Co-defendant statement should have required separate trials State v Shumate
N.J. SUPER. APP. DIV. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET
NO. A-2297-13T2 10-19-2015 STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. ALNISA
F. SHUMATE A/K/A ALNISA FATIMA SHUMATE, DEFENDANT-APPELLANT.
Solmaz F. Firoz, Assistant Deputy Public Defender, argued the cause for
appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Firoz, of counsel
and on the brief). Joie Piderit, Assistant Prosecutor, argued the cause for
respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms.
Piderit, of counsel and on the brief).
PER CURIAM
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before
Judges Ostrer, Haas and Manahan. On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No. 11-08-01168. Solmaz F. Firoz,
Assistant Deputy Public Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Ms. Firoz, of counsel and on the brief).
Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Andrew C.
Carey, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on
the brief). PER CURIAM *2
Defendant Alnisa Shumate and her mother, Debra,1 were tried together on charges arising
from an alleged robbery in a shoe store. The jury convicted defendant of
second-degree robbery, N.J.S.A. 2C:15-1 (count one); and fourth-degree
employing a juvenile in the commission of shoplifting, N.J.S.A.
2C:24-9(a) (count two).2 The
jury acquitted Debra of both charges.
1.
Because defendant and her mother share the same last name, we refer to
defendant's mother as "Debra" throughout this opinion. In doing so,
we intend no disrespect.
2.
Defendant's judgment of conviction incorrectly states that she was
convicted of fourth-degree shoplifting, N.J.S.A. 2C:20-11, instead of
employing a juvenile in the commission of this offense.
Defendant filed a motion for a new trial, asserting that statements made by
Debra apologizing for defendant's role in the incident were improperly admitted
into evidence in violation of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968); she was not adequately
notified or counseled about her trial attorney's pending suspension from the
practice of law; her attorney coerced her into waiving her right to testify;
and her attorney provided ineffective assistance to her at trial. After
conducting an evidentiary hearing, the judge rejected these claims and denied
defendant's motion for a new trial. *3
Pursuant to N.J.S.A. 2C:44-1(f)(2),3 the judge sentenced defendant to three years in prison on count one,
subject to the 85% parole ineligibility provisions of the No Early Release Act,
N.J.S.A. 2C:43-7.2, with a three-year period of parole supervision upon
release. The judge sentenced defendant to a concurrent nine-month-term on count
two and assessed appropriate fines and penalties. This appeal followed.
3.
N.J.S.A. 2C:44-1(f)(2) permits a judge to sentence a "defendant to a term
appropriate to a crime of one degree lower than that of the crime for which
[s]he was convicted" if the judge "is clearly convinced that the
mitigating factors substantially outweigh the aggravating factors and where the
interest of justice demands[.]"
On appeal, defendant raises the following contentions:
POINT IDEFENDANT WAS NOT ADEQUATELY NOTIFIED OF OR COUNSELED ON HER TRIAL
COUNSEL'S SUSPENSION FROM THE PRACTICE OF LAW OR HER OPTIONS GOING FORWARD, AND
WAS ENCOURAGED BY THE COURT AFTER THE JURY WAS ALREADY EMPANEL[L]ED TO KEEP
TRIAL COUNSEL, THEREBY DEPRIVING HER OF HER RIGHT TO COUNSEL.POINT IIDEFENDANT WAS DENIED A FAIR TRIAL
WHEN HER CO-DEFENDANT'S UNCHALLENGED OUT-OF-COURT STATEMENT WAS MISSTATED AND
USED AGAINST HER AT TRIAL. (Partially raised below).
A. [Defendant's Trial Attorney] Was Ineffective Counsel for Defendant.
1. [Defendant's Trial Attorney] was Ineffective for Failing
*4to Object to Misstatements During
Summations.2. Alternatively, [Defendant's Trial Attorney] was Ineffective for
not Requesting Redaction of, and a Limiting Instruction Regarding, the
Testimony.
B. The Prosecutor's Misstatement During Summations Constituted
Misconduct.C. Alternatively, the Trial Court Erred by Not Issuing a Limiting
Instruction Regarding the Apology and by Not Striking the Misstatements Made
During Summations.
POINT IIIDEFENDANT WAS DENIED A FAIR TRIAL AND DEPRIVED OF HER RIGHT TO TESTIFY DUE
TO INEFFECTIVE ASSISTANCE OF COUNSEL AND MISLEADING STATEMENTS OF
CO-DEFENDANT'S COUNSEL.POINT IVERRORS IN
THE JUDGMENT OF CONVICTION AND PRE-SENTENCE REPORT MUST BE CORRECTED.
We agree with defendant that the admission of Debra's statement violated
her right to a fair trial and, when reviewed under the plain error standard,
requires reversal. In light of our reversal, we need not address the remaining
points raised by defendant.
*5
I.
The State developed the following proofs at trial. On May 9, 2011,
defendant, Debra, and defendant's two children4 went into a shoe store in South Plainfield. The store manager, Ralph
Thompson, testified that defendant and Debra "split up[,]" with
defendant and the children going to the back of the store, while Debra stayed
near the front. While defendant was trying on shoes, Thompson saw Debra take a
pair of shoes out of a box and take them to the back of the store. Debra left
the empty box by the front of the store. As Thompson walked to the back of the
store, he saw defendant take a pair of shoes out of a box and put them in her
pocketbook. Defendant then kicked the empty box under a clearance rack.
4.
Defendant's two children were ages twelve and three.
Defendant, Debra, and the children began to leave the store. At that point,
Thompson "confronted [Debra] with the empty box issue." Debra told
the manager that "she was still shopping." Thompson went to the front
of the store, locked the door, and told the assistant manager, Christine Serio,5 to call the police. Defendant went back
to the clearance rack and *6
Thompson saw her take a pair of shoes "out of her bag, and leave [them] by
the clearance rack."
5.
Serio was helping other customers when Thompson spoke to her, and she had
not witnessed anything that had occurred up to that point.
Defendant then tried to leave the store as Thompson stood by the locked
door. Thompson testified that defendant "hit [his] arm a couple times, she
hit [his] chest a couple times[,]" but he "didn't feel
anything[,]" and was not injured. Thompson told defendant and Debra he was
still missing a pair of shoes. Debra told defendant's twelve-year-old child to
take the shoes from the child's bag and drop them on the floor. The child
complied. Thompson unlocked the door and the family left the store.
With specific reference to the issue involved on appeal, Serio testified on
cross-examination by Debra's attorney that Debra returned to the store and
spoke to Thompson. According to Serio, Debra "was apologizing, saying, I'm
sorry. She's sorry for taking the shoes." Later on cross-examination,
Serio again stated that Debra "said, she is sorry. She didn't mean
it[.]"
During his testimony on direct examination, Thompson elaborated on Debra's
statement. Thompson stated that Debra "said, she is sorry. She didn't mean
for that to happen. She lives in the area. She didn't want any trouble."
On cross-examination by Debra's attorney, Thompson stated that Debra
said, something to the effect, that she is sorry for everything that
happened. That *7she lived in
Edison . . . . But she came back to apologize for all of the incident that
happened. I mean, for whatever took place in the store. She knew that what she
was doing was wrong. Then she walked back out of the store, when I said, we
were going to call the police. She walked inside to apologize. She tells me,
she knew what she did was wrong.6
6.
Defendant's attorney did not object to either Serio or Thompson's testimony
about Debra's statements.
After the women and children left the store, Thompson saw them getting into
a car. He wrote the license number on his hand and relayed it to the police.
The police were able to locate the car and defendant and Debra were arrested.7
7.
The police brought Thompson to the scene of stop to identify the women
prior to their arrest.
Defendant and Debra did not call any witnesses and neither testified at
trial.
During her closing statement, Debra's attorney took the position that Debra
had apologized to Thompson for defendant's
conduct in the store. The attorney told the jury that
when all is said and done, Debra comes back in and says, I'm sorry for what [defendant] did.If Debra
was aware, and/or involved, in what [defendant] was doing, why would she come
back in and apologize? They were already out of the store. Why come back in?
Why come back in and say, I live in the area. I live in Edison. Why identify
yourself further to the person, when you're *8already out of the store? Why would she do that? Wouldn't it stand to
reason that, if she was involved with what [defendant] was doing, that she
would have just left, and not come back?[(emphasis added).]
The prosecutor referred to Debra's statements three times in her summation
and, like Debra's attorney, the prosecutor told the jury that Debra was
apologizing for defendant's conduct
rather than her own. The prosecutor stated that "Debra came back and
apologized," and later said that "after the group left" the
store, Debra "came back in the door, and stood in the doorway, and said,
I'm sorry for what happened here." The prosecutor explained, "Debra
was attempting to smooth things over with Mr. Thompson, by apologizing for her daughter, who had assaulted him in the store."
(emphasis added).8
8.
Defendant's attorney did not object to any of the comments Debra's attorney
or the prosecutor made during their summations. --------
As noted above, the jury convicted defendant of both charges, but acquitted
Debra.
II.
Defendant claims that her rights under the Confrontation Clause were
violated when Debra's apology for what occurred in the store was introduced in
evidence and then used by the State *9 to place the blame for everything that happened on her, rather than her
mother. We agree.
It is fundamental that, if a co-defendant does not testify at trial, those
portions of the co-defendant's admissions that implicate a defendant are not
admissible. Bruton, supra, 391 U.S. at 132, 88 S. Ct. at
1625-26, 20 L. Ed. 2d at
482-83; State v. Weaver,
219 N.J. 131, 153 (2014). There is an
unacceptably high risk of prejudice to a defendant "where the powerfully
incriminating extrajudicial statements of a codefendant, who stands accused
side-by-side with the defendant, are deliberately spread before the jury in a
joint trial." Bruton, supra, 391 U.S. at 135-36, 88 S. Ct. at
1628, 20 L. Ed. 2d at
485.
Not only are the incriminations devastating to the defendant but their
credibility is inevitably suspect, a fact recognized when accomplices do take
the stand and the jury is instructed to weigh their testimony carefully given
the recognized motivation to shift blame onto others. The unreliability of such
evidence is intolerably compounded when the alleged accomplice, as here, does
not testify and cannot be tested by cross-examination. It was against such
threats to a fair trial that the Confrontation Clause was directed.[Id. at 136, 88 S. Ct. at
1628, 20 L. Ed. 2d at
485 (citing Pointer v. Texas,
380 U.S. 400, 85 S. Ct. 106,
13 L. Ed. 2d 932 (1965)).]
Thus, if a co-defendant's incriminatory
statement directly refers to the defendant, the statement is inadmissible under
*10 Bruton.
Weaver, supra,
219 N.J. at 154 (citing Gray v. Maryland, 523 U.S. 185, 194, 118 S. Ct. 1151, 1156, 140 L. Ed. 2d 294, 302 (1998)).
Applying these principles, we conclude that the admission of Debra's
apology violated defendant's rights under the Confrontation Clause. The
statements are somewhat ambiguous in terms of whether they refer to Debra,
defendant, or both. Serio testified that Debra "said, she is sorry. She
didn't mean it," which may have been a reference to Debra's own involvement
in the matter. However, Serio also testified that Debra "was apologizing,
saying, I'm sorry. She's sorry for taking the shoes." (emphasis added). This
statement could refer to both Debra and defendant. Thompson's account of the
apology was broader since he also stated that Debra was apologizing for
"the incident that happened" and "for whatever took place in the
store . . . ." Thus, this statement could also be interpreted to include
defendant's conduct as well as Debra's.
However, any doubt as to the prejudicial impact of Debra's testimony on
defendant's Bruton rights was settled by
the prosecutor's use of Debra's apology to implicate defendant as the prime
actor in the incident. The prosecutor told the jury that Debra was
"apologizing for her daughter, who had assaulted [Thompson] in the
store." Similarly, Debra's attorney insisted *11 that Debra was apologizing for
defendant's actions, and not for her client's own possible involvement. Because
Debra did not testify, defendant was unable to cross-examine her concerning her
statements and her intent in making them. Thus, defendant's Confrontation
Clause rights were violated.
The State argues that the admission of these statements was harmless error.
We disagree.
"When evidence is admitted that contravenes not only the hearsay rule
but also a constitutional right, an appellate court must determine whether the
error impacted the verdict." Weaver,
supra, 219 N.J.
at 154 (citing Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824,
828, 17 L. Ed. 2d
705, 710-11 (1965)). Because defendant's attorney did not object
to the admission and use of Debra's testimony at trial, we apply the plain
error standard, which "require[s] [the] appellate court to determine
whether erroneously admitted evidence is clearly capable of producing [an]
unjust result . . . ." Id. at 154-55
(citing State v. Branch, 182 N.J. 338, 353 (2005)).
Measured against this standard, we are satisfied that the admission of
Debra's statements may have led the jury to a verdict it may not have otherwise
reached, especially with regard to whether she employed her child in the
offense. The *12 evidence
against defendant on this point "was strong, but it was not
overwhelming." Id. at 161.
Thompson testified that Debra removed shoes from a box and took them to the
back of the store where the child was waiting. Thompson did not see defendant
or the child put the shoes in the child's bag. When the women attempted to
leave the store, it was Debra, not defendant, who asked the child to take the
shoes out of her bag, thus indicating that Debra knew that was where the shoes
had been hidden. Under these circumstances, the admission of Debra's statement,
coupled with the State's argument that it was an apology for defendant's actions in the store, clearly
had the capacity to cause the jury to find defendant, rather than Debra, guilty
of employing a juvenile in the offense.
Moreover, the State's use of Debra's statement also adversely affected
defendant's defense to the robbery charge. Defendant's position, developed
through cross-examination of the store employees, was that Thompson exaggerated
the force defendant allegedly used to get out of the store and that, at most,
she had "merely bump[ed]" into him. However, after the admission of
Debra's statement, the State was able to argue that Debra was "apologizing
for her daughter, who had assaulted [Thompson] in the store." Defendant
was not able to cross- *13
examine Debra concerning the State's characterization of her statement and,
therefore, we conclude that the admission of the statement was "clearly
capable of producing [an] unjust result." Weaver,
supra, 219 N.J.
at 154-55.
Reversed. I hereby certify that the foregoing is a true copy of the
original on file in my office.
CLERK OF THE APPELLATE DIVISION
