State v. David Bass(072669)

SYLLABUS
(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
interest of brevity, portions of any opinion may not have been summarized.)
State v. David Bass (a/k/a Robert Hines) (A-118-13) (072669)
Argued October 14, 2015 -- Decided March 7, 2016
PATTERSON, J., writing for a unanimous Court.
In this appeal, the Court considers three issues that arise from defendant’s trial and conviction for murder
and related offenses: (1) the limitation on defense counsel’s cross-examination of the State’s lead witness; (2) the
admission of expert testimony by a surrogate for the medical examiner who conducted the victim’s autopsy and died
prior to trial; and (3) the absence of a jury instruction addressing the use of force against an intruder.
On December 20, 2006, Jessica Shabazz was shot and killed, and James Sinclair was wounded, at a motel
in Neptune Township. Defendant David Bass was arrested shortly thereafter. He admitted that, prior to the
shooting, he had smoked crack cocaine with Shabazz and Sinclair in his motel room, that he and Shabazz had
argued, and that he shot Shabazz and Sinclair. Defendant asserted, however, that he used his weapon in self-
defense. Following a fifteen-day trial, a jury convicted defendant of the murder of Shabazz, the attempted murder of
Sinclair, and two weapons offenses. He was sentenced to a sixty-year aggregate term of incarceration.
Defendant raised several challenges on appeal, including the three issues that form the basis of the instant
appeal. The first issue arose from the trial court’s limitation on defense counsel’s cross-examination of Sinclair, the
State’s lead witness. Counsel sought to establish bias by inquiring about the provisions of Sinclair’s plea agreement
for an offense committed after the shooting in this case. Sinclair had pled guilty to third-degree theft and burglary
and was sentenced to probation prior to defendant’s trial, rather than proceeding on charges of first-degree robbery
with a possible life sentence. The trial court barred counsel from exploring the plea bargain in cross-examination.
Second, defendant challenged the admission of the expert testimony of Dr. Frederick DiCarlo, an assistant
medical examiner, who testified as a surrogate for Dr. Jay Peacock, the medical examiner who conducted the
autopsy of Shabazz and died prior to trial. During Dr. DiCarlo’s testimony, defense counsel objected to the expert’s
“parroting” of Dr. Peacock’s findings. Although counsel did not specifically invoke the Confrontation Clause, he
stated that Dr. DiCarlo should be permitted to testify only about his “own independent observations of the autopsy
photographs and things of that nature,” and should not testify about the late Dr. Peacock’s observations. The court
ruled that Dr. DiCarlo was permitted to testify about the opinions expressed by Dr. Peacock in the autopsy report.
Third, defendant argued that the trial court should have charged the jury regarding the use of force that is
permissible when an individual is confronted in his or her dwelling by an “intruder.” Although defendant admitted
Shabazz and Sinclair into his room, he argued that they became “intruders” because they intended to rob him.
The panel rejected each argument and affirmed defendant’s conviction and sentence. The Court granted
defendant’s petition for certification. 221 N.J. 284 (2014).
HELD: The limitation on defendant’s cross-examination of Sinclair constituted reversible error. Defendant is entitled
to a new trial on the charges of murder, attempted murder and the possession of a weapon for an unlawful purpose. In
addition, the substitute expert read portions of the deceased medical examiner’s autopsy report to the jury, rather than
testifying based on his own observations and conclusions, which violated defendant’s confrontation rights. On retrial,
any expert testimony by a substitute medical examiner should conform to State v. Michaels, 219 N.J. 1, cert. denied,
135 S. Ct. 761, (2014), and State v. Roach, 219 N.J. 58 (2014), cert. denied, 135 S. Ct. 2348 (2015). Defendant was not
entitled to an instruction on the use of force against an intruder because he voluntarily admitted the victims to his room.
1. In criminal trials, the claimed bias of a witness is generally an appropriate inquiry in cross-examination. A claim
that there is an inference of bias is particularly compelling when the witness is under investigation, or charges are
1
pending against the witness, at the time that he or she testifies. Nonetheless, a charge need not be pending at the
time of trial to support an inference of bias. A charge that has been resolved before the witness testifies may be an
appropriate subject for cross-examination. Moreover, a charge against a prosecution witness that is unrelated to the
charge against the defendant may be an appropriate topic for cross-examination. The case law envisions that a trial
court will undertake a careful evaluation of a defendant’s claim that a witness is biased. (pp. 17-24)
2. Here, the trial court barred defendant from exploring the terms of the plea bargain that led to the dismissal of
Sinclair’s unrelated first-degree robbery charge and probationary sentence. The pendency of a first-degree charge
may have served as a powerful incentive for Sinclair to cooperate with the State. The jury should have been told
that, after the shooting at issue in this case, Sinclair allegedly committed an offense that exposed him to a lengthy
term of incarceration. The jury also should have been made aware that Sinclair entered into a plea bargain with the
State, and that, by virtue of his plea, Sinclair faced probation rather than a lengthy prison term. Defendant was
entitled to explore that history, and the court erred when it barred counsel from pursuing this line of questioning.
Had the jury been aware that Sinclair was charged with a separate armed robbery and faced exposure to more than a
life sentence, and that he and the State entered into a plea agreement that reduced his first-degree offense to third-
degree charges with a term of probation, it may well have drawn an inference of bias. The trial court’s error was not
harmless beyond a reasonable doubt, in light of Sinclair’s pivotal role in defendant’s trial. Accordingly, defendant is
entitled to a new trial on the charges of knowing or purposeful murder and attempted murder. (pp. 24-33)
3. The Court next considers the court’s admission of the expert testimony of Dr. DiCarlo, the medical examiner
who testified about the autopsy as a substitute for the deceased Dr. Peacock. In 2014, in Michaels, supra, 219 N.J. at
18-32, and Roach, supra, 219 N.J. at 74-80, this Court analyzed the United States Supreme Court’s recent
Confrontation Clause jurisprudence. In Michaels, the Court explained, “a truly independent reviewer or supervisor
of testing results can testify to those results and to his or her conclusions about those results, without violating a
defendant’s confrontation rights, if the testifying witness is knowledgeable about the testing process, has
independently verified the correctness of the machine-tested processes and results, and has formed an independent
conclusion about the results.” 219 N.J. at 45-46. The Court, therefore, held that the State’s expert in Michaels was
properly permitted to testify because “he testified to the findings and conclusions that he reached based on test
processes that he independently reviewed and verified.” 219 N.J. at 46. Similarly, in Roach, the Court explained
that a co-worker could testify as to the results of testing conducted by an analyst who does not appear at trial,
provided that the testifying witness is “a truly independent and qualified reviewer of the underlying data and report,”
and the witness does not “merely parrot the findings of another.” 219 N.J. at 79-80. (pp. 33-40)
4. The principles stated in Michaels and Roach apply in this setting. A testimonial report that is not admitted into
evidence can engender a violation of the Confrontation Clause if that report is “integral” to the testimony of a
substitute witness. Roach, supra, 219 N.J. at 76-77. Instead of limiting its examination of Dr. DiCarlo to his
independent observations and analysis, the State prompted him to read the contents of various portions of Dr.
Peacock’s autopsy report, as if Dr. DiCarlo had been present at the autopsy and Dr. Peacock’s findings were his
own. Thus, Dr. DiCarlo was permitted to engage in precisely the type of “parroting” of the autopsy report that has
been held to violate the Confrontation Clause. On retrial, any expert testimony regarding the autopsy of Shabazz
should conform with the requirements set forth in the Court’s opinion. (pp. 40-46)
5. The final issue raised in this appeal is whether the trial court properly declined defendant’s request to instruct the
jury about the use of force that may be used against an intruder. The term “intruder” denotes an individual who
enters, or attempts to enter, a dwelling uninvited. That term does not extend to an individual who is invited into a
dwelling by the resident, and is a guest in that dwelling for a period of time before the use of force occurs. In this
case, the trial court properly declined to give the “intruder” charge because the evidence clearly established that
defendant voluntarily invited Shabazz and Sinclair into his motel room. (pp. 47-51)
The judgment of the Appellate Division is AFFIRMED, in part, and REVERSED, in part, and the matter
is REMANDED to the trial court for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and SOLOMON; and JUDGE
CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA did
not participate.
2
SUPREME COURT OF NEW JERSEY
A-118 September Term 2013
072669
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID BASS (a/k/a ROBERT HINES),
Defendant-Appellant.
Argued October 14, 2015 – Decided March 7, 2016
On certification to the Superior Court,
Appellate Division.
Michael J. Confusione, Designated Counsel,
argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney).
Frank Muroski, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).
JUSTICE PATTERSON delivered the opinion of the Court.
In the early morning hours of December 20, 2006, Jessica
Shabazz was shot and killed, and James Sinclair was wounded, at
a motel in Neptune Township. Defendant David Bass was arrested
shortly thereafter. He admitted to police that, prior to the
shooting, he had smoked crack cocaine with Shabazz and Sinclair
in his motel room, that he and Shabazz had argued over money,
and that he shot Shabazz and Sinclair with his handgun.
Defendant asserted, however, that he used his weapon in self-
1
defense after Shabazz briefly wrested his gun from him, Sinclair
assaulted him, and both attempted to rob him. A jury convicted
defendant of the knowing or purposeful murder of Shabazz, the
attempted murder of Sinclair, and two weapons offenses. He was
sentenced to a sixty-year aggregate term of incarceration.
On appeal, defendant challenged three determinations by the
trial court. The first issue arose from the trial court’s
limitation on the cross-examination of the State’s lead witness,
Sinclair. Charged with first-degree robbery for an offense
committed after the shooting in this case, Sinclair faced
exposure to a life sentence of incarceration. Pursuant to his
plea agreement with the State, Sinclair pled guilty to third-
degree theft and burglary and was sentenced to probation prior
to defendant’s trial. In his cross-examination of Sinclair,
defense counsel was barred from inquiring about the provisions
of Sinclair’s plea agreement. Second, defendant challenged the
trial court’s admission of the expert testimony of a medical
examiner, who testified as a surrogate for another medical
examiner who had conducted the autopsy of Shabazz, because that
medical examiner died prior to defendant’s trial. Third,
defendant contended that the trial should have charged the jury
regarding the permissible use of force against an intruder. The
Appellate Division affirmed defendant’s conviction and sentence,
and we granted defendant’s petition for certification.
2
We affirm in part and reverse in part the judgment of the
Appellate Division. We hold that the trial court’s limitations
on defendant’s cross-examination of Sinclair constituted
reversible error. Given the timing of Sinclair’s plea agreement
and its favorable terms, the jury could have drawn an inference
of bias had it been fully informed. Moreover, the trial court’s
error was not harmless beyond a reasonable doubt, in light of
Sinclair’s pivotal role in defendant’s trial. Therefore,
defendant is entitled to a new trial on the charges of murder,
attempted murder and the possession of a weapon for an unlawful
purpose.
We also reverse the Appellate Division’s judgment affirming
the trial court’s admission of the expert testimony of a
substitute medical examiner regarding the autopsy of Shabazz.
Following defendant’s trial and the Appellate Division decision
in this case, this Court decided State v. Michaels, 219 N.J. 1,
cert. denied, ___ U.S. ___, 135 S. Ct. 761, 190 L. Ed. 2d 635(2014), and State v. Roach, 219 N.J. 58 (2014), cert. denied,
___ U.S. ___, 135 S. Ct. 2348, 192 L. Ed. 2d 148 (2015). In
accordance with the principles set forth in Michaels and Roach,
the State may present the testimony of a qualified expert who
has conducted independent observation and analysis regarding an
autopsy conducted by a medical examiner who is unavailable to
testify at trial, without violating the defendant’s
3
confrontation rights under the Sixth Amendment of the United
States Constitution and Article I, Paragraph 10 of the New
Jersey Constitution.
In defendant’s trial, however, the substitute expert was
permitted to read to the jury portions of the deceased medical
examiner’s autopsy report, rather than testify based on his own
observations and conclusions. Accordingly, the trial court’s
admission of that testimony violated defendant’s confrontation
rights under federal and state law. On retrial, any expert
testimony offered on behalf of the State by a substitute medical
examiner should conform to the standards of Michaels and Roach.
Finally, we concur with the Appellate Division that because
defendant voluntarily admitted Shabazz and Sinclair to his motel
room, he was not entitled to a jury instruction addressing the
use of force against an intruder.
I.
On December 19, 2006, defendant, a fifty-five-year-old
resident of Rochester, New York, drove a rented car from his
home to Neptune Township. He checked into a motel, and was
assigned a room on the ground floor, with a sliding glass door
leading to a small patio. Defendant carried approximately
seventy thousand dollars in cash, concealed in a hidden
compartment of one of his two suitcases, and several thousand
4
dollars in his billfold. He also brought a handgun to the
motel, and stored it under the mattress in his room.
Defendant drove from the motel to Asbury Park late in the
afternoon. There, he met Antoinella Johnson, the daughter of a
woman who had been defendant’s neighbor when he lived in Asbury
Park. According to Johnson, she and defendant then spent
several hours together. Johnson used money that defendant gave
her to make several purchases. She bought crack cocaine,
clothing and toiletries for herself, women’s lingerie for
defendant, alcohol, lottery tickets, and cigarettes. Defendant
and Johnson then went to defendant’s motel room. Johnson later
testified that in the motel room, defendant changed into the
women’s clothing that Johnson had bought at his direction, and
they both smoked crack cocaine. Johnson stated that twice in
the course of the evening, defendant sent her out to purchase
more crack cocaine, using his car, and that the second time he
did so, he suggested that she bring back a friend.
According to Johnson, she was unhappy about the prospect of
sharing defendant’s attention and money with another woman but
followed his instructions nonetheless. Driving defendant’s car,
she located her friend, nineteen-year-old Shabazz, and asked
whether she wanted to meet defendant in his motel room. Shabazz
agreed to go with her. A friend of Shabazz, Deborah Brisco,
would later testify for the defense that before leaving for
5
defendant’s motel room, Shabazz asked Brisco whether she wanted
to “do a job.” According to Brisco, doing a “job” meant
“finding a trick, taking him to a motel room, getting him high
and robbing him,” but not violence. Brisco testified that she
refused Shabazz’s offer.
Briefly diverted by a flat tire on defendant’s car, Johnson
and Shabazz purchased more crack cocaine with money that
defendant had provided, and then drove to the motel, where
Johnson introduced Shabazz to defendant. Johnson recounted that
after the three smoked crack cocaine in the motel room,
defendant sent Johnson out to buy more drugs. Johnson was gone
for two to three hours. When Johnson did not immediately come
back to the room, defendant gave Shabazz two hundred dollars and
asked her to go out for more cocaine. Johnson briefly returned,
accompanied by her stepmother, Linda Bradley, but left again
after a few minutes.
When Shabazz returned in a taxi, between two o’clock and
two-thirty a.m., she was accompanied by Sinclair, who would
later testify that he brought cocaine to sell to defendant. The
taxi driver testified that when he dropped Shabazz and Sinclair
at the motel, they were admitted to the room through the glass
door by a person who, the driver believed, was a woman who was
high or drunk. According to Sinclair, it was defendant, dressed
in women’s clothing, who admitted him and Shabazz to the room.
6
Sinclair testified that after he arrived, he sat in a chair
drinking, smoking crack cocaine, and sending text messages on
his cellphone. He stated that defendant and Shabazz immediately
began to argue about money, alternating between their heated
disagreement and periods of calm in which both smoked crack
cocaine. When defendant briefly left them alone, Shabazz
explained to Sinclair that defendant owed her money for sexual
services that she had provided to him earlier that evening.
Defendant would later tell police that he had intended to pay
Shabazz for her services but had decided against doing so
because he realized that he was being cheated in Shabazz’s
purchases of drugs.
A half hour after Shabazz and Sinclair arrived, they were
joined by Johnson and Bradley. Johnson was upset to see
Sinclair present. According to Johnson, she loudly expressed
her anger to Shabazz. She told Shabazz and Sinclair to leave,
but defendant urged them to stay. After another period of
relative calm in which the five occupants of the room smoked
crack cocaine, the dispute escalated again. Shabazz attempted
to take defendant’s leather jacket, and defendant grabbed her by
the arm to prevent her from doing so.
At that point, Johnson and Bradley left the motel room. In
Johnson’s words, they “did not want to get into any trouble.”
Both were concerned about what was about to happen in the room;
7
Johnson later told police that she anticipated that Sinclair and
Shabazz might rob defendant, and Bradley testified that when she
left, she thought that Sinclair and Shabazz were stealing from
defendant. Following the departure of Johnson and Bradley, only
defendant, Shabazz, and Sinclair remained in the motel room.
Sinclair and defendant would later provide sharply
divergent accounts of the events that followed. Sinclair
testified that as the argument between defendant and Shabazz
continued, defendant approached the bed where Shabazz was
sitting. According to Sinclair, Shabazz “like pushed
[defendant] away, like get the f**k out of here,” and defendant
backed off, anxiously pacing the floor. Sinclair stated that
Shabazz briefly grabbed one of defendant’s suitcases, and
defendant grabbed it back.
Sinclair stated that a moment later, he looked up from his
phone to see defendant holding a “gigantic gun,” aimed at
Shabazz, and that defendant said to Shabazz, “you think this is
a f****g game?” Sinclair contended that he tried to “negotiate”
with defendant, offering to “take [Shabazz] and get the f**k out
of here” but that defendant persisted, commenting “ah, b***h
think this is a game.” According to Sinclair, he “grabbed
[defendant] and pushed him, and I pushed him toward the
bathroom,” then grabbed Shabazz off the bed, “snatched” the
sliding door open and “slung” Shabazz out the door. Sinclair
8
stated that, as he fled, he did not look back at defendant, who
was behind him in the room. It was at that point, Sinclair
said, that he heard defendant’s first shot, which hit him in the
hand, and two more shots, one of which hit Shabazz.
Defendant provided to police a different account of the
final moments before the shooting. He insisted that he acted in
self-defense. He stated that Shabazz and Sinclair “attack[ed]
me first,” and that Sinclair “grabbed me by the throat and
pushed me back to the wall.” He said that he was trying to
retrieve his gun, which was under the mattress on which Shabazz
was sitting, but she “read [his] body language” and went for the
gun herself. Defendant said he “tussled with [Shabazz]” and got
the gun back. Defendant stated that Shabazz and Sinclair ran,
taking defendant’s money, and that Sinclair reached the door
first. Defendant said he fired shots because he “didn’t want
[Sinclair] to hurt me . . . I just didn’t want to get hurt,” and
that he “didn’t mean to shoot her,” and that she “moved in the
way” just as he shot at Sinclair. Defendant said that the
initial shots were fired in the room, but admitted that he fired
additional shots at Sinclair when he was outside in the parking
lot.
The gunshots at the motel prompted a call to police.
Shabazz was found lying face down on the ground with a bullet
9
wound in her back. She was pronounced dead by paramedics at the
scene.
Defendant attempted to leave the motel after the shooting,
towing two suitcases. Approached by police officers, defendant
claimed that he had been interviewed and released by police, and
that he was not the person they were looking for. Defendant was
detained and taken to the police station. Late that afternoon,
defendant gave two successive statements to police after waiving
his Miranda1 rights. In his first statement, defendant denied
involvement in the shooting and then invoked his right to
counsel. Shortly thereafter, he asked to see the investigating
officers again. In a second statement, defendant admitted
shooting Shabazz and Sinclair. At that point, he asserted his
claim of self-defense for the first time.
That same day, searching the area in which defendant had
been observed, officers found a gun which was later identified,
through ballistics analysis, as the gun used in the shooting of
Shabazz and Sinclair.
After running from the motel, Sinclair flagged down a taxi
driven by an acquaintance. Sinclair sought neither the
assistance of law enforcement nor medical attention for the
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
10
gunshot wound to his hand. Instead, he directed the taxi driver
to take him to the home of a friend, where he smoked crack
cocaine. Police officers found him hours later, and took him to
a hospital, where surgeons amputated a finger. When he was
located by police, Sinclair had in his possession defendant’s
billfold, which contained defendant’s identification and credit
cards. He stated that Shabazz had slipped the billfold into his
pocket in defendant’s motel room but offered no further
explanation for his possession of the billfold.
The Monmouth County Medical Examiner, Dr. Jay Peacock,
performed Shabazz’s autopsy a few hours after her death. Two
law enforcement officers, the Monmouth County detective leading
the investigation and a Neptune Township police officer, were
present at the autopsy, and collected fingerprints and other
evidence for use in their investigation. In his autopsy report,
Dr. Peacock concluded that Shabazz died from a single bullet
that entered her lower back, traveled through a portion of her
heart and right lung, and exited through her chest.
II.
A grand jury charged defendant with first-degree murder,
N.J.S.A. 2C:11-3(a)(1) and (2); first-degree attempted murder,
N.J.S.A. 2C:5-1, 2C:11-3(a)(1) and (2); third-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:58-
4; second-degree possession of a weapon for an unlawful purpose,
11
N.J.S.A. 2C:39-4(a)(1); and second-degree certain persons not to
have weapons, N.J.S.A. 2C:39-7(b)(1).
Defendant was tried before a jury in a fifteen-day trial.
The first of the three issues raised in this appeal arose during
the State’s case-in-chief, prior to the testimony of its key
witness, Sinclair. The parties disputed the scope of
defendant’s cross-examination of Sinclair concerning his most
recent criminal offense, the alleged robbery of a residence on
January 20, 2008. Pursuant to Sinclair’s plea agreement with
the State, the State dismissed his first-degree robbery charge.
Sinclair pled guilty to two third-degree offenses, and was
sentenced to probation. In defendant’s trial, defense counsel
sought to cross-examine Sinclair about his plea agreement in
order to establish bias. The trial court barred defense counsel
from exploring the plea bargain in cross-examination.
The second issue contested in this appeal also arose during
the State’s case-in-chief. The State called as an expert Dr.
Frederick DiCarlo, an assistant medical examiner, as a
substitute for Dr. Peacock, who had died prior to defendant’s
trial. Defendant had not objected prior to trial to the State’s
plan to call Dr. DiCarlo as a substitute witness. However,
during Dr. DiCarlo’s testimony, defense counsel objected to what
he characterized as the expert’s “parroting” of the findings of
Dr. Peacock. Although defense counsel did not specifically
12
invoke the Confrontation Clause, he told the trial court that
Dr. DiCarlo should be permitted to testify only about his “own
independent observations of the autopsy photographs and things
of that nature,” and that the expert should not testify about
the observations of the late Dr. Peacock. The trial court ruled
that Dr. DiCarlo was permitted to testify about the opinions
expressed by Dr. Peacock in his autopsy report.
The final issue in dispute in this appeal was raised during
the charge conference conducted by the trial court. Defense
counsel argued that, although defendant initially admitted
Shabazz and Sinclair into his motel room, they later became
“intruders” in that room, because they were intent on robbing
defendant. As such, defense counsel asked the trial court to
instruct the jury, in accordance with N.J.S.A. 2C:3-4(c),
regarding the use of force that is permissible when an
individual is confronted in his or her dwelling by an
“intruder.” The trial court declined to give that instruction.
The jury convicted defendant of all charges. The trial
court sentenced defendant to an aggregate sixty-year term of
incarceration.2
2 Pursuant to the persistent offender statute, N.J.S.A. 2C:44-
3(a), the trial court sentenced defendant to an extended-term of
thirty-five years’ imprisonment with no parole eligibility on
the murder charge. It imposed a term of twenty years’
imprisonment for attempted murder, consecutive to his sentence
13
Defendant appealed his conviction and sentence. The panel
rejected the three arguments that defendant asserts before this
Court, and affirmed defendant’s conviction and sentence.3 It
reasoned that because Sinclair had already been sentenced for
his 2008 offense when defendant was tried, the trial court
properly barred defendant from cross-examining Sinclair
regarding his plea bargain in that matter. The panel held that
the trial court properly admitted the expert testimony of the
substitute medical examiner, Dr. DiCarlo, because the autopsy
report prepared by Dr. Peacock was not sufficiently formalized
to be considered “testimonial,” and because N.J.R.E. 703 allows
expert witnesses to rely on hearsay in their opinions. The
panel also held that, based upon the trial record, defendant was
for the murder, subject to an eighty-five percent parole
disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2.
The court also imposed a term of five years’ incarceration, to
run consecutively with defendant’s sentences on the murder and
attempted murder charges, for the offense of certain persons not
to possess a handgun, and a term of five years’ imprisonment, to
run concurrently with the other terms of incarceration imposed,
with three years of parole ineligibility, for the charge of
unlawful possession of a weapon. The remaining charge, for
possession of a weapon for an unlawful purpose, was merged into
the murder charge.
3 In the brief prepared by counsel and the pro se brief that he
submitted to the Appellate Division, defendant contended that
the trial court committed eight other errors. Those alleged
errors were not raised before this Court, and we do not address
them.
14
not entitled to a jury instruction regarding the use of force
against an intruder.
This Court granted defendant’s petition for certification.
221 N.J. 284 (2014).
III.
Defendant argues that the trial court improperly barred his
counsel from cross-examining Sinclair about the plea agreement
that resolved his 2008 robbery charge. He maintains that
Sinclair’s testimony was drawn from pretrial statements that he
provided to the State when his first-degree robbery charge was
pending. Defendant asserts that the trial court improperly
reasoned that Sinclair would not be motivated by the plea
bargain to testify favorably for the State in this case. He
contends that Sinclair’s probationary status at the time of
trial should have been fully explored. Defendant argues that
the Confrontation Clause broadly protects a defendant’s right to
raise, in cross-examination, any factor that might motivate the
witness to testify favorably for the State.
Defendant also asserts that in his expert testimony
regarding the autopsy of Shabazz, Dr. DiCarlo was improperly
permitted to read portions of Dr. Peacock’s autopsy report to
the jury. He contends that the trial court’s ruling on Dr.
DiCarlo’s testimony conflicts with this Court’s decisions in
Michaels and Roach because the judgments and opinions of a
15
medical examiner who conducts an autopsy are inherently
different from the machine-generated data addressed in those
cases.
Finally, defendant insists that he was entitled to a jury
instruction on the permissible use of force against an intruder.
Defendant reasons that, although he admitted Shabazz and
Sinclair to his motel room, they subsequently attempted to rob
him, and thereby became “intruders” for purposes of defendant’s
claim of self-defense.
The State counters that the trial court properly barred
defendant from cross-examining Sinclair regarding his 2008 plea
agreement. It stresses that when this case proceeded to trial,
Sinclair had already pled guilty and had been sentenced to
probation. The State asserts that only pending charges or prior
related charges, not unrelated charges that have been resolved,
may be the subject of a defendant’s cross-examination of a
witness. The State asserts that Sinclair’s credibility was not
undermined by his plea agreement, because he testified
consistently with sworn statements that he gave shortly after
the shooting. It further notes that Sinclair was independently
motivated to testify against defendant because he was a victim
of the shooting, which claimed the life of his friend, Shabazz.
The State claims that defendant waived his objection to Dr.
DiCarlo’s expert testimony because he did not assert that
16
objection prior to trial, but only raised a question about the
expert’s testimony when that testimony was underway. It
contends that Dr. DiCarlo testified in a manner that conformed
to federal and New Jersey authority applying the Confrontation
Clause. The State notes that Dr. DiCarlo did not simply restate
the opinions of his deceased predecessor, but offered his own
observations regarding the autopsy, and that Dr. Peacock’s
report is not testimonial. It urges the Court to consider the
practical implications of a ruling barring an expert from
testifying as a substitute for a medical examiner who dies or
becomes incapacitated prior to a homicide trial.
The State contends that the trial court properly concluded
that the jury charge addressing the use of force against an
intruder was inapplicable to this case. It contends that
Shabazz and Sinclair were invited guests to defendant’s motel
room, and that a guest does not become an “intruder” merely
because at some point during the visit, he or she attempts to
steal from the host. The State urges the Court to affirm the
Appellate Division’s determination as to the jury charge.
IV.
A.
1.
The trial court’s constraints on defendant’s cross-
examination of Sinclair implicate defendant’s right “to be
17
confronted with the witnesses against him,” guaranteed by the
Sixth Amendment of the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution. U.S. Const. amend.
VI; N.J. Const. art. 1, ¶ 10. The Confrontation Clause permits
a defendant to explore, in cross-examination, a prosecution
witness’s alleged bias. As the United States Supreme Court has
observed, “the exposure of a witness’ motivation in testifying
is a proper and important function of the constitutionally
protected right of cross-examination.” Delaware v. Van Arsdall,
475 U.S. 673, 678-79, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674,
683 (1986) (citations omitted).
In Davis v. Alaska, 415 U.S. 308, 315-17, 94 S. Ct. 1105,
1110, 39 L. Ed. 2d 347, 353-54 (1974), the Supreme Court
addressed a defendant’s right under the Confrontation Clause to
question a prosecution witness with respect to the witness’s
prior record and probationary status. There, upholding a state
policy against the disclosure of juvenile records, the judge
overseeing the defendant’s trial for grand larceny and burglary
barred defense counsel from asking a juvenile prosecution
witness about his adjudication of delinquency and his sentence
to a term of probation. Id. at 314, 94 S. Ct. at 1109, 39 L.
Ed. 2d at 352-53. The trial court’s determination was affirmed
on appeal. Ibid. The Supreme Court reversed, holding that the
defendant was not only entitled to ask the juvenile whether he
18
was biased in favor of the State, but to demonstrate potential
reasons for such bias: the juvenile’s “vulnerable status as a
probationer,” and his concern that he might be named as a
suspect in the current matter. Id. at 318, 94 S. Ct. at 1111,
39 L. Ed. 2d at 354. The Supreme Court held that the
defendant’s rights under the Confrontation Clause had been
violated at his trial, and reversed his conviction.
This Court has recognized that the claimed bias of a
witness is generally an appropriate inquiry in cross-examination
in criminal trials:
[A]s a general rule, any fact which bears
against the credibility of a witness is
relevant to the issue being tried, and the
party against whom the witness is called has
a right to have that fact laid before the jury
in order to aid them in determining what
credit should be given to the person
testifying. And it is proper for either the
defense or the prosecution to show the
interest of a witness as bearing upon the
witness’ credibility. Were it otherwise, the
value of cross-examination in the search for
truth which goes on in our courts every day
would be severely curtailed and in some
respects perhaps extinguished altogether.
[State v. Pontery, 19 N.J. 457, 472 (1955)
(citations omitted).]
As this Court has observed, “[t]here can be no question
that a defendant must be afforded the opportunity through
effective cross-examination to show bias on the part of adverse
state witnesses.” State v. Sugar, 100 N.J. 214, 230 (1985); see
19
also State v. Parsons, 341 N.J. Super. 448, 458 (App. Div. 2001)
(holding that defendant “has a right to explore evidence tending
to show that the State may have a ‘hold’ of some kind over a
witness, the mere existence of which might prompt the individual
to color his testimony in favor of the prosecution”).
Notwithstanding those general principles, a defendant’s
confrontation rights do not entitle counsel “to roam at will
under the guise of impeaching the witness.” Pontery, supra, 19
N.J. at 473; see also United States v. Sutherland, 929 F.2d 765776-77 (1st Cir.) (holding that when defendant presents “no
basis for suspecting bias other than a conclusory allegation,”
trial court may bar cross-examination on claimed bias without
violating Confrontation Clause), cert. denied, 502 U.S. 822, 112
S. Ct. 83, 116 L. Ed. 56 (1991). A trial judge may bar inquiry
into a witness’s potential bias, without offending the
Confrontation Clause, because of concerns about “harassment,
prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.”
Van Arsdall, supra, 475 U.S. at 679, 106 S. Ct. at 1435, 89 L.
Ed. 2d at 683. The trial court is charged to evaluate whether
the circumstances fairly support an inference of bias, and to
consider any concerns raised by the proposed inquiry.
A defendant’s claim that there is an inference of bias is
particularly compelling when the witness is under investigation,
20
or charges are pending against the witness, at the time that he
or she testifies. As this Court observed, in reversing a
conviction after the trial court barred the defendant from
asking a prosecution witness about her unresolved drug charge,
[h]ad it been disclosed that the prosecutor
had recommended, and [the witness] had
received, favorable treatment in the form of
a conditional dismissal of a criminal charge
against her, and that at the time she
testified as a State’s witness she was still
in the process of achieving a complete
dismissal of such charge, defendant could have
attacked her credibility by suggesting a
possible motive for her testimony.
[State v. Spano, 69 N.J. 231, 235 (1976).]
Indeed, “[i]n an unbroken line of decisions, our courts
have held that the pendency of charges or an investigation
relating to a prosecution witness is an appropriate topic for
cross-examination.” State v. Landano, 271 N.J. Super. 1, 40
(App. Div.), certif. denied, 137 N.J. 164 (1994); see, e.g.,
State v. Rodriguez, 262 N.J. Super. 564, 570 (App. Div. 1993)
(“It is clear that if the State had called [the witness to
testify] against defendant, defendant would have been entitled
to cross-examine him about his expectations with respect to the
charge pending against him. . . . [S]entencing possibilities
would have been highly relevant to the witness’s motive in
testifying insofar as it bore upon his credibility.”); State v.
Baker, 133 N.J. Super. 394, 396 (App. Div. 1975) (noting that
21
defendant may explore possibility “that in return for [a
prosecution witness’s] testimony he had received a promise of
lenient treatment on the indictments then pending against him
or, on the other hand, was apprehensive of more stringent
treatment thereon if he did not so testify”).
Nonetheless, a charge need not be pending at the time of
trial to support an inference of bias. In a given case, a
charge against a witness that has been resolved by dismissal or
sentencing before the witness testifies may be an appropriate
subject for cross-examination. Indeed, at the time of both the
alleged offense and the trial in Davis, the witness was already
“on probation by order of a juvenile court after having been
adjudicated a delinquent for burglarizing two cabins.” Davis,
supra, 415 U.S. at 311, 94 S. Ct. at 1107, 39 L. Ed. 2d at 350.
The Supreme Court reasoned that the witness may have been
subject to pressure when he identified the defendant as the
perpetrator, and later when he testified, by virtue of his
“vulnerable status as a probationer, as well as [his] possible
concern that he might be a suspect in the investigation.” Id.
at 318, 94 S. Ct. at 1111, 39 L. Ed. 2d at 354. In State v.
Mazur, 158 N.J. Super. 89, 104 (App. Div.), certif. denied, 78
N.J. 399 (1978), the Appellate Division permitted a defendant to
cross-examine a witness regarding an offense as to which the
witness was under investigation, but not yet charged, holding
22
that “defendant should not be restricted in demonstrating the
possible bias of a prosecution witness to circumstances wherein
the witness has criminal charges pending against him[.]” Ibid.Moreover, a charge against a prosecution witness that is
unrelated to the current charge against the defendant may be an
appropriate topic for cross-examination. See Davis, supra, 415
U.S. at 317-18, 94 S. Ct. at 1111, 39 L. Ed. 2d at 354-55(holding juvenile witness could be questioned about status of
charges arising from burglary unrelated to burglary for which
defendant was charged); Spano, supra, 69 N.J. at 234-35(allowing cross-examination of prosecution witness regarding
previous unrelated drug charges); State v. Curcio, 23 N.J. 521,
526-27 (1957) (permitting defense inquiry about prosecution
witness’s unrelated federal indictment). Because unrelated
charges can give rise to a motive to cooperate, they are
directly pertinent to the question of a witness’s bias.
In sum, the case law envisions that a trial court will
undertake a careful evaluation of a defendant’s claim that a
witness is biased.4 The nature of the witness’s alleged offense,
4 If a dispute over the appropriate scope of inquiry warrants the
development of a factual record, the court may hold a
preliminary hearing pursuant to N.J.R.E. 104(a). See, e.g.,
State v. Chen, 208 N.J. 307, 327-28 (2011) (assessing whether
out-of-court witness identifications are sufficiently reliable);
State v. P.S., 202 N.J. 232, 248-49 (2010) (gauging credibility
of child’s out-of-court statement in sexual assault case); State
23
and the sentencing exposure that he or she confronts by virtue
of that offense, is a significant factor. If a witness faces a
pending investigation or unresolved charges when he or she gives
a statement to law enforcement, cooperates with the prosecution
in preparation for trial, or testifies on the State’s behalf,
that investigation or charge is an appropriate subject for
cross-examination. The trial court should also review the terms
of the witness’s plea agreement.
2.
Consistent with the principles stated in the case law, we
consider whether the trial court erred when it barred defendant
from exploring the terms of the plea bargain that led to the
dismissal of Sinclair’s unrelated first-degree robbery charge
and probationary sentence.
The record on appeal reveals few details about the January
20, 2008 offense for which Sinclair was charged. Before the
trial court in this case, defense counsel characterized the
offense as a “home invasion/robbery of a residence;” the State
countered that the offense was the robbery of a “drug dealer”,
after which the defendants split the proceeds. Although
Sinclair insisted in his trial testimony that his role in the
v. Burr, 392 N.J. Super. 538, 551-55 (App. Div. 2007) (exploring
permissible scope of expert testimony), aff’d as modified, 195
N.J. 119 (2008).
24
incident had been “minor,” the county prosecutor’s office that
prosecuted defendant in this case charged Sinclair with first-
degree robbery, as well as weapons offenses that are not
identified in the record. Charged with a first-degree offense,
and eligible for an extended term by virtue of his prior
criminal record, Sinclair faced significant sentencing exposure.
If convicted of first-degree robbery, he could have been
sentenced to a life term. See N.J.S.A. 2C:15-1(b) (defining
armed robberies as first-degree offenses); N.J.S.A. 2C:43-
6(a)(1) (setting base sentences for first-degree crimes at ten
to twenty years); N.J.S.A. 2C:44-3(a) (rendering persistent
offenders eligible for extended sentences); N.J.S.A. 2C:43-
7(a)(2) (“[I]n the case of a crime of the first degree, [the
court shall impose] a specific term of years which shall be
fixed by the court and shall be between 20 years and life
imprisonment.”).
On a date that is not specified in the record, the State
and Sinclair entered into a plea agreement. The terms of that
agreement were very favorable to Sinclair.5 On October 9, 2008,
5 The record in this appeal does not include the transcript of
Sinclair’s plea hearing or sentencing hearing from his 2008
guilty plea. Our description of the terms of his plea agreement
is based on the statements of counsel to the trial court during
argument regarding the scope of defendant’s cross-examination of
Sinclair, and the parties’ briefs. The record does not disclose
what facts Sinclair admitted as the basis for his guilty plea or
25
pursuant to that agreement, Sinclair pled guilty to two
offenses: third-degree theft and third-degree burglary. The
State dismissed the first-degree robbery and weapons charges
pending against him. Sinclair agreed to testify, if needed,
against his codefendants in that case. The plea agreement did
not reference defendant’s upcoming trial. On March 13, 2009,
Sinclair was sentenced to five years’ probation and ordered to
undergo in-patient drug treatment. When he testified in
defendant’s trial nine months later, Sinclair was serving the
first year of his probationary sentence.
In a hearing outside the jury’s presence during the State’s
case-in-chief at defendant’s trial, the trial court discussed
with counsel the scope of defendant’s cross-examination of
Sinclair with respect to his criminal history. The parties
agreed that defendant should be permitted to cross-examine
Sinclair regarding his prior convictions for various offenses.
They disputed, however, defendant’s right to cross-examine
Sinclair regarding his 2008 plea agreement. The trial court
barred defendant from cross-examining Sinclair “with regard to
the plea itself.” The court reasoned that Sinclair’s plea
bargain was based in part on his agreement to testify against
his codefendants in the alleged robbery, but that he had not
indicate whether the State recommended the sentence of probation
to the sentencing judge.
26
agreed, as part of that plea agreement, to testify against
defendant in this matter. The trial court limited defendant’s
cross-examination regarding Sinclair’s 2008 offense to the fact
that he had pled guilty to charges of theft and burglary and was
on probation.
The pendency of a first-degree charge may have served as a
powerful incentive for Sinclair to cooperate with the State as
it prepared for defendant’s trial. The jury should have been
informed that, after the shooting at issue in this case,
Sinclair allegedly committed an offense that exposed him to a
lengthy term of incarceration. The jury should have been made
aware that Sinclair entered into a plea bargain with the State,
as the State prepared for defendant’s trial, and that by virtue
of his plea bargain Sinclair faced probation rather than a
lengthy prison term. Defendant was entitled to explore that
history in the cross-examination of Sinclair. The trial court
erred when it barred his counsel from pursuing this line of
questioning.
3.
Our determination that the trial court’s limitation of
defendant’s cross-examination of Sinclair constituted error does
not end the inquiry. We must also decide whether the trial
court’s error was “harmless beyond a reasonable doubt.” Van
Arsdall, supra, 475 U.S. 684, 106 S. Ct. at 1438, 89 L. Ed. 2d
27at 686. This Court will disregard “[a]ny error or omission [by
the trial court] . . . unless it is of such a nature as to have
been clearly capable of producing an unjust result.” State v.
Castagna, 187 N.J. 293, 312 (2006) (alterations in original)
(citing R. 2:10-2). The possibility that the error led to an
unjust result “‘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) (alteration in original) (quoting State v. R.B., 308,
330 (2005)).
In determining whether the trial court’s limitation of
defense counsel’s cross-examination constituted harmless error,
we consider the importance of Sinclair’s testimony in the
broader context of defendant’s trial. When it weighed the
charges of first-degree murder and first-degree attempted
murder, the jury was compelled to decide whether the State met
its burden to prove that defendant purposely or knowingly killed
Shabazz and attempted to kill Sinclair. In that regard, the
State was required to disprove, beyond a reasonable doubt, that
defendant did not commit his acts “in the heat of passion
resulting from a reasonable provocation;” had the State failed
to do so, defendant would have been acquitted of first-degree
murder and attempted murder. N.J.S.A. 2C:11-4(b)(2); N.J.S.A.
2C:5-1. The jury was also charged with respect to the lesser-
28
included offense of aggravated manslaughter, N.J.S.A. 2C:11-
4(a)(1), which required proof beyond a reasonable doubt that
defendant recklessly caused Shabazz’s death “under circumstances
manifesting extreme indifference to human life,” and reckless
manslaughter, N.J.S.A. 2C:11-4(b)(1), which required proof
beyond a reasonable doubt that defendant acted recklessly when
he killed Shabazz. In short, the circumstances that led to the
shooting, and defendant’s state of mind, were central to the
jury’s determination.
In addition, by asserting the justification of self-
defense, defendant placed the events immediately before the
shooting squarely before the jury. Subject to certain
limitations set forth in our self-defense statute, a person is
justified in using force when he or she “reasonably believes
that such force is immediately necessary for the purpose of
protecting himself against the use of unlawful force by such
other person on the present occasion.” N.J.S.A. 2C:3-4(a).
“The use of deadly force is not justifiable . . . unless the
actor reasonably believes that such force is necessary to
protect himself against death or serious bodily harm[.]”
N.J.S.A. 2C:3-4(b)(2); see also State v. Urbina, 221 N.J. 509,
525 (2015). Thus, in order to determine whether defendant was
entitled to the justification of self-defense, the jury
29
necessarily focused on the circumstances that defendant
confronted just before the shooting occurred.6
Within that legal framework, the parties presented
competing narratives. The State asserted that, although Shabazz
and Sinclair may have taken money from defendant, and Shabazz
harangued him to pay her more, neither of them assaulted
defendant or threatened him with death or serious harm. It
contended that, as the dispute between Shabazz and defendant
escalated in the close quarters of the motel room, defendant
abruptly pulled out a gun and began shooting, striking Shabazz
and Sinclair as they attempted to escape. In pretrial
statements admitted into evidence through the arguments of his
counsel, defendant presented a contrasting account of the
critical few minutes. He claimed that Shabazz and Sinclair
intended to assault and rob him, and that both became violent
immediately before the shooting. Defendant asserted that
Sinclair attacked him, grabbed him by the throat and pushed him
against the wall, and that Shabazz attempted to wrest his gun
6 Although our Code does not recognize the concept of “imperfect
self-defense” –- the defendant’s subjective, yet unreasonable,
belief that his or her safety is endangered -– “evidence of
facts sufficient to establish ‘imperfect self-defense’ may in
certain cases ‘bear directly on the question of whether the
homicide was knowing or purposeful, and would be admissible to
counter these essential elements of the offense of murder.’”
State v. Pitts, 116 N.J. 580, 605 (1989) (quoting State v.
Bowens, 108 N.J. 622, 632 (1987)).
30
away from him. Defendant argued, in short, that when he shot
Shabazz and Sinclair, he reasonably feared that they would
seriously injure or kill him.
The State supported its narrative with extensive fact and
expert testimony. Johnson recounted the events of the night,
until the time of her departure from the motel room prior to the
shooting. A State Police forensic scientist testified that no
gunshot residue was found on Shabazz’s clothing, and a
ballistics expert opined that the absence of gunshot residue
indicates that Shabazz was seven or more feet from defendant
when she was shot. Investigating officers told the jury that no
bullet holes or shell casings were found in the motel room, that
two bullet strikes were found on the ground outside, fifteen
feet from the glass door of the room, and that a trail of blood
drops began fifty feet from the door and ended at Shabazz’s
body, 139 feet from the motel room. The State presented the
medical examiner’s conclusion that Shabazz was shot in the lower
back while running from defendant, and that she continued to run
until she collapsed on the ground near the motel.
Thus, the State’s evidence buttressed its contention that
defendant shot Shabazz and Sinclair as they were attempting to
flee his motel room through the sliding glass door that led
outside. That evidence, however, did not directly address the
crucial inquiry for the jury as it weighed charges of murder,
31
attempted murder and manslaughter and considered the issue of
self-defense: the events that occurred in the motel room in the
moments leading up to the shooting, when only defendant, Shabazz
and Sinclair were present. The State called only one witness
who was in a position to describe those events. That witness
was Sinclair.
The State acknowledged Sinclair’s criminal convictions, his
involvement with drugs, and his unexplained possession of
defendant’s billfold after the shooting. It admitted that
Sinclair made poor lifestyle choices. Nonetheless, the State
portrayed Sinclair as calm and levelheaded, present in
defendant’s chaotic motel room only to sell drugs to defendant
and protect Shabazz. The State urged the jury to believe
Sinclair’s account and to reject that of defendant. In short,
the State substantially premised its case on the jury’s
acceptance of Sinclair as a credible witness.
Had the jury been aware that, after the shooting in this
case, Sinclair was charged with a separate armed robbery and
faced exposure to more than a life sentence, and that he and the
State entered into a plea agreement that reduced his first-
degree offense to third-degree charges with a term of probation,
it may well have drawn an inference of bias. That revelation
could have affected Sinclair’s credibility as the State’s key
witness, and altered the outcome of defendant’s trial. In that
32
setting, we cannot conclude beyond a reasonable doubt that the
trial court’s constraints on defendant’s cross-examination of
Sinclair constituted harmless error.
Accordingly, the trial court’s error regarding defendant’s
cross-examination of Sinclair requires reversal of defendant’s
conviction for knowing or purposeful murder and attempted
murder. Defendant is entitled to a new trial on those charges.
B.
1.
We next consider defendant’s challenge to the trial court’s
admission of the expert testimony of Dr. DiCarlo, the medical
examiner called by the State to testify about the autopsy of
Shabazz, as a substitute for the deceased Dr. Peacock.
As a threshold matter, we reject the State’s argument that
defendant waived his Confrontation Clause objection to the
testimony of Dr. DiCarlo because he did not assert that
objection prior to trial. We recently noted that Confrontation
Clause objections “are best addressed before trial to avoid
surprise or unfairness.” State v. Williams, 219 N.J. 89, 102
(2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1357, 191 L. Ed.
565 (2015). Nonetheless, a defendant does not waive a
Confrontation Clause objection to a witness’s testimony by
waiting until that testimony is underway, particularly where, as
here, the objection is premised on the form and content of the
33
witness’s testimony. Because defense counsel promptly objected
when Dr. DiCarlo read portions of Dr. Peacock’s report to the
jury, defendant preserved his Confrontation Clause objection.
See id. at 101. Defense counsel may have known that Dr. DiCarlo
would testify, but could not know Dr. DiCarlo would read from
the late Dr. Peacock’s report. Therefore, the objection was
timely at the time Dr. DiCarlo testified. Moreover, although
defendant did not specifically invoke the Confrontation Clause,
his right of confrontation was clearly the foundation for his
objection.
Defendant’s trial took place during a period of transition
in the law governing the admission of out-of-court statements on
forensic issues. Prior to 2004, the United States Supreme Court
authorized admission of an unavailable witness’s out-of-court
statement if the statement was “within a firmly rooted hearsay
exception” and the court found “particularized guarantees of
trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct.
2531, 2539, 65 L. Ed. 2d 597, 608 (1980). In 2004, the Supreme
Court rejected that standard in Crawford v. Washington, 541 U.S.
36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The Court held
that if a statement is “testimonial,” the Confrontation Clause
“demands what the common law required: unavailability [of the
declarant] and a prior opportunity for cross-examination.” Id.
at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.
34
Between 2009 and 2012, the Supreme Court decided a trilogy
of cases applying Crawford to the admissibility of a forensic
report when the analyst who prepared that report is unavailable
to testify in a criminal trial. Williams v. Illinois, 567 U.S.
___, 132 S. Ct. 2221, 183 L. Ed. 2d 89, 124 (2012); Bullcoming
v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610(2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct.
2527, 174 L. Ed. 2d 314 (2009). These splintered decisions,
revealing deep disagreements among the Justices, left the law in
this important area in an uncertain state.
In 2014, after the Appellate Division’s decision in this
case, the Supreme Court’s opinions in Melendez-Diaz, Bullcoming
and Williams were comprehensively analyzed in Justice
LaVecchia’s opinions in Michaels, supra, 219 N.J. at 18-32, and
Roach, supra, 219 N.J. at 74-80.7 In Michaels, supra, this Court
considered the admissibility of the results of testing conducted
on a blood sample taken from the defendant after she was
involved in a motor vehicle accident that killed a passenger in
another car. 219 N.J. at 7-8. The test results demonstrated
the presence in the defendant’s blood of cocaine, a cocaine
7The New Jersey Constitution’s Confrontation Clause is
coextensive with its federal counterpart with respect to this
issue, and our “case law traditionally has relied on federal
case law to ensure that the two provisions provide equivalent
protection.” Roach, supra, 219 N.J. at 74.
35
metabolite and the active ingredient of Xanax, a prescription
antianxiety medicine. Id. at 9. Those results were obtained
through a computer screening process involving fourteen
different analysts employed by a private laboratory. Id. at 8-
9.
An expert forensic toxicologist and pharmacologist, who had
supervisory responsibilities at the laboratory but personally
played no role in the testing conducted on defendant’s blood
sample, reviewed the data generated by the laboratory’s
computer. Id. at 9. On the basis of that review, the expert
determined that the testing had been conducted in accordance
with standard operating procedures, and that the results were
correct. Id. at 9, 11. Over the defendant’s Confrontation
Clause objection, the expert was permitted to testify about the
test results, and to opine that the defendant was impaired by
drugs at the time of the accident. Id. at 11. The defendant
was convicted, and the Appellate Division affirmed her
conviction. Id. at 11-12.
This Court reaffirmed its adherence to the “primary
purpose” test for determining whether a statement is
testimonial, notwithstanding the suggestion in two of the
separate concurring opinions in the United States Supreme
Court’s decision in Williams, that the Supreme Court may reject
that test. Id. at 31. A statement is “testimonial” if its
36
“‘primary purpose’ [is] ‘establish[ing] or prov[ing] past events
potentially relevant to later criminal prosecution.’”
Bullcoming, supra, 564 U.S. at ___ n.6, 131 S. Ct. at 2714 n.6,
180 L. Ed. 2d at 620 n.6 (quoting Davis v. Washington, 547 U.S.
813, 822, 126 S. Ct. 2266, 2274, 165 L. Ed. 2d 224, 237 (2006)).
In Michaels, this Court held that because the United States
Supreme Court’s fractured decision in Williams reflects no
consensus among the Justices, it provides sparse guidance on the
Confrontation Clause’s impact on the admission of forensic
statements in criminal trials. Michaels, supra, 219 N.J. at 31-
32. Accordingly, this Court primarily relied on the Supreme
Court’s earlier decisions in Melendez-Diaz and Bullcoming. See
id. at 31-36. It noted that in Melendez-Diaz, “no witness was
offered to support and be cross-examined in respect of the
statements contained in the forensic document that was admitted
into evidence without live testimony.” Id. at 32 (citing
Melendez-Diaz, supra, 557 U.S. at 308-09; 129 S. Ct. at 2531,
174 L. Ed. 2d at 320). It further observed that in Bullcoming,
the Supreme Court held that a forensic report could not be
admitted through the testimony of an analyst who was a co-worker
of the analyst who performed the laboratory testing. Ibid.(citing Bullcoming, supra, 564 U.S. at ___, 131 S. Ct. at 2709-
10, 180 L. Ed. 2d at 616). There, the trial witness was not the
37
analyst’s supervisor, and did not observe or assist in the
testing conducted. Ibid.This Court noted further in Michaels that state courts have
adopted divergent interpretations of the unsettled United States
Supreme Court Confrontation Clause jurisprudence. Id. at 46-49;
see also Roach, supra, 219 N.J. at 78-80 (same). Nonetheless,
the Court derived two governing principles from the United
States Supreme Court’s opinions. First, this Court concluded
that neither Melendez-Diaz nor Bullcoming “require[] that every
analyst involved in a testing process must testify in order to
admit a forensic report into evidence and satisfy confrontation
rights.” Michaels, supra, 219 N.J. at 33. Second, it concluded
that neither United States Supreme Court decision requires “that
in every case, no matter the type of testing involved or the
type of review conducted by the person who does testify, the
primary analyst involved in the original testing must testify to
avoid a Confrontation Clause violation.” Ibid. As the majority
explained in Michaels,
we believe that a truly independent reviewer
or supervisor of testing results can testify
to those results and to his or her conclusions
about those results, without violating a
defendant’s confrontation rights, if the
testifying witness is knowledgeable about the
testing process, has independently verified
the correctness of the machine-tested
processes and results, and has formed an
independent conclusion about the results.
38
[Id. at 45-46.]
Applying those Confrontation Clause principles, the Court
held that the State’s expert was properly permitted to testify
at the defendant’s trial in Michaels, because “he testified to
the findings and conclusions that he reached based on test
processes that he independently reviewed and verified.” Id. at
46.
In Roach, the Court applied the standard set forth in
Michaels to the admission of the expert testimony of an analyst
regarding the DNA profile that linked the defendant to a sexual
assault. Roach, supra, 219 N.J. at 64-65. At the time of
trial, the State Police forensic scientist who had generated the
defendant’s DNA profile had relocated to another state. Id. at
64. A forensic scientist who had been a co-worker of the
original analyst reviewed that analyst’s report and the data
generated by that analyst’s testing procedures, verified the
prior analyst’s conclusions, and prepared a report that compared
the defendant’s DNA profile to the profile prepared based on a
sample taken from the victim. Id. at 64-65. The trial court
overruled the defendant’s objection to the admission of the
forensic scientist’s opinion. Id. at 66. The defendant was
convicted, and his conviction was affirmed by the Appellate
Division. Id. at 69.
39
In Roach, this Court noted that although the facts did not
involve the admission of an absent analyst’s report into
evidence, the report was “integral” to the forensic scientist’s
testimony because she was asked, in her direct examination,
whether she agreed with that report. Id. at 76-77. The Court
explained that a co-worker could testify as to the results of
testing conducted by an analyst who does not appear at trial,
provided that the testifying witness is “a truly independent and
qualified reviewer of the underlying data and report,” and the
witness does not “merely parrot the findings of another.” Id.
at 79-80. The Court concluded that in the defendant’s trial,
the testifying witness “explained how she used her scientific
expertise and knowledge to independently review and analyze the
graphic raw data that was the computer-generated product” of the
testing conducted by the analyst who was unavailable to appear
at trial. Id. at 81. It accordingly held that the admission of
the analyst’s testimony did not violate the defendant’s
confrontation rights. Id. at 83.
2.
Although the conduct of an autopsy is distinct from the
evaluation of machine-generated data such as the testing results
at issue in Michaels and Roach, the principles stated in those
cases apply in this setting.
40
Under the analysis set forth in Michaels and Roach, we
first determine whether Dr. Peacock’s autopsy report is
testimonial for purposes of the Confrontation Clause under the
“primary purpose” test. We conclude that the report is
testimonial. When Dr. Peacock conducted the autopsy of Shabazz
at 10:40 a.m. on December 20, 2006, six hours after the
shooting, the county prosecutor’s office and local law
enforcement were engaged in an active homicide investigation.8
Defendant was a suspect; although he had yet to admit his
involvement in the shooting to police, he had spoken to officers
and had been taken to the police station. The autopsy was
conducted in the presence of two law enforcement officers, one
of whom was the lead investigator for the county prosecutor.
Fingerprints and other evidence collected by the medical
examiner were transmitted to that investigator, and the chain of
custody from medical examiner to law enforcement was recorded in
the report. Thus, the primary purpose of the autopsy was to
8 N.J.S.A. 52:17B-88 envisions close cooperation between a
medical examiner and law enforcement in a homicide case; the
statute requires that the medical examiner communicate the
results of an autopsy to the county prosecutor, and allows a
county prosecutor to require that the medical examiner perform
an autopsy in certain cases. N.J.S.A. 52:17B-88. “In cases of
suspected criminal homicide, the medical examiner shall
coordinate with the county prosecutor or Attorney General”
before the examiner removes the body from the scene of the
crime. N.J.A.C. 13:49-5.1.
41
establish facts for later use in the prosecution of this case.
Dr. Peacock’s autopsy report is therefore testimonial.9
In defendant’s trial, the State did not offer Dr. Peacock’s
autopsy report into evidence. Nonetheless, a testimonial report
that is not admitted into evidence can engender a violation of
the Confrontation Clause if that report is “integral” to the
testimony of a substitute witness. Roach, supra, 219 N.J. at
76-77. Thus, Dr. DiCarlo’s reliance on Dr. Peacock’s report is
an important consideration.
In preparation for his testimony, Dr. DiCarlo read Dr.
Peacock’s autopsy report, reviewed the autopsy photographs,
inspected the crime scene and examined the clothing that Shabazz
wore when she died. Despite his thorough review of the case,
Dr. DiCarlo did not prepare a written report setting forth his
observations, findings and conclusions regarding the autopsy of
9 We do not reach the broader issue of whether autopsy reports,
in general, are testimonial for purposes of the Confrontation
Clause. The “primary purpose” test envisions a fact-specific
analysis of the autopsy report at issue here, and our
determination is based on the circumstances presented by this
case. See United States v. James, 712 F.3d 79, 95-96 (2d Cir.
2013) (noting that the pre-Williams case law compels evaluation
of circumstances under which analysis was prepared to determine
primary purpose), cert. denied, ___ U.S. ___, 134 S. Ct. 2660,
189 L. Ed. 2d (2014); State v. Hutchison, ___ S.W.3d ___, ___
n.6. 2016 Tenn. LEXIS 83, at *44 n.6 (Tenn. 2016) (noting that
“[n]ot all autopsies are done for the purpose of establishing a
fact for eventual criminal prosecution[,]” and that the
“totality of the circumstances” should be considered in
determination of primary purpose).
42
Shabazz. He wrote only a one-sentence letter to the prosecutor,
stating “I have reviewed the postmortem examination and autopsy
report of [Shabazz] prepared by Dr. Jay A. Peacock, M.D. and I
agree with his findings as well as his interpretations regarding
the cause and manner of death.”
At defendant’s trial, instead of limiting its examination
of Dr. DiCarlo to his independent observations and analysis
regarding Shabazz’s condition and cause of death, the State
prompted its expert to read the contents of various portions of
Dr. Peacock’s autopsy report, as if Dr. DiCarlo had been present
at the autopsy and Dr. Peacock’s findings were his own. Defense
counsel objected, arguing that the witness should not be
“parroting what was in Dr. Peacock’s report as if these were his
findings.” He asked the trial court to limit Dr. DiCarlo to
“his own independent observations of the autopsy photographs and
things of that nature.”
The trial court overruled the defense objection. It
advised the State to place Dr. Peacock’s conclusions on the
record, and to ask Dr. DiCarlo whether he agreed with them.
Although Dr. DiCarlo was asked to generally comment on autopsy
techniques based on his own expertise and experience, and
offered independent observations and conclusions on several
autopsy photographs, he devoted much of his testimony to reading
portions of Dr. Peacock’s report. On the issue of the cause of
43
death, Dr. DiCarlo presented Dr. Peacock’s opinion that Shabazz
died from a “single perforating gunshot wound to the torso with
entrance to the right back and involvement of the heart,” and
that the pattern of blood droplets indicated that Shabazz bled
“as she [was] running away, and then she collapse[d].” Dr.
DiCarlo then stated that he agreed with Dr. Peacock’s
conclusion.
Thus, Dr. DiCarlo was permitted to engage in precisely the
type of “parroting” of the autopsy report that has been held to
violate the Confrontation Clause. Michaels, supra, 219 N.J. at
46; Roach, supra, 219 N.J. at 79-80; see Bullcoming, supra, 564
U.S. at ___, 131 S. Ct. at 2715-16, 180 L. Ed. 2d at 622. Most
of Dr. DiCarlo’s testimony consisted of his recitation of Dr.
Peacock’s report as he answered the State’s questions. In
contrast to the independent opinions offered by the forensic
analysts in Michaels and Roach, Dr. DiCarlo simply repeated to
the jury the impressions and conclusions recorded by Dr.
Peacock. Dr. DiCarlo’s testimony did not conform to the
Confrontation Clause, and the trial court committed error when
it admitted that testimony.
Notwithstanding the death of Dr. Peacock, the State was in
a position to present the testimony of Dr. DiCarlo in a manner
that did not offend the Confrontation Clause. As the trial
court recognized, Dr. DiCarlo is a qualified forensic
44
pathologist. He personally reviewed the autopsy photographs,
the clothing worn by Shabazz, and the crime scene. By virtue of
his analysis, Dr. DiCarlo could have testified as an independent
reviewer of the information generated by the autopsy, as this
Court contemplated in Michaels, supra, 219 N.J. at 45-46, and
Roach, supra, 219 N.J. at 79. Although some of Dr. Peacock’s
observations could not be replicated three years after the fact,
Dr. DiCarlo could have prepared his own report, based on his own
findings, without “parroting” Dr. Peacock’s observations. He
could have provided valuable expert testimony to the jury,
entirely on the basis of his own review of the evidence. If
properly conducted, the direct examination of a substitute
medical examiner about an autopsy may provide the independent
“verification of the data and results” that this Court
contemplated in Michaels and Roach. Roach, supra, 219 N.J. at
80; accord Michaels, supra, 219 N.J. at 45-46.
We recognize that homicide investigations may take years to
complete, and that the State unavoidably faces situations in
which a medical examiner who conducted an autopsy dies, becomes
incapacitated or relocates out of state before trial. We urge
prosecutors to anticipate the need to present a substitute
witness should such circumstances arise and to take appropriate
45
measures.10 With careful planning, the State can ensure that, in
the event that a medical examiner is unavailable to testify
about the autopsy that he or she conducted, an alternative
expert witness will be in a position to undertake the
independent review and analysis that this Court envisioned in
Michaels and Roach.
Because we reverse defendant’s conviction on other grounds,
we need not determine whether the trial court’s error in
admitting the testimony of Dr. DiCarlo was harmless.11 See State
v. Thomas, 76 N.J. 344, 366 (1978) (“[W]e need not reach that
issue since we have already concluded that reversal is in order
on a different ground.”). On retrial, any expert testimony
presented by the State regarding the autopsy of Shabazz should
conform with the requirements set forth in this opinion.
C.
10For example, a second medical examiner could attend the
autopsy of a homicide victim, and testify if necessary.
Autopsies may be comprehensively recorded by photography or
videotape. Wound dimensions and similar data may be documented
in a manner that may be independently verified. Clothing, DNA
samples, toxicology and other evidence obtained at the autopsy
can be retained for later analysis. If a surrogate witness must
be called, that witness should record his or her observations,
findings and analysis in a report.
11We note that the State presented, through the testimony of
police investigators who had examined Shabazz’s body at the
scene of the shooting, some of the information that Dr. DiCarlo
provided in his testimony about Dr. Peacock’s autopsy report.
46
The final issue raised in this appeal is whether the trial
court properly declined defendant’s request to instruct the jury
about the use of force that may be used against an intruder. A
trial court must charge the jury on an affirmative defense if
there is a rational basis in the evidence for the charge. State
v. Singleton, 211 N.J. 157, 183 (2012). Accordingly, we
consider whether the evidence in this case provided a rational
basis for the charge sought by defendant.
The jury charge requested by defendant in this case is
premised on N.J.S.A. 2C:3-4(c). That statute addresses the
circumstances under which deadly force may be used “upon or
toward an intruder who is unlawfully in a dwelling[.]” N.J.S.A.
2C:3-4(c)(1). Such force is justifiable when the person who
uses that force reasonably believes it to be “immediately
necessary for the purpose of protecting himself or other persons
in the dwelling against the use of unlawful force by the
intruder on the present occasion.” Ibid. The Legislature
defined a “reasonable belief” as follows:
(2) A reasonable belief exists when the
actor, to protect himself or a third person,
was in his own dwelling at the time of the
offense or was privileged to be thereon and
the encounter between the actor and intruder
was sudden and unexpected, compelling the
actor to act instantly and:
(a) The actor reasonably believed that
the intruder would inflict personal
47
injury upon the actor or others in the
dwelling; or
(b) The actor demanded that the intruder
disarm, surrender or withdraw, and the
intruder refused to do so.
[N.J.S.A. 2C:3-4(c)(2).]
If the statute applies, the person using force against an
intruder “may estimate the necessity of using force when the
force is used, without retreating, surrendering possession,
withdrawing or doing any other act which he has no legal duty to
do or abstaining from any lawful action.” N.J.S.A. 2C:3-
4(c)(3).
The “intruder” charge under N.J.S.A. 2C:3-4(c) is distinct
from the self-defense instruction that the trial court properly
gave in this case, in accordance with N.J.S.A. 2C:3-4(a). Under
the self-defense provision of the Code, “[t]he use of deadly
force is not justifiable . . . unless the actor reasonably
believes that such force is necessary to protect himself against
death or serious bodily harm.” N.J.S.A. 2C:3-4(b)(2). In
contrast, the “intruder” provision of the Code requires the
individual who uses force to have a reasonable belief that the
intruder “would inflict personal injury” upon that individual or
others in his or her dwelling. N.J.S.A. 2C:3-4(c)(2)(a).
The Legislature did not define the term “intruder.”
Therefore, we must discern the Legislature’s intended meaning
48
when it used the term “intruder” in N.J.S.A. 2C:3-4(c). In that
determination, “the goal is to divine and effectuate the
Legislature’s intent.” State v. Shelley, 205 N.J. 320, 323
(2011). “To accomplish that end, we adhere to the belief that
‘the best indicator of . . . [legislative] intent is the plain
language chosen by the Legislature.’” State v. Hudson, 209 N.J.
513, 529 (2012) (alternation in original) (quoting State v.
Gandhi, 201 N.J. 161, 176 (2010)). We give the Legislature’s
chosen terms “their ordinary and accepted meaning.” Shelley,
supra, 205 N.J. at 323.
Although this Court has not previously interpreted the term
“intruder” in N.J.S.A. 2C:3-4(c), the Appellate Division has
suggested in two cases that an individual who is admitted to a
dwelling by the occupant of that dwelling, and then is involved
in a dispute with the occupant, is not an “intruder” under
N.J.S.A. 2C:3-4(c). See State v. Bilek, 308 N.J. Super. 1, 13
(App. Div. 1998) (holding that trial court should have given
intruder charge in trial of defendant who confronted “uninvited”
individual in his apartment); State v. Felton, 180 N.J. Super.
361, 365 (App. Div. 1981) (noting evidence supported finding
that former boyfriend admitted to defendant’s apartment “entered
[the apartment] lawfully and was not an intruder,” although an
altercation occurred during visit). We concur with the
distinction recognized by the Appellate Division in those
49
decisions. For purposes of N.J.S.A. 2C:3-4(c), we construe the
term “intruder” to denote an individual who enters, or attempts
to enter, a dwelling uninvited. That term does not extend to an
individual who is invited into a dwelling by the resident, and
is a guest in that dwelling for a period of time before the use
of force occurs.12
In this case, the trial court properly declined to give the
N.J.S.A. 2C:3-4(c) “intruder” charge because the evidence
presented at trial clearly established that defendant invited
Shabazz and Sinclair into his motel room. According to the
testimony of Johnson, defendant encouraged Johnson to bring a
“friend” to his motel room. Defendant freely admitted Shabazz
into his room when she and Johnson arrived. Even when Shabazz
returned to the motel room accompanied by Sinclair, defendant
opened the door and allowed them into the room. Moreover,
according to Johnson, when Johnson later demanded that Shabazz
and Sinclair leave, defendant urged them to stay. Neither
Shabazz nor Sinclair was an “intruder” within the meaning of
N.J.S.A. 2C:3-4(c).
The Appellate Division properly held that defendant was not
entitled to a jury instruction addressing the use of force
12We do not reach the question whether a person who secures an
invitation into a dwelling by misrepresenting his or her
identity or purpose, and then commits or threatens to commit an
unlawful act, may be an “intruder” under N.J.S.A. 2C:3-4(c).
50
against an intruder. We affirm the Appellate Division’s
judgment with respect to that issue.
V.
The judgment of the Appellate Division is affirmed in part
and reversed in part. We vacate defendant’s convictions for
murder, attempted murder and the possession of a weapon for an
unlawful purpose, and remand for a new trial on those charges.13
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA did not
participate.
13Defendant’s convictions for the unlawful possession of a
weapon, and certain persons not to have a weapon, are not
affected by our decision.
51
SUPREME COURT OF NEW JERSEY
NO. A-118 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID BASS (a/k/a ROBERT HINES),
Defendant-Appellant.
DECIDED March 7, 2016
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
AFFIRMED/
CHECKLIST REVERSED/
REMANDED
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA --------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6