State v. Bass and Confrontation Clause Rights

Clients often attempt to articulate facts substantiating a violation of their constitutional rights.  Sometimes, the client’s description of the relevant facts can be used to at least articulate a legal basis for such a violation.  More frequently, however, the client’s description bears little, if any, relation to a constitutional violation.  What quickly becomes obvious is that most clients (indeed, most people) cannot identify their basic constitutional rights.  Non-lawyers may have vague notions of the right to be free from unreasonable searches and seizures or the right against self-incrimination, but these are only two of many constitutional rights that we all have.  Further, most people are also unaware that the federal Constitution is only one source of such rights.  State constitutions, including New Jersey’s, may guarantee different constitutional rights, or different (higher) levels of protections relative to their federal analogs.

The recently decided New Jersey Supreme Court decision of State v. Bass contains an extensive discussion of one of our most fundamental constitutional rights, which is the right to confrontation.  Simply put, a criminal defendant has the right to confront and cross-examine the witness(es) against them.  Justice Patterson’s unanimous opinion discusses different permutations of that right and also demonstrates that, where necessary, New Jersey will depart from federal law to chart its own course in this important arena.

After an evening of drugs, cross-dressing and, presumably, sexual activity, in a Neptune Township motel room, defendant David Bass shot and killed Jessica Shabazz, and shot and wounded James Sinclair.  Defendant, Shabazz and Sinclair were the only individuals present when the relevant events occurred.  Sinclair, who had a long criminal history, was the State’s lead witness at trial.

On appeal from his convictions for the murder of Shabazz, the attempted murder of Sinclair, two weapons offenses, and his 60-year aggregate sentence, defendant raised two confrontation clause violations.  First, Sinclair incurred new charges after the events giving rise to the Bass case.  He was charged with a first-degree robbery which, because of his prior record, exposed him to a life term.  He ultimately pleaded guilty to third-degree offenses, and was sentenced to straight probation, prior to defendant’s trial.  Over defense objections, the trial court barred counsel from thoroughly cross-examining Sinclair on his plea agreement and its probable impact upon his testimony.  Further, the medical examiner who conducted the Shabazz autopsy died prior to trial.  The State called another examiner at trial whose testimony consisted largely of passages simply read from the report of the deceased examiner.  Defense counsel objected to this mere “parroting” of the deceased examiner’s report, but was overruled.

The Supreme Court found that the trial court’s handling of both issues amounted to violations of defendant’s confrontation right.  As to Sinclair’s testimony, the Court held that the trial court’s decision to bar questioning concerning the provisions of his plea agreement was reversible error.  As noted, Sinclair was the only person who could testify as to the events leading to the shootings, and he committed his subsequent offense while the State was preparing for defendant’s trial.  The State obviously needed Sinclair’s testimony to establish its case against Bass while Sinclair, who was facing life imprisonment on his new charges, was obviously seeking favorable treatment.  Sinclair played a pivotal role in the State’s case against Bass, and was highly motivated to assist the State in any way possible (e.g., lying), in exchange for a good deal in his own matter.  The fact that Sinclair had been sentenced prior to defendant’s trial was irrelevant.  What truly mattered was that he was the key witness against defendant, had charges pending while the State was preparing to try defendant, and was facing severe prison exposure in a matter that he resolved at a time when he could easily trade cooperation against Bass for substantially downgraded charges and non-custodial probation in his own case.  Additionally, and regardless of the fact that he had already been sentenced, the State still retained some control over Sinclair insofar as he remained under probationary supervision, and could therefore be violated and incarcerated.  Finally, the Court could not conclude that the limitations on defense counsel’s ability to cross-examine Sinclair was harmless error, because of the high likelihood that the jury would have reached a different conclusion in the case had it been fully informed about the possible effect that Sinclair’s plea agreement and the related bias had upon his testimony.  In this light, the Court found that Bass was denied the right to fully and fairly confront Sinclair at trial, and reversed defendant’s convictions for murder and attempted murder.

As to the medical examiner’s testimony, the Court recalled that statements must be “testimonial” in nature in order to implicate the Confrontation Clause.  It then observed that United States Supreme Court precedent reflected considerable disagreement among the justices concerning the reach and application of the confrontation right, and therefore could not provide meaningful guidance concerning the issues in this case.  It therefore reiterated its own test for determining whether a statement is testimonial, which is that “[a] statement is ‘testimonial’ if its ‘primary purpose’ [is] ‘establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution.'”  Using its own test, the autopsy report prepared by the deceased medical examiner was testimonial, and therefore implicated defendant’s right to confrontation.  The testimony of the doctor who appeared at trial was inadequate, because it merely consisted of parroting the report of the deceased medical examiner, as opposed to the witness’s own independent evaluation and conclusions concerning the autopsy.  Indeed, the only “independent” statement from the witness was a one- sentence letter to the prosecutor saying that he reviewed the report of the deceased medical examiner and agreed with it.  This was wholly inadequate for Confrontation Clause purposes, and the trial court committed error when it admitted this witness’s testimony.  The Court cautioned that on retrial, the testimony of a medical examiner must consist of that witness’s independent findings and conclusions concerning the deceased victim’s autopsy.

Bass is important because it shows that the confrontation right operates on many levels, and can come into play in a variety of ways in the same case.  It also shows the willingness of our Supreme Court to depart from federal precedent that fails to provide adequate guidance concerning constitutional rights.

James S. Friedman LLC represents criminal defendants in the state and federal trial courts in New Jersey and New York City.  The firm also represents defendants who seek to appeal their convictions to the the Appellate Division of the New Jersey Superior Court, the United States Court of Appeals for the Third Circuit, and the United States Supreme Court.  If you have a matter in one of these courts, contact the firm immediately to discuss your options.

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