STATE OF NEW JERSEY v. FORREST THOMAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FORREST THOMAS, a/k/a MALIK FOREST, THOMAS

FORREST, FORREST MALIK, FOREST THOMAS and

TYRONE THOMAS,

Defendant-Appellant.

____________________________________________

August 31, 2015

 

Submitted January 28, 2015 Decided

Before Judges Fuentes, Ashrafi and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-07-1771.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals his convictions for murder and disturbing human remains, and argues

POINT I

DAMAGING HEARSAY STATEMENTS BY THE DECEDENT WERE IMPROPERLY ADMITTED INTO EVIDENCE OVER OBJECTION. WHILE THE DECEDENT'S STATEMENTS INDICATING SOLELY HER STATE OF MIND I.E., HER INTENT TO HAVE HIM EVICTED MAY HAVE BEEN ADMISSIBLE UNDER THE "STATE OF MIND" HEARSAY EXCEPTION BECAUSE THEY PROVIDED A MOTIVE TO KILL, HER STATEMENTS DETAILING PRIOR BAD ACTS BY DEFENDANT WERE PLAINLY SIMPLY INADMISSIBLE HEARSAY WHICH CLEARLY TAINTED THE JURY'S DELIBERATIONS ON GUILT.

POINT II

UNDER BOTH THE CONFRONTATION GUARANTEES OF THE SIXTH AMENDMENT (AS APPLIED TO THE STATES THROUGH THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT) AND THE STATE CONSTITUTION, AS WELL AS UNDER OUR OWN STATE EVIDENCE RULES, THE ADMISSION, IN THIS CASE, OF ONE MEDICAL EXAMINER'S FINDINGS THROUGH THE TESTIMONY OF ANOTHER MEDICAL EXAMINER WAS THE MOST BASIC OF VIOLATIONS OF DEFENDANT'S RIGHTS. (Not Raised Below)

POINT III

WHEN THE JURORS REPORTED A DEADLOCK ON THE MURDER COUNT, THE JUDGE WAS OBLIGATED TO GIVE THE STATE V. CZACHOR1 DEADLOCK INSTRUCTION TO THEM. (Not Raised Below).

We have considered these arguments in light of the law and the facts, and we affirm.

I.

An Essex County Grand Jury returned Indictment Number 10-07-1771 on July 23, 2010, charging defendant Forrest Thomas with the knowing and purposeful murder of Carol Spratt, N.J.S.A. 2C:11-3(a)(1), (2), and second-degree disturbing human remains, N.J.S.A. 2C:22-1(a)(1). Before trial, the State filed a motion in limine to admit at trial certain hearsay statements made by the victim, Carol Spratt. Judge Peter V. Ryan held an evidentiary hearing pursuant to N.J.R.E. 104 and granted the State's motion on November 22, 2011.

In granting the motion, Judge Ryan stated

The state's theory and argument for the introduction of such state of mind evidence under N.J.R.E. 803(c)(3) is that the defendant was cognizant of the deceased's hearsay statements which are relevant to the issue of motive. The State relies . . . on State v. Calleia, 206 N.J. 274 (2011) which held

Thus, when a victim's state-of-mind hearsay statements are relevant to show the declarant's own conduct and when such conduct is known or probably known to the defendant, it also can give rise to motive, and the statements become admissible for that purpose, subject to the usual balancing under N.J.R.E. 403.

[Id. at 296].

After conducting a detailed recitation of the facts corroborated by the witnesses presented at the hearing, the trial court concluded that the testimony was admissible under the state-of-mind exception and said

In light of its unique probative function, a strong showing of prejudice is necessary to exclude motive evidence under the balancing test of N.J.R.E. 403. State v. Calleia, supra, 206 N.J. at 294 (citing State v. Koskovich, 168 N.J. 448, 486 (2001); [State v.] Covell, [] 157 N.J. [554, 570 (1999)]).

Understanding and clearly hearing the utterances of Carol Spratt is essential, while the second component is of equal, if not great importance the defendant must be aware of the decedent's state of mind. That said, a fact [can] only be probative on the question of motive if the defendant is aware of that fact.

. . . .

Bottomed on the facts established during the Rule 104 hearing and the case law applicable under N.J.R.E. 803(c)(3), this court concludes that the evidence proffered is plainly admissible. Although the State's attorney hasn't couched it in this precise language, the motive being presented is vengeance. As a consequence of Ms. Spratt's action, Thomas was deprived of housing and the source of his incessant thievery.

There is, however, one caveat. The testimony to be aired before the jury must be specific and contain only references to what the deceased victim endeavored to achieve and why. Extreme care must be taken to avoid the entry of collateral prejudicial information, for example, the fact that Thomas was drug addict, was jailed or had a criminal history. The actions employed by Thomas against the victim must be explained with causation and be generalized as much as possible. Further, the State must consider what witnesses will testify and limit the number it's the quality of the evidence not the quantum of evidence that must be considered.

Defendant was then tried before a jury, which returned a verdict finding him guilty on both counts of the indictment. Judge Ryan sentenced defendant to a term of life imprisonment with sixty-three years of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the murder conviction. Defendant was also sentenced to a concurrent term of ten years of imprisonment for disturbing human remains.

This appeal followed.

II.

We glean the following facts from the trial record.

Defendant and Spratt resided together in Spratt's apartment at a senior housing facility in Newark called New Community Gardens. Spratt moved there in 2005 with her daughter, Susan Rivas. Before Rivas's death one month later, defendant, Rivas's long-term boyfriend, moved into the apartment. Though defendant was not on the lease, he remained in the apartment after Rivas's death. Spratt suffered from emphysema, requiring an oxygen tank at all times, and used a wheelchair. She rarely left the apartment.

On December 6, 2005, Spratt complained to Celeste Bryant, an assistant care coordinator at New Community Gardens, that defendant stole her rent money and she would not be able to make her December rent payment. A few months later, Bryant approached Spratt to discuss Spratt's failure to pay rent and Spratt claimed defendant "lost" her check when he went to cash it. Spratt also complained on other occasions that defendant stole her food stamps as well as her rent money.

Andrea Rodrigues, an aide who helped care for Spratt, testified that defendant and Spratt would frequently argue. Rodrigues said that when defendant was mad at Spratt he would tell her to "shut up your fuckin' mouth" and "go fuck yourself." After these outbursts, Spratt would call Rodrigues, who would come to the apartment and comfort her.

On November 2, 2006, Spratt complained of abusive behavior by defendant and requested that he be banned from the building. Bryant completed the paperwork necessary to ban defendant from the building, but Spratt never signed the papers for the ban to go into effect. Instead, after defendant wheeled her into the building's office, Spratt requested the ban be rescinded, stating that she needed defendant and that they resolved the problem.

Spratt later attempted to have defendant banned from the building a second time. Again, she complained of defendant's behavior to Bryant and her caseworker, Mary Atkinwinton. After making the complaint, Spratt requested defendant not be banned, and the manager did not ban defendant because of her pleas. The manager said defendant would be permanently banned if there were any more complaints in the future.

In January 2010, defendant was banned from the building. On January 5, 2010, Spratt complained to Bryant that defendant stole some of her belongings. Spratt said she wanted defendant banned from the building, and was willing to sign the necessary paperwork.

The paperwork to ban defendant was drafted on January 8, 2010, and stated Spratt wanted to ban defendant because "he has stolen property from me and did various things around the building which could affect my residency at Garden Senior." Spratt signed the document on January 11, 2010.

Despite the ban, defendant returned to the apartment two days later on January 13, 2010. That day, Spratt, Rodrigues, and defendant went to the manager's office to rescind the ban, but the manager refused. The manager informed defendant that he was permanently banned, and defendant was "shocked." Defendant was escorted out of the building, but was told he could return for the day to retrieve his possessions.

Sometime after returning to the apartment, according to the State, defendant killed Spratt. According to the medical examiner, the killer grabbed Spratt by her wrists and then compressed her neck with a significant, sustained force. This force prevented her from breathing, and stopped the flow of blood between her heart and her head. The exact time of death and the instrument used by the killer could not be determined.

Defendant kept Spratt's corpse in the apartment for the next few days. Early on January 14, 2010, defendant called Rodrigues to tell her that Spratt fell, broke her ribs, and was in the hospital. Rodrigues went to the apartment the next day, but when she arrived, defendant exited the apartment, closing the door quickly behind him, and told Rodrigues that Spratt was "okay."

Defendant discarded Spratt's body on January 18, 2010. At 1:00 a.m., Azmar Randall, a security guard at the building, stopped defendant when he attempted to enter. Defendant was advised that he could not enter the building. Defendant claimed the ban had been rescinded, but, when Randall would not permit him to enter, defendant ran into an open elevator. Security guards could not locate defendant in the building, and were unable to enter Spratt's apartment to search there.

Defendant placed Spratt's body into two garbage bags, put the bags into a shopping cart, and covered the body with clothes and other items. At 3:00 a.m., defendant exited the building pushing the shopping card. On his way out, he told Randall he collected his possessions and would not be around anymore.

Defendant discarded the body, still in the shopping cart, in the dumpster area behind 180 South Orange Avenue. Later that day, the body was discovered by two scrap collectors. Additionally, Bryant called area hospitals to see if Spratt had been admitted and called Spratt's apartment after failing to locate her. Defendant answered the phone but hung up when Bryant asked to speak with Spratt.

Also on January 19, Raul Cruz, the building's superintendent, saw a note on Spratt's door that stated "do not disturb me, I'm tired, I'm sleeping." Cruz returned fifteen to twenty minutes later and found a new note on the door that said "gone to the hospital with my mother-in-law, she fell."

Later in the day on January 19, defendant approached Jose Corpening, Spratt's next-door neighbor, offering to sell him items from the apartment. Defendant told Corpening that Spratt fell, was now in the hospital, and was planning to move to Florida when she was discharged. Defendant appeared to be in a rush, but Corpening did not purchase anything.

On January 20, 2010, investigators from the Essex County Prosecutor's Office went to Spratt's building and spoke with the manager. He identified Spratt from the autopsy photograph, provided the investigators a picture of defendant, and told them Spratt's apartment number. On their way up to the apartment, the investigators encountered defendant. Defendant told them he lived in the apartment with his mother-in-law, and he was going to visit her at the hospital. Defendant agreed to be interviewed by the police.

At the police station, defendant was advised of his rights and gave a statement. Defendant claimed that on January 13 or 14, 2010, he returned to the apartment after being away for several hours and found that Spratt had fallen. Her oxygen cord was around her neck and she was gasping for air while calling out for defendant. Defendant claimed he picked her up, unwrapped the cord, and placed her into bed. Spratt told him that she was all right. Defendant then went into his bedroom, and several hours later he found her dead.

Three days later, between 4:30 and 5:00 p.m., defendant said he stuffed Spratt's body into two garbage bags, placed her into a shopping cart and left her in the dumpster area where the body was found.

When the detectives left the interview room, the video surveillance system recorded defendant removing Spratt's ATM and Family First cards from his wallet and attempting to hide them behind the molding in the interview room. The detectives retrieved the cards after the interview ended. Shortly after the interview, defendant was charged with Spratt's murder.

III.

We first address defendant's challenge to the admission of so-called hearsay statements made by three witnesses, Celeste Bryant, Andrea Rodrigues, and Cedrecian Simmons who provided the testimony that defendant now challenges. The witnesses generally testified that Spratt complained to them that defendant stole from her, argued with her, abused her, and that Spratt sought to have defendant banned from the building three times.

Defendant, in his brief, objects to the following specific testimony on appeal: Bryant claimed that Spratt had complained to her of thefts by defendant as early as December 2005 and February 2006. In November 2006, Bryant claimed, Spratt asked to have defendant evicted based on his "abusive" behavior toward her. Then there were two more requests to ban him, one of which was in early 2010 when Spratt alleged further thefts by defendant. Rodrigues testified that Spratt complained to her often about defendant stealing her money, and that those complaints were the reason why Spratt pinned her Family First and ATM cards into her pocket. Spratt said that she was fearful that defendant would steal from her if she did not pin those cards into her pocket. Rodrigues also claimed that defendant had been banned by Spratt in January 2010 because Spratt alleged he had stolen from her. Simmons testified that Spratt complained about defendant's conduct "several times" to her. She further testified that Spratt said defendant "had stolen her property and did various things around the building which could affect my residency."

On appeal, defendant argues that only Spratt's latest attempt to ban defendant from the building provides a motive for murder and that the previous attempts to ban defendant merely constitute past history, noting that Spratt revoked her intent in those instances by failing to carry through with the paperwork to ban defendant. Defendant also argues that the accounts of the crimes Spratt alleged defendant committed were not evidence of defendant's motive, but instead were inadmissible hearsay.

"In general, a trial court is afforded considerable latitude regarding the admission of evidence . . . ." State v. Nelson, 173 N.J. 417, 470 (2002) (internal quotation marks omitted). "[T]he admission or exclusion of evidence is within the discretion of the trial court." State v. Torres, 183 N.J. 554, 567 (2005). "A trial court's ruling on the admissibility of evidence is reviewed on appeal for abuse of discretion." State v. Rose, 206 N.J. 141, 157 (2011). Under the abuse of discretion standard, the Appellate Division "sustains the trial court's ruling unless it can be shown that the trial court's . . . finding was so wide [of] the mark that a manifest denial of justice resulted." See State v. Lykes, 192 N.J. 519, 534 (2007) (alteration in original) (internal quotation marks omitted).

"Our Evidence Rules generally promote admissibility of all relevant evidence . . . ." State v. Harris, 209 N.J. 431, 439 (2012). Under N.J.R.E. 402, "all relevant evidence is admissible" unless "otherwise provided in [the Rules of Evidence] or by law." "'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401.

The State claims the challenged testimony was relevant to the motive to commit murder. Proof of motive can "aid the jury, particularly in a case resting upon circumstantial evidence, in determining who the person was who committed the crime." State v. Carter, 91 N.J. 86, 102 (1982). Our Supreme Court has noted that evidence of motive has a "special role" and the "unique capacity to provide a jury with an overarching narrative, permitting inferences for why a defendant might have engaged in the alleged criminal conduct." State v. Calleia, 206 N.J. 274, 293 (2011). "Often, motive must be pieced together; potential motivating factors must be gleaned from evidence that does not itself bespeak criminal intent but merely explains what events might have led the accused to commit a criminal act." Ibid.

Because of that, "motive is treated somewhat differently than other types of evidence," and "a 'wider range of evidence' is permitted to prove motive, so long as it remains a material issue in a case." Id. at 293-94 (citations omitted). "'Any evidence which has a legitimate bearing on the question of motive is as a general rule admissible' so long as it 'at least to a slight degree tend[s] to establish the existence of the motive relied on.'" Id. at 293 (quoting 41 C.J.S. Homicide 325 (2006)). When evidence provides proof of motive, a "strong showing of prejudice" is necessary to exclude such evidence under the balancing test of N.J.R.E. 403. Id. at 294.

Defendant challenges the statements as hearsay. "Assuming [a] proffered statement is both relevant and not otherwise excluded, a determination must be made whether that statement is hearsay. If the statement is hearsay, it must be determined whether an exception to the hearsay rule exists to permit the statement's admission." State v. Coder, 198 N.J. 451, 463 n.5 (2009). Under N.J.R.E. 801(c), "'[h]earsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

The Court in Calleia, supra, rejected "a per se rule that hearsay statements by a deceased victim may never be admitted under the state-of-mind exception to prove motive." 206 N.J. at 295. Instead, the Court held that "when a victim's state-of-mind hearsay statements are relevant to show the declarant's own conduct, and when such conduct is known or probably known to the defendant, it also can give rise to motive, and the statements become admissible [under the state-of-mind exception of N.J.R.E. 803(c)(3)] for that purpose, subject to the usual balancing under N.J.R.E. 403." Id. at 296. The Court made clear, however, that "a prosecutor must demonstrate that a defendant knew or likely knew of a victim's conduct in order for the victim's conduct to provide motive evidence." Id. at 297.

Applying those principles to the evidence at trial, in accordance with our established standard of review, we find no error in the court's admission of Spratt's statements because they are clearly not hearsay. The statements are offered to prove that Spratt alleged defendant stole from her, that she wanted to ban defendant from the building, and defendant knew of the statements made by the victim. Such testimony therefore is not offered for its truth but rather, its significance is the fact that it was made and defendant knew of it.

The State, in its opening, made this clear.

Forrest Thomas was interested in taking care of himself. And take care of himself, he did. By staying on to live with Carol Spratt under the guise of being her caretaker, Forrest Thomas had access. Access to the shelter of her building and apartment; access to her food and possessions; access to her money. And the very access provided by Carol Spratt cost her life because it gave the defendant a motive to kill. And the motive, the State submits ladies and gentlemen, is vengeance because he depended on the access to her resources. He depended on the access to her building to support himself. And when she took away his access, he took her life.

The following excerpt of the testimony of Ms. Bryant illustrates the court's careful limitation of such testimony

Q Did Miss Spratt complain on that day [11/6/06] about abusive behavior from Malik?

A Yes, she did.

Q And as a result of that complaint, did she request that he be banned from the building? Or the unit?

A Yes.

. . . .

Q Is that the only time Miss Spratt asked that Malik be banned from that building?

A No.

Q Approximately, how many more times did she request that he be banned?

A Maybe twice more?

Q So, twice more, in addition to that date, November 6?

A Yes.

Q And she made those complaints to you as well. Correct?

A Yes. To myself and my co-worker.

. . . .

Q [with permission to lead] Did she tell you that [defendant] had stolen her air conditioner and other items from her unit?

A Yes.

Q And did she tell you as a result of that, she wanted him barred from her unit and the entire building?

A Yes.

Q And was that the first time she had ever said that?

A No it's not.

THE COURT: Asked and answered.

. . . .

Q It's fine

A Oh.

Q Did she say to you that despite having said that before, that this time she really needed him out of there?

A Yes.

Q And was she willing at that time to sign an agreement to have him permanently barred?

A Yes.

Q Did she, in fact, sign a letter having [defendant] permanently barred from the building in January of 2010?

A Yes.

Q All right.

MS. MILLER: I have nothing further of this witness, Judge.

THE COURT: Mr. Kinsale, before you start cross-examination, ladies and gentlemen, I'm gonna give you an instruction about what this evidence is all about; and how you should treat this evidence.

The State has introduced evidence that the deceased victim, prior to her demise, made statements to third parties which reflect her then state of mind. The statements were that Miss Spratt attempted to have the defendant, Thomas, evicted from her apartment and banned from the building on three separate occasions. Miss Spratt alleged that [defendant] was verbally abusive toward her and committed acts of theft of her property.

Normally, such evidence is not permitted under our rules of evidence. Our rules specifically exclude evidence that is hearsay, an out-of-court statement and evidence that a defendant committed certain wrongs or acts when it is offered to show that the defendant had a disposition or tendency to do wrong and, therefore, must be guilty of the offenses. So, hearsay evidence is not admitted. All right?

And the second thing is you can't offer evidence against somebody and say, "because you did these acts, he has a predisposition to commit wrong." That evidence cannot -- is not admissible in a court of law. There's an exception to that; the exception is in this case.

Before you give any weight to this evidence, you must be satisfied that the assertions of the victim, Carol Spratt, were uttered and you must be satisfied that the defendant committed the acts and he was aware that the victim made the allegations. . . .

Our rules do permit evidence of this nature, the state of mind of the deceased victim, which is what we're talking about here, when the evidence is used for a narrow purpose. In this case, the limited purpose to establish motive, and for no other reason. Testimony you have just heard as to what Miss Spratt said, and what she did, goes to the issue as to whether or not [defendant] had an alleged motive to commit the murder in this case. That's what it's being offered for. All right?

. . . .

I have admitted the evidence only to help you to decide the question of motive. You may not consider, for any other purpose and may not find the defendant guilty now simply because the State has offered evidence that he committed other wrongs or acts. I hope that is clear, but I'll repeat it again at a later time and in my final instructions.

Similarly, the Judge limited the testimony of witness, Ms. Rodrigues

Q Did [Miss Spratt] ever tell you why she kept [her social benefits card pinned to her clothes].

A To make sure they wouldn't be stolen.

Q Did she tell you who she was concerned about stealing them?

THE COURT: Sustained. Come to sidebar.

[Judge asks prosecution to limit the questions to specific incidents.] [Questions resume]

Q . . . When you were her health aide, did you ever observe how she interacted with [Defendant]?

A Sometime, it was good; and sometimes, they used to have a lot of arguments.

Q And you were present for some of those arguments?

A Yes.

Q . . . from your own observations, can you describe how [defendant] would address her?

A When it was his good days, it was okay. But when he was mad or was arguing with her about something, he would use ah, a unpleasant words with her.

Q Can you describe those? What do you mean?

A Shut up your fuckin' mouth; go fuck yourself. Things like that.

Q And can you describe how she would respond to that?

A When those things happen and when they did happen, she used to call me and ask me to sit next to her and say "be quiet; everything will be fine."

. . . .

Q And you were there when they went down to see the manager? [to attempt to lift defendant's ban from the building]

A I went together with them. [Defendant] was by the door and [Spratt] was sitting in the in the middle of the hall. She was crying, upset, and I was next to her. I sat next to her.

. . . .

Q Did she tell you why she was crying?

A No. She didn't even need to tell me. I knew that she was nervous.

Q Did she tell you why she was nervous.

A The reason well, she never told me why she was nervous - -

THE COURT: All right, end of that. Next question.

Q Did she tell you why she had him banned from the apartment?

A Because she said that he had stolen umm the air conditioner? And some towels.

. . . .

Q Based on your prior conversations, or any conversations with Miss Spratt, did she ever tell you or complain to you about [defendant] stealing her money?

A Yes.

Q And when was that?

A That's one of the reasons why she used to pin her her cards into a pocket and to her umm night wear or sleeping wear.

Q And how many times did she complain to you?

A Most of the time.

. . . .

THE COURT: I have serious reservations as to whether or not I should allow any further witnesses in the particular case dealing with the state of mind of Ms. Spratt. I, after umm deliberate attention to the details of this case, I conducted a Rule 104 hearing.

. . . .

[T]o my great dismay and sorrow, I've allowed to come into this case information on examination which apparently, in my judgment, may tend to negate my instruction because it would tend to convey to the jury sympathy for the victim, which everybody sympathized about and tried to convey to this jury other collateral information that doesn t go to the core what I said in this opinion, and that is what Miss Spratt knew, what [defendant] knew and what he did.

It s been firmly established, and I've already indicated to the State under Rule 611, you have to move on with this stuff. It's cumulative evidence. It's a consumption of time. In my judgment, I have serious questions about whether or not these other witnesses should be called to testify. I'm gonna excuse the jury now. I'm gonna hear argument from both of you's on that issue. Thank you.

MS. MILLER: Excuse them for the day, Judge?

THE COURT: Yup. As I understand it, if I make a decision to preclude you from going into the other state of mind witnesses, if I can refer to them as that, the next thing you're gonna proceed with is the statement. Correct?

The Judge, after a hearing, limited the testimony of Ms. Simmons as follows

Q And as it relates to Miss Spratt, did you have occasion to well, did she ever complain to you about [defendant].

A Yes, she did; several times.

. . . .

Q Did she ever complain to you - - let me ask you this; as a result of the complaints that she made, what action was taken by management?

A They umm put him on the barred list.

. . . .

Q And did she tell you why she wanted him barred from the building and was it documented in that letter?

A She yes, it is documented why she wanted him to be barred because she stated that he had stolen her property.

. . . .

Q Okay. And what happened when they came into the Manager's office?

A He was told why he was barred from the building.

Q All right. And you were there for that?

A Yes, I was.

Q And can you describe his demeanor upon learning that information?

A I guess shocked. He just stood there.

. . . .

Q All right, let's back up. The other times that she requested that he be barred, was she in the presence of [defendant]?

A No, she was not.

Q And each time that she requested that the bar be lifted, was she in the presence of [Defendant]?

A Yes, she was.

. . . .

Q And on the other two occasions when the ban was lifted, was [defendant] spoken to with regard to any limitations to him in the building?

A Yes, he was. He was told, I think on the second ban, he was told by the manager, and I was there, that he was allowed to go to her apartment and he's only allowed to be on the fourth floor, which is the floor she was living on. And he wasn't allowed to visit or be on any other floors.

Q And so as a result of that instruction, the prior bans were lifted?

A Yes. And he agreed to that, by the way.

We find no error in the judge's admission of the testimony regarding the events that proved defendant's motive for murder. The testimony supported the inference that defendant's state of mind was that the relationship was permanently at an end and he was being banned from Spratt's apartment and support.

Because this evidence further showed that defendant was aware that Spratt blamed him for abuse and theft when she arranged for him to be banned from the apartment, it tends to establish that he was aware that she intended a permanent break, which in turn gives rise to motive. Accordingly, both the direct and hearsay portions of this testimony were admissible on the issue of defendant's motive in accordance with Calleia, supra, 206 N.J. at 296.

The State's theory was that defendant and Spratt were in an abusive relationship marked by defendant's need to dominate and control her. In order to admit Spratt's statements under Rule 803 as state-of-mind hearsay evidence, the State had to demonstrate that defendant "knew or likely knew" that Spratt suspected him of theft and abuse and was taking steps to further distance herself from him. See Calleia, supra, 206 N.J. at 297.

The judge concluded that the statements were relevant to Spratt's state of mind and defendant's intent and motive, reasoning that as Spratt tried more forcefully to extract herself from their relationship, defendant's need to exercise even greater control motivated him to destroy her property and eventually take her life. The Court in Calleia declared that "when testimony regarding a decedent's state of mind establishes a fact that, if known by defendant, could give rise to a motive, such testimony is admissible subject to balancing under Rule 403." 206 N.J. at 295-96. As the judge's reasoning that Spratt's belief that defendant was behind the thefts induced her to further distance herself from defendant, which she expressed to her friend and which defendant could certainly surmise by her efforts to distance herself from him, finds support in the record, we conclude he acted within his discretion in finding the evidence admissible under the state-of-mind exception of N.J.R.E. 803(c)(3) to prove motive.

Even where evidence of prior bad acts is improperly admitted, where there is "overwhelming proof" of guilt submitted by the State that is "independent of the other-crimes evidence," the error is harmless. State v. Gillispie, 208 N.J. 59 (2011); see also State v. Soto, 340 N.J. Super. 47, 65 (App. Div.) (holding that hearsay testimony that the defendant was involved in a robbery was harmless error in view of the other proofs establishing guilt), certif. denied, 170 N.J. 209 (2001).

Here, the State presented a very strong, albeit largely circumstantial, case against defendant apart from the bad acts evidence. Given the record, we conclude any error with regard to the admission of these hearsay statements was very likely harmless.

IV.

We next turn to the issue wherein defendant claims that his Sixth Amendment confrontation rights were violated when Dr. Roger Mitchell of the Essex County Medical Examiner testified at trial. Mitchell did not perform the autopsy on Spratt. Dr. John Stash, the medical examiner who performed the autopsy, did not testify. Defendant argues the State offered Stash's findings and conclusions through the testimony of Mitchell, and this was a violation of defendant's confrontation rights.

The State responds with two arguments. First, the State argues that defendant waived his confrontation rights because he did not object to Mitchell's testimony. Second, the State argues there was no Confrontation Clause violation because an autopsy report's objective observations are not made with the primary purpose of providing evidence for a criminal prosecution.

A recent decision of our Supreme Court, State v. Williams, 219 N.J. 89 (2014), supports the State's argument that defendant waived his rights under the Confrontation Clause by failing to object to the testimony of a medical examiner who did not perform the autopsy on a murder victim.

In Williams, the defendant was convicted of murder. At trial, the State offered the testimony of a Dr. Zhongxue Hua, a medical examiner who did not perform or assist in the autopsy of the victim, regarding the cause and manner of the victim's death. Id. at 95-96. The medical examiner who performed the autopsy and wrote the report, Dr. Leonard Zaretski, was not called as a witness. Id. at 96. The defendant never raised an objection to Hua's testimony or his qualifications. Ibid.

On direct examination, Hua testified that he reviewed the report as well as the evidence, and was able to reach "independent conclusions" about the cause and manner of the victim's death. Ibid. On cross-examination, defense counsel sought and was able to obtain testimony that aided the defendant's claim of self-defense. In summation, defense counsel described the testimony as supportive of the defendant's self-defense claim. Id. at 96-97.

On appeal, the defendant argued that the admission of autopsy findings by one medical examiner through the testimony of another medical examiner violated his right to confront witnesses. The Court disagreed, stating, "The right of confrontation, like other constitutional rights, may be waived by the accused. The Constitution does not compel a criminal defendant to insist that the State call a live witness who might do damage to his case." Id. at 98 (citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 328, 129 S. Ct. 2527, 2542, 174 L. Ed. 2d 314, 322 (2009)).

The Court recognized that often defense counsel will make a strategic decision to refrain from objecting to testimony that could benefit the defendant. The Court concluded that because trial counsel knows the case and defenses best, trial counsel, not appellate counsel, is in the best position to determine whether to raise a Confrontation Clause objection. Id. at 99 (citing United States v. Moon, 512 F.3d 359, 361 (7th Cir.), cert. denied, 555 U.S. 812, 129 S. Ct. 39, L. Ed.2d 19 (2008). Because of this, it "makes perfect sense that '[t]he defendant always has the burden of raising his Confrontation Clause objection.'" Ibid. (quoting Melendez-Diaz, supra, 557 U.S. at 327, 129 S. Ct. at 2541, 174 L. Ed. 2d at 331)(emphasis in original).

The Court did recognize that at times a defendant's failure to object would be "so patently unreasonable and so clearly erroneous that no rational counsel . . . would pursue such a course." Id. at 99. In such a scenario, the trial court is permitted to notice the error if it is "clearly capable of producing an unjust result . . . ." Ibid. (quoting R. 1:7-5). The Court concluded the defendant waived his Confrontation Clause objection. Id. at 101. Because the defendant's counsel did not commit an error "clearly capable of producing an unjust result," the conviction was affirmed. Id. at 101-02.

Just as in Williams, defendant has waived his Confrontation Clause objection by failing to raise it at trial. When the State moved to have Mitchell declared as an expert, defense counsel raised no objection. Counsel questioned Mitchell during voir dire, but voiced no objection. During Mitchell's direct examination, defendant raised no objection to his testimony about the autopsy report. On cross-examination, defense counsel attempted to obtain helpful testimony and sought to bolster defendant's claim that Spratt choked on her oxygen tube. Counsel emphasized that Mitchell did not perform the autopsy, and tried generally to show why Mitchell's testimony might not be very reliable.

Defendant's counsel again stressed the fact that Mitchell did not perform the autopsy in summation. He stated

[Mitchell] comes in here and testifies and what, he's been on-the-job two months when he gets this job? Two months he's been working? He's not the Medical Examiner who did the examination. He doesn't have the benefit of actually seeing, feeling and touching and examining Miss Spratt. He has to rely on some guy named John Stash - - Dr. Stash. Nobody knows where he is. Nobody knows why he was fired.

Defendant made a clear choice to pursue a trial strategy of attempting to cast doubt on Mitchell's conclusions by focusing the jury's attention on the fact he did not perform the autopsy in this case. Defendant cannot now claim he was deprived of his rights under the Confrontation Clause by Mitchell's testimony concerning the autopsy. His trial counsel's failure to object was not an "error of such a nature as to have been clearly capable of producing an unjust result." Williams, supra, 129 N.J. at 99 (quoting R. 1:7-5).

While it is clear defendant waived any Confrontation Clause objection, we nonetheless address the substantive merits of this claim very briefly. The right of an accused to confront witnesses applies to all out-of-court statements that are "testimonial." Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004). A statement is "testimonial" if its "primary purpose" is to provide evidence against a criminal defendant. See State v. Michaels, 219 N.J. 1, 30-32 (reviewing the United States Supreme Court's recent Confrontation Clause decisions and continuing to use the "primary purpose" test), cert. denied, ___ U.S. ___, ___ S. Ct. ___, 190 L. Ed. 2d 635 (2014).

An autopsy report is not composed with the primary purpose of producing evidence against a defendant in a criminal case. Instead, the report is prepared, as the State notes, for a host of public health and safety reasons. The autopsy is performed to determine cause of death, and at the time it is commenced often it is not known there has been any crime committed. Looking at the facts here, at the time Spratt's body was discovered, it was by no means immediately clear she was murdered. The primary purpose of the autopsy report is to record the cause of a decedent's death, not provide evidence for a possible criminal prosecution. Consequently, there is no Confrontation Clause violation.

V.

Defendant argues that the trial court erred when it failed to give a Czachor charge after the jury reported that it was deadlocked on count one. Defendant never objected to the charge given by the trial court, so he must establish plain error to succeed on appeal. R. 2:10-2. The State argues the court gave a proper charge, and, if the charge was improper, defendant cannot establish plain error.

In the jury charge, Judge Ryan included the following paragraph regarding deliberations

Your verdict must represent the considered judgment of each juror and must be unanimous as to each charge. This means that all of you must agree if the defendant is guilty or not guilty of that charge. It is your duty as jurors to consult with one another and to deliberate with a view toward reaching an agreement, if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous; but do not surrender your honest convictions as to the weight of the evidence or effect of the evidence solely based upon the opinion of your fellow jurors, or for the mere purpose of reaching a verdict.

The charge closely tracks the Model Jury Charge. See Model Jury Charge (Criminal), "Criminal Final Charge - Part 4 (Deliberations to Jury Questions)" (2013).

The jury began deliberating at 11:43 a.m. on December 16, 2011. At 11:57 a.m., the jury sent a note to the judge asking one question. The jury entered the courtroom to hear the answer to the question at 12:12 p.m. The jury left the courtroom to continue deliberating at 12:13 p.m. The jury re-entered the courtroom at 12:21 p.m., at which time the jury was dismissed for lunch. After lunch, the jury began deliberating at 1:30 p.m. Five minutes later, the jury sent the court another note, this time asking four questions. The jury entered the courtroom to hear the answer at 1:53 p.m., and left at 1:57 p.m.

At 2:20 p.m., the jury sent another note stating, "Number 1: We are deadlocked on one." and "Number 2: We've reached a verdict on the second." After conferring with counsel about what to tell the jury, the court decided to tell the jury it had been a very short period of time and deliberations should continue. Neither the prosecutor nor defense counsel objected. The court instructed the jury

Ladies and gentlemen of the jury, you've been deliberating on a case like this for two hours. It's a woefully short period of time. I'm gonna urge you to continue your deliberations with the objective of reaching a determination on both counts. Take your time and do what you have to do, but it's too short a time. And please, consult with each other and continue your deliberations.

I'm gonna sit today until four o'clock and then if I have to come back next week, we come back next week. All right? I don't mean that in any way to have you rush; I'm just telling you, I think I have an obligation to tell you what the timeframe is here. Okay? So, I thank you for all you've done so far and I urge you to continue your deliberations.

Please retire.

The jury began to deliberate again at 2:36 p.m., and returned a verdict at 3:15 p.m.

A conviction will be reversed when the jury instructions convey pressure on the jurors to return a verdict because such pressure is "inconsistent with jury freedom and responsibility" and "does not permit jurors to deliberate objectively, freely, and with an untrammeled mind." Czachor, supra, 82 N.J. at 402. The Court approved an instruction to use when a jury says it is deadlocked, reminding dissenting jurors to hold onto their honest convictions regarding "the weights or effect of evidence . . . ." Id. at 405 n.4. The supplemental charge in this case did not present the Czachor charge.

While the Court has recognized that "[a] supplemental charge that directs a jury to continue deliberating but does not remind them of their obligation [to hold onto honest convictions] poses a grave risk of being misunderstood by the jurors and therefore, of being coercive," the trial court does have some discretion when deciding whether to give a supplemental charge. State v. Figueroa, 190 N.J. 219, 240 (2007). As the Court stated in Figueroa, supra, 190 N.J. at 235

We . . . left it to the sound discretion of the trial court to decide whether repeating the charge is appropriate when a jury reports that it is unable to agree.

The Court continued, saying,

We cautioned trial courts faced with deciding whether to give or repeat the charge to consider "such factors as the length and complexity of [the] trial and the quality and duration of the jury's deliberations."

Ibid. (quoting Czachor, supra, 82 N.J. at 407).

In this case, it is clear that Judge Ryan viewed the note from the jury about being "deadlocked" as not being a true deadlock. The court and counsel reasonably determined the jury could not be truly deadlocked after deliberating for two non-consecutive hours after hearing days of testimony in a murder trial. The court was well within its discretion to take the action it did in this case.

There also is nothing coercive about the trial court's supplemental instructions to the jury in this case. The charge did not violate the core holding of Czachor; it was not a charge focused solely on the minority meant to "undo a jury deadlock," but was more along the lines of a reminder to the jury to cooperate and continue deliberating. See State v. Adim, 410 N.J. Super. 410, 425 (App. Div. 2009) (quoting Czachor, supra, 82 N.J. at 398). This case does not present a situation like Czachor, supra, 82 N.J. at 394-95, 398, where the jury said three times that it was deadlocked over the course of two days and the charge focused solely on the dissenters, or Figueroa, supra, 190 N.J. at 226, where the jury deliberated for an entire day and the supplemental instruction indicated the jury would have to deliberate over the weekend if it could not reach a verdict.

Affirmed.

1 82 N.J. 392 (1980).