STATE OF NEW JERSEY VS. ANTHONY C. RIDGEWAY (11-08-0713, CUMBERLAND COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1811-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY C. RIDGEWAY,
a/k/a ANTHONY RIDGEWAY,
Defendant-Appellant.
_________________________________
Submitted March 14, 2017 – Decided December 5, 2017
Before Judges Fisher, Leone, and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 11-08-0713.
Joseph E. Krakora, Public Defender, attorney
for appellant (Rochelle Watson, Assistant
Deputy Public Defender, of counsel and on the
brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Stephen
C. Sayer, Assistant Prosecutor, of counsel and
on the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Defendant Anthony C. Ridgeway appeals his judgment of
conviction. We remand for a hearing on a juror's impartiality.
Subject to the outcome of that hearing, we affirm defendant's
convictions. We vacate the consecutive nature of the sentence and
remand for resentencing.
I.
Defendant was prosecuted for killing Tara Valentin in the wee
hours of September 24, 2010. She was found shot in the eye with
a small-caliber weapon at close range at her home in a Fairfield
Township trailer park.
At trial, the State called Terri Wright, who also lived at
the trailer park. She testified as follows. Around midnight she
saw defendant with a gun. She overheard him on his cell phone
trying to sell the gun around 2:00 a.m. He left but returned to
Wright's trailer and threw down the gun around 4:30 a.m. Wright
admitted to involvement with drugs, namely cocaine and marijuana.
She testified she had a couple beers that night, and admitted
using cocaine between defendant's departure time and his return.
The State also called co-defendant Matthew Allison, whose
phone records showed he was phoned by defendant around 3:30 a.m.
He testified as follows. Defendant phoned Allison and told Allison
he purchased a .22 caliber gun and asked if Allison could help
2 A-1811-14T3
sell it. After they unsuccessfully tried to sell the gun over the
phone, they tried to sell it to Valentin, a drug dealer. Defendant
showed the gun to her. Allison said Valentin "got ignorant with
us" and said something like "[g]et it out of my face" or "I don't
want that piece of shit."
Allison testified that as he and defendant walked away, they
decided to go back and take Valentin's drugs and money because
they had been insulted by her. Allison testified that they decided
that defendant "was going to just point the gun at her and
[Allison] was going to go in a bedroom and take the drugs."
Allison testified he and defendant entered Valentin's
trailer, where Valentin was lying on the couch. Defendant pointed
the gun at her and said: "I want everything. I want all the
drugs." Valentin stood up and went to grab the gun. She barely
touched the barrel when defendant tried to pull the gun back and
it fired. Allison grabbed some pills he saw on the coffee table,
and broke the window so it would look like a break-in. Allison
and defendant ran back to defendant's trailer.
The State also called Rodger Barrick, defendant's uncle, who
testified that on the afternoon of September 24, defendant arrived
at the house of Barrick's girlfriend, asked to stay the night, and
told Barrick he accidentally shot a person when the person "kicked
the gun," causing it to go off. That evening, the police found
3 A-1811-14T3
defendant in the attic of the house and arrested him. Barrick
testified he was "a drinking man," he drank some beers when
defendant confessed to him, and he drank "[q]uite a bit" that day
or the night before.
A jury acquitted defendant of first-degree felony murder, but
found him guilty of first-degree aggravated manslaughter, N.J.S.A.
2C:11-4(a)(1); first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1)
and (2); second-degree burglary, N.J.S.A. 2C:18-2(b)(1); second-
degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(a); second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b); and second-degree certain persons not to have
firearms, N.J.S.A. 2C:39-7(b). The trial court imposed an
aggregate prison sentence of forty-six years with 85% to be served
without parole under the No Early Relief Act (NERA), N.J.S.A.
2C:43-7.2.
Defendant appeals his June 19, 2014 judgment of conviction.
He argues:
POINT I - DEFENDANT WAS DEPRIVED OF HIS RIGHT
TO A FAIR TRIAL BECAUSE THE TRIAL COURT FAILED
TO ENSURE THAT JURORS EXPOSED TO COMPROMISING
(sic) MATERIAL, IN TWO SEPARATE INCIDENTS,
COULD DELIBERATE IMPARTIALLY.
A. WHERE THE PROSECUTOR'S CASE AGENT
OFFERED A JUROR A PARKING SPOT IN THE
PROSECUTOR'S LOT, AND THEN HAD A FOLLOW-
UP CONVERSATION WITH THE JUROR DURING A
4 A-1811-14T3
TRIAL RECESS, THE TRIAL COURT WAS REMISS
IN FAILING TO VOIR DIRE THE JUROR.
B. THE TRIAL COURT FAILED TO CONDUCT AN
ADEQUATELY PROBING VOIR DIRE TO ENSURE
THE JURY'S IMPARTIALITY AFTER TWO JURORS
WITNESSED THE DEFENDANT'S AND THE
VICTIM'S FAMILY IN A VOLATILE
CONFRONTATION BEFORE THE FINAL DAY OF
DELIBERATION.
POINT II - THE TRIAL COURT ERRED IN FAILING
TO GIVE A THIRD CIRCUIT MODEL INSTRUCTION ON
THE "CREDIBILITY OF WITNESSES – TESTIMONY OF
ADDICT OR SUBSTANCE ABUSER," WHERE DEFENSE
COUNSEL REQUESTED THE INSTRUCTION AND TWO OF
THE CRITICAL WITNESSES ADMITTED TO BEING
IMPAIRED WHEN THE RELEVANT EVENTS TOOK PLACE.
POINT III- DEFENDANT'S AGGREGATE SENTENCE OF
46 YEAR'S IMPRISONMENT SUBJECT TO NERA,
CONSISTING OF TWO CONSECUTIVE SENTENCES IN
VIOLATION OF STATE V. YARBOUGH, IS MANIFESTLY
EXCESSIVE.
II.
Defendant raises two claims that the jury was tainted. "The
Sixth Amendment of the United States Constitution and Article I,
paragraph 10 of the New Jersey Constitution guarantee criminal
defendants 'the right to . . . trial by an impartial jury.'" State
v. R.D., 169 N.J. 551, 557 (2001) (quoting N.J. Const. art. I, ¶
10, and citing U.S. Const. amend. VI). A defendant has "the right
to have the jury decide the case based solely on the evidence
presented at trial, free from the taint of outside influences and
extraneous matters." Ibid.
5 A-1811-14T3
"Once a hearing is conducted, '[a] new trial will be granted
where jury misconduct or intrusion of irregular influences into
the jury deliberation "could have a tendency to influence the jury
in arriving at its verdict in a manner inconsistent with the legal
proofs and the court's charge."'" State v. McGuire, 419 N.J.
Super. 88, 154 (App. Div. 2011) (citation omitted). "'[I]f the
irregular matter has that tendency on the face of it, a new trial
should be granted without further inquiry as to its actual effect.
The test is not whether the irregular matter actually influenced
the result, but whether it had the capacity of doing so.'" R.D.,
supra, 169 N.J. at 558 (citation omitted).
A.
Defendant's first claim involves contact between Detective
Dominic Patitucci of the Cumberland County Prosecutor's Office and
an elderly man who later became a juror. According to Patitucci,
in late February 2014, Patitucci saw an older gentleman having
some distress walking down a hallway in the courthouse. The man
was holding onto the handrail, walking very slowly and using his
cane. Patitucci approached him and asked if he was okay. The
issue of parking came up, and Patitucci told him "our office is
pretty vacant next door" and offered him a place to park.
Patitucci told him to tell the female monitoring the lot it was
okay for him to park there.
6 A-1811-14T3
Jury selection occurred on March 5-6, and the elderly man was
selected as juror #11. It appears Patitucci was not present for
jury selection.1
On March 11, trial began with opening statements. Patitucci
was now in the courtroom as the case agent sitting at counsel
table assisting the prosecutor. According to Patitucci, during
the lunch break the juror "made eye contact like, hey, thanks.
And I was like, yeah, everything good?" The juror thanked
Patitucci, but said he was not using the parking lot Patitucci had
offered. Instead, he said he was parking at the regular parking
garage and another juror was picking him up and driving him to the
courthouse door.
During the break, defense counsel raised "a secondary issue,"
namely that he had seen Patitucci talking with juror #11 about
parking, and that "Patitucci was forthcoming" to defense counsel
and confirmed they were discussing parking. Defense counsel, who
had only overheard the conversation in passing, believed juror #11
and another juror were using the prosecutor's parking lot.
The trial court noted that in jury selection juror #11 had
asked the court for parking accommodations, that the request had
1
The prosecutor advised the potential jurors that "during the
course of this trial, there'll be a detective sitting with me and
assisting" named Patitucci.
7 A-1811-14T3
"slipped my mind," and that the prosecutor's lot was not marked
as such. The court asked defense counsel what he wanted the court
to ask the juror. Defense counsel replied: "I don't even know if
there's anything to ask him, Judge. Actually, I would just move
to have him struck." When the court later said it did not "see
any questions that would be asked," defense counsel reiterated:
"I don't know necessarily that there's anything to question him
about."
The trial court then had Patitucci take the witness stand,
and Patitucci related the hallway encounter two weeks before and
the contact during the break that day. The court confirmed the
original encounter was before the elderly man was a juror. The
court ascertained that the juror had not parked in the prosecutor's
lot and that the contact during the break was just to let Patitucci
know that. The court concluded it was "[m]uch ado about nothing,"
and did not "see any reason to disturb the matter further." The
court added that "it sounds like the juror is more aware of his
responsibilities then we give him credit for, in that he did not
actually utilize [the lot], if he became aware that that was the
Prosecutor's parking lot," but "made other arrangements, which
restores our faith in the jury system."
The trial court told Patitucci that contact with the juror
about parking "has to stop" and was "not going to be permitted any
8 A-1811-14T3
further." The court made clear any parking arrangements for the
juror would be made through the Sheriff's Department. The court
proposed, without objection, to ask the juror at the end of the
day what his arrangements were and if he needed other parking
assistance from the Sheriff's Department.
As the jury was being discharged for the day, the trial court
reminded juror #11 of his prior request to the court for
accommodation for parking. The juror said that he had made
arrangements and that one of the jurors was driving him over from
the garage. The court praised such cooperation among jurors, and
added that if the juror needed any other parking arrangement, he
could talk to the sheriff's officer. The court then reiterated
to all the jurors that "no one is permitted to talk to you outside
the courtroom," that "if anyone attempts to approach you or talk
to you, don't tell that to any other juror" but just to court
staff, and that they should not talk about the case with anyone.
On appeal, defendant concedes "the juror did not ultimately
take advantage of the complimentary parking spot." Defendant
argues that "the trial court was remiss in failing to voir dire
the juror."
We agree the court should have questioned juror #11 about
Patitucci's offer. Even though the juror declined the offer, he
still may have felt gratitude toward Patitucci, who as case agent
9 A-1811-14T3
would be sitting next to the prosecutor. Questioning the juror
would have determined what the juror felt and whether he could set
his feelings aside and decide the case without bias toward either
side. As the juror had just spoken about the offer to Patitucci,
there was no danger that questioning would remind him of an offer
he had forgotten.
"[I]f during the course of the trial it becomes apparent that
a juror may have been exposed to extraneous information, the trial
court must act swiftly to overcome any potential bias and to expose
factors impinging on the juror's impartiality." R.D., supra, 169
N.J. at 557–58. "The court is obliged to interrogate the juror,
in the presence of counsel, to determine if there is a taint[.]"
Id. at 558 (citation omitted). "It is the duty of the court to
ask probing questions to protect the impartiality of the jury."
Id. at 563.
However, defendant never requested the trial court voir dire
juror #11. To the contrary, defense counsel repeatedly told the
trial court he could not think of "anything to question him about."
Instead, defendant moved to strike juror #11 when he believed the
juror was parking in the prosecutor's lot. After Patitucci related
the juror declined the offer, defendant requested no other relief.
At the very least, defendant must show it was plain error to
forego a voir dire he never requested. State v. Winder, 200 N.J.
10 A-1811-14T3
231, 252 (2009); see, e.g., R.D., supra, 169 N.J. at 554 (finding
no plain error for not questioning a juror about extraneous
knowledge). "Under that [plain error] standard, defendant has the
burden of proving that the error was clear and obvious and that
it affected his substantial rights." State v. Morton, 155 N.J.
383, 421 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149
L. Ed. 2d 306 (2001); accord United States v. Olano, 507 U.S. 725,
734, 113 S. Ct. 1770, 1778, 123 L. Ed. 2d 508 (1993). He must
show the omission was "clearly capable of producing an unjust
result." R. 2:10-2.
Defendant cannot show a basis for a new trial at this time.
The situation here is unlike the circumstances in the cases cited
by defendant. This case did not involve a juror who had prejudged
a capital case, State v. Loftin, 191 N.J. 172, 192 (2007), a
racially-biased juror, State v. Tyler, 176 N.J. 171, 182 (2003),
or a juror who knew the victim and the lead witness and knew about
the crime, State v. Wormley, 305 N.J. Super. 57, 68-70 (App. Div.
1997). This is not a case where the jury heard extraneous
assertions of the defendant's guilt, State v. Grant, 254 N.J.
Super. 571, 584-86 (App. Div. 1992), or highly inflammatory facts
about the defendant's prior crimes, State v. Fortin, 178 N.J. 540,
576 (2004). Nor is this a case where the two key prosecution
witnesses in a capital case were sheriffs charged with safekeeping
11 A-1811-14T3
the jurors who had "a continuous and intimate association [with
them] throughout a three-day trial." Turner v. Louisiana, 379
U.S. 466, 473, 85 S. Ct. 546, 550, 13 L. Ed. 2d 424, 429 (1965).
This case also did not involve an attempt to influence a
sitting juror on how to decide the case. Cf. Remmer v. United
States, 347 U.S. 227, 228-30, 74 S. Ct. 450, 450-52, 98 L. Ed.
654, 655-56 (1954) (remanding for a post-trial hearing where a
person told a juror during trial "that he could profit by bringing
in a verdict favorable to the petitioner"). In Remmer, the Supreme
Court indicated that such a "private communication, contact, or
tampering, directly or indirectly, with a juror during a trial
about the matter pending before the jury is, for obvious reasons,
deemed presumptively prejudicial." Id. at 229, 74 S. Ct. at 451,
98 L. Ed. at 656 (emphasis added); accord State v. Scherzer, 301
N.J. Super. 363, 487 (App. Div.), certif. denied, 151 N.J. 466
(1997).
"There may be cases where an intrusion should be presumed
prejudicial," but this is not one of them, because it was not
about the matter pending before the jury. United States v. Olano,
507 U.S. 725, 739-41, 113 S. Ct. 1770, 1780-81, 123 L. Ed. 2d 508,
522-24 (1993) (declining to apply the Remmer presumption of
prejudice to the improper presence during jury deliberations of
alternate jurors); see Smith v. Phillips, 455 U.S. 209, 215-17,
12 A-1811-14T3
102 S. Ct. 940, 945-46, 71 L. Ed. 2d 78, 85-86 (1982)
(distinguishing Remmer's "attempted bribe, which it characterized
as 'presumptively prejudicial,'" from "allegations of implied
juror bias" which a defendant must prove).2
Here, "[t]here was no suggestion of outside influence, racial
prejudice, media exposure, or any of the other sorts of irregular
influences sufficient to create a potential for prejudice."
Scherzer, supra, 301 N.J. Super. at 495-96. Moreover, "[t]his is
a plain-error case, and it is [defendant] who must persuade the
appellate court that the deviation . . . was prejudicial." Olano,
supra, 507 U.S. at 741, 113 S. Ct. at 1781, 123 L. Ed. 2d at 524;
see Morton, supra, 155 N.J. at 421.
The conversation two weeks before trial was an innocuous
discussion about parking. See McGuire, supra, 419 N.J. Super. at
155. When Patitucci offered parking assistance to the elderly
man, the man was not a juror, and neither person had any
discernable reason to believe the other person would participate
in defendant's future trial.
2
Indeed, "questions have arisen concerning the ongoing viability
of the Remmer 'presumption.'" State v. Harris, 181 N.J. 391, 506
(2004); see, e.g., United States v. Sylvester, 143 F.3d 923, 934
(5th Cir. 1998) (holding "the Remmer presumption of prejudice
cannot survive Phillips and Olano").
13 A-1811-14T3
On the first day of trial, they had "a brief encounter" which
confirmed the man had declined Patitucci's offer of parking. See
Turner, supra, 379 U.S. at 473, 85 S. Ct. at 550, 13 L. Ed. 2d at
429. The trial court's instructions did not clearly proscribe it.
The court told jurors not to talk about "the case," and to report
if "anyone should attempt to discuss the case with you," but the
juror and Patitucci did not talk about the case. The court told
jurors not to speak with "any of the attorneys, the witnesses, or
the defendant," but Patitucci did not fall in those categories and
was not on the witness list read to the jurors. Those same
limitations were implicit in the court's instruction to report
"[i]f anyone should approach you or anyone attempt to talk to
you," and explicit in the instruction right before the lunch break:
"do not have anyone contact you about this case. If someone
attempts to contact you, please let me know." Thus, the juror did
not clearly violate the court's limited instructions.
This case is unlike the Iowa case on which defendant relies,
State v. Carey, 165 N.W.2d 27 (Iowa 1969). There, during trial
jurors were given free coffee in the jury room with a sign stating
"coffee will be furnished in the jury room by the county clerk and
the county attorney." Id. at 28. The bailiff testified that she
purchased the coffee, that the county attorney intended to
reimburse her for it, and that the sign was placed without
14 A-1811-14T3
knowledge of the county attorney. Ibid. The Iowa Supreme Court
did not believe "any juror here was corrupted for the price of a
cup of coffee, but was concerned with the "appearance" to the
jurors and to the public, that the prosecutor intentionally gave
a gift to sitting jurors. Id. at 29-30. "The effect upon the
jurors and upon any member of the public . . . was the same as if
it" was "an intentional attempt to secure favor with those persons
who were even then in the process of passing upon . . . guilt or
innocence." Id. at 30.
By contrast, Patitucci's offer of parking assistance did not
have that appearance. Most importantly, when Patitucci offered
parking assistance to the elderly man, the man was not a sitting
juror, trial and jury selection had not even commenced, and neither
had any idea that the man would become a juror in defendant's
trial. Moreover, unlike the sign in Carey, Patitucci did not seek
credit for the prosecutor. See State v. Lampman, 342 N.W.2d 77,
80 (Iowa Ct. App. 1982) (distinguishing Carey where the jurors got
coffee from the prosecutor's office where donations were
accepted). Indeed, as the trial court noted, there was no evidence
the elderly man knew this unknown detective was offering parking
in the prosecutor's lot; the man also did not know Patitucci was
the prosecutor's case agent until trial began. See also State v.
Le Grand, 442 N.W.2d 614, 616 (Iowa Ct. App. 1989) (distinguishing
15 A-1811-14T3
Carey where jurors received transportation assistance from
sheriffs who were not witnesses and did not discuss the case with
the jurors). In any event, Carey did "not decide whether [the
offer] alone, without more, would be sufficient to require a new
trial," Carey, supra, 165 N.W.2d at 30, so defendant "read[s] more
into Carey than [the Iowa Supreme Court] intended," State v.
Cullen, 357 N.W.2d 24, 28 (Iowa 1984).
We also find guidance from the United States Supreme Court's
decision in Phillips, supra. In Phillips, a juror "submitted
during the trial an application for employment as a major felony
investigator in the District Attorney's Office." 455 U.S. at 209,
212, 102 S. Ct. at 943, 71 L. Ed. 2d at 83. When that information
was revealed to the defense after trial, the trial court held a
hearing at which the juror testified; it found the juror was not
prejudiced and was able to consider the guilt or innocence of the
defendant solely on the evidence. Id. at 213-14, 102 S. Ct. at
944, 71 L. Ed. 2d at 84.
The United States Supreme Court emphasized "that the remedy
for allegations of juror partiality is a hearing in which the
defendant has the opportunity to prove actual bias." Id. at 215,
102 S. Ct. at 945, 71 L. Ed. 2d at 85. The Court stressed "that
due process does not require a new trial every time a juror has
been placed in a potentially compromising situation. Were that
16 A-1811-14T3
the rule, few trials would be constitutionally acceptable." Id.
at 217, 102 S. Ct. at 946, 71 L. Ed. 2d at 86. The Court observed
"it is virtually impossible to shield jurors from every contact
or influence that might theoretically affect their vote," and held
determinations of "the effect of such occurrences . . . may
properly be made at a hearing like that ordered in Remmer and held
in this case." Ibid.
The reasoning of the United States Supreme Court in Smith has
been adopted by our Supreme Court and this court. E.g., R.D.,
supra, 169 N.J. at 559; McGuire, supra, 419 N.J. Super. at 154;
State v. Dreher, 302 N.J. Super. 408, 501 (App. Div. 1997). We
have followed Smith and held a "post-conviction hearing conducted
by the [trial] court [i]s adequate to determine that the juror was
not biased and the verdict was based exclusively on the evidence."
State v. Bisaccia, 319 N.J. Super. 1, 17 (App. Div. 1999).
Under the circumstances here, while the trial court "erred
in not conducting" further voir dire of Juror #11, "[w]e believe
that the interests of justice will best be served by now having
the trial judge conduct the hearing" as opposed to "automatically
[granting] a new trial." See State v. Kelly, 61 N.J. 283, 294
(1972); see, e.g., State v. Stubbs, 433 N.J. Super. 273, 289 (App.
Div. 2013); State v. Scott, 398 N.J. Super. 142, 154 (App. Div.
2006).
17 A-1811-14T3
The trial court shall hold the hearing at which Juror #11 is
questioned within thirty-five days, and make findings promptly
thereafter on the facts concerning the communications between
Patitucci and juror #11, the effect of those communications on
juror #11, and what if anything juror #11 conveyed to the other
jurors concerning those communications. Defendant shall have "the
opportunity to prove actual bias" on the part of Juror #11 or any
juror due to the communications. Phillips, supra, 455 U.S. at
215, 102 S. Ct. at 945, 71 L. Ed. 2d at 85. "That determination
requires the trial court to consider the gravity of the extraneous
information in relation to the case, the demeanor and credibility
of the juror or jurors who were exposed to the extraneous
information, and the overall impact of the matter on the fairness
of the proceedings." R.D., supra, 169 N.J. at 559.3
B.
After the first day of jury deliberations, there was a
confrontation between members of the families of the victim and
defendant in front of the courthouse. Two jurors witnessed it
3
If juror #11 cannot be found or is otherwise unable to testify
about the communications, the court shall make findings on the
timing and nature of the juror's unavailability, and on whether
defense counsel's statements that he could not think of anything
to question the juror about caused the court to forego questioning
the juror prior to his unavailability. See State v. Jenkins, 178
N.J. 347, 359 (2004).
18 A-1811-14T3
while waiting for their rides, and reported it to the trial court.
The court conducted a voir dire of the two jurors.
Juror #4 informed the trial court that she witnessed the
"confrontation," that the family members were "cursing" each other
and "acting disrespecting," and that she felt "uncomfortable."
She told the court that she could continue to serve as a juror:
"Oh, yes. That does not bother me. It was not directed at me."
Juror #6 also witnessed the confrontation, that it consisted of
"a girl and a dude" exchanging "not friendly eye contact," and
saying "uh-huh" and "yeah" to each other, a verbal altercation,
and that no one else reacted. Juror #6 said he "got disturbed,"
but "could understand" that "they both kind of went a little
overboard," and that it was not directed at him. He felt he could
still deliberate in the case, and he had no other concerns. Both
jurors said they did not discuss the confrontation with any other
jurors.
The trial court found that neither juror "expressed anything
that [would] . . . impact . . . on their ability to deliberate"
and that no further questioning was required. The court found
that juror #4 "indicated that she clearly could separate" the
families' emotional reactions from "her obligations as a juror,"
and that juror #6's "words were of the same ilk." The court found
the confrontation did not have "any effect on either of their
19 A-1811-14T3
abilities to deliberate." The court instructed the two jurors not
to speak to the other jurors about the confrontation, assured them
security had been increased, ordered the family members involved
in the confrontation removed from the courthouse, and warned the
remaining family members against any future incidents.
On appeal, defendant argues the trial court failed to conduct
an adequately probing voir dire of jurors #4 and #6. However, at
trial defendant never suggested additional voir dire was needed
of those jurors. When the trial court proposed questioning them,
defense counsel said "I have no problem with the voir dire as we
discussed" and he had "[n]othing at this time" to add. Defense
counsel asked juror #4 a question, and did not criticize the voir
dire. At the conclusion of the voir dire of the two jurors,
defense counsel stated: "We've heard their questioning. That's
fine. But I think both of them were pretty clear" that they saw
discord between the families. Defendant objected to the two jurors
continuing to deliberate, but never asked that they be questioned
further. Thus, defendant must show plain error.
Even if defendant now "would have preferred further inquiry
of the [two] juror[s]," "the trial court's failure to do so did
not constitute plain error." R.D., supra, 169 N.J. at 563.
Defendant does not show that further inquiry would have produced
a different outcome. He hypothesizes the jurors may have heard
20 A-1811-14T3
information about the case, but the two jurors said the feuding
family members were merely cursing, disrespecting, and saying
"'uh-huh, yeah' to each other." Defendant argues the jurors could
have identified the feuding family members, but the court properly
relied on the sheriff's officer who witnessed the confrontation
to make such identifications, rather than put that burden on the
jurors.
Moreover, "[u]nder R.D., the overarching relevant inquiry is
not whether the trial court committed error, but whether it abused
its discretion." State v. Wakefield, 190 N.J. 397, 496 (2007).
"That is so because '[a]pplication of that standard respects the
trial court's unique perspective [and appellate courts]
traditionally have accorded trial courts deference in exercising
control over matters pertaining to the jury.'" Id. at 497 (quoting
R.D., supra, 169 N.J. at 559-60). "Ultimately, the trial court
is in the best position to determine whether the jury has been
tainted." R.D., supra, 169 N.J. at 559 (citation omitted).
"That determination requires the trial court to consider the
gravity of the extraneous information in relation to the case, the
demeanor and credibility of the juror or jurors who were exposed
to the extraneous information, and the overall impact of the matter
on the fairness of the proceedings." Ibid. Here, the trial
court's questioning elicited both jurors' description of what they
21 A-1811-14T3
saw and heard, its impact on them, their belief they still could
fairly deliberate, and their assurance they had not discussed the
confrontation with the other jurors. The court did not abuse its
discretion in finding no "further action has to be taken with
regard to those two jurors."
"The appellate standard for reviewing a voir dire procedure
is whether, despite the trial court's efforts, there still existed
a 'realistic likelihood of prejudice.'" State v. Harvey, 151 N.J.
117, 211 (1997) (citation omitted). We agree with the trial court
that there was no realistic likelihood of prejudice from the
confrontation. In a murder trial, it is unsurprising that there
is animosity between the family of the defendant and the family
of the victim. "The outburst contained no factual information
that could have influenced the jury." State v. Wilson, 335 N.J.
Super. 359, 368-69 (App. Div. 1999) (finding the jury could
disregard "an emotional outburst by the victim's mother" who
"suddenly screamed and began sobbing"), aff’d o.b., 165 N.J. 657,
659 (2000). After voir dire, the trial court found both jurors
could impartially deliberate despite witnessing the confrontation.
"[A]n appellate court should show appropriate deference to the
trial court's assessment of 'matters of credibility, judgment and
discretion which should not ordinarily be disturbed on appeal.'"
Harvey, supra, 151 N.J. at 211 (citation omitted).
22 A-1811-14T3
The trial court also found "no indication that any of this
information was passed to any of the other jurors." The court
asked counsel if there was a need to question the other jurors.
Defense counsel, who left the courthouse before the confrontation
and did not hear anything, noted that alternate juror #7 left at
the same time so "I don't think that's an issue." Counsel added
that juror #3 may not have gone "out the door the same time as
me," but counsel could not say juror #3 saw the confrontation, and
admitted he "might have the wrong number." The court concluded
it was "not going to involve the other jurors now, because neither
of the jurors who did report it indicated any other juror was
present. And no other jurors reported anything," which they would
have to do under the court's prior instructions. The sheriff's
officer similarly said only jurors #4 and #6 witnessed the
confrontation.
"[T]he decision to voir dire individually the other members
of the jury best remains a matter for the sound discretion of the
trial court. No per se rule should obtain." R.D., supra, 169
N.J. at 561. "[T]he court's own thorough inquiry of the
[questioned] juror should answer the question whether additional
voir dire is necessary to assure that impermissible tainting of
the other jurors did not occur." Ibid. Moreover, it may "be more
23 A-1811-14T3
harmful to voir dire the remaining jurors because, in asking
questions, inappropriate information could be imparted." Ibid.
Here, multiple sources stated that only jurors #4 and #6 saw
the confrontation, and defendant presented no evidence to the
contrary. The confrontation happened after the jury had dispersed
for the evening, and the court questioned jurors #4 and #6 first
thing the next morning, so they had little or "no opportunity to
communicate impermissible information to [their] fellow jurors,"
and they "denied communicating [their] knowledge to other jurors."
Id. at 562. Given the court's instructions to all jurors to report
such incidents and not to communicate about the case, and the
instruction's effectiveness as demonstrated by jurors #4 and #6,
the court could assume the other jurors would have reported if
they had seen or heard anything. Ibid.; see State v. T.J.M., 220
N.J. 220, 237 (2015) ("We act on the belief and expectation that
jurors will follow the instructions given them by the court.").
Thus, as in R.D., supra, "[t]he trial court did not abuse its
discretion in not questioning the remaining jurors." 169 N.J. at
562.
III.
At the jury charge conference, defense counsel said "we
requested — we offered a Third Circuit model jury charge in regards
to witnesses with drug issues." The trial court found it did not
24 A-1811-14T3
have a copy of the Third Circuit instruction, and defense counsel
responded "Judge, I will get you another copy[.]" The court
replied: "If you want to submit that, I'll consider it but I don't
have anything to consider yet because I don't have it. Get it to
me tomorrow, Counsel." Defense counsel said he would email it,
but defendant has not shown that he ever provided the Third Circuit
instruction to the trial judge nor did his attorney ever mention
it again. At the final jury charge conference, when the court
asked for any further objections to the charge, defense counsel
replied, "[n]othing from me." After the court gave its charge,
it asked if counsel had any questions, and defense counsel said
"no" and made no objection.
A party seeking an instruction must "make requests to charge
in a format suitable for ready preparation and submission to the
jury," and provide copies. R. 1:8-7(b). As defendant did not
supply a copy of the Third Circuit instruction or request a final
ruling, it was not error for the court not to rule on that
instruction. "The court's failure to rule explicitly on each
request will not be reversible error if the party did not request
a ruling and was not prejudiced by the omission." Pressler &
Verniero, Current N.J. Court Rules, comment 3.2 on R. 1:8-7 (2018).
Moreover, "if a party submitting a request to charge fails to
object to its omission from the charge as given, review on appeal
25 A-1811-14T3
will be subject to the plain error standard." Ibid. (citing
Dynasty, Inc. v. Princeton Ins. Co., 165 N.J. 1, 17-18 (2000));
see R. 1:7-2, 2:10-2.
Defendant cannot show plain error. Neither the Third
Circuit's instruction nor its "care and caution" requirement have
been accepted by the New Jersey courts. An error is "'plain'"
only if "the error is clear under current law." Olano, supra, 507
U.S. at 734, 113 S. Ct. at 1777, 123 L. Ed. 2d at 519.
In any event, defendant cannot show prejudice. The
instruction provides that if a witness was using drugs, addicted
to drugs, or abusing alcohol when the events took place, his or
her testimony "must be considered with care and caution," and "may
be less believable, because of the effect the [drugs or alcohol]
may have on [his or her] ability to perceive, remember, or relate
the events in question," but that the jury "may give it whatever
weight if any, [it] find[s] it deserves."
However, the trial court's instructions adequately covered
this area. The trial court instructed the jury with a tailored
version of the New Jersey Model Criminal Jury Charge on credibility
of witnesses.4 The court instructed that "in determining the
credibility of witnesses," the jury could consider "the witness's
4
Model Jury Charge (Criminal), Criminal Final Charge – Credibility
of Witnesses (revised February 24, 2003).
26 A-1811-14T3
power of discernment," "his or her ability to reason, observe,
recollect, or relate," "and any or all other matters in the
evidence which may serve to support or discredit his or her
testimony." The court also instructed the jury that it should
"weigh the testimony of each witness and then determine the weight
to be given to it." Those instructions were sufficient to allow
the jury to consider the effect of Wright's prior drug use and
Barrick's alcohol consumption on their ability to perceive,
remember, and relate the facts, and to weigh their testimony
accordingly. Indeed, defense counsel argued to the jury not to
"put a lot of faith in the words of someone who is an admitted
crack user."
Further, regarding the key part of Barrick's testimony
relating defendant's oral statements, the court instructed the
jury that it should "receive, weigh and consider this evidence
with caution," citing the "risk of misunderstanding by the hearer
or the ability of the hearer to recall accurately the words used
by the Defendant." The court also instructed the jury to consider
Wright's prior convictions "in determining the credibility or
believability of the witness'[s] testimony."
Thus, the general instructions regarding credibility of
witnesses were sufficient to charge the jury. The court's failure
to give the requested Third Circuit instruction was not plain
27 A-1811-14T3
error. See State v. Swint, 328 N.J. Super. 236, 259 (App. Div.
2000) (finding no error where the court failed to give specific
instructions because the court gave the general charge on
credibility).
IV.
Finally, defendant challenges his sentence. "Appellate
review of sentencing is deferential, and appellate courts are
cautioned not to substitute their judgment for those of our
sentencing courts." State v. Case, 220 N.J. 49, 65 (2014).
Disturbing a sentence is permissible in only three situations:
"(1) the trial court failed to follow the sentencing guidelines,
(2) the aggravating and mitigating factors found by the trial
court are not supported by the record, or (3) application of the
guidelines renders a specific sentence clearly unreasonable."
State v. Carey, 168 N.J. 413, 430 (2001). We must hew to our
deferential standard of review.
The court sentenced defendant to twenty-eight years in prison
for aggravated manslaughter. The court also sentenced defendant
to eighteen years in prison for armed robbery, and nine years in
prison for burglary, to run concurrently with each other but
consecutively to the manslaughter sentence. All those sentences
were subject to NERA's 85% parole ineligibility. The court merged
the possession of a weapon for an unlawful purpose charge into the
28 A-1811-14T3
robbery conviction, and sentenced defendant to nine years in prison
for unlawful possession of a weapon with four-and-one-half years
of parole ineligibility, and nine years in prison for certain
persons not to have weapons with five years of parole
ineligibility, both to run concurrent with the manslaughter
sentence.
First, defendant argues the trial court erred in imposing
consecutive sentences. Our Supreme Court has adopted "criteria
as general sentencing guidelines for concurrent or consecutive-
sentencing decisions." State v. Yarbough, 100 N.J. 627, 644
(1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed.
2d 308 (1986). The Court listed the following relevant criteria:
(1) there can be no free crimes in a system
for which the punishment shall fit the
crime;
. . . .
(3) some reasons to be considered by the
sentencing court should include facts
relating to the crimes, including whether
or not
(a) the crimes and their
objectives were predominantly
independent of each other;
(b) the crimes involved separate
acts of violence or threats of
violence;
(c) the crimes were committed at
different times or separate
29 A-1811-14T3
places, rather than being
committed so closely in time
and place as to indicate a
single period of aberrant
behavior;
(d) any of the crimes involved
multiple victims; [and]
(e) the convictions for which the
sentences are to be imposed are
numerous[.]
[Ibid.]5
The trial court here considered the Yarbough factors, and
acknowledged that most favored concurrent sentences. The
aggravated manslaughter, burglary, and robbery all occurred in the
matter of a few minutes and all in Valentin's home. Defendant and
Allison entered Valentin's home with the objective of taking her
drugs and money by threatening her with the gun. There was no
indication of an independent objective to kill Valentin. The only
threat and act of violence was defendant pointing the gun at
5
Yarbough, supra, originally had a sixth guideline, namely "there
should be an overall outer limit on the cumulation of consecutive
sentences for multiple offenses not to exceed the sum of the
longest terms (including an extended term, if eligible) that could
be imposed for the two most serious offenses." 106 N.J. at 644.
After Yarbough, "the Legislature amended N.J.S.A. 2C:44-5a to
provide that '[t]here shall be no overall outer limit on the
cumulation of consecutive sentences,' thereby eliminating
guideline number six." Carey, supra, 168 N.J. at 423 (quoting L.
1993, c. 223, § 1).
30 A-1811-14T3
Valentin and firing the shot that killed her. The court
acknowledged that all of the crimes "involved the same victim."
However, Yarbough's third guideline "should be applied
qualitatively, not quantitatively." Carey, supra, 168 N.J. at
427. Accordingly, "a sentencing court may impose consecutive
sentences even though a majority of the Yarbough factors support
concurrent sentences." Id. at 427–28 (citing State v. Perry, 124
N.J. 128, 177 (1991) (finding consecutive sentences proper even
though four of Yarbough's five factors favored concurrent
sentences)).
Defendant argued the Yarbough factors unanimously weigh in
favor of concurrent sentences. However, "[t]he fifth factor –
'whether there are numerous convictions' – provides some support
for consecutive sentences because defendant's [six] convictions"
fall within "the 'numerous' range." Carey, supra, 168 N.J. at 424
(finding four convictions approached the "numerous" range).
Moreover, the trial court referenced Yarbough's guidance that
there are to be no free crimes, which "tilts in the direction of
consecutive sentences because the Code focuses on the crime, not
the criminal." Id. at 423.
Defendant alternatively argues that a remand is necessary to
allow the court to consider the Yarbough factors without its
31 A-1811-14T3
misapprehension about the relevance of the jury's acquittal on the
felony murder charges." We agree.
The trial court focused on the effect of the jury's decision
to decline to convict defendant of felony murder and to convict
him of the lesser offense of aggravated manslaughter. The court
queried whether "the jury separate[d] the homicide from the
underlying offenses." The court stated that "[h]ad the jury
convicted the defendant of felony murder, the underlying offenses
of robbery and burglary would . . . merge into felony murder. But
the jury's verdict speaks to a different result." The court
concluded that defendant's "aggravated manslaughter is . . .
separate and distinct from the offenses of robbery and burglary."
Although the jury's verdict reduced the maximum term
available for the homicide while removing the basis for merger of
robbery and burglary, those legal consequences do not alter the
inquiry under Yarbough, which focuses on the "facts relating to
the crimes, including whether or not . . . the crimes and their
objectives were predominantly independent of each other." Id. at
644 (emphasis added); see Carey, supra, 168 N.J. at 433. Here,
the facts prevent such a conclusion.
As the trial court noted, the facts indicated defendant
"cause[d] the death of" Valentin "in the course of" "the commission
of, or the attempt to commit," burglary and robbery, and thus
32 A-1811-14T3
committed felony murder. N.J.S.A. 2C:11-3(a)(3). "[E]ven if the
jury found that defendant fired the gun recklessly without
intending to shoot the victim, it still would have been required
to find him guilty of felony murder." State v. Pennington, 273
N.J. Super. 289, 299 (App. Div. 1994) (citation omitted). The
jury's unexplained decision to convict him instead of aggravated
manslaughter did not change the facts.6
Our Supreme Court has stated the governing principles. "We
accept inconsistent verdicts in our criminal justice system,
understanding that jury verdicts may result from lenity,
compromise, or even mistake. We therefore must resist the
temptation to speculate on how the jury arrived at a verdict."
State v. Goodwin, 224 N.J. 102, 116 (2016) (citations omitted).
"Our jurisprudence does not allow us to conjecture" or to "attempt
to reconcile the counts on which the jury returned a verdict of
guilty and not guilty." State v. Muhammad, 182 N.J. 551, 578
(2005).
The trial court inappropriately considered the effect of the
jury's acquittal of felony murder in finding the aggravated
manslaughter conviction to be predominantly independent of the
burglary and robbery. Therefore, we vacate the consecutive nature
6
The trial court did not assert the mens rea for aggravated
manslaughter made it independent of robbery and burglary.
33 A-1811-14T3
of the sentences on the burglary and robbery counts and remand for
consideration whether any of defendant's sentences should be
imposed consecutively. We express no opinion on whether
consecutive sentences can be imposed on the robbery or burglary
convictions on some other basis.7
Defendant also argues the aggravating factors found here do
not support the individual sentences near the top of the range,
which he contends are manifestly excessive. We disagree.
The trial court's finding of aggravating factors three, six,
and nine was supported by the evidence. Defendant does not dispute
that his juvenile record consists of eleven adjudications for
burglary, conspiracy to commit robbery, and other offenses, and
three violations of juvenile probation. As an adult, his record
included three indictable convictions for burglary and defiant
trespass, thirteen disorderly person convictions, one violation
of probation, and one parole violation. Defendant's prior criminal
7
See State v. Koskovich, 168 N.J. 448, 533 (2001) (finding "the
robberies and killings were not so intertwined that the court
should have imposed concurrent sentences"); State v. Mejia, 141
N.J. 475, 504 (1995) (finding that "[a]lthough the victim in both
[the murder and robbery] offenses was the same, the crimes were
separate"); see also State v. Walker, 322 N.J. Super. 535, 540,
557 (App. Div.), certif. denied, 162 N.J. 489 (1999); State v.
Adams, 320 N.J. Super. 360, 370 (App. Div.), certif. denied, 161
N.J. 333 (1999).
34 A-1811-14T3
record, and current offense justified finding these aggravating
factors.
Defendant argues the trial court erred in assessing these
aggravating factors as they all related to "one aspect" of his
background. However,
implicit in a sentencing court's assessment
of [aggravating factors 3, 6, and 9] is a
qualitative assessment that we want and expect
the court to make. A court's findings
assessing the seriousness of a criminal
record, the predictive assessment of chances
of recidivism, and the need to deter the
defendant and others from criminal activity,
do all relate to recidivism, but also involve
determinations that go beyond the simple
finding of a criminal history and include an
evaluation and judgment about the individual
in light of his or her history.
[State v. Thomas, 188 N.J. 137, 153 (2006).]
Thus, the trial court properly found not only that defendant
had an extensive criminal history, but also that his repeated
failure to conform his conduct to the law over the course of his
lifetime despite numerous terms of incarceration and probation
provided ample support for the court's finding that he was likely
to reoffend and needed to be specifically deterred. The court
properly gave substantial weight to all three aggravating factors,
which substantially outweighed the non-existent mitigating
factors. Given those findings, the court's sentences on the
individual counts were not manifestly excessive.
35 A-1811-14T3
We remand for a hearing on juror #11. The trial court shall
conduct the hearing within thirty-five days of the date of this
opinion and shall issue its oral or written opinion making the
requisite findings promptly thereafter. The parties shall file
simultaneous briefs in this court twenty-one days after the court
issues its opinion, which defendant shall supply to this court.
We retain jurisdiction, and will consider the effect of those
findings on the convictions and issue a supplemental opinion.
To avoid delay and premature proceedings, any resentencing
based on our vacating of the consecutive nature of the sentences
for robbery and burglary shall await issuance of our supplemental
opinion.
Vacated in part, and remanded. We retain jurisdiction.
36 A-1811-14T3