(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued October 7, 2002 -- Decided December 11, 2002
LONG, J., writing for a unanimous Court
The issue in this appeal is whether the trial court admitted prejudicial hearsay testimony and, in addition, failed to provide the jury with an adequate unanimity instruction.
This matter arises out of defendant’s guilty verdict of endangering the welfare of
a child, in violation of N.J.S.A. 2C: 24-4(a), in connection with the death
of her son Ma’D. Defendant told police investigators that on June 8, 1995,
she had left Ma’D with his father, Richard Patterson, while she went into
Penns Grove for the evening. She further told investigators that at around 11:30
p.m. she saw Patterson in Penns Grove and confronted him as to why
he was not with Ma’D. She stated that she then tried to get
a ride back to the motel where she was living and when she
finally got there, at 1:30 a.m., she found that her son was not
breathing. She called 911 and administered CPR. Ma’D was dead on arrival at
the Salem County Memorial Hospital. The doctor at the emergency room observed a
bruise on Ma’D’s face and became suspicious that there had been some type
of child abuse. The doctor performing the autopsy observed four injuries on Ma’D,
including a bruise on the right side of the head and a larger
bruise on the left side of the face. That doctor testified that, in
his opinion, Ma’D had been the victim of child abuse.
Upon questioning by investigating officers, defendant stated that Patterson had promised to stay
with Ma’D. When questioned, Patterson claimed that he had made no such promise
and had not been with Ma’D that night. In fact, Patterson claimed that
he saw defendant three times that evening, without Ma’D, in Penns Grove, and
that he had asked her where she had left Ma’D. He also claimed
to have received two phone calls from defendant that night, the first asking
why he had left Ma’D, which he did not understand, and the second
saying that Ma’D was dead. Patterson provided investigators with the names of a
number of alibi witnesses that could attest to his whereabouts the night in
question. These witnesses never took the stand, but the investigating officers testified that
their statements “substantiated” Patterson’s claims as to his whereabouts and that their statements
were “more credible” than defendant’s. The officers further testified that they could not
charge Patterson with anything.
Defendant, who did not testify at trial, appealed her conviction and the Appellate
Division affirmed in an unreported decision. Defendant filed a petition for certification in
which she challenged the admission of prejudicial hearsay evidence and the adequacy of
the trial court’s jury unanimity instruction.
The Supreme Court granted defendant’s petition for certification.
HELD: The admission of the challenged testimony constituted plain error and the trial
court should have provided the jury with a more specific unanimity charge. The
judgment of the Appellate Division is reversed.
1. The admission of the challenged testimony of the investigating officers constituted plain
error. First, they recounted the out-of-court statements of non-testifying witnesses in contravention of
our hearsay rules. Second, the officers told the jury outright that those statements
“substantiated” Patterson’s testimony when, in fact, they had absolutely no bearing whatsoever on
the pivotal issue of whether Patterson had promised the defendant that he would
care for Ma’D. Third, one of the investigating officers testified that Patterson was
“more credible” than defendant when that was the ultimate question for the jury.
Based on the hearsay evidence, the police essentially gave the jury their opinion
regarding the innocence of Patterson and inferentially the guilt of defendant. That is
not allowed. (Pp. 8-15)
2. The jury charge in the instant matter was correct as far as
it went. The fundamental issue is whether a more specific instruction was required
in order to avert the possibility of a fragmented verdict. Courts should remain
alert to the necessity of tailoring jury instructions to the facts and of
utilizing a specific unanimity charge in any case in which the danger of
a fragmented verdict is even reasonably debatable. The instant case embodies the very
circumstances warranting a specific unanimity instruction. (Pp. 15-23)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED
to the Law Division for further proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, VERNIERO, LaVECCHIA, ZAZZALI and ALBIN join in
JUSTICE LONG’s opinion.
SUPREME COURT OF NEW JERSEY
A-
91 September Term 2001
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MONICA L. FRISBY,
Defendant-Appellant.
Argued October 7, 2002 – Decided December 11, 2002
On certification to the Superior Court, Appellate Division.
Abby P. Schwartz, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne
Smith Segars, Public Defender, attorney).
Gerard C. Sims, Jr., Deputy Attorney General, argued the cause for respondent (Peter
C. Harvey, Acting Attorney General of New Jersey, attorney).
The opinion of the Court was delivered by
LONG, J.
Tried to a jury, Monica Frisby was found guilty of second degree endangering
the welfare of a child, contrary to N.J.S.A. 2C:24-4(a), in connection with the
death of her son, Ma’D. She was sentenced to a custodial term of
seven years. Frisby appealed her conviction and the Appellate Division affirmed in an
unreported decision. State v. Frisby, No. A-294-99T4 (App. Div. Oct. 3, 2001). We
granted Frisby’s petition for certification,
171 N.J. 444 (2002), in which she challenged
the admission of prejudicial evidence at trial along with the adequacy of the
trial court’s jury unanimity instruction. We now reverse.
I
At trial, the following evidence was adduced in the State’s case. On June
28, 1994, defendant Monica Frisby gave birth to a son, Ma’D. The child’s
father was Richard Patterson. From birth, Ma’D had special medical needs and the
Division of Youth and Family Services (DYFS) intervened to assist Frisby with his
medical care. There were no allegations of abuse or neglect against Patterson. However,
because he was uncooperative with DYFS, Frisby was instructed not to leave Ma’D
with him. On June 7, 1995, the DYFS caseworker, Theresa McNellis, visited Frisby
and Ma’D at the motel where they resided. McNellis testified that she regularly
saw Frisby at the motel over a seven-month period both on a scheduled
and on an unscheduled basis. Prior to that date, DYFS had no record
of neglect or abuse by Frisby. According to McNellis, the motel room was
clean and the baby was properly attired. Frisby directed McNellis’ attention to two
minor scratches on the right side of the child’s face and one on
the left, which she attributed to an injury while the child was crawling.
Frisby already had made a pediatrician’s appointment to have the scratches looked at
the following day.
With the exception of the scratches, McNellis saw no injuries whatsoever on Ma’D’s
head or face. However, she acknowledged that Ma’D had an old finger injury
that he had sustained when he caught his finger in a stroller and
with respect to which he had received ongoing medical treatment. McNellis testified that
the child appeared otherwise to be in good health, well cared for, and
appropriately developed for his age.
On June 9, 1995, Detective Sergeant Bernard R. Buckley, of the Carney’s Point
Township Police Department, was involved in the investigation of Ma’D’s death. Ma’D had
been brought into Salem County Memorial Hospital on a call from the motel.
The caller had indicated that the baby was unresponsive. Upon meeting with an
investigator from the prosecutor’s office, Buckley was informed that the baby was dead
on arrival. In observing Ma’D’s body, Buckley noted that the baby had a
“long, narrow bruise on the . . . left cheek and temple area
and what appeared to be ligature marks . . . around the wrist.
. . . reflect[ing] that something had been placed on the wrist or
was on the wrist snugly at some point.” Buckley testified that the “ligature”
marks were “not unusual” and a prosecutor’s investigator, Leroy Pierce, testified that they
were consistent with “clothing that is often worn by infants.”
The prosecutor’s investigator introduced Buckley to Monica Frisby. Frisby was not a suspect
at that time and willingly talked to Buckley. Frisby told the detective that
on June 8, she was in her motel room with the baby and
Patterson, the baby’s father. They all had gone out to visit friends and
relatives and returned to the room at about 5:00 p.m. She stated that
she asked Patterson to watch Ma’D because she wanted to go into Penns
Grove for the evening. According to Buckley, Frisby said she left the baby
with Patterson at about 7:00 p.m. Frisby told Buckley that at about 11:30
p.m. she saw Patterson in Penns Grove and confronted him “as to why
he wasn’t in the room with the child.” Frisby said that as soon
as she realized that the baby was alone, she immediately tried to get
a ride back to the motel. She was finally able to obtain a
ride from a man named Tony and arrived at the motel around 1:30
a.m. Frisby said that, at first, she thought that the baby was asleep
in the crib. She then observed mucus around his nose and when she
checked more closely, she found that he was not breathing. She tried to
get help from a friend in the motel, called 911, and performed CPR.
When questioned by Buckley about the bruises on the baby’s face, Frisby indicated
that he had fallen off the bed the previous day and had hit
himself on a bicycle.
Frisby was taken to headquarters where she signed a consent to search her
motel room. The detective did not find a bicycle in the room. However,
Frisby indicated that she had used the bicycle to get to Penns Grove
and left it there while she sought a ride home. Patterson later confirmed
the presence of the bicycle in Penns Grove.
Frisby was released from headquarters while the detective conducted his investigation. At that
point, Buckley initiated contact with Patterson regarding Frisby’s claim that she had left
Ma’D with him. According to Buckley, Patterson told him that he was not
supposed to, nor did he, watch the baby that night. He recounted where
he had been during the course of the evening. Buckley testified that he
wanted to “substantiate [Patterson’s] claims that he had been at certain places at
certain times as opposed to what Ms. Frisby had told us that he
was supposed to be at the motel room at these times.” According to
Buckley, after speaking to Patterson’s “witnesses,” no charges were brought against him because
his witnesses “appeared to substantiate his claims about his whereabouts that evening.”
Patterson testified that Ma’D was his son and that on June 8, 1995,
he saw Frisby and the baby coming out of a neighbor’s house and
gave them a ride back to the motel. He kissed the baby good-bye
and left. The following morning, Patterson was at work when the police came
to talk to him. It was at that point that he was told
that the baby was dead. He voluntarily accompanied a police sergeant to the
police station where Buckley and Investigator Anthony Rastelli, of the Salem County Prosecutor’s
Office, questioned him. In response to their questioning, Patterson outlined all of the
places he had been and all of the people he had seen on
the previous night. Among them were his sister, his brother-in-law, his nephew, his
nephew’s wife, and a cousin. Patterson indicated that he had seen Frisby on
three occasions that night. He saw her at about 9:00 p.m. as she
went into a woman’s house in Penns Grove where she parked her bicycle
on the curb. He saw her again at about 10:00 p.m. on the
street. Patterson said he asked her where the baby was and Frisby said
something “nasty” to him. He said he then saw Frisby a third time,
about midnight, when she asked him for a ride back to the motel.
Patterson knew that Ma’D was not with Frisby at any point that night
and did not know who was watching him. After Patterson got home that
night, he said that Frisby called him twice. “The first time she called
she said, ‘Richie,’ . . . ‘Why’d you leave?’ And I said, ‘What
you talking about,’ and she just hung up the phone like that, and
the second time she called, she said, ‘Richie, Ma’D’s dead,’ and she hung
the phone up.” Patterson said he did not take those calls seriously.
Investigator Rastelli also interviewed Patterson and some of the people that Patterson indicated
that he had seen between 8:00 p.m. and 1:00 a.m. on the night
Ma’D died. According to Rastelli, after the investigation the police decided not to
charge Patterson with endangering the welfare of the child. Rastelli testified that was
because “[w]e didn’t feel that there was enough evidence, that he was more
credible than Ms. Frisby at that point.”
Dr. Paul Reyes was the emergency room doctor on the night Ma’D died.
He attempted to treat Ma’D when he was brought into the emergency room
but indicated that he basically was dead on arrival. Dr. Reyes observed a
bruise on Ma’D’s face that caused him to become suspicious that there had
been some type of abuse. The doctor also testified that Ma’D might have
been sick prior to his death as he was warm, indicating that he
had had a fever.
Dr. Paul J. Hoyer, the medical examiner/designated pathologist of Salem County, conducted the
autopsy on Ma’D on June 9. Dr. Hoyer observed four injuries on Ma’D:
a small bruise on the left side of the forehead; a larger bruise
on the left side of the face; a bruise on the right side
of the head above the ear; and an irregularity of a finger on
the left hand. Hoyer indicated that those injuries occurred at three separate times.
The injuries on the forehead and right side of the head were less
than twelve hours old and the larger bruise on the left side of
the face was approximately a day old. The finger injury was two months
old or more because it had completely healed. Regarding the marks on the
wrists and ankles, the doctor opined that they could have come from the
sleeper or from the baby having been bound. He could not be sure.
The doctor testified that, in his opinion, Ma’D had been the victim of
child abuse. Frisby did not testify and called no witnesses on her behalf.
The State offered alternative theories against Frisby: (1) that she actually inflicted the
injuries on Ma’D or failed to supervise him adequately thus resulting in his
injury and (2) that she abandoned him. On the evidence, the jury convicted
Frisby of endangering the welfare of a child. This appeal followed.
II
We turn first to Frisby’s contention that the hearsay testimony proffered by the
State improperly struck at the heart of her defense — that she had left
the baby in Patterson’s care. Because no objection was advanced with respect to
that hearsay evidence at trial, it must be judged under the plain-error standard:
that is, whether its admission “is of such a nature as to have
been clearly capable of producing an unjust result.” R. 2:10-2; State v. Macon,
57 N.J. 325, 335 (1971).
Specifically, Frisby challenges the testimony of Detective Buckley and Investigator Rastelli to the
effect that Patterson’s testimony was “substantiated” by the witnesses who told the police
they were with him at various locations on the night in question. As
indicated, Detective Buckley stated that: “We wanted to substantiate his claims that he
had been at certain places at certain times as opposed to what Ms.
Frisby had told us that he was supposed to be at the motel
room at these times.”
Buckley concluded that: “Because of the interviews with the persons he had mentioned.
It appeared to substantiate his claims about his whereabouts that evening, and there
was no — not enough information for us to charge him with anything.” Frisby
also challenges Investigator Rastelli’s testimony that after interviewing his family and friends, Patterson
was not charged because the police “didn’t feel that there was enough evidence,
that he was more credible than Ms. Frisby at that point.” In sum,
Frisby submits that the trial was tainted by inadmissible evidence and that she
was prejudiced by the statements bolstering Patterson’s credibility. We agree.
The officers’ testimony was problematic from many perspectives. In essence, it recounted out-of-court
statements of non-testifying witnesses to prove the truth of the matter asserted (that
they were with Patterson at various locations other than the motel room on
the night of Ma’D’s death). That testimony contravened N.J.R.E. 802, which interdicts hearsay
except as provided by the Rules of Evidence or other law.
The State argues that State v. Bankston,
63 N.J. 263 (1973), is “other
law” that authorized the officers to explain why they chose to prosecute Frisby
and not Patterson. That is a gross overstatement of the holding of Bankston.
To be sure, there are circumstances in which an officer will be allowed
to testify, based generally on hearsay evidence, to explain the course of his
or her investigation. State v. Roach,
146 N.J. 208, 224-25, cert. denied,
519 U.S. 1021,
117 S. Ct. 540,
136 L. Ed.2d 424 (1996). For
example, an officer might explain that he received information that caused him to
approach a suspect or brought him to the scene of a crime. Bankston,
supra, 63 N.J. at 268. However, “when the officer becomes more specific by
repeating what some other person told him concerning a crime by the accused,
the testimony violates the hearsay rule” and implicates defendant’s Sixth Amendment confrontation rights.
Ibid. (citations omitted). To the extent that Detective Buckley and Investigator Rastelli stated
that the absent witnesses “substantiated” Patterson’s testimony, they simply used a shorthand method
of providing the detail interdicted by the hearsay rule and in so doing,
“irresistibly” implicated Frisby. Roach, supra, 146 N.J. at 225 (citing State v. Thomas,
168 N.J. Super. 10, 15 (App. Div. 1979)).
Another problem with the officers’ testimony was overbreadth. Patterson’s alibi witnesses only shed
light on where he actually was on the night Ma’D died and not
on where he was supposed to be. The crux of this case was
whether Patterson promised Frisby that he would care for Ma’D. She told the
police that he did. He told them that he did not. The alibi
witnesses had no information whatsoever on that pivotal issue. Yet, the officers broadly
concluded that they “substantiated” Patterson’s story and made him “more credible” than Frisby.
That was incorrect as a factual matter. The witnesses only substantiated Patterson’s actual
absence from the motel, a subject that Frisby did not contest.
The State argues that the hearsay testimony was irrelevant to the ultimate issue
of whether Patterson had promised Frisby that he would care for Ma’D, and
that therefore any error in admitting it was harmless. Not so. First, the
jurors were never alerted to the fact that the witnesses did not substantiate
Patterson on the core issue in the case – where he was supposed to
be. Although the jurors might have recognized that the out-of-court witnesses could not
possibly attest to what happened in the early evening hours between Frisby and
Patterson at the motel, from the officers’ testimony the jurors could have concluded
that those witnesses substantiated Patterson’s claim that he saw Frisby three times on
the night of Ma’D’s death. If they believed that, the rest of Frisby’s
story that she only saw Patterson once and immediately headed for home was
eviscerated.
Most important, the hearsay testimony was advanced by the officers as the foundation
for their wholly improper credibility evaluation in favor of Patterson and against Frisby.
Based on the hearsay evidence, the police essentially gave the jury their opinion
regarding the innocence of Patterson and inferentially the guilt of Frisby. That is
not allowed.
Indeed, in State v. Hightower,
120 N.J. 378, 426 (1990), we specifically disapproved
the testimony of a police officer that expressed an opinion of defendant’s guilt.
We stated that:
We go to extraordinary lengths in ordinary criminal cases to preserve the integrity
and neutrality of jury deliberations, to avoid inadvertently encouraging a jury prematurely to
think of a defendant as guilty, to assure the complete opportunity of the
jury alone to determine guilt, to prevent the court or the State from
expressing an opinion of defendant’s guilt, and to require the jury to determine
under proper charges no matter how obvious guilt may be. A failure to
abide by and honor these strictures fatally weakens the role of the jury,
depriving a defendant of the right to trial by jury.
[Id. at 427-28 (citations omitted).]
See also State v. Odom,
116 N.J. 65, 77 (1989) (holding that expert
testimony opining on defendant’s guilt wholly improper because criminal guilt or innocence is
jury’s exclusive responsibility); State v. Landeros,
20 N.J. 69, 74-75 (1955) (holding that
police captain’s testimony regarding defendant’s guilt was so prejudicial that it warranted reversal
of defendant’s conviction).
The State argues that the officers’ testimony regarding Patterson’s credibility was not a
commentary on guilt as interdicted by Hightower. On the contrary, like the testimony
ruled improper in Roach, supra, it implicated Frisby by “necessary inference.” 146 N.J.
at 224. Moreover, the mere assessment of another witness’s credibility is prohibited. In
State v. J.Q., the Appellate Division spoke directly to this issue in the
context of expert opinion:
The question of whether a particular witness is testifying in a truthful manner
is one that must be answered in reliance upon inferences drawn from the
ordinary experiences of life and common knowledge as to the natural tendencies of
human nature, as well as upon observations of the demeanor and character of
the witness. The phenomenon of lying, and situations in which prevarications might be
expected to occur, have traditionally been regarded as within the ordinary facility of
jurors to assess. For this reason, the question of a witness’ credibility has
routinely been regarded as a decision reserved exclusively for the jury.
It is an encroachment upon the province of the jury to permit admission
of expert testimony on the issue of a witness’ credibility.
[
252 N.J. Super. 11, 39 (App. Div. 1991) (quoting Commonwealth v. Seese,
517 A.2d 920, 922 (Pa. 1986)), aff’d,
130 N.J. 554 (1993).]
As the Appellate Division concluded, “credibility is an issue which is peculiarly within
the jury’s ken and with respect to which ordinarily jurors require no expert
assistance.” Ibid.
Likewise, in State v. Pasterick,
285 N.J. Super. 607, 620 (App. Div. 1995),
the Appellate Division noted: “There is no provision in our legal system for
a ‘truth-teller’ who is authorized to advise the jury on the basis of
ex parte investigations what the facts are and that the defendant’s story is
a lie.” In Pasterick, the lack of objection by defense counsel to the
expert’s testimony was of no consequence. Id. at 621. As noted by that
court, “although not objected to, we hold that it was plain error because
it deprived defendant of his right to a fair trial.” Id. at 622
(emphasis added) (citations omitted).
We think the admission of the challenged testimony of Detective Buckley and Investigator
Rastelli constituted plain error. First, they recounted the out-of-court statements of non-testifying witnesses
in contravention of our hearsay rules. Second, the officers told the jury outright
that those statements “substantiated” Patterson’s testimony when, in fact, they had absolutely no
bearing whatsoever on the pivotal issue of whether Patterson had promised Frisby that
he would care for Ma’D. Third, officer Rastelli testified that Patterson was “more
credible” than Frisby when that was the ultimate question for the jury. The
effect of the police testimony essentially vouching for Patterson cannot be overstated. As
we recently observed in Neno v. Clinton,
167 N.J. 573, 586-87 (2001), in
connection with a police witness’s testimony about fault for an automobile accident:
A jury may be inclined to accord special respect to such a witness.
Deference to a police officer in turn may have enhanced the credibility of
the statements of Burnett and Meyer. It is safe to say that Officer
Kelly’s testimony created improper bolstering. . . . The jury heard from a
law enforcement officer trained in accident investigation that he believed plaintiffs caused the
accident. The jury could have ascribed almost determinative significance to that opinion, which
went to the heart of the case.
This case was a pitched credibility battle between Frisby and Patterson on the
pivotal issue of whether Patterson promised to care for Ma’D. Any improper influence
on the jury that could have tipped the credibility scale was necessarily harmful
and warrants reversal.
III
We turn next to Frisby’s claims regarding the jury instruction on unanimity. The
unanimity principle is deeply ingrained in our jurisprudence:
Like the “reasonable doubt” standard that was found to be an indispensable element
at all criminal trials in
In re Winship,
397 U.S. 358, 364,
90 S. Ct. 1068, 1072,
25 L. Ed. 2d 368, 375 (1970), “the unanimous jury requirement ‘impresses on the
trier of fact the necessity of reaching a subjective state of certitude on
the facts in issue.’” United States v. Gipson,
553 F.2d 453, 457 (5th
Cir. 1977) (quoting
In re Winship, supra,
397 U.S. at 364,
90 S. Ct. at 1072,
25 L. Ed. 2d at 375). Our Constitution presupposes a requirement of a unanimous jury verdict
in criminal cases. N.J. Const. art. I, [¶] 9. Our Rules require that
the “verdict shall be unanimous in all criminal actions.” R.
1:8-9.
[State v. Parker,
124 N.J. 628, 633 (1991), cert. denied,
503 U.S. 939,
112 S. Ct. 1483,
117 L. Ed.2d 625 (1992).]
The notion of unanimity requires “jurors to be in substantial agreement as to
just what a defendant did” before determining his or her guilt or innocence.
Gipson, supra, 553 F.
2d at 457. “Requiring the vote of twelve jurors to
convict a defendant does little to insure that his right to a unanimous
verdict is protected unless the prerequisite of jury consensus as to the defendant’s
course of action is also required.” Id. at 458 (footnote omitted).
Although the need for juror unanimity is obvious, exactly how it plays out
in individual cases is more complicated. For example, it has been held that
a jury does not have to agree unanimously on whether a defendant has
acted as a principal or an accomplice. United States v. Peterson,
768 F.2d 64 (2d Cir.) (finding that jury unanimity regarding whether defendant aided or abetted
in drug distribution crime not required for purposes of determining if defendant was
statutory principal), cert. denied,
474 U.S. 923,
106 S. Ct. 257,
88 L.
Ed.2d 264 (1985). It has also been held that unanimity is not
required when a statute embodies a single offense that may be committed in
a number of cognate ways. United States v. UCO Oil Co.,
546 F.2d 833 (9th Cir. 1976) (determining that jury unanimity on specifics not required in
conviction for making false statements and concealing material fact by trick, scheme, or
device in relation to gasoline service station business), cert. denied,
430 U.S. 966,
97 S. Ct. 1646,
52 L. Ed.2d 357 (1977); see generally Tim
A. Thomas, J.D., Annotation, Requirement of Jury Unanimity as to Mode of Committing
Crime Under Statute Setting Forth the Various Modes by Which Offense May Be
Committed,
75 A.L.R.4th 91 (1990).
It is clear, however, that there are some circumstances in which a general
unanimity charge will be inadequate. In Parker, supra, we gave examples of such
circumstances,
“[when] a single crime can be proven by different theories based on different
acts and at least two of these theories rely on different evidence, and
[when] the circumstances demonstrate a reasonable possibility that a juror will find one
theory proven and the other not proven but that all of the jurors
will not agree on the same theory.” People v. Melendez,
224 Cal.App.3d 1420,
1433-34,
274 Cal.Rptr. 599, 608 (1990). . . . [S]ee also United States
v. Payseno,
782 F.2d 832, 836 (9th Cir. 1986) (“‘[When] there is a
genuine possibility of jury confusion or that a conviction may occur as the
result of different jurors concluding that the defendant committed different acts, the general
unanimity instruction does not suffice.’” (quoting United States v. Echeverry,
719 F.2d 974,
975 (9th Cir. 1983))). . . . “[W]here the facts are exceptionally complex,
see Payseno, [supra,] 782 F.
2d at 836-37, or where the allegations in a
single count are either contradictory or only marginally related to one another, id.,
or where there is a variance between the indictment and the proof at
trial, United States v. Echeverry,
698 F.2d 375, 377, modified,
719 F.2d 974
(9th Cir. 1983), United States v. Mastelotto,
717 F.2d 1238, 1250 (9th Cir.
1983), or where there is a tangible indication of jury confusion. Echeverry, [supra,]
698 F.
2d at 376-77. In these instances, the trial court must give an
augmented unanimity instruction.” [United States v. Ryan,
828 F.2d 1010, 1020 (3d Cir.
1987).]
[124 N.J. at 635-36.]
We concluded:
Concerning the need for a specific unanimity instruction, we agree with the proposition
stated in North I that is generally applied in the federal system: “in
cases where there is a danger of a fragmented verdict the trial court
must upon request offer a specific unanimity instruction.” North I, supra, 910 F.2d
at 875; accord United States v. Ryan, supra,
828 F.2d 1010; United States
v. Mangieri,
694 F.2d 1270 (D.C. Cir. 1982).
[Id. at 637.]
Because we adjudicate this claim under the plain-error standard, the issue is whether
the failure of the trial court to give a specific unanimity instruction sua
sponte was clearly capable of producing an unjust result. R. 2:10-2. This is
not a case in which the jury charge was incorrect on its face.
See, e.g., State v. Robinson,
165 N.J. 32, 40 (2000) (explaining that failure
to provide “proper jury instructions” may constitute plain error). The charge was correct
as far as it went. The fundamental issue is whether a more specific
instruction was required in order to avert the possibility of a fragmented verdict.
We think it was.
This case embodies the very circumstances to which we adverted in Parker as
warranting a specific unanimity instruction. Endangering the welfare of a child, N.J.S.A. 2C:24-4(a),
has three elements: that the victim was a child; that defendant had a
duty to care for him; and that defendant knowingly caused him harm, making
him an abused or neglected child. The State proffered two theories to undergird
its case. The first was that Frisby either inflicted the injury upon Ma’D
or failed to supervise him, resulting in the injury. The second was that
she abandoned him in the motel room.
In instructing the jury on those theories, the trial court stated:
What is in contention is the third element. Remember that the third element
is that [defendant] knowingly caused Ma’D harm that would make Ma’D an abused
or neglected child. I've just told you what knowingly is, and with regards
to whether Ma’D was an abused or neglected child, the State makes two
separate contentions, and I've read you those legal definitions, but I would suggest
that for the first the State contends that [defendant] inflicted the injuries to
Ma’D’s head as described by Dr. Hoyer this morning or that she failed
to properly supervise Ma’D resulting in the injuries to his head. [Defendant] denies
inflicting any injury on Ma’D or failing to properly supervise him. The second
possible prong for the third element is where the State contends that [defendant]
abandoned Ma’D on the -- in the early –- I'm sorry –- on
the evening of June 8th, 1995 while she went into Penns Grove. [Defendant]
asserts that she did not abandon Ma’D and that she left him in
the care of Richard Patterson. For the State to meet the burden of
proof on the third element, they must prove to you beyond a reasonable
doubt that either of the two exists. They do not have to prove
both of them. So if you're convinced beyond a reasonable doubt that the
State has proved its contentions with regards to [defendant] inflicting injuries on Ma’D
or not –- or failing to supervise him so that the injuries resulted,
that's sufficient, or if you find that [defendant] abandoned Ma’D on the evening
of June 8th, 1995, or –- I'm sorry -– not or. If you
find that she abandoned him, that would meet the third prong. The State
does not have to prove both contentions. They're alternate co -– alternate arguments
made by the State. Ladies and gentlemen, if you find that the State
has proven all three elements, age, duty, and what occurred, then you must
find the defendant –- I'm sorry –- proved all three elements beyond a
reasonable doubt, then you must find the defendant guilty. If you find that
the State has failed to prove any of the three elements; and in
this case, it would be the third one, either of the two alternate
arguments, then you must find the defendant not guilty.
[(Emphasis added).]
The court also gave a general unanimity instruction later in the charge:
The verdict must represent the considered judgment of each juror and must be
unanimous as to the charge. This means that all of you must agree
if the defendant is guilty or not guilty on the charge of endangering
the welfare of a child. . . . Since this is a criminal
case, your verdict, whatever it may be, must be unanimous. That means that
all 12 who ultimately are chosen as a deliberating jury must agree as
to the verdict.
Frisby contends that the unanimity aspects of the instruction were fashioned in such
a way as to allow a non-unanimous patchwork verdict against her. More particularly,
because the state proffered two entirely distinct factual scenarios to support the third
element of the crime of endangering, Frisby contends that the jurors may have
convicted her although some believed she was at the motel when the injuries
were sustained while others believed she abandoned Ma’D for a night on the
town.
We agree with Frisby. Different theories were advanced based on different acts and
entirely different evidence. In one scenario, Frisby was present and inflicted the injuries
on Ma’D or allowed him to be injured. In the other, she went
out and left him alone. Those are unlike the facts deemed cognate in
Parker, supra, where the defendant showed the child victims pornography, informed them of
her sexual desires, and used foul language, which acts the Court held to
be “conceptually similar.” 124 N.J. at 639. Nor are they like the facts
in State v. T.C.,
347 N.J. Super. 219 (App. Div. 2002) (petition for
certification pending), where the Appellate Division held that different sadistic acts toward a
child victim including hitting, verbal abuse, starvation, and humiliation did not require a
specific unanimity charge because there was a single theory of ongoing emotional and
physical abuse advanced and the acts alleged were conceptually similar.
On the contrary, the allegations in this case were “contradictory,” “conceptually distinct,” and
not even “marginally related” to each other, thus requiring a specific unanimity instruction.
Cf. Parker, supra, 124 N.J. at 639 (finding that defendant’s acts were conceptually
similar thus obviating need for specific unanimity charge). A jury verdict form could
have clarified matters but was not used. Courts should remain alert to the
necessity of tailoring jury instructions to the facts and of utilizing a specific
unanimity charge in any case in which the danger of a fragmented verdict
is even reasonably debatable.
We note that the State contends that because there was no evidence of
“jury confusion” a reversal is not required. That argument dices the notion of
jury confusion referred to in our unanimity case law too finely. To be
sure, if a jury affirmatively evidences “confusion” by its questions or its answers
on a jury verdict form, that would be an important factor in determining
whether the absence of a specific unanimity charge caused defendant to be prejudiced.
But the converse does not follow. As a result of the absence of
a specific unanimity charge, the jurors here may have been perfectly clear that
they could convict Frisby although they completely disagreed regarding contradictory and conceptually distinct
theories and the evidence underlying them. That is especially true in light of
the court’s instruction that to convict the State had to prove “either” of
its theories beyond a reasonable doubt. Such a jury would “evidence” no confusion
but would nevertheless meet the confusion standard in the cases.
IV
The judgment of the Appellate Division is reversed. The matter is remanded for
retrial to take place in accordance with the principles to which we have
adverted.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, VERNIERO, LaVECCHIA, ZAZZALI and ALBIN join in
JUSTICE LONG’s opinion.
SUPREME COURT OF NEW JERSEY
NO. A-91 SEPTEMBER TERM 2001
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MONICA L. FRISBY,
Defendant-Appellant.
DECIDED December 11, 2002
Chief Justice Poritz PRESIDING
OPINION BY Justice Long
CONCURRING OPINION BY
DISSENTING OPINION BY
CHECKLIST