Opinion
DOCKET NO. A-6141-12T2
06-04-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMAAL GEORGE, a/k/a JAMES GEORGE, SPEEDY, Defendant-Appellant.
Jeffrey G. Garrigan argued the cause for appellant (Cammarata, Nulty & Garrigan, L.L.C., attorneys; Mr. Garrigan and Michael S. Doran, on the brief). Jeffrey M. Lichtstein, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Mr. Lichtstein, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-02-0403.
Jeffrey G. Garrigan argued the cause for appellant (Cammarata, Nulty & Garrigan, L.L.C., attorneys; Mr. Garrigan and Michael S. Doran, on the brief).
Jeffrey M. Lichtstein, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Mr. Lichtstein, on the brief). PER CURIAM
Defendant Jamaal George appeals from his conviction for: third-degree possession of cocaine and heroin, N.J.S.A. 2C:35- 10(a)(1); third-degree possession of cocaine and heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); third-degree possession of cocaine and heroin with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7; and second-degree possession of cocaine and heroin with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. Defendant was sentenced to a term of nine years in prison with four and one-half years to be served without parole.
On this appeal, defendant raises the following point for our consideration:
I. THE TRIAL COURT'S FAILURE TO INVESTIGATE A JURY IRREGULARITY VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO AN IMPARTIAL JURY AND REQUIRES REVERSAL OF THE CONVICTION.Having reviewed the record, we find no merit in that argument and we affirm the conviction.
A. The Trial Court Erred In Failing To Conduct Voir Dire Or Investigate An Irregularity Involving A Juror Due To The Presumption That Irregularities Are Prejudicial.
B. The Trial Court's Failure To Voir Dire Juror Number #3 Requires A Reversal Of Defendant's Conviction And The Granting Of A New Trial.
I
The trial proofs were not complicated. According to Detective Anthony Goodman, while conducting undercover surveillance, he observed defendant walking down a street with a woman. When the two subjects reached a parking lot, the woman waited on the sidewalk while defendant walked to a low retaining wall and sat on it. Goodman saw defendant reach behind the wall, retrieve "a clear plastic bag containing white objects in it," and take one object from the bag. Goodman testified that defendant started walking back toward the woman but then glanced in the direction of the van from which Goodman was conducting the surveillance. At that point, defendant looked "skeptical," turned away from the woman, and crossed the street to a beige Lexus automobile. Goodman saw defendant get into the car and come out a minute or two later.
Having seen what he believed was illegal drug activity, Goodman radioed his back-up team and asked them to arrest defendant and retrieve the drugs. Sergeant Stephen Trowbridge testified that he went to the retaining wall, as Goodman directed, and there he found a clear plastic bag containing numerous small vials of cocaine and glassine baggies of heroin. However, Trowbridge, who also arrested defendant, did not find any drugs on his person or in the Lexus. When asked on cross-examination why defendant had no drugs in his possession, Goodman responded that defendant "probably ate" the baggie of drugs.
On cross-examination, Goodman admitted that in his grand jury testimony, he stated that he saw defendant give the woman a bag of drugs. That was inconsistent with what Goodman stated in his police report and his trial testimony. At trial, Goodman admitted that he made a "mistake" in his grand jury testimony. The defense also called Prosecutor's Detective Bellini, who had briefly interviewed Goodman concerning the case. Bellini testified that Goodman told him he observed defendant from about ten feet away and believed he had witnessed a drug "transaction." However, Bellini did not recall that Goodman provided any further details.
In his summation, defense counsel argued to the jury that Goodman was not a credible witness. The prosecutor argued that Goodman made an honest mistake in his grand jury testimony and that, consistent with Goodman's report, defendant was charged with possession with intent to distribute but not with distribution.
The jury began deliberating at 3:00 p.m. and was sent home at 4:15 p.m. The next morning, at 9:00 a.m., Juror #3 asked to speak with the judge. In the presence of the judge and counsel, she explained that some of her fellow jurors had made remarks about being happy to stretch out the deliberations because they were getting paid not to go to work. Juror #3 felt this was unfair to the defendant. She stated that she had exchanged "caustic" words with one juror who had expressed that view. Juror #3 did not, however, indicate that any of the jurors were biased or unwilling to fairly consider the evidence. She mentioned that she was living on the income from a trust fund and therefore had no concerns herself about losing income if the deliberations continued through Friday. In other words, she indicated that she personally felt no time pressure about deliberating; she just thought some of her fellow jurors were stalling in returning a verdict, or were planning to do so.
Judge Francis B. Schultz sent the juror back into the jury room with an instruction to say nothing to her fellow jurors about her conversation with the court. After discussing the matter with counsel, the judge opined that Juror #3 might be oversensitive, and he did not want to appear to be coercing or reprimanding the other jurors by overreacting to what she said. He found no grounds for a mistrial. Instead, he assembled the jurors and briefly directed them to continue deliberating in accordance with the instructions he had given them the day before. Fifteen minutes later, the jury came back with a guilty verdict.
Based on our review of the transcript, we conclude that defense counsel did not actually move for a mistrial although he suggested that a mistrial might be appropriate.
The judge polled the jurors on their verdict and they each stated, "I agree." Juror #3 may have stammered slightly when she responded. The transcript reflects her response as: "I -- I agree." Neither she nor the other jurors gave any indication that they felt coerced into returning a verdict.
II
The parties agree on the applicable legal principles, as summarized in State v. Scherzer, 301 N.J. Super. 363 (App. Div.), certif. denied, 151 N.J. 466 (1997):
The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee a criminal defendant the right to trial by an impartial jury. Therefore, a defendant is entitled to a jury that will decide the charge according to the evidence presented in court and a jury that is free of outside influences. State v. Williams, 93 N.J. 39, 60 (1983). The jury verdict must be "free from the taint of extraneous considerations and influences," and a new trial will be granted when jury misconduct or the intrusion of irregular influences into jury deliberations "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." Panko v. Flintkote Co., 7 N.J. 55, 61 (1951). The test is "not whether the irregular matter actually influenced the result but whether it had the capacity of doing so." Ibid.
[Id. at 486.]
We review a trial judge's decisions in handling jury issues for abuse of discretion. State v. R.D., 169 N.J. 551, 569 (2001). "We traditionally have accorded trial courts deference in exercising control over matters pertaining to the jury." Id. at 559-60. We find no abuse of discretion in this case.
Initially, we note that the cases cited in the briefs are not particularly helpful, because they all involve various forms of outside influence or knowledge, e.g., prejudicial publicity, improper comments by a sheriff's officer, or a juror who knows a witness. See State v. Bey, 112 N.J. 45, 56 ( 1988); State v. Grant, 254 N.J. Super. 571, 580 (App. Div. 1992); R.D., supra, 169 N.J. at 555. In the closest relevant case we have found, State v. Young, 181 N.J. Super. 463, 467 (App. Div.), certif. denied, 91 N.J. 222 (1982), one juror contended that several of her fellow jurors pressured her into going along with a guilty verdict because they feared losing their jobs if deliberations went on for too long. However, as the court noted in Young, jury deliberations often become heated, and jurors may place all sorts of pressures on each other in the course of deliberations. Id. at 468. It is not the court's role to inquire into their deliberations, absent evidence of impropriety.
The following language from Young is relevant here:
Obviously, there must be substantial grounds to justify overturning a verdict. Only when there is proof of juror bias or the
injection by a juror in the deliberations of personal knowledge of material facts not in evidence will reversal be required. Case authority and Evid. R. 41 prohibit inquiry into the mental processes of jurors on their ordinary deliberations.
[Id. at 471 (citing State v. Athorn, 46 N.J. 247, 252 (1996)).]
We conclude that Judge Schultz handled this situation correctly. Nothing in Juror #3's statements indicated that she or any of the other jurors were biased or unable to fairly evaluate the evidence, or that they had been subject to any outside influences. The fact that Juror #3 had "caustic" words with another juror was insufficient to warrant the judge in inquiring into the jury's deliberation process by questioning other jurors.
The judge's instruction to the jury, to go back and continue their deliberations in accordance with the instructions he had given them the day before, was neutral and could not possibly have coerced them into returning a verdict they otherwise would not have reached. In denying defendant's new trial motion, Judge Schultz correctly noted that questioning the jurors about a possible plan to prolong deliberations, or directing them not to do so, would have been improper. As he stated, "There was no way I could have brought that up without implying to the jury that they should hurry up and reach a verdict."
Defendant's reliance on our recent decision in State v. Dorsainvil, ___ N.J. Super. ___, ___ (App. Div. 2014) (slip op. at 3-4) is misplaced. In Dorsainvil, two jurors came to blows in the jury room, shortly before the jury reported that it was deadlocked. Id. at 25-27. In that context, we agreed with the defendant that a mistrial was required, because a jury cannot conduct its deliberations fairly in an atmosphere of violence and intimidation. Id. at 58. Dorsainvil is not on point here. There is simply no comparison between jurors exchanging caustic comments and jurors engaging in physical violence in the jury room.
Finally, this case was relatively simple, and there was nothing surprising or suspect in the jury's returning a verdict after deliberating for an hour and a half. Defendant's arguments on this issue are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION