Opinion
DOCKET NO. A-5316-11T1
09-04-2013
STATE OF NEW JERSEY, Plaintiff-Appellant, v. KENNETH RANSOME, Defendant-Respondent.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for appellant (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (Alison Perrone, Designated Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Ashrafi and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-05-0446.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for appellant (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent (Alison Perrone, Designated Counsel, on the brief). PER CURIAM
The State appeals from an order of the Law Division granting defendant's petition for post-conviction relief (PCR). The Law Division vacated defendant's 2004 conviction and granted him a new trial on the ground of ineffective assistance of counsel because a key witness for the defense testified before the jury in a prison jumpsuit and handcuffs, contrary to State v. Artwell, 177 N.J. 526 (2003). We affirm.
I.
On February 24, 2002, Kathryn Smith died after using heroin, crack cocaine, and alcohol at a "drug house" where she and others, including defendant Kenneth Ransome, were voluntarily using illegal drugs. The State alleged that defendant had injected Smith with heroin, and that the heroin caused her death. A Cumberland County grand jury returned a seven-count indictment against defendant charging him with: first-degree death induced by a controlled dangerous substance (CDS), N.J.S.A. 2C:35-9; first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); two counts of third-degree possession of CDS, N.J.S.A. 2C:35-10(a); two counts of third-degree distribution of CDS, N.J.S.A. 2C:35-5; and fourth-degree tampering with physical evidence by moving and concealing the victim's body, N.J.S.A. 2C:28-6.
In 2010, the Law Division held an evidentiary hearing on defendant's PCR petition. The hearing focused on a defense witness, Pam Wagner, who had testified at the 2004 trial in prison garb and handcuffs. Wagner's testimony was relevant to the sequence of events after which Smith lost consciousness that night and never recovered. Competing testimony of prosecution and defense witnesses was presented at the trial on the issue of whether or not Smith was conscious and not in any distress several hours after defendant allegedly shot heroin into her arm. Also, competing testimony of medical experts was presented at the trial on the issue of whether the heroin was the cause of death, or whether a combination of drugs and alcohol that Smith took voluntarily and without assistance from defendant caused her death.
At the trial, the first witness for the State was Beth Garron, a friend of Smith. Garron testified that she went to Smith's home on the evening of February 23, 2002, at about 5:30 p.m. Smith had been drinking beer. The two remained there until 7:00 p.m. and then left to "take a walk." Smith and Garron had both worked as prostitutes, and their first stop was to see one of Smith's clients. After Smith obtained $15 from that client, they purchased cigarettes and a "dime bag" of crack cocaine, and they continued to drink beer until about 10:30 p.m.
Smith and Garron stopped again to visit one of Smith's clients before proceeding to an address on Cohansey Street in Bridgeton, where "everybody got their drugs." Detective Robert Parks later testified that police were aware that drugs were distributed at the Cohansey Street address, and that the home had been "raided . . . 20, 30 times." Garron testified that she and Smith met defendant at the house, that Smith gave defendant $10, and that defendant gave them another dime bag of crack cocaine. Smith asked defendant if they could smoke the crack in the house, and defendant directed them to a bathroom.
A short time later, defendant came into the bathroom and offered to inject Smith with heroin that he had prepared. Smith accepted. After Smith was injected with the heroin, the two women left the house for a while but came back and sat again in the bathroom. Defendant entered a second time and offered another shot of heroin to Smith. Smith accepted again. Garron testified that in "only a few minutes," "no time at all," after the second injection, Smith lost consciousness. According to Garron, Smith passed out so soon after the second injection that defendant was still in the bathroom.
Garron testified that defendant then dragged Smith outside and propped her up "against the back of the house." The temperature was below freezing that night. Defendant slapped Smith, apparently trying to wake her, and told Garron to "[g]et [your] drunken butt out of here." Garron testified that she asked defendant "why don't you call 9-1-1 or something?" Defendant responded, "I better not do that." In her direct testimony, Garron vaguely estimated the time of these events as 2:30 or 3:00 a.m.
On cross-examination, Garron testified that she had smoked crack cocaine many times over the previous twelve years. She also testified that she could only "guess" at the timeline, and that she "forget[s] things easy, very easy." She admitted that in her initial statement, given on February 25, 2002, she told police that she and Smith had only been in the bathroom once, and that Smith had passed out after the first injection, not the second.
The next significant witness for the State was Eddie Johnson, who testified to his role in moving and hiding Smith's body. He testified that he went to the Cohansey Street house at about 8:00 a.m. on February 24, 2002. Defendant and another man named Bobby Taylor were at the house, and defendant asked Johnson to help them move Smith's body, saying, "We got a problem." They brought the body by car to a shed behind an old factory or store, where they concealed it.
Detective Parks testified next about his interview with defendant after Smith's body was found. Initially, defendant denied any knowledge of what happened to Smith. Later, defendant admitted that he gave heroin to Smith, but he denied injecting it into her arm. He admitted in the interview that Smith had passed out and was "semi-conscious," and that he, Johnson, and another man named Rico had "carried her outside." Defendant denied having seen Smith again after sitting her on the steps outside, but he did implicate Johnson and Rico in the later removal of the body. Defendant gave a taped statement to Detective Parks, which was played for the jury.
The State presented Dr. Hydow Park as an expert in "clinical, anatomic, and forensic pathology." Dr. Park testified that he performed an autopsy on Smith and found abrasions on her lower back, consistent with her having been dragged. He also found three needle punctures on the inside of her right elbow. Toxicology work found alcohol, cocaine, and morphine, the last of which is a byproduct of heroin metabolizing in the blood. Dr. Park concluded that Smith died from "acute [alcohol], cocaine and opiate intoxication," and that heroin "played a major role." Asked to explain further, Dr. Park stated that Smith would not have died but for the heroin injections. On redirect examination, Dr. Park explained that his assumption, apparently based on Garron's account, that Smith passed out within "ten to fifteen minutes after being injected with heroin" was "probably the most important information in [the] case" when it came to determining that heroin was the but-for cause of Smith's death.
The defense presented six witnesses at the trial. Wagner testified that she was present at the Cohansey Street drug house on the night of Smith's death. Defense counsel elicited before the jury that Wagner was "wearing that orange [jumpsuit] because you're incarcerated." He did not object to her testifying in prison garb. The PCR court later found that Wagner also testified while wearing handcuffs, which were attached to her belt by a chain. Wagner testified that she was incarcerated on a burglary charge and expected to go to prison. She further admitted that she used heroin up to the time of her incarceration, and that she was a frequent visitor to the Cohansey Street house.
Wagner testified that she was at the house "most of the day" on February 23, 2002, and that she saw both Garron and Smith there. She saw Garron and Smith leave the bathroom and the house at about 11:30 p.m., about the same time she was leaving. Around 1:30 a.m., Wagner returned to the house with Bobby Taylor and at that time saw defendant and Smith sitting on the back steps talking. She indicated that after she and Taylor entered the house, "[Smith] and [defendant] came in," but she could not explain anything that happened after that. She testified that she heard Smith "snoring" in the dining room, and that Smith never woke up. Later, she heard Bobby Taylor say that Smith "wasn't breathing."
On cross-examination, Wagner admitted that she had injected about five "bags" of heroin on February 23, but shared some of it with other people. She further testified that although she "heard voices" on the back steps and that Smith and defendant were the only two outside, it was too dark to see what condition Smith was in. She also retreated from her previous statement about defendant and Smith walking into the house, saying that she did not actually see Smith walking. She only "heard them come in." The only time she saw Smith after that was when Smith was lying in the dining room on some cushions.
The defense also called Dr. John Adams as an expert in "forensic, anatomic, and clinical pathology," like Dr. Park. Dr. Adams concluded it was not possible to determine which drugs or combination of drugs caused Smith's death, because of errors in testing. He testified that using "heart blood" for testing produced artificially high morphine readings because of "post mortem redistribution" of fluids and substances, and that a failure to test for prescription medications that Smith was also taking made it impossible to determine whether those were a significant factor in Smith's death.
Bobby Taylor also testified for the defense. He said that he slept in the attic at Cohansey Street, and awoke when he heard noise and a commotion between 4:30 and 5:30 a.m. on February 24, 2002. He found Smith outside the house passed out, and though he tried to speak to her, she responded only with moaning. Taylor testified about Smith's condition while she was propped up outside the house and also the later moving and concealing of her body.
Finally, defendant testified. He denied selling any drugs to Smith or Garron but did admit preparing the heroin for injection and bringing it and cocaine into the bathroom to share with Smith and Garron. He said he placed the heroin on a table in the bathroom, took some for himself, and left without injecting it into anyone else. Defendant testified that Smith and Garron left the house together, and that he left himself around 2:00 a.m. and did not see them return. The next time he saw Smith was when he returned to the house and saw Taylor outside the house slapping Smith in the face in an attempt to wake her up. Defendant stated he asked Taylor whether they should get medical help for Smith, but Taylor said no.
The jury convicted defendant of all seven counts. For purposes of sentencing, the court merged the drug-induced death charge with the aggravated manslaughter charge. Citing defendant's record of eighteen prior indictable convictions, the court imposed an extended-term sentence, pursuant to N.J.S.A. 2C:44-3(a), on the merged homicide counts of seventy-five years in prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. After merging some of the other counts, the court sentenced defendant to concurrent terms of five years imprisonment on the drug charges and eighteen months imprisonment on the tampering with evidence charge.
On direct appeal, defendant and his appellate counsel filed three briefs between them, with eighteen separate point headings, none of which raised the issue of Wagner having testified in prison garb and handcuffs. We affirmed the conviction but remanded for resentencing in accordance with State v. Pierce, 188 N.J. 155 (2006), and State v. Natale, 184 N.J. 458 (2005). State v. Ransome, No. A-0037-04 (App. Div. Feb. 6, 2007). After the Supreme Court denied defendant's petition for certification, State v. Ransome, 190 N.J. 393 (2007), the trial court imposed on remand the same sentence as previously imposed.
Defendant filed his PCR petition in May 2007. Among other issues, defendant argued that both trial and appellate counsel had provided deficient performance in failing to raise the error of Wagner's appearance before the jury in restraints and prison clothes. After hearing oral argument, the court held an evidentiary hearing in March 2010, at which Wagner and defendant testified. Wagner largely repeated her testimony from trial, but added that she physically helped Smith into the house after finding Smith and defendant talking outside, and she also spoke to Smith, although she did not mention that Smith responded. At trial, she had specifically stated that she did not talk to Smith, and that, because it was dark, she could not tell what Smith's condition was.
Judge Darrell Fineman issued a written opinion and an order on April 23, 2012, vacating defendant's convictions and ordering a new trial. We granted the State's motion for leave to appeal.
II.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987), established the standard a defendant must meet to prove he was deprived of the right to effective assistance of counsel secured by the Sixth Amendment of the United States Constitution. The Court set out two requirements. "First, the defendant must show that counsel's performance was deficient," meaning that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; accord Fritz, supra, 105 N.J. at 52. Second, the defendant must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.
The purpose of the second or prejudice prong of the Strickland standard is to ensure that the defendant received a fair trial, that is, "a trial whose result is reliable." State v. Allah, 170 N.J. 269, 283-84 (2002) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The petitioner in a PCR proceeding has the burden of establishing his entitlement to relief by a preponderance of the credible evidence. State v. Nash, 212 N.J. 518, 541 (2013).
On appeal, we will adopt the PCR court's factual findings as long as they are supported by "adequate, substantial and credible evidence" in the record. State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Legal conclusions, however, are reviewed de novo. Nash, supra, 212 N.J. at 540-41.
Only the prejudice prong of the Strickland test is contested on this appeal. There is no dispute that Wagner testified before the jury in prison garb and handcuffs; that defense counsel did not object; and that Artwell, supra, 177 N.J. at 537-38, which was decided about eight months before defendant's trial, held that a defense witness could not be required to appear at trial in restraints or prison clothing unless necessary to maintain the security of the courtroom.
In Artwell, the Court reasoned that the practice of allowing defense witnesses to appear as prisoners presents too great a "risk of unfair prejudice" to defendant because it undermines the witness's credibility and "encourages the jury to perceive the defendant as one who must turn to the testimony of a putatively 'guilty' individual to help salvage his case." Id. at 536-39. The Court indicated that defense counsel "need not make an affirmative request" in order to impose a duty on officials to outfit an inmate-witness properly, but that best practice would be for a defense attorney to notify the State as soon as it becomes apparent that the defense will call a witness who is incarcerated. Id. at 539. In State v. Kuchera, 198 N.J. 482, 494-96 (2009), the Court reinforced the notion that a defendant may be prejudiced if a witness associated with the defendant is compelled to appear before the jury in prison garb.
The State concedes that defendant's trial counsel provided deficient representation in allowing Wagner to testify in prison clothes and handcuffs. But the State contends that Wagner's credibility was so negatively affected by her history of drug abuse, her drug use on the night of Smith's death, and her criminal record, that the marginal effect of her clothing on the jury's impression of her was negligible. It also argues that because the evidence of defendant's guilt was "overwhelming," and Wagner's testimony "tangential" to the main issues, defendant could not have been prejudiced.
We are not persuaded by the State's arguments. First, we do not view the central question of whether defendant's injection of heroin was the but-for cause of Smith's death to have been supported by "overwhelming" evidence at the trial. We agree with the discussion of the issues contained in the written opinion of Judge Fineman and add the following comments to highlight the reasons that defendant is entitled to a new trial.
The question is whether a reasonable probability exists that, had Wagner appeared in street clothes, as the other witnesses did, the jury would not have convicted defendant of aggravated manslaughter and drug induced homicide. Wagner's testimony was relevant to causation, which required the jury to determine: (1) whether defendant was the but-for cause of Smith's death, and (2) whether Smith's death was "too remote, too accidental in its occurrence, or too dependent on another's volitional act to have a just bearing on the defendant's liability." Model Jury Charge (Criminal), "Aggravated Manslaughter" (2004); accord State v. Concepcion, 111 N.J. 373, 378 (1988).
If the jury believed Wagner, her testimony could be viewed as contradicting parts of Garron's account, specifically the sequence of events that resulted in Smith losing consciousness and subsequently dying. Garron testified that Smith lost consciousness immediately after a second injection of heroin in the bathroom. She testified that defendant then dragged Smith out of the bathroom and propped her up outside the house, where it was freezing. Wagner's testimony was that Smith was awake and talking to defendant outside the house at about 1:30 a.m. and then came into the house and was snoring in the dining room. Wagner's version could be interpreted as at variance with Garron's testimony that Smith lost consciousness only minutes after receiving an injection of heroin and with defendant still present in the bathroom.
Further, if Garron's sequence of events was not accurate, then Dr. Park's conclusion that the heroin was the but-for cause of Smith's death is also undermined. Dr. Park testified that Smith's near-immediate negative reaction to the heroin was "probably the most important information" in determining the cause of death. Dr. Adams disputed whether any pathologist could determine the specific cause of death.
The State's argument that Wagner was not a credible witness ignores the fact that the State's witnesses had similar credibility problems. Garron testified to drinking and smoking crack on the night of Smith's death, and also testified that she had been using crack for twelve years. Johnson testified to having spent time in prison, and to being an "ex-drug user." The jury was unlikely to have made credibility determinations solely on whether the witnesses were drug users or convicted felons. Wagner's appearance in prison garb and handcuffs was a notable difference between her and the other witnesses that may have made her less credible in the minds of the jury.
The Supreme Court stated that prison clothing and restraints have "an inherent psychological impact" on a jury that goes beyond merely informing them that the witness has been convicted of a crime. Artwell, supra, 177 N.J. at 537. Defense counsel's failure to alert the court and then to object, and the trial court's failure to recognize the problem, meant that the jury was not instructed to disregard Wagner's appearance. See id. at 538 (noting that where a witness does testify in handcuffs, "the court must 'instruct the jury in the clearest and most emphatic terms that it give such restraint no consideration whatever in assessing the proofs and determining guilt'" (quoting State v. Roberts, 86 N.J. Super. 159, 168 (App. Div. 1965))). To the contrary, the court instructed the jury generally that it could consider the "appearance and demeanor of the witness" in making its credibility determinations. Wagner and Garron had similar credibility deficiencies. As between the two, the crucial distinction was that Wagner was required to testify wearing orange prison clothing and handcuffs while Garron was not.
We find no error in the PCR court's conclusion that, had Wagner's appearance been similar to that of the State's witnesses, a reasonable probability existed that one or more jurors may have found sufficient credibility in her testimony to create reasonable doubt in their minds about whether Smith passed out within minutes of defendant injecting heroin into her arm and, therefore, whether the heroin was the cause of her death.
Since the parties have not raised the issue, we do not consider whether defendant's convictions on the drug and tampering charges were affected by Wagner's testimony.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION