Co-defendant statement should have required separate trials State v Shumate SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2297-13T2 10-19-2015

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer, Haas and Manahan.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,1were 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 *6Thompson 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, 219N.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, 88S. 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, 219N.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'msorry. 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 (citingState 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, 219N.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