Opinion
DOCKET NO. A-2770-11T3
06-23-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MATTHEW B. CRADDOCK, a/k/a MATT, MATHIAS DEVICTIS, Defendant-Appellant.
Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Watson, of counsel and on the brief). Matthew M. Bingham, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Bingham, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Carroll and Higbee.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-10-00961.
Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Watson, of counsel and on the brief).
Matthew M. Bingham, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Bingham, of counsel and on the brief). PER CURIAM
A jury convicted defendant Matthew Craddock of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1), as a lesser-included offense of first-degree murder (count one); third- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three). He was sentenced to serve an aggregate custodial term of twenty-four years with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Count four, charging defendant with fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2), was dismissed by the court at the conclusion of the State's case.
The charges arose from the stabbing death of James Grace, who was then dating defendant's ex-girlfriend, M.P. At trial, defendant asserted that he acted in self-defense during his altercation with Grace. While deliberating, the jury was given unfettered access to defendant's recorded statement to police and a voice message he left on M.P.'s cell phone after the altercation. On appeal, defendant argues, among other things, that the jury's unencumbered access to these two recorded statements violated his right to a fair trial. The State concedes that the trial court's decision to allow the recorded statements into the jury room was erroneous. Nonetheless, the State argues that the error was harmless, and that defendant was not prejudiced thereby. We disagree, and reverse and remand for a new trial.
I.
These are the most pertinent facts drawn from the trial testimony. Defendant and M.P. dated during high school and for a period after they graduated, but ended their dating relationship in November 2005. Although the two saw each other intermittently thereafter, M.P. testified that ultimately she told defendant she "d[id]n't want to see [him] again and [that he] h[ad] to stop calling [her], because [he] was not looking for the same thing [that she] was." Defendant denied that M.P. had ever expressed such sentiment to him.
M.P. began seeing Grace, although they were not seriously dating. Grace worked with Mi.P., whose fiancée, L.A., was M.P.'s close friend. On April 27, 2006, L.A. and Mi.P. invited M.P. and Grace to watch a movie with them at L.A.'s home. While watching the movie, defendant allegedly called M.P. repeatedly. Eventually Grace picked up the phone and told defendant he had no idea who M.P. was and that defendant had called the wrong number.
After the movie, defendant again called M.P. Grace answered, and the two men engaged in a heated verbal exchange. Grace, M.P., Mi.P., and L.A. decided to drive to M.P.'s house because M.P. was concerned that defendant would show up there and "try to start trouble" or break in and look for her. On the way, they drove by defendant's trailer, and observed that his car was not there. Grace, who was driving, did a "burnout" near defendant's home.
Finding nothing amiss at M.P.'s home, they then received another call from defendant, who indicated he was at L.A.'s home. Grace then sped back to L.A.'s house. According to the State's witnesses, upon arriving there, defendant then "ripped open" the driver's side door of Grace's vehicle, and began prodding the occupants with a painter's extension pole. M.P. and L.A., who were in the rear seat of Grace's car, quickly managed to take hold of the pole and exit the vehicle.
A neighbor who subsequently administered first aid to Grace observed defendant "just beating" Grace while he "was trying to get [out] of the car." L.A. testified that she saw defendant pounding downward on Grace, and "heard the stabbing thing." Mi.P., for his part, went around the back of the car, at which time he heard Grace yell: "'He stabbed me.'" Mi.P. saw an object "fly into the road" and, after glancing at it, observed that it was a knife handle. Defendant and Grace were "wrestling," and, after a short time, Mi.P. "ran up to [defendant] and [] grabbed him around his arms and [] pulled him away." Mi.P. did not see defendant stab Grace, but "just saw [defendant] looking as though [he] were punching him."
M.P. similarly testified that she did not observe defendant with a knife. Nor did she hear Grace say he was stabbed. She stated, "[a]ll I could really see were pounding motions with [defendant's] fists . . . . And I saw [Grace] kicking him back." After the altercation, defendant fled the scene, but subsequently left M.P. a voicemail in which he concededly chided her for "playing games." The police and an ambulance arrived at the scene, but by that time Grace was unresponsive, and he died shortly thereafter. Dr. Lyla Perez, Assistant State Medical Examiner, attributed the cause of death to a four-inch-deep wound around Grace's collarbone, which was consistent with the knife handle and partial blade recovered at the scene.
Only an audio recording of that message, left on April 28, 2006, is included in the record. Many parts of the message are incoherent or unintelligible; however, toward the end of the message, defendant expresses to M.P. that she made a mistake both by playing games with him and by assuming that he would not respond in kind to her game-playing.
Defendant appeared pro se at trial, assisted by standby counsel. He testified that, on April 27, 2006, he went fishing with a friend until five or six P.M. Inside his car, defendant kept construction tools for work, and fishing equipment, because he was a frequent angler.
Defendant's fishing companion appeared as a defense witness and corroborated defendant's testimony.
Defendant indicated that he called M.P. around 10:30 p.m. on her mobile telephone, but she did not answer. Approximately one hour later, defendant's phone rang; the caller identification listed a number with which he was not familiar. The person on the other end refused to identify himself and, using threatening words, told defendant not to call him again.
Upon further reflection, defendant believed that the unknown number belonged to one of M.P.'s other mobile telephone accounts, so he called M.P. again at another number. The same unidentified male answered, and "a very heated verbal exchange started taking place." Defendant asked for M.P., and the speaker indicated he did not know who she was.
Defendant became concerned that someone had stolen M.P.'s mobile telephone, so he drove to her home, where he discovered that her car was not parked in the driveway. He began driving to M.P.'s workplace to see whether she was there, and, on the way, he called the unidentified number. Again, the unknown individual answered, and the two men began arguing, with defendant insisting that he was going to get M.P.'s mobile telephone back. The other speaker insulted defendant, challenged him to a fight, and provided him with an address where they could meet. During the exchange, defendant heard another male in the background, so he assumed that he would be facing at least two combatants. Subsequently he heard M.P.'s voice in the background, and also heard another person stating that "'his car's not in the driveway.'" Defendant surmised that these individuals were at his house and, after the call ended, he drove home and found fresh tire-marks in front of his trailer.
Defendant decided to drive to L.A.'s home to see if he could "diffuse [sic] the situation," and, once there, he found M.P.'s car parked across the street. Defendant called M.P.'s mobile telephone, and, when the unidentified male answered, they got into another heated exchange. Upon learning that defendant was at L.A.'s home, the other speaker stated that he would be there in five minutes and that defendant should wait.
Shortly, however, defendant heard tires squealing and, in his rearview mirror, saw a car fishtail around the corner. He turned to see the car and, while doing so, noticed a pole handle and a knife on his back seat. He had used the knife while fishing earlier in the day, and "impulsive[ly]" grabbed the items, fearing a physical altercation. He then exited his car and waited at the side of the road as the other car pulled up behind his, its engine turning off once it arrived.
According to defendant, he saw the driver attempting to exit the vehicle. Because he was "outnumbered," he "t[oo]k[] the pole, and [he] jab[bed] at [the driver] with it." Someone in the back seat grabbed the pole handle from his hand. Defendant stated he also dropped the knife, which he was holding in his other hand, and it fell onto the car floor below the driver. Defendant and the driver exchanged punches, the driver grabbed him, he pulled away, and Mi.P., now outside, came around the rear of the car.
Defendant testified that he then observed the driver, who had been hunched over, lean back with the knife in his hand. The driver thrust the knife at defendant, who dodged the blow, but the knife caught and tore defendant's jacket. Defendant grabbed the knife blade, and the two men struggled, each holding a different end of the weapon. During the struggle, the knife impacted the steering wheel and snapped, with the blade briefly remaining gripped in defendant's hand until falling back to the floor. Defendant grabbed the broken blade, recovered it, and saw that the driver still held the handle with a small portion of the blade attached to it. At that juncture, defendant hit the driver's hand, causing the handle to fly to the pavement.
Defendant and the driver continued to exchange punches, until defendant heard the driver scream: "'He stabbed me.'" Defendant testified that he noticed the blade had blood on it, and he then realized that two inches of the blade had been exposed while he was holding it in his hand. Mi.P. approached defendant from behind and grabbed him around the shoulders. Defendant screamed for Mi.P. to back off, informing Mi.P. that he had no dispute with him.
Defendant's expert forensic pathologist, Dr. William Manion, testified that Grace's neck wound was the fatal injury. However, contrary to Dr. Perez's testimony, Dr. Manion opined that it was a two-inch deep penetration, not four-inch, and that the broken knife did not cause the fatal injury, consistent with defendant's version of events.
Eventually, defendant struggled free, entered his vehicle, and drove away. Shaken, he called M.P. and left her "a frightening kind of message" so that nobody would pursue him.
Following the incident, defendant travelled to Pennsylvania. At trial, he testified that he left because he had "been told many, many different times in the past that New Jersey d[id]n't have a self-defense law." After several bus trips, he arrived in northeastern Pennsylvania, where, while walking down the road, he was hit by a car and sustained a painful arm injury.
Eventually, a pair of police officers found him at a diner and took him to a hospital. At trial, defendant attempted to introduce his hospital records, but the trial judge disallowed them because they were not properly authenticated. However, the judge permitted defendant to testify about his injuries to the extent of his own personal knowledge. Defendant was then transported to the Pocono Township Police Department because a computer check revealed that there was an outstanding arrest warrant stemming from the stabbing incident.
The police conducted a taped interrogation of defendant, who waived his Miranda rights. Defendant's recorded statement was later introduced in evidence and played at trial. On cross-examination, defendant was confronted with inconsistencies between his statement and his trial testimony, most notably the omission from his statement of the details supporting his self-defense testimony. Importantly, when questioning defendant about his earlier statement, the prosecutor commented, "[t]he jury's going to hear it. They're going to take it to the room with them. They're going to hear it so make sure you tell it correctly." Later during cross-examination, the prosecutor remarked, "[a]gain, the jury can play back your statement as many times as they want. They have it." This theme continued during summation, when the prosecutor emphasized the difference between defendant's recorded statement ("version one") and his trial testimony ("version two"), telling the jury "[t]he bottom line is you got version [one] that's going to come in the jury room with you."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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During the charge conference, defendant objected to the jury being permitted to take his recorded statement to police, and the voicemail message he left for M.P., into the jury room during its deliberations, and "listen to [them] as many times as they want to." He argued that, under New Jersey case law, juries are not permitted to take such recordings and playback equipment into the jury room during their deliberations. After initially reserving decision, when the parties returned to court the judge disagreed with defendant's position and overruled his objection. However, the judge acknowledged the danger that the jury might improperly focus on the recorded evidence at the expense of other, less accessible evidence. Accordingly in his final charge the judge issued the following cautionary instruction:
We additionally have the two audio tapes of the statements allegedly made by the defendant. You're going to be given a recorder or a playing device in which you'll be able to play those statements. Bear in mind that the recorder or playing device is not evidence. It's just to assist you in playing those statements which have been moved into evidence. As with all evidence, you are to consider all of the evidence in this case in totality and not place too much weight on any particular items during the course of your deliberations.
During the first full morning of deliberations, which spanned portions of three days, the jurors requested, and were provided, speakers to accompany the playback equipment. Subsequently, the following morning, the jury returned its guilty verdict.
On appeal, defendant raises the following points for our consideration:
POINT I
THE JURY'S UNENCUMBERED ACCESS TO DEFENDANT'S TWO AUDIO-TAPED STATEMENTS IN THE JURY DELIBERATIONS ROOM VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL.POINT II
THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO REOPEN THE CASE, BEFORE SUMMATION, TO ALLOW DEFENDANT TO PLACE IN EVIDENCE HIS HOSPITAL RECORDS, WHICH WOULD HAVE CORROBORATED HIS CLAIM THAT HE WAS IMPAIRED WHEN HE GAVE HIS STATEMENT TO THE POLICE.POINT III
A REMAND FOR RE-SENTENCING IS REQUIRED BECAUSE THE VICTIM IMPACT STATEMENTS WERE UNDULY INFLAMMATORY AND BECAUSE THE TRIAL COURT ERRED IN ITS CONSIDERATION OF MITIGATING AND AGGRAVATING FACTORS AND IN IMPOSING A TWENTY-FOUR YEAR NERA SENTENCE FOR DEFENDANT'S FIRST OFFENSE.
A. The Victim Impact Statements Exceeded the Permissible Bounds.
B. The Trial Court Erred In Its Weighing Of Aggravating Factors and Overlooked Mitigating Factors, For Which There Was Ample Support in the Record.
II.
In a trilogy of cases, the Supreme Court has established guidelines to be followed when a jury, during its deliberations, requests a replay of a pre-trial recorded statement that was entered into evidence at trial.
In State v. Burr, 195 N.J. 119, 133-34 (2008), the Court noted: "Generally, once an exhibit has been admitted into evidence, the jury may access it during deliberations, subject to the court's instructions on its proper use [under Rule 1:8-8]." However, the Court went on to explain that a videotaped pretrial statement is "significantly different from a demonstrative exhibit," because, "[a]lthough it is evidence, it is also testimony." Id. at 134.
The Court expressed its concern that a videotape is "powerful evidence for the jury to see again, if . . . not placed into context." Ibid. "[A]llowing a jury unfettered access to videotaped witness statements could have much the same prejudicial effect as allowing a jury unrestricted access to videotaped testimony during deliberations." Ibid. Therefore, the Court prescribed:
[I]f . . . the trial court is faced with a request by the jury to have a replay of [a] videotape[] . . . , the court first should inquire of the jury whether it would be satisfied with a readback of [the] testimony [concerning the events videotaped]. If the jury persists in its request to view the
videotape again, then the court must take into consideration fairness to the defendant. The court must determine whether the jury must also hear a readback of any direct and cross-examination testimony that the court concludes is necessary to provide the proper context for the video playback.
[Id. at 135]
In State v. Miller, 205 N.J. 109 (2011), the Court again addressed the issue and explained that "[p]laybacks, like read-backs, should take place in open court with all parties present," which "avoids the selective replaying of only a portion of testimony." Id. at 123. In addition, "at the time the testimony is repeated, judges should instruct jurors to consider all of the evidence presented and not give undue weight to the testimony played back." Ibid. Judges should also make a precise record of what was played back to the jury. Ibid.
More recently, in State v. A.R., 213 N.J. 542, 546-47 (2013), decided after defendant's trial, the Court reaffirmed Burr and Miller and, in the process, equated audio playbacks with video playbacks. Notably, the Court reiterated that "under no circumstances shall the jury have unfettered access to audio-or video-recorded statements in the jury room during deliberations." A.R., supra, 213 N.J. at 560-61.
Here, unquestionably, the trial judge failed to follow the protocol established in Burr and Miller and reaffirmed in A.R. As noted, the State concedes that the decision to permit the jury to listen to defendant's recorded statements in the jury room during deliberations was error. However, it urges that we find the error harmless.
When a trial court commits an error to which the defendant timely objected, that error is analyzed to determine whether it was harmless. See Ragusa v. Lau, 233 N.J. Super. 84, 89 (App. Div. 1989), rev'd on other grounds, 119 N.J. 276 (1990). Under Rule 2:10-2, "[a]ny error or omission shall be disregarded by the [A]ppellate [Division] unless it is of such a nature as to have been clearly capable of producing an unjust result." We must determine "whether in all the circumstances there [i]s a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits." State v. Macon, 57 N.J. 325, 338 (1971). "The harmless error standard requires that there be some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." State v. Lazo, 209 N.J. 9, 26 (2012) (alterations in original) (internal quotation marks omitted).
Having reviewed the record, we conclude that the trial judge erred when he permitted the jury to listen to defendant's recorded statements in the jury room, rather than in open court. We further conclude the error was one capable of producing an unjust result.
Defendant's testimony at trial that he acted in self-defense was the linchpin of his defense. If accepted by the jury, it constituted a complete defense to the charges. N.J.S.A. 20:3-4. It was also relevant to the lesser-included offenses that the jury was asked to consider. In this regard, the following footnote to the Model Jury Charge (Criminal), "Justification — Self Defense in Self Protection," (2014) is illustrative:
In State v. Bowens, 108 N.J. 622, 626 (1987), the Court held that the Code of Criminal Justice "does not provide an independent category of justification, excuse or mitigation under the concept of imperfect self-defense." Therefore courts are not required, as was the case prior to the adoption of the Code, to instruct that "imperfect self-defense would serve to reduce murder to an unspecified degree of manslaughter." Id. at 637. However, Bowens also held that "evidence that will sustain the defense at common law is frequently relevant to the presence or absence of the essential elements of Code offenses." Id. at 626. In almost all cases, if such evidence is adduced at trial, the trial court should charge purposeful murder and the lesser-included offense of aggravated manslaughter, reckless manslaughter, and passion/provocation manslaughter. State v. Coyle, 119 N.J. 194, 228 (1990). If there is a rational basis for the jury to find that defendant acted in the honest but unreasonable belief in the necessity to resort to force in self-defense, it could conclude that he/she acted recklessly rather
than purposely or knowingly. State v. Pridgen, 245 N.J. Super. 239, 244 (App. Div. 1991). In murder prosecutions, such evidence should cause the court to instruct the jury on the lesser included offenses of aggravated and/or reckless manslaughter. Similarly, if there is a rational basis for a jury to find that defendant reasonably believed in the necessity to use force, and honestly but unreasonably believed that he/she needed to resort to deadly force to repel the danger that he/she faced, it could conclude that he/she acted in the heat of passion resulting from a reasonable provocation, which would justify submission of passion/provocation manslaughter as a lesser included offense of murder. State v. Powell, 84 N.J. 305, 312 n. 7 and 313 (1980); Pridgen, 245 N.J. Super. at 244.
During the charge conference, the trial judge noted there was evidence in the case that at some point during the altercation defendant said to Mi.P. "I have no beef with you," or backed away. The judge further noted, "[a]nd it's at that point that it's alleged that the victim pulled a knife on [defendant], at which point [defendant] re-engaged." In its final charge, the court instructed the jury on self-defense, as well as the lesser-included offenses of aggravated manslaughter, reckless manslaughter, and passion/provocation manslaughter.
The State attempted to undercut defendant's self-defense claim by repeatedly pointing to the absence of consistent details in his earlier statement to police. When cross-examining defendant, the prosecutor twice remarked that the jury would have his statement in the jury room, and they could "play [it] back [] as many times as they want." In summation the prosecutor again highlighted the different "versions" of events told by defendant at trial and in his earlier statement, and that the jurors would be able to take defendant's arguably more credible pre-trial statement into the jury room with them.
As a result, despite the judge's laudable effort to minimize the resulting prejudice to defendant by providing the jury with a cautionary instruction, in the end the jurors were left with unfettered access to only that version of events urged by the State as being more credible. We know that, during its deliberations, the jury requested speakers for the playback equipment, which were presumably used to review defendant's recorded statements. Because the playback of this recorded evidence occurred in the jury room, rather than in open court, we have no record of what the jury reviewed, or how many times it reviewed the evidence.
In summary, the jury was ultimately called upon to make critical credibility assessments regarding defendant's recorded statements and his trial testimony. Permitting the jury to have unfettered access to the recorded statements in the jury room enabled the jury to unfairly emphasize them over the other testimony presented at trial, contrary to the procedures set forth in Burr, Miller, and A.R. As a consequence, we are constrained to reverse defendant's conviction.
III.
In view of our reversal and remand for a new trial, we need not address defendant's claim that the sentence imposed is excessive, and that the victim impact statements were unduly inflammatory.
The argument advanced in Point II with respect to defendant's belated effort to introduce his hospital records in evidence is without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, a trial judge's decision about whether to reopen a case after a party has rested is a discretionary matter. See State v. Menke, 25 N.J. 66, 70-71 (1957). Should defendant again attempt to introduce the hospital records at the new trial, the decision whether to allow them shall be guided by the normal standards governing the admissibility of evidence.
Reversed and remanded for a new trial.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION