permitted to cross-examine Morrieson about a potential motive he may have had for testifying favorably for the State. Defense counsel attempted to demonstrate during cross-examination that Morrieson, as a result of a prior conviction, was subject to community supervision for life, which is lifetime parole, a fact that might suggest it was in his interest to provide favorable testimony for the State. The State argues that defendant was simply attempting to create "a red herring" in order "to divert the jury's attention." The State further relies upon the trial judge's broad discretion to control the cross-examination of a witness embodied in N.J.R.E. 611.

The Confrontation Clause of the Sixth Amendment guarantees the right of an accused "to be confronted with the witnesses against him," which evinces the essential purpose of securing "the opportunity of cross-examination." Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986). In addition, our courts recognize that the state constitution provides an accused with a greater right "to explore potential bias on the part of a prosecution witness." State v. Holmes, 290 N.J. Super. 302, 313 (App. Div. 1996); see also State v. Mazur, 158 N.J. Super. 89, 104-05 (App. Div.), certif. denied, 78 N.J. 399 (1978).

In describing the scope of the federal constitutional approach, the Supreme Court observed that "a trial court may . . . impose reasonable limits on defense counsel's inquiry into the potential bias of a prosecution witness, to take account of such factors as harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that [would be] repetitive or only marginally relevant." Olden v. Kentucky, 488 U.S. 227, 232, 109 S. Ct. 480, 483, 102 L. Ed. 2d 513, 520 (1988) (internal quotation marks omitted). Nevertheless, the Court recognized that "a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby 'to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.'" Id. at 231, 109 S. Ct. at 483, 102 L. Ed. 2d at 519 (quoting Delaware v. Van Arsdall, supra, 475 U.S. at 680, 106 S. Ct. at 1436, 89 L. Ed. 2d at 684).

In describing the scope of our broader state constitutional right in this area, we have held that "[i]t is . . . relevant and significant for a defendant to demonstrate state of mind of the witness based on his subjective reactions to the favorable treatment he may have received or may hope to receive in connection with his own criminal involvement." Holmes, supra, 290 N.J. Super. at 313; see also Mazur, supra, 158 N.J. Super. at 104-05.

The constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to the harmless-error analysis described in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). See Olden v. Kentucky, supra, 488 U.S. at 232, 109 S. Ct. at 483, 102 L. Ed. 2d at 520; see also R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971). With such a standard, an error is harmless unless there is a reasonable doubt that the error contributed to the verdict. Macon, supra, 57 N.J. at 338; State v. Slobodian, 57 N.J. 18, 23 (1970). It is the State's burden to prove "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained" when constitutional rights are at stake. Chapman v. California, supra, 386 U.S. at 24, 87 S. Ct. at 828, 17 L. Ed. 2d at 710. See State v. Ingram, 196 N.J. 23, 50-51 (2008).

Defendant relies upon, and the State seeks to distinguish, the holdings of Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), and State v. Holmes, supra, 290 N.J. Super. 302. In Davis, the Court addressed the issue of whether, in a similar context, "the Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness' probationary status as a juvenile delinquent." 415 U.S. at 309, 94 S. Ct. at 1107, 39 L. Ed. 2d at 349. The defendant there was charged with larceny and burglary for the theft of a safe from a local tavern. One of the State's key witnesses was a juvenile who identified the defendant as the person he saw near his home, where the safe was later found. The State's witness was on probation at the time, and the defense sought to introduce that fact to suggest the witness's bias, i.e., that he "acted out of fear or concern of possible jeopardy to his probation." Id. at 311, 94 S. Ct. at 1108, 39 L. Ed. 2d at 351. The trial judge precluded this avenue of inquiry, even after the juvenile testified he had never been questioned by police before at any other time in his life, which was patently untrue. Id. at 313, 94 S. Ct. at 1109, 39 L. Ed. 2d at 352. On appeal, the Court concluded that

the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on [the witness's] testimony which provided 'a crucial link in the proof' [against the defendant]. The accuracy and truthfulness of [the witness's] testimony were key elements in the State's case against [the defendant]. The claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of [the witness's] vulnerable status as a probation-er, as well as of [the witness's] possible concern that he might be a suspect in the investigation.

[Id. at 317-18, 94 S. Ct. at 1111, 39 L. Ed. 2d at 354 (citations omitted).]

Likewise, in State v. Holmes, we considered a "credibility battle" in the context of a post-conviction relief application, and found that "defense counsel's performance was deficient" because he did not attack the credibility of the State's witness and the potential for bias. 290 N.J. Super. at 312. To that end, we pointed out that a "defendant has a right to explore, with a prosecution witness, evidence that the State has a 'hold' of some kind over the witness, the mere existence of which possesses the potential of prompting him to color his testimony in favor of the prosecution." Ibid. In so noting, we outlined the meaning and parameters of "bias" in this context, stating:

Bias is a term used in the "common law of evidence" to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness' like, dislike, or fear of a party, or by the witness' self-interest. Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony.

[Id. at 313 (quoting United States v. Abel, 469 U.S. 45, 52, 105 S. Ct. 465, 469, 83 L. Ed. 2d 450, 459 (1984).]

Here, during direct examination, the State elicited testimony from Morrieson that he told defendant that he heard a scream and asked what had occurred, to which, according to Morrieson, defendant said he "just roughed her up a little bit." Morrieson further asserted in response to the prosecutor's questions that he was concerned that this was going on nearby because of his own criminal record. As a result, the following examination ensured:

Q. Now, sir, you have a prior conviction. Correct?

A. Yes.

Q. And it's for first-degree aggravated sexual assault?

A. Yes.

Q. For which you were sentenced to 10 years prison and you received that sentence in 1997?

A. Yes.

Q. And when were you released?

A. April, 2003.

Q. Now, did you mention about this conviction to [defendant]?

A. Yes.

Q. Did you tell the other people in your household about this conviction?

A. Yes.

Q. And why did you do that, sir?

A. Because I think that to -- that it's wrong for me to make friends and not explain to them who I am. And so, I tried -- like I tried -- everybody that's in my company, I tried to explain to them who I am and what I did so that they can make a decision about me based on their own opinion.

Q. So, prior to [defendant] discussing his personal life with you, was he aware of this conviction?

A. Yes.

Q. Now, knowing your background, why are we to believe you, that you were concerned about Tracy?

A. Because I have -- I took a stance like in prison that I was going through therapy and I took a stance. We have a -- a motto and in the last two lines of the motto says: No more victims. No more victims. So, I'm concerned about -- I promised not to create no more victims and I'm concerned about other people that create victims.

Q. And did you call the police the night or the day that you heard the scream?

A. No.

Q. And why was that?

A. Because I -- I didn't think that it was something this drastic. I just thought I could come to [defendant] and ask him not to do that in my presence, or whatever happened, don't do it in my presence.

On cross-examination, defense counsel attempted to explore motivation for Morrieson's testimony:

Q. Mr. Morrieson, are you on parole?

A. No.

Q. Are you registered in the Community Supervision for Life Program?

A. Yes.

Q. Can you tell the [c]ourt what that is?

With this, the prosecutor objected, and the admissibility of Morrieson's response to the last question was discussed at sidebar.

Defense counsel argued that examining Morrieson about being on community supervision for life was relevant and supported by constitutional principles because he was attempting to demonstrate that Morrieson had provided a version of the facts different from his grand jury testimony, and that Morrieson may be "biased for the police in terms of cooperating with them, in terms of giving them the story that they want to hear," and that the reason Morrieson was "telling these stories differently is to cooperate so he doesn't get in trouble with the police." The judge responded that "[h]e's not gonna get in trouble with the police whether he cooperates or not because all he had to do is register." The judge's reference to "registering" suggests that the judge was of the view that Morrieson was only subject to the Megan's Law requirement of registering his current and any future change of residence.

In fact, because he was on community supervision for life (CSL), Morrieson was subject to having numerous circumstances in his life altered by government action. Despite Morrieson's denial that he was "on parole" during cross-examination, an individual on CSL is supervised by the Division of Parole "as if on parole." N.J.S.A. 2C:43-6.4(b). We, thus, reject as hyper-technical the State's attempt to distinguish Davis v. Alaska and State v. Holmes, because Morrieson was actually not on parole but only subject to CSL. In this setting, that was a legal distinction without a practical difference.

A person on CSL is subject to twenty-one enumerated conditions that widely limit an individual's freedom. See N.J.A.C. 10A:71-6.11(b). In addition, at the time of Morrieson's testimony, other conditions could be imposed on such persons through what the Supreme Court has since found to be "woefully inadequate" procedural protections. Jamgochian v. State Parole Bd., 196 N.J. 222, 245 (2008).

At present, N.J.A.C. 10A:71-6.11(b) imposes more than a score of conditions upon a person serving a special sentence of CSL. Among other things, such a person must: "[r]eside at a residence approved by the assigned parole officer"; "[o]btain the permission of the assigned parole officer prior to any change of residence"; "[o]btain the permission of the assigned parole officer prior to leaving the state . . . for any purpose"; "[c]ooperate in any medical and/or psychological examination or tests as directed by the assigned parole officer"; "[p]articipate in and successfully complete an appropriate community or residential counseling or treatment program as directed by the assigned parole officer"; "[s]ubmit to drug or alcohol testing at any time as directed by the assigned parole officer"; "[o]btain the permission of the assigned parole officer prior to securing, accepting or engaging in any employment, business or volunteer activity and prior to a change of employment"; "[c]omply with any curfew established by the assigned parole officer"; and "[s]ubmit to a search conducted by a parole officer, without a warrant, of the offender's person, place of residence, vehicle or other real or personal property within the offender's control at any time a parole officer has a reasonable articulable basis to believe that the search will produce contraband or evidence that a condition of supervision has been violated, is being violated or is about to be violated and permit the confiscation of any contraband." N.J.A.C. 10A:71-6.11(b)(5), (6), (7), (11), (12), (13), (14), (15), (17), (20). A person serving CSL is also required to abide by any special conditions that might be established on notice. N.J.A.C. 10A:71-6.11(l).

A violation of any of the enumerated or properly-imposed special conditions constitutes a fourth-degree offense carrying a presumption of imprisonment. N.J.S.A. 2C:43-6.4(d). At the time Morrieson testified, the applicable statute indicated that a person in his position could eventually obtain release from CSL "upon proof" that he "has not committed a crime for 15 years since the last conviction or release from incarceration, whichever is later, and that [he] is not likely to pose a threat to the safety of others if released from supervision." N.J.S.A. 2C:43-6.4(c). Now, N.J.S.A. 2C:43-6.4(c) requires that the "proof" be "by clear and convincing evidence." See Jamgochian, supra, 196 N.J. at 238 n.7.

The existence of this pervasive and long-term regulation of persons subject to CSL demonstrates the State's considerable "hold" over Morrieson. Considering the importance of Morrieson's testimony to the State's case, a limitation on defendant's right to cross-examine Morrieson about potential bias, based upon a misunderstanding of the extent of the State's hold over Morrieson, was erroneous.

Because the State failed to show beyond a reasonable doubt that the constitutional error complained of did not contribute to the verdict obtained, Chapman v. California, supra, 386 U.S. at 24, 87 S. Ct. at 828, 17 L. Ed. 2d at 710; Ingram, supra, 196 N.J. at 50-51, we conclude that the judge's erroneous limitation on defendant's cross-examination of Morrieson warrants a new trial.

V

We conclude that the trial judge's failure to instruct the jury on aggravated and reckless manslaughter, and the judge's ruling that defense counsel could not cross-examine Morrieson about a motive he may have possessed for testifying favorably for the State -- either individually or collectively -- were errors that require a reversal of the judgment under review and the conducting of a new trial. As a result, we need not address the sentencing issue raised in defendant's Point III.

Reversed and remanded for a new trial.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Defendant has not pursued on appeal the position asserted at trial that the judge should have instructed the jury on passion/provocation murder.

We recognize that defendant has only argued in this appeal that the judge erred in refusing to instruct the jury about aggravated and reckless manslaughter. However, despite choosing not to argue in this appeal that the judge erred in not instructing on passion/provocation murder, defendant is not precluded from again pursuing that argument at the new trial which will follow today's judgment.

We would also observe that the State's version of what occurred here is not entirely consistent with the circumstances that the Court referred to in Bey. The Court found the strangulation in Bey only suggested purposeful murder because, among other things, strangulation "requires the murderer to witness the victim's gradual death throes," 129 N.J. at 580, whereas here Jones testified that defendant told him that he choked Tracy from behind with his arm.

Indeed, Morrieson himself suggested this possibility when he testified that he expressed a concern to defendant, after the disturbance he overheard, that the trouble between defendant and Tracy was "put[ting] him in a bad predicament" and would require his need to cooperate with police if Tracy complained.

As we have observed, the judge mistakenly assumed that defense counsel was attempting to elicit information about the registration requirements of Megan's Law, rather than the far-reaching and long-term authority the State holds over a person serving CSL.

(continued)

(continued)

37

A-4914-05T4

November 26, 2008