Opinion
DOCKET NO. A-2320-11T1
01-09-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AL-QUAN WHITE, a/k/a AL WHITE, WOHEED MUHAMMAD, HASSAN COOK, Defendant-Appellant.
James S. Friedman argued the cause for appellant. Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Plaisted, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Guadagno, and Leone. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 10-05-1368 and 10-05-1369. James S. Friedman argued the cause for appellant. Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Plaisted, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Tried by a jury on two indictments, defendant Al-Quan White (also known as "Ike") was convicted of first-degree murder of Byron Lockett, N.J.S.A. 2C:11-3(a)(1)(2); third-degree aggravated assault of another victim, Latiff McCleod, N.J.S.A. 2C:12-1(b)(1); second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); and a second-degree "certain persons" weapons offense, N.J.S.A. 2C:39-7(b). The third-degree offense conviction was as a lesser-included offense of second-degree aggravated assault. The convictions arose out of the shootings of Lockett and McCleod outside of a bar in Irvington.
The trial judge, Hon. Michael L. Ravin, sentenced defendant on the murder count to a sixty-year term with an eighty-five percent parole disqualifier under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. A five-year consecutive sentence with a three-year parole disqualifier was imposed for the aggravated assault count. Another consecutive sentence of ten years with a five-year parole disqualifier was imposed on the "certain persons" offense. Additionally, the court imposed a concurrent sentence of ten years with a five-year parole disqualifier on the remaining two weapons offenses, which merged into one another. All told, defendant's aggregate custodial sentence was seventy-five years, subject to the aforesaid parole disqualifiers.
Through his appellate counsel and also in a pro se supplemental brief, defendant raises numerous issues in an effort to set aside his conviction. The issues mainly concern allegations of trial error. He does not challenge his sentence.
For the reasons that follow, we reject defendant's challenges to his conviction and decline to entertain his claim of ineffective assistance of trial counsel. See State v. Preciose, 129 N.J. 451, 460 (1992) (noting that our courts routinely decline to entertain ineffective-assistance-of-counsel claims on direct appeal because those claims "involve allegations and evidence that lie outside the trial record."). We therefore affirm defendant's conviction and sentence.
I.
This prosecution arose out of the fatal shooting of Lockett and the shooting and wounding of McCleod outside of a bar in Irvington around midnight on October 9, 2009. The shots were fired minutes after a fight involving Lockett and others had broken out.
The key issue at trial was the identity of the shooter of both victims. McCleod testified that he did not see who shot him. That was contrary to his earlier police statement, in which he recalled that the shooter was a black male, shorter than him, with a "Muslim-like sunni" on his face. McCleod could not identify the shooter from an array that included defendant's photograph. The gun used in the shootings was not recovered, and no useful fingerprints were generated from the bullet fragments and shell casings found at the crime scene.
However, a four-camera surveillance video of the bar's front exterior shows portions of the fighting and the shooting. Just prior to the shots, the video depicts Lockett punching another regular patron, Antoine Clemons. Defendant's companion, Frederick Ellis, a bouncer working at the bar that night, punched Lockett back. The gun shots were then fired.
The State presented several witnesses who were at the bar that night to establish that defendant was the shooter.
Clemons identified defendant as appearing on the video about two minutes before the shots, wearing a shirt with a checkerboard pattern and holding a gun. Clemons testified that the shooter on the video is defendant. Defense counsel tried to impeach Clemons with a contrary statement Clemons gave to a defense investigator before trial, denying that he saw the shooter.
Ricky Shaw, the bar's head bouncer, had gone outside before the violence erupted. Shaw did not see the moment of the shooting, but he did see the punches that were exchanged beforehand. Shaw likewise identified defendant on the video, in segments leading up to the shooting.
Before trial, Ellis gave a recorded statement to the police in which he incriminated defendant. In that statement, Ellis recalled defendant saying to him before the altercation, "let's clear this up." Ellis also told the police that he saw defendant shoot Lockett.
During his direct examination in the State's case in chief, Ellis claimed he did not know either the shooter or the decedent. Ellis further claimed his prior police statement had been coerced.
After a hearing pursuant to State v. Gross, 121 N.J. 1 (1990), at which the judge found the police account of the Ellis interview to be credible, the trial judge ruled that Ellis's interview statements were not coerced, and that the video of that interview was admissible for its truth under N.J.R.E. 803(a)(1)(A). The video of the Ellis interview consequently was played for the jury, although the judge had the audio turned down during the portions that did not contain the inconsistent statements.
Defendant testified in his own behalf. He admitted that he had gone to the Irvington bar that night. He contended that he had been checked by security for weapons before entering the bar. He claimed he left the bar with a woman before the shooting and went to a different club in Newark.
Ellis's brother, Antonio Jones, testified for the defense and claimed that he had seen defendant at the Newark club about 1:30 a.m., and that defendant seemed like he was acting normal.
On appeal, defendant raises the following points in his attorney's brief:
POINT I
Appellant's Convictions Must Be Reversed Because The Manner In Which The State Exercised Its Peremptory Challenges Violated His Constitutional Right To A Fair And Impartial Jury.
POINT II
Appellant's Convictions Must Be Reversed Since The Surveillance Video At The Heart Of The State's Case Should Never Have Been Admitted Into Evidence Because The State Failed To Authenticate It Or Establish Chain Of Custody.
POINT III
The Trial Court's Denial Of The Applications Of Defense Counsel To Admit Certain Evidence At Trial Was Reversible Error.
POINT IV
Appellant's Convictions Must Be Reversed Because The Presentation of Ellis' Video Taped Statement At Trial Was Confusing, Misleading, and Invited The Jury To Speculate Concerning Its Contents.
POINT VIn addition, defendant presents the following points in his supplemental brief, some of which duplicate or overlap with his counsel's points:
The Trial Court's Denial Of Appellant's Request For Charges On Lesser-Included Homicide Offenses Was Reversible Error.
POINT VI
Appellant's Convictions Must Be Reversed Because Of The Highly Prejudicial Remarks That The Assistant Prosecutor Made During Her Summation.
POINT VII
The Trial Court's Refusal To Properly Voir Dire The Jury In Connection With The Outburst That Occurred After The Jury Received Final Instructions, But Before Deliberations Commenced, Was Reversible Error.
POINT VIII
Appellant's Convictions Must Be Reversed Because Of The Cumulative Error That Occurred During His Trial.
SUPPLEMENTAL POINT I
THE TRIAL COURT PERMITTED RETIRED DETECTIVE JAMES MARINARO TO BOLSTER THE TESTIMONY OF STATE WITNESSES WITH INADMISSIBLE AND PREJUDICIAL HEARSAY AND ALLOWED DET. MARINARO TO TESTIFY THAT DEFENDANT WAS GUILTY OF "STRAIGHT UP MURDER" REQUIRING REVERSAL OF CONVICTION PURSUANT TO U.S. CONST. AMENDS. VI XIV, N.J. CONST. ART. I PAR. 10.
SUPPLEMENTAL POINT II
DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT CONFRONTATION WHEN TRIAL COURT FURTHER ALLOWED DET. MARINARO TO TESTIFY AS TO DUTIES PERFORMED BY DET. FARROW AND OTHER UNIDENTIFIED NON-TESTIFYING IRVINGTON POLICE OFFICERS; IN VIOLATION OF U.S. CONST. AMENDS. IV AND XIV; N.J. CONST. ART. I ¶10.
SUPPLEMENTAL POINT III
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN TRIAL COURT BECAME AN ACTIVE PARTICIPANT IN THE PROSECUTION'S CASE BY INSTRUCTING THE STATE TO HAVE ITS[] WITNESS IDENTIFY THE DEFENDANT AND FURTHER INSTRUCTING PROSECUTION ON HOW TO GO ABOUT LAYING A PROPER FOUNDATION FOR A GROSS HEARING; THEREFORE DEPRIVING DEFENDANT OF HIS RIGHT TO DUE PROCESS AND FAIR TRIAL; U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. ART. I ¶1, 9 AND 10.
SUPPLEMENTAL POINT IV
THE TRIAL COURT ERRED WHEN IT FAILED TO FURTHER INQUIRE AS TO JUROR #10 FAILURE TO APPEAR FOR DELIBERATIONS AS ORDERED, DEPRIVING DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW AND FAIR TRIAL BY IMPARTIAL JURY. U.S. CONST. AMENDS. VI A[N]D XIV; N.J. CONST. ART. I ¶1, 9, AND 10.
SUPPLEMENTAL POINT V
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FORCED HIM TO CHOOSE BETWEEN EXERCISING ONE CONSTITUTIONAL PROTECTION (RIGHT TO COUNSEL) VERS[U]S ANOTHER (RAISING AN ISSUE OF PROSECUTIONAL MISCONDUCT); THUS DEPRIVING DEFENDANT OF HIS RIGHT TO DUE PROCESS AND FAIR TRIAL. U.S.
CONST. AMENDS. V, VI AND XIV; N.J. CONST. ART I. ¶1, 9, 10.
SUPPLEMENTAL POINT VI
DEFENDANT'S RIGHT TO DUE PROCESS WAS VIOLATED WHEN STATE FAILED TO PRODUCE SURVEILLANCE HARD-DRIVE SYSTEM UTILIZED TO DOWNLOAD DVD EVIDENCE SHOWN TO JURY AT TRIAL, THEREFORE DEPRIVING DEFENDANT OF HIS RIGHT TO FULLY EXAMINE EVIDENCE AGAINST HIM, PURSUANT U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. ART. 1 ¶1, 9 AND 10.
II.
We address the numerous arguments raised by defendant and his counsel, reordering and combining the points in some respects for ease of discussion.
A.
Defendant, who is African-American, contends that the State's use of peremptory challenges to exclude seven prospective African-American jurors from the panel violated his constitutional right to a fair and impartial jury. After a careful analysis of this claim of discrimination, Judge Ravin concluded that the prosecutor had sufficiently presented non-pretextual reasons for striking various African-American jurors. Accordingly, the judge found no constitutional violation. We agree.
The United States and New Jersey Constitutions both prohibit the prosecution and defense counsel from exercising peremptory challenges of jurors in a way that discriminates on the basis of race. Batson v. Kentucky, 476 U.S. 79, 96, 106 S. Ct. 1712, 1723, 90 L. Ed. 2d 69, 87-88 (1986); State v. Gilmore, 103 N.J. 508, 522-23 (1986). Where a defendant establishes a prima facie showing that the challenges are being exercised on constitutionally impermissible racial grounds, Gilmore, supra, 103 N.J. at 517, 535-36, the burden then shifts to the State to demonstrate "evidence that the peremptory challenges under review are justifiable on the basis of concerns about situation-specific bias[,]" id. at 537, that is, something "'reasonably relevant to the particular case on trial or its parties or witnesses[.]'" Id. at 538 (quoting People v. Wheeler, 583 P.2d 748, 765 (Cal. 1978)).
Assuming the State advances such non-discriminatory reasons, as a third step of the analysis, the court must then "determine whether the defendant has carried the ultimate burden of proving, by a preponderance of the evidence, that the prosecution exercised its peremptory challenges on constitutionally-impermissible grounds of presumed group bias." Id. at 539. Accord State v. Osorio, 199 N.J. 486 (2009); State v. Pruitt, 430 N.J. Super. 261, 269-71 (App. Div. 2013) (quoting Gilmore, supra, 103 N.J. at 539). Among other things, the court must assess whether the State has applied the proffered reasons "even-handedly to all prospective jurors"; the "overall pattern" of the use of peremptory challenges; and "the composition of the jury ultimately selected to try the case." Osorio, supra, 199 N.J. at 506 (quoting State v. Clark, 316 N.J. Super. 462, 474 (App. Div. 1998), appeal after remand, 324 N.J. Super. 558 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000)).
Here, as defendant has emphasized, the prosecution used peremptory challenges to strike seven prospective African-American jurors. When asked to justify these strikes, the prosecutor provided several benign and non-discriminatory reasons for removing these jurors. Those reasons included the relative youth and relative inexperience of several jurors, including one who was an evangelist who might not have been able to consider the case dispassionately; the involvement of a juror's close friend or relative in accusations of wrongdoing by the State; a juror's expression of concerns about mistaken identity; a juror with inappropriate attire; and a juror's lack of eye contact with the prosecutor.
The trial judge credited the reasons advanced by the prosecutor for striking the seven jurors in question, and found they were neutral and reasoned. Defendant failed to demonstrate that the State failed to apply the proffered reasons even-handedly to strike non-African-American jurors with similar characteristics or that the State's explanations as to why those jurors were not stricken were contrived. The ultimate jury that was empaneled included six African-Americans (five of whom deliberated on the verdict), even though the State did not exhaust its peremptory challenges.
Applying the governing principles of law, we are satisfied that the State's use of peremptory challenges did not violate defendant's constitutional rights. Defendant has not met his burden, as required by Batson and Gilmore, of establishing by a preponderance of the evidence that the jurors were selected in a manner that violated the federal or state constitution.
B.
Defendant claims that the court erred by admitting the surveillance video of the shooting because the State failed to properly authenticate it and demonstrate an unbroken chain of custody. Judge Ravin rejected these evidentiary assertions, and so do we.
The standards to authenticate an item of evidence for consideration by the fact-finder are not particularly onerous or rigid. Under N.J.R.E. 901, authentication as a predicate to admissibility "is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." N.J.R.E. 901 (emphasis added). In essence, the court in a jury case engages in a "screening process" to decide whether such a rationally or logically sufficient basis exists, to indicate that the item is authentic, leaving it to the jurors the final assessment as to whether the item is, in fact, authentic. See generally Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 901 (2014). The authentication rule "does not require absolute certainty or conclusive proof." State v. Mays, 321 N.J. Super. 619, 628 (App. Div.), certif. denied, 162 N.J. 132 (1999). "The proponent of the evidence is only required to make a prima facie showing of authenticity." Ibid. (citations omitted). "Once a prima facie showing is made, the [item] is admissible, and the ultimate question of the authenticity of the evidence is left to the jury." Ibid. (citations omitted); see also N.J.R.E. 104(b) (authorizing the admission of conditionally-relevant evidence, enabling the fact-finder to consider if the condition, such as authenticity, is fulfilled, and, if not, to disregard the evidence).
Ordinarily, the authentication of a video requires testimony from a person who was present at the time of the filmed events and who states that the video "accurately depict[s] the events as that person saw them when they occurred." State v. Wilson, 135 N.J. 4, 17 (1994). However, where, as here, surveillance cameras film an actual criminal event as well as events leading up to and following it, the authenticity foundation can be supplied circumstantially without necessarily producing a witness who observed the criminal act as it was committed. For example, in State v. Loftin, 287 N.J. Super. 76 (App. Div.), certif. denied, 144 N.J. 175 (1996), in which a casino hotel maid was shot and killed while cleaning a room, a composite surveillance video showing defendant's movements within the hotel was authenticated by proof of the "mechanical aspects of the casino's surveillance procedures," without the State producing an eyewitness of the shooting itself or a person who followed defendant around the hotel. Id. at 98-99. "All that is required for authenticity is proof that the matter is what its proponent claims." Id. at 99 (citing N.J.R.E. 901).
Before trial in this case, defendant moved to exclude the surveillance video based on the State's alleged failure to proffer authentication evidence and establish an uninterrupted chain of custody. The State proffered that Shaw would testify that he was outside the front of the bar when the shooting occurred and was familiar with the various patrons there that night since he was a bouncer and the head of security. The State also proffered that Shaw "identified the video as the surveillance video from the club on the night of the murder" and recognized himself, defendant, Ellis, Clemons, and McCleod while viewing the video with the assistant prosecutor before trial.
Based on the State's proffer, Judge Ravin found the video admissible. The judge explained that the State's proffered testimony from Shaw satisfied the authentication requirement. The judge also rejected defendant's chain of custody argument.
Defendant argues that Shaw's subsequent trial testimony did not authenticate the video because Shaw testified that he had not personally observed the moment of the shooting. However, it was unnecessary for Shaw to be present at the moment of the shooting in order for him to confirm that the video accurately depicted the events. The video surveillance system captured the shooting itself. Shaw testified consistently with the State's proffer that the video accurately represented the surveillance video from the bar on the night of the shooting. See Wilson, supra, 135 N.J. at 14 ("An authenticator need not even have been present at the time the [video] was taken, so long as the witness can verify that the [video] accurately represents its subject.").
Moreover, since the video's image was clear and Shaw testified it accurately depicted the crime scene, the State was not required to produce a witness to testify about the surveillance system's "condition, maintenance, or operation." See State v. Nemesh, 22 8 N.J. Super. 597, 603 n.3 (App. Div. 1988) (where a video image is clear and testimony establishes that it accurately reproduced the actual scene, authentication evidence about the circumstances surrounding the video's taping, the manner and circumstances surrounding the video's development, and the video's projection is not necessary), certif. denied, 114 N.J. 473 (1989).
Defendant further contends that the two-year lapse between the shooting and Shaw's viewing of the video "undermin[ed] his ability to testify with any degree of certainty as to the video's accuracy and completeness." Whether that two-year lapse affected Shaw's recollection goes towards the evidence's weight, not its admissibility. See N.J.R.E. 104(e).
We also reject defendant's claim that he is entitled to a new trial because the chain of custody of the video was not established. "A party introducing tangible evidence has the burden of laying a proper foundation for its admission." State v. Brunson, 132 N.J. 377, 393 (1993). A proper foundation "should include a showing of an uninterrupted chain of possession." Ibid. (citing State v. Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied, 51 N.J. 468 (1968)). But if there is a "reasonable probability that the evidence has not been changed in important respects or is in substantially the same condition as when the crime was committed[,]" then the evidence should be admitted. Id. at 393-94 (citation and internal quotation marks omitted). Notably, any defect found in the chain of evidence "'goes to the weight, not the admissibility, of the evidence introduced.'" State v. Morton, 155 N.J. 383, 446 (1998) (quoting United States v. Matta-Ballesteros, 71 F.3d 754, 769 (9th Cir. 1995)), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).
Detective James Marinaro, the State's lead investigating officer, testified that an Irvington Police Department patrol officer stood by the surveillance video system's hard drive after the bar had been "locked down" after the shooting and took custody of it during the early morning hours of October 10, 2009. At some point on October 10, a Detective Farrow from Marinaro's unit went to the Irvington Police Department, downloaded the portion of the video from October 9 at 11:45 p.m. to October 10 at 12:15 a.m. to a disk, and gave a copy to Marinaro.
Although Marinaro did not personally secure the surveillance video from the bar, his testimony established that it remained in law enforcement's possession. Because the custodians of the video were law enforcement officers, the prosecutor was "not obligated to negate every possibility of substitution or change in condition of the evidence." Brunson, supra, 132 N.J. at 393. Thus, defendant's claimed gaps in the chain of custody and the purported changes in the condition of the video go only to the weight of the evidence, and do not preclude its admissibility. Morton, supra, 155 N.J. at 446. We also reject as utterly speculative defendant's argument that the commotion in and around the bar after the shooting created a significant risk that the video was altered before the police arrived and stabilized the scene. There is no proof that the video was manipulated, erased or otherwise altered during that interval. The fact that the times displayed on the video screen deviated a few minutes from the actual time is inconsequential, as the times within the video itself were consistent with one another and the sequence of events.
In sum, the surveillance video was admissible because it was properly authenticated by Shaw's proffered testimony. The claimed gaps in the video's chain of custody and the alleged changes in its condition go merely towards the evidence's weight, not it admissibility. The trial court did not abuse its discretion in admitting the video and allowing it to be played for the jurors. See State v. McLaughlin, 205 N.J 185, 211 (2011) (applying an abuse of discretion scope of review on a criminal judge's evidentiary rulings); State v. Johnson, 120 N.J. 263, 297 (1990) (same).
We likewise reject as utterly without merit defendant's related pro se argument that his constitutional right to confrontation was violated when Detective Marinaro testified about how the surveillance video was physically transferred among other non-testifying officers before Marinaro obtained a copy of it. Marinaro's testimony in this regard, which was not objected to at trial, did not quote from what other officers had stated to him. We discern no error, much less plain error, from Marinaro's explanation of how the video came into his possession. R. 2:10-2 (noting the plain error standard for issues not raised below). Moreover, as the United States Supreme Court has instructed in recent Confrontation Clause jurisprudence, the prosecution does not have to produce at trial for cross-examination every participant in an item's chain of custody. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n.1, 129 S. Ct. 2527, 2532 n.1, 174 L. Ed. 2d 314, 322 n.1 (2009).
In yet another point relating to the surveillance video, defendant argues in his supplemental brief that his due process rights were violated when the State failed to produce the surveillance "hard-drive system" on which the shooting was recorded. Since defendant failed to object on this basis below, our review of this issue is also guided by the plain error standard. See R. 1:7-2; 1:7-5; 2:10-2. Applying that standard, we find no violation of defendant's due process rights because he has not established that the hard-drive evidence was suppressed, exculpatory, or material.
We are cognizant that a criminal defendant "has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed." State v. Hollander, 201 N.J. Super. 453, 478 (App. Div.) (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215, 218 (1963)), certif. denied, 101 N.J. 335 (1985). "In order to establish a Brady violation, the defendant must show that: (1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268 (1999). "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985). The test is "whether the undisclosed evidence, if it had been presented to the jury, might have led the jury to entertain a reasonable doubt about defendant's guilt." State v. Carter, 69 N.J. 420, 433 (1976). Even so, the focus of the Brady doctrine is on "the nondisclosure of exculpatory evidence, not on challenges to the evidence's authenticity." Morton, supra, 155 N.J. at 413.
Applying these standards here, we discern no basis for relief. Defendant has not demonstrated that he sought the hard drive in discovery and the State failed to produce it. Thus, by producing copies of the disputed video itself that was recorded on the surveillance hard drive, the State sufficiently met its burden of production in this case. Nor has defendant shown that the hard drive contained exculpatory, material evidence that may have established his innocence. Rather, his argument is directed at the authenticity of the video surveillance, not the hard drive's alleged nondisclosure. In sum, defendant has failed to show a deprivation of his due process rights. See State v. R.W., 104 N.J. 14, 28 (1986) ("[A]llowing a defendant to forage for evidence without a reasonable basis is not an ingredient of either due process or fundamental fairness in the administration of the criminal laws.").
C.
Defendant contends in his supplemental brief that the trial court erred by denying his trial counsel's motion for a mistrial based on Detective Marinaro's alleged inadmissible hearsay and lay opinion testimony. Specifically, he claims that Marinaro's in-court identification of him on the surveillance video constituted inadmissible hearsay testimony. He also argues that Marinaro's testimony that the shooting was "straight up murder" constituted impermissible lay opinion testimony. Judge Ravin denied a mistrial on these matters and instead issued curative instructions to the jury to address any prejudice to defendant. We are satisfied that the judge's decision in this regard was sound.
"[A]n appellate court will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of discretion that results in a manifest injustice." State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). No such injustice occurred here with respect to Marinaro's opinion testimony concerning the identification of defendant on the video or with respect to his "straight up murder" comment, both of which prompted appropriate curative instructions by Judge Ravin.
To be sure, Marinaro did not see the shooting or the events leading up to it. Hence, he arguably strayed beyond the limits of the lay opinion rule, N.J.R.E. 701, by describing a person on the video as "Mr. White," i.e., defendant. However, it would have been readily apparent to jurors in the context that Marinaro did not observe the shooting, and that his references to "Mr. White" were not grounded in any personal knowledge. When defendant's trial counsel objected, Judge Ravin proposed a curative instruction, to the effect that Marinaro's investigation, and whether or not the State has proven the defendant was the perpetrator is up for the jury to decide beyond a reasonable doubt. Both the prosecutor and defense counsel agreed that this proposed instruction was appropriate, and the judge so instructed the jury. The judge repeated a similar instruction to the jurors, again without any defense request for further amplification, when Marinaro made similar references to "Mr. White" appearing on the video.
The judge likewise took swift remedial action when Marinaro later testified in his direct examination that this case was not "a random shooting" but instead one of "straight up murder." The judge forcefully advised the jurors that this improvident statement was "stricken from the record," "must be disregarded," and could not be used in deliberations "in any manner, for any purpose, at any time."
We are satisfied that the trial court did not abuse its discretion in denying a mistrial on any of these improper aspects of Detective Marinaro's testimony. The judge properly instructed the jury to disregard the statements, and jurors are presumed to follow the court's instructions. State v. Montgomery, 427 N.J. Super. 403, 410 (App. Div. 2012), certif. denied, 213 N.J. 387 (2013); see also State v. Martini, 187 N.J. 469, 477 (2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007). Moreover, as to Marinaro's "straight up murder" comment, any prejudice to defendant was abated by the fact that the comment was a generalized remark rather than one tied to defendant specifically. In fact, the pivotal issue at trial was not that Lockett had been murdered by a shooter, but rather the identity of that shooter. See also State v. Winter, 96 N.J. 640, 646-47 (1984) ("The decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge[.]").
D.
Defendant contends that the trial court committed reversible error by not allowing him to establish and argue potential third-party guilt by denying his motion to admit: (1) a gun found in Lockett's glove compartment on the night of the shooting, and (2) evidence of Lockett's prior convictions and his previously suffered gunshot wounds. We disagree because defendant failed to offer a sufficient link between the proffered evidence and the crimes charged against him including the fatal shooting of Lockett.
The pertinent background on this third-party guilt issue is as follows: Before trial, defendant moved to admit evidence of Lockett's prior convictions, an autopsy report stating that Lockett's body contained four old projectiles, and a gun found in his glove compartment on the night of the shooting on the ground that "other people could have had a motive or opportunity to kill . . . Lockett." The court had already denied the State's related motion to admit evidence about a prior physical altercation between Ellis's brother, Jones, and Lockett at the bar on May 30, 2009 as probative of defendant's own motive to murder Lockett.
In denying defendant's motion, Judge Ravin observed that the State had not put Lockett's character in issue. Nor had defendant claimed self-defense, the defense of others, or the defense of property. The judge concluded that the gun "does not prove any fact of consequence in the matter[, and that] circumstance is simply not relevant." Judge Ravin also concluded that Lockett's criminal history and the autopsy report were not probative that on the night of the murder someone else had the motive or opportunity to murder him. Moreover, even assuming that the excluded evidence were probative, its value was substantially outweighed by the risk of undue prejudice. See N.J.R.E. 403. We agree with the judge's analysis.
We are mindful that generally "[a] defendant is entitled to prove his [or her] innocence by showing that someone else committed the crime with which he or she is charged." State v. Jimenez, 175 N.J. 475, 486 (2003) (citations omitted). Nevertheless, proof of third-party guilt must have "'a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case.'" State v. Cotto, 182 N.J. 316, 332 (2005) (quoting State v. Fortin, 178 N.J. 540, 591 (2004)). It is "'not enough to prove some hostile event and leave its connection with the case to mere conjecture.'" Jimenez, supra, 175 N.J. at 487 (quoting State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960)). Rather, a defendant must establish that there is "some link between the evidence and the . . . crime[s]" with which he or she is charged. State v. Koedatich, 112 N.J. 225, 301 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989) (citations omitted).
Here, no individual was identified as a third party who potentially shot Lockett. Defendant failed to establish a nexus between that unknown person and the shooting. The fact that Lockett was apparently shot before, had prior criminal convictions, and possessed a weapon may show that he was a person who may have associated with other criminals or had enemies, but does not show that someone other than defendant was the person who shot him on the surveillance video.
We agree with Judge Ravin that defendant failed to raise a sufficient inference of third-party guilt. The trial court did not abuse its discretion by refusing to admit the evidence. See Cotto, supra, 182 N.J. at 333 (applying an abuse of discretion review standard to a trial judge's evidentiary ruling regarding the admission of proof of third-party guilt). See also State v. Dreher, 302 N.J. Super. 408, 502 (App. Div.) ("It is not enough if the evidence simply raises a possible ground of suspicion without providing any direct connection with the crime, or if it does nothing more than cast suspicions on a third party."), certif. denied, 152 N.J. 10 (1997).
E.
Defendant argues that the judge should have allowed him to present evidence that the police seized a shirt from his residence that turned out to be dissimilar to the shirt worn by the shooter. We discern no abuse of discretion in the judge's exclusion of this evidence, which had little, if any, probative value to either side in this case.
At a pretrial hearing on this issue, Detective Randolph Root of the Crime Scene Unit for the Essex County Prosecutor's Office testified that he searched defendant's residence pursuant to a search warrant on October 29, 2009. In addition to a magazine containing two live rounds and hollow point bullets, Root seized a multi-colored, short-sleeved shirt. Root explained that another officer had directed him to take the shirt without further explanation.
Judge Ravin concluded that the shirt was not admissible because the credible testimony of the police officer who testified at the hearing established why the shirt was seized. Hence, it could not be reasonably inferred that the police had "botched [the] investigation." Defendant claims this ruling was reversible error. We disagree.
Only relevant evidence is admissible under N.J.R.E. 402. "Relevant evidence" means "having a tendency in reason to prove or disprove any fact of consequence[.]" N.J.R.E. 401.
Defendant did not establish that the police who searched his premises believed the seized shirt belonged to the shooter. It is undisputed that the shirt worn by the shooter had a distinctively different pattern. The shirt that was seized from the premises therefore was not inculpatory. Nor was it clearly exculpatory, for the mere fact that defendant owned another shirt later found at his residence, post-shooting, does not preclude him from having worn a different shirt to the bar on the night in question. The seized shirt was no more than a red herring, and the trial judge properly exercised his sound discretion in preventing the jury from being distracted by this immaterial proof. N.J.R.E. 403.
F.
Defendant contends that the manner in which the video of Ellis's October 11, 2009 police statement was played for the jury was prejudicial, confusing, and misleading because only the portions that contradicted Ellis's trial testimony were audible. We reject this contention.
This issue arose as follows. On the second day of trial testimony, Ellis testified inconsistently with his prior recorded statement, stating that he did not know who shot Lockett and that the police had threatened and coerced him to identify defendant as the shooter. Following a Gross hearing, Judge Ravin determined that the recorded statement met the reliability requirements of N.J.R.E. 803(a)(1)(A), but permitted the jury to hear only the inconsistent portions of the recording.
After issuing this ruling, the judge confirmed the prosecutor's intention to play only those portions of Ellis's statement that were inconsistent with his trial testimony. Sua sponte, the judge then questioned how the jury would assess whether the police threatened or coerced Ellis into identifying defendant as the shooter if it only saw those particular portions of the statement. The judge suggested as an alternative that the entire statement be played, but that the volume be turned off for the consistent portions.
Certain limited portions of the trial transcript use the word "consistent" to refer to the portions of Ellis's video-recorded statement that the State proposed to play for the jury. However, it is readily apparent from the context, including the Gross hearing that was held to determine the video-recorded statement's admissibility, that the State sought to admit Ellis's video-recorded statements as statements inconsistent with his present in-court testimony, pursuant to N.J.R.E. 803(a)(1)(A).
Defense counsel objected to the court's suggestion, stating that it would invite the jury to speculate about what was being said during the inaudible parts. To prevent the jury from being misled, Judge Ravin alternatively suggested that the jury only be shown the inconsistent portions, but only if defense counsel would concede that the police had not threatened or coerced Ellis. Since defense counsel was unwilling to make that concession, the judge ruled that the entire statement would be played with only the inconsistent parts audible.
Just before the video of the statement was played, the judge instructed the jury that
during some portions the volume will be on so that you can hear what is being said. At other parts, the volume is going to be turned off so that you cannot hear what is being said. Those were legal determinations made by the court as to when the volume would be on and when it would be off.Notwithstanding this curative instruction, defendant challenges the propriety of the court's decision to show portions of Ellis's recorded statement with the volume in an "off" position.
In those portions where the volume is off you, of course, can still look at the people in the video, but you are not to speculate as to what is being said by anyone in the interview in those portions where the volume has been turned down. . . . [A]nd you can't use that for any manner, for any reason, or any purpose in your deliberations. Those were legal rulings by the court.
Having considered the circumstances that the judge confronted, we conclude that the decision to play the Ellis video in its entirety, but with portions of that video without sound, was a practical and fair solution to a difficult problem. Under N.J.R.E. 611(a), a trial judge has the authority to exercise "reasonable control over the mode and order of . . . presenting evidence so as to (1) make the . . . presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." That authority and responsibility was discharged here appropriately.
Ellis testified that the police had threatened and coerced him to identify defendant as the shooter. Even though only the inconsistent portions (totaling about four minutes) of Ellis's twenty-minute statement were audible, the court properly allowed the State to play Ellis's entire statement because the inaudible parts were probative of whether the police had threatened and coerced Ellis to identify defendant. See N.J.R.E. 607 and N.J.R.E. 611(a). Thus, the jury was entitled to view the entire statement to assess whether Ellis's allegations about police misconduct were truthful.
Defendant maintains that the inaudible portions prejudiced him because the jury was left to speculate about what was being said, and thus those portions should have been excluded under N.J.R.E. 403. Any such alleged prejudice was ameliorated by the court's cautionary instruction, which the jurors presumably followed since defendant has not shown any evidence to the contrary. Montgomery, supra, 427 N.J. Super. at 410.
G.
Defendant contends that the jury instructions were flawed in that they failed to include requested charges on aggravated and reckless manslaughter as lesser-included offenses of murder.
Since the evidence at trial did not present a rational basis for the jury to acquit defendant of murder and convict him of aggravated or reckless manslaughter, we find no error.
Defendant's trial counsel had argued to Judge Ravin that the jury could acquit defendant of murder and convict him of either aggravated or reckless manslaughter because the surveillance video showed the decedent approaching the shooter "and the shooter hastily pulls a gun and shoots him." The judge denied the request, disagreeing with counsel's recollection of the video, which showed "a man . . . point[ing] a gun at [another man's] head and shoot[ing] him right in the head."
The applicable law is clear. "[W]hether an included offense charge is appropriate requires (1) that the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8d, and (2) that there be a rational basis in the evidence to support a charge on that included offense." State v. Cassady, 198 N.J. 165, 178 (2009) (quoting State v. Thomas, 187 N.J. 119, 131 (2006)). "The failure to instruct the jury on a lesser included offense that a defendant has requested and for which the evidence provides a rational basis warrants reversal of a defendant's conviction. State v. Savage, 172 N.J. 374, 397-98 (2002). Nevertheless, "sheer speculation does not constitute a rational basis." State v. Brent, 137 N.J. 107, 118 (1994).
The lesser-included offense analysis here involves the respective elements of murder and manslaughter. "Murder requires proof that [a] defendant caused death purposely, i.e., with the intent to cause or conscious object of causing death, or knowingly, i.e., with an awareness that death is practically certain to result." State v. Gaines, 377 N.J. Super. 612, 621 (App. Div.) (citing State v. Cruz, 163 N.J. 403, 417-18 (2000)), certif. denied, 185 N.J. 264 (2005). In contrast, "[a] lower degree of culpability is required to prove aggravated manslaughter, for which the prosecution must show that the defendant was aware of and consciously disregarded a substantial risk of death, i.e., a probability that death would result, and that the defendant manifested extreme indifference to human life." Cruz, supra, 163 N.J. at 417 (citing N.J.S.A. 2C:11-4(a)). Reckless manslaughter, meanwhile, "requires only proof that the actor recklessly caused the death of another human being." State v. Curtis, 195 N.J. Super. 354, 363 (App. Div.), certif. denied, 99 N.J. 212 (1984). See also N.J.S.A. 2C:11-4(b)(1).
Aggravated and reckless manslaughter are lesser-included offenses of murder. State v. Jenkins, 178 N.J. 347, 361 (2004). Thus, the issue is whether there was a sufficient rational basis in the evidence to acquit defendant of murder and convict him of aggravated or reckless manslaughter. We concur with Judge Ravin that such a rational basis was absent here, particularly in this context where the shooting was captured on video.
Even though the trial evidence suggested that many people surrounded Lockett when the shooting occurred, there was no evidence that defendant felt threatened and "fired [the gun] indiscriminately," as his counsel claims in his appellate brief. Rather, the evidence clearly demonstrated that the shooter fired at Lockett multiple times, which evidenced his purposeful or knowing intent to kill.
Hence, with respect to the homicide count, Judge Ravin properly charged only on murder because there was no rational basis for the jury to acquit defendant of that offense and convict him of aggravated or reckless manslaughter. See, e.g., State v. Mendez, 252 N.J. Super. 155, 160-62 (App. Div. 1991) (finding proper for the judge to charge on murder rather than reckless manslaughter, where the evidence established that shooter fired a machine gun into a crowd), certif. denied, 127 N.J. 560 (1992); State v. Sanchez, 224 N.J. Super. 231, 242-43 (App. Div.) (finding it proper for the judge to charge on murder rather than manslaughter, where the evidence established that the shooter fired directly at another person), certif. denied, 111 N.J. 653 (1988).
H.
Defendant contends that the prosecutor's remarks during summation about the sequence of the fired shots "were contrary to the evidence," and that the court's failure to issue a curative instruction or strike them constituted reversible error. He asserts the prosecutor should not have remarked on the probable sequence of the shots because the medical examiner did not testify to that.
During summations, the prosecutor stated:
You heard from the medical examiner and the doctor told you about the examination that he performed and the nature and the extent of the injuries that [Lockett] suffered. He said there were three distinct gunshot wounds causing five different injuries. [Lockett] was shot in the stomach. The bullet went in his abdomen and came out his back. I submit to you, granted, the doctor was not at the scene, the doctor doesn't know how this happened, but based on his testimony, based on the video we can figure a couple things out. The shot to the stomach was the first shot, I submit to you, ladies and gentlemen, because it couldn't have happened any other way. That was the shot when [Lockett] was still standing. He gets shot in the stomach, and we know from the video that he falls on his stomach. How can you get shot in your stomach if you're on it? The shot to the stomach was the first shot.
. . . .
I submit to you the second shot was the eye, because that shot essentially goes straight across his face. It goes in his eye, completely destroys his eye and goes across his face. I submit to you that was happening while he was falling and before he hit the ground.
. . . .
The final shot, I submit to you, was the shot in the neck. . . . [Lockett] is on the ground, he's shot. You can see in the photo there's blood coming out of his head already, presumably from having his eye destroyed by the previous bullet. But the defendant comes back, he aims and he fires again.
[(Emphasis added).]
After summation was completed, defense counsel objected to the prosecutor's remarks on the ground that there was no "evidence in this case as to the sequence of those shots." In response, the prosecutor stated her comments were based "on the nature of the injuries together with the video [surveillance], together with the doctor's testimony" about "the nature of the injuries, . . . the trajectory of the bullets, . . . [and] whether or not there would be an exit wound based on outside factors." The prosecutor also said she told the jury that she "was basing [her] arguments on what we could figure out from the medical examiner's testimony and the video put together."
Judge Ravin overruled defendant's objection to the summation, stating that it was not necessary to take curative measures because "[t]he jury is told that what either side says in their closing argument is not evidence" and the remarks were based on "the totality of the evidence from which the inference of the order of shots may logically and reasonably be drawn."
The applicable law is not disputed. "[P]rosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J. 525, 559 (1995)). Thus, they "are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." Ibid. Even so, counsel "should not misstate the evidence nor distort the factual picture." Matthews v. Nelson, 57 N.J. Super. 515, 521 (App. Div. 1959), certif. denied, 31 N.J. 296 (1960).
If the challenged remarks do not conform to those standards, in determining whether the prosecutor's alleged misconduct requires reversal, the court must examine whether the conduct "was so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83. "[We] must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Ibid.
We agree with defendant that the record shows that the medical examiner testified that he could not determine in what sequence the shots were fired. Nevertheless, the prosecutor's remarks did not misstate or distort the medical examiner's testimony because they were based on all applicable evidence, including testimony about the trajectory of the bullets and the video surveillance of the shooting. Thus, her remarks were "reasonably suggested by the evidence," State v. Bogen, 13 N.J. 137, 140, cert. denied, 346 U.S. 825, 74 S. Ct. 44, 98 L. Ed. 350 (1953), and the judge did not err by overruling defendant's objection. Moreover, whatever the sequence of the shots, there was no dispute that Lockett was shot multiple times by the same person.
Defendant also contends that the prosecutor's remarks, which "attempted to paint a picture of a shooting that occurred methodically and without any distractions," unduly prejudiced him. We disagree.
The prosecutor's remarks concerning the sequence of the shots were not prejudicial because they did not concern the shooter's identity, the main issue in this case. In fact, defendant testified he had left the bar before the shooting occurred. In any event, any prejudice was ameliorated by the judge's cautionary instruction that counsel's arguments are not evidence, which the jury presumably understood and followed.
I.
After the court issued its final charge, defendant threw a cup of water towards the jury. One juror was hit by it. Defendant stated: "You can take that with you. This is bullshit. You didn't hear half of what the f*** happened, man." After the jury left the courtroom, defendant further said: "F*** that. Tell the truth. Play fair. Tell the truth. Play fair. I'm not resisting. . . . They are playing with my life and they are telling jokes and shit."
Defense counsel requested a mistrial following his client's outburst. Judge Ravin denied that request, on the basis that "there has been no showing, without a curative instruction, the jury cannot be fair and impartial and come to a verdict based upon the evidence in the courtroom."
Defense counsel alternatively requested that the judge issue a curative instruction and voir dire each juror to ensure that the outburst had not affected their ability to remain fair and impartial. The judge decided to issue a curative instruction and collectively poll the jury. Counsel agreed to the following curative instruction, which the judge read to the jury:
Ladies and gentlemen of the jury, as I have instructed you, you must follow the law whether you agree with it or not. Your verdict is to be based on the evidence alone. Evidence is the testimony you heard from the witness stand and anything that has been admitted into evidence.
Trials are high pressured situations for everyone involved. This morning's behavior you may have observed by Mr. White, and whatever you may have heard him say this morning, is not evidence. As a matter of law, I'm instructing you to disregard what you heard and saw. It cannot enter into your deliberations for any manner or any purpose at any time.
Judge Ravin also asked the jury whether it could not follow the curative instruction and requested that any juror who "will no longer be able to be . . . fair and impartial . . . based on what you may have heard or seen this morning" to raise his or her hand. No hands were raised.
After deliberations began, defense counsel stated to the judge that he observed the jurors "look[ing] around at each other" when the court asked them whether they believed they could remain fair and impartial. The prosecutor stated she "did not make those observations."
Defendant cites State v. Bey, 112 N.J. 45 (1988), for the proposition that a judge is required to voir dire each juror when issues of potential jury taint arise. Bey addressed alleged jury taint from mid-trial newspaper publicity about the defendant's indictment and pending trial for the murder of a victim as well as his prior assault and robbery convictions. Id. at 56. In those circumstances, the Supreme Court held that the highly prejudicial content of the news articles required individualized polling of the deliberating jurors. Id. at 90-91.
Contrary to defendant's contention, Bey does not hold that individualized jury voir dire is required after a defendant's in-court outburst. Rather, Bey's holding applies to the circumstances presented there, potential juror taint from mid-trial publicity. Those circumstances do not exist here.
Although not cited by the parties, Montgomery, supra, 427 N.J. Super. at 403, provides guidance on the appropriate cautionary measures a court should take to ensure a fair trial after a defendant's in-court outburst. In that case, the defendant "assaulted defense counsel, fought with sheriff's officers, attempted to escape from the courtroom, and was subdued by the sheriff's officers" at the end of the State's case and in the jury's presence. Id. at 405. Following the outburst, the jury was "immediately removed." Ibid.
Defense counsel in Montgomery moved for a mistrial, which the court denied. Id. at 405-06. When the jury returned to the courtroom, "the judge gave a cautionary instruction that the jury must disregard the incident when deliberating and base the verdict solely on the evidence presented in the courtroom. All jurors acknowledged that they understood the instruction and could comply with it." Id. at 406. The judge gave a similar charge in his final instructions. Ibid.
The defendant's new counsel in Montgomery subsequently moved for a new trial, claiming that the jury could not "be fair and impartial after witnessing the incident[] [and] the judge's instructions were inadequate to overcome the prejudice to [the] defendant[.]" Ibid. "The judge denied the motion, finding that [the] defendant's conduct was calculated to cause a mistrial because there was overwhelming evidence of his guilt." Ibid.
We affirmed the denial of a new trial in Montgomery. Id. at 407-08. In so affirming, we found that the defendant's "right to a fair trial was not compromised because the judge's cautionary instructions were adequate[,]" which included instructing the jury twice to disregard his misconduct and base the verdict solely on evidence in the courtroom, as well as "obtain[ing] their acknowledgment that they understood and would comply with his instructions." Id. at 410. See also State v. Wilson, 335 N.J. Super. 359, 368-69 (App. Div. 1999) ("Although a poll of the jury would have been appropriate [after an emotional outburst by the victim's mother], its absence was harmless error, at worst, particularly in light of the defenses raised, the concessions made by the defense, and the overwhelming strength of the State's case."), aff'd, 165 N.J 657 (2000).
Here, as in Montgomery, the judge was not required to voir dire each juror because "[j]urors are presumed to have followed the court's instructions in the absence of evidence demonstrating otherwise." Id. at 410 (citing State v. Martini, 187 N.J. 469, 477 (2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007)). Defendant has not demonstrated any such evidence, nor does the record reflect any. Rather, the record suggests that the jury rendered a verdict based on the evidence before it, having requested playbacks of the surveillance video and a partial readback of Ellis's testimony, and having deliberated for a day and half. Nothing suggests the jurors did not follow the curative charge, to which counsel consented.
We find no abuse of the court's discretion in not questioning each juror separately to determine whether he or she was still capable of judging the evidence presented fairly and impartially after defendant's in-court outburst. The judge's curative measures adequately protected defendant's right to a fair trial. His self-initiated effort to sabotage the trial was appropriately responded to, with care and with restraint.
J.
Defendant claims in his pro se brief that his right to trial by an impartial jury was "sufficiently infringed" when an alternate juror (Juror No. 12) was substituted for an excused juror (Juror No. 10) to decide whether defendant was guilty of the crime charged in Indictment No. 10-05-1368, second-degree unlawful possession by certain persons not authorized to have a handgun. Specifically, defendant argues that the court failed "in [its] duty to not only question the absence of Juror #10 and any impression this may have had on the remaining jury members, but also in [its] failure to further explore Juror #12's interest in her well[-]being." This contention has no merit.
The juror substitution arose in the following manner. On the second day of jury deliberations on Indictment No. 10-05-1369, Alternate Juror No. 12 told Judge Ravin outside the presence of the deliberating jury that she and the other alternate juror (Juror No. 4) "wanted to know where we were going to be seated when the verdict is read . . . [b]ecause we're uncomfortable with sitting out with the rest of the people." The judge told her that it was his intention to sit them where they sat when they "came into the jury room."
Judge Ravin also asked Alternate Juror No. 12 whether she had discussed the case with Alternate Juror No. 4. She said that they both had said to each other that they wondered where they would be sitting when the jury verdict was read. Alternate Juror No. 12 additionally stated that she had not shared her concern with any member of the deliberating jury. Judge Ravin directed Alternate Juror No. 12 to "go back to where you were" and "not . . . discuss what we talked about here with the other alternate or anyone else."
The judge then questioned Alternate Juror No. 4 about whether she had discussed her concern about where she would be sitting when the jury verdict was announced with the deliberating jurors. She responded in the negative.
After lunch on the same day, Juror No. 10 expressed her concern about whether she would have to say "agree" or "not agree" when the verdict was read. Judge Ravin told her that she may be asked individually and in open court whether she agrees or disagrees with the verdict announced by the foreperson. The judge also noted that "security should not be a concern of yours." The judge then asked whether any of her concerns would interfere with her ability to render a fair and impartial verdict, to which she responded in the negative.
After the jury found defendant guilty of all charged crimes in Indictment No. 10-05-1369, it reconvened the next day to deliberate on Indictment No. 10-05-1368. However, Juror No. 10, for reasons that are not clear form the record, did not appear. Before the deliberations on the second indictment began, the court held an off-the-record conference with counsel, during which they agreed to substitute Alternate Juror No. 12 for the absent Juror No. 10. The judge informed the remaining jurors of the substitution and gave the following instructions, which counsel did not object to:
Because of this change in the jury, you must set aside and disregard all of your past deliberations and begin our deliberation again, just as if you were now entering the jury room for the first time directly after listening to my charge, and begin your deliberation again. You must eliminate any impact that juror number 10 may have had on your deliberations and consider the evidence in the context of full and complete deliberations with a new member of your jury.
After twenty-five minutes of deliberation, the jury returned a guilty verdict on Indictment No. 10-05-1368.
We discern no plain error in the judge's substitution of the deliberating juror, which was specifically agreed to by both counsel. The substitution was made necessary by the departure of Juror No. 10. See State v. Williams, 171 N.J. 151, 171 (2002) (no plain error where "all counsel agreed to the [juror] substitution at the time and we discern no unfair prejudice to defendant in terms of the jury's deliberative process."); State v. Pontery, 19 N.J. 457, 471 (1955) (a "defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.").
Moreover, Judge Ravin ameliorated any potential prejudice by properly instructing the reconstituted jury to begin new deliberations, which had not yet began on Indictment No. 10-05-1368. R. 1:8-2(d)(1). (The court must "instruct the jury to recommence deliberations and shall give the jury such other supplemental instructions as may be appropriate.").
K.
With one exception, we reject as unmeritorious defendant's remaining claims, including that the trial court improperly restricted the questioning of Ellis to "yes/no" queries, improperly had Shaw identify defendant in court, and his contentions of cumulative error. R. 2:11-3(e)(2). However, we decline to consider on this direct appeal his contention that his trial attorney was constitutionally ineffective in declining to present testimony from defendant at a pretrial hearing concerning alleged misconduct in the grand jury. Preciose, supra, 129 N.J. at 460 (noting the general policy to defer such allegations of ineffective assistance to a future PCR hearing, rather than adjudicating them on direct appeal).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION