State of New Jersey v. John N. Mahoney

132 A.3d 1264, 444 N.J. Super. 253

• Court: New Jersey Superior Court Appellate Division
• Decided: February 22, 2016
• Docket: A-5320-14T4
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5320-14T4

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Appellant, February 22, 2016 v. APPELLATE DIVISION

JOHN N. MAHONEY,

Defendant-Respondent. __________________________________

Argued January 25, 2016 – Decided February 22, 2016

Before Judges Fasciale, Nugent and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-06-0996.

Nancy A. Hulett, Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Hulett, on the brief).

David A. Gies, Designated Counsel, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Gies, on the brief).

The opinion of the court was delivered by

FASCIALE, J.A.D.

We granted leave to appeal from a June 26, 2015 order

denying the State's motion to preclude two deliberating jurors

from addressing the court at defendant's sentencing hearing. The State maintains that it is improper to allow juror

participation at such a proceeding. We agree, reverse, and

remand for sentencing without input from the jurors.

We hold that a judge may not consider for sentencing

purposes any comments from a deliberating juror to identify

applicable aggravating or mitigating factors set forth in

N.J.S.A. 2C:44-1(a) and (b). Consequently, deliberating jurors

are not permitted to participate at a defendant's sentencing

proceeding. To allow juror participation would unnecessarily

create a substantial risk of distracting the jurors from their

primary purpose – serving as judges of the facts – and would

indubitably undermine the sanctity of the jury's deliberative

process in our system of jurisprudence.

I.

Defendant shot and killed his father. A grand jury

indicted and charged defendant with first-degree murder,

N.J.S.A. 2C:11-3(a)(1) or (2) (Count One); second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a) (Count Two); and third-degree hindering apprehension or

prosecution, N.J.S.A. 2C:29-3(b)(4) (Count Three). The matter

proceeded to trial.

In defense of the charges, defendant presented testimony

during the trial that he was a victim of battered child syndrome

2 A-5320-14T4 because his father had allegedly physically and emotionally

abused him. The jury found defendant guilty of Counts Two and

Three. As to Count One, the jury found defendant guilty of

first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), (c).

In returning their verdict, the jury sent the judge an

unsolicited handwritten note stating in part, "[w]e the jury . . .

agree on the recommendation that [defendant] have significant

therapy." The court then scheduled a sentencing date for

defendant.

Approximately one week after the verdict, juror number two

wrote defendant a letter expressing her heartfelt, overwhelming

feelings about defendant, the crimes he committed, and her wish

that he have a second chance in life. Defendant responded to

juror number two,1 which prompted her to write defendant a second

letter. After expressing her own emotional struggles about the

facts of the case, juror number two encouraged defendant to be

strong. Juror number two then wrote the judge a letter

revealing the mental impressions of the jury and reiterating her

firm belief that this was a "very complicated, emotionally

difficult case." She ended her letter to the judge asking him

to sentence defendant to probation and require defendant to

undergo extensive mental health therapy.

1 We have not been provided with defendant's response.

3 A-5320-14T4 After the verdict, juror number ten wrote defendant, the

judge, and defense counsel. In her letter to defendant, she

expressed the mental impressions of the jury and her own

struggles and frustration in deliberating with the other jurors.

She indicated to defendant she spoke to juror number two and

planned to contact defense counsel and write the judge to "see

if that will help." In her letter to the judge, juror number

ten stated "many of [the jurors] were very conflicted in coming

to the decision of [a]ggravated [m]anslaughter." Like juror

number two, she expressed to the judge her sincere belief that

defendant needed "treatment not punishment." Juror number ten

then wrote defense counsel, on behalf of "several jurors[,]"

revealing their deliberative mental impressions and indicating

they wanted defendant to receive "help as opposed to

punishment."

Defense counsel forwarded all the letters to the judge,

notifying him jurors two and ten would speak at defendant's

sentencing. The State filed its motion to preclude those jurors

from addressing the court at sentencing. Defense counsel then

sent the judge an email and an attached written statement he

received from jurors two and ten. The statement, which the two

jurors intended to read at sentencing, revealed the overall

mental impressions of the entire jury, indicated that the jury

4 A-5320-14T4 reached a compromise verdict, and requested the judge to show

leniency at sentencing and require defendant to receive

psychological help.

In his written decision, the judge acknowledged there was

no case on point addressing whether a deliberating juror has the

right to speak at a defendant's sentencing. The judge found

persuasive language contained in a divided opinion rendered by

an appellate court in the State of Wisconsin,2 and entered the

order under review allowing jurors two and ten to speak at

defendant's sentencing, provided they did not "discuss or

disclose what occurred during the jury deliberations."3

On appeal, the State argues that jurors two and ten "have

no relevant role" at defendant's sentencing. The State

maintains, therefore, that the judge abused his discretion by

denying its motion. The State contends essentially that the

judge ignored well-settled roles of the jury and the court in

our system of jurisprudence.

We review the order permitting the jurors to speak at

defendant's sentencing using an abuse of discretion standard.

2 State v. Marhal, 493 N.W.2d 758 (Wis. Ct. App. 1992). 3 The judge planned to interview the jury before sentencing defendant to determine whether they communicated with defendant during the trial. We conclude such interviews are unwarranted as there is no evidence in this record of any such communication.

5 A-5320-14T4 State v. Blackmon, 202 N.J. 283, 297 (2010). Our Supreme Court

has "recognized implicitly that sentencing courts can and do

exercise discretion permissibly in allowing members of a

defendant's family or others who appear on defendant's behalf to

be heard." Id. at 300.

II.

We agree with the State that jurors two and ten have no

relevant information to add for consideration by the sentencing

judge because they are limited to addressing the evidence

presented during the trial; that is, the same evidence that the

judge heard. More importantly, allowing the jurors to speak at

defendant's sentencing ignores the primary and important

fundamental role of the jury and unnecessarily runs the

substantial risk of distracting the jurors and undermining the

sanctity of the jury's deliberative process.

It is well settled that "jurors decide the facts in

accordance with the law as instructed by the court, and the

court determines the punishment to be imposed upon the jury

finding of guilt." State v. Reed, 211 N.J. Super. 177, 184

(App. Div. 1986), certif. denied, 110 N.J. 508 (1988). Jurors

are therefore not informed as to the possible sentence of a

defendant. Ibid. This rule "is based upon the rationale that

informing the jury of the possible sentence would: (1) draw

6 A-5320-14T4 attention away from their chief function — to judge facts; (2)

open the door to compromise verdicts; and (3) confuse the issue

or issues to be decided." Id. at 185. The premise of this rule

is based on the unique function and role of the jury.

Jurors are judges of the facts. They determine the

credibility of witnesses, the weight to attach to the testimony

of each witness, and whether the State has proven each and every

element of the offenses charged beyond a reasonable doubt. See

e.g., State v. Feaster, 156 N.J. 1, 81 (1998) (explaining "it is

exclusively within the province of the jury to find fact and

evaluate witness credibility"), cert. denied, 532 U.S. 932,

121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); State v. Anderson,

127 N.J. 191, 208-09 (1992) (acknowledging "each element of the

crime must be decided by the jury"). It is the jury's sworn

duty to arrive at a just conclusion after considering all the

evidence presented during the course of the trial. The jury

fulfills that duty by weighing the evidence calmly, without

passion, prejudice, or sympathy. This is so because allowing

these emotions to influence their decision has the potential to

deprive both the State and defendant of a fair and impartial

trial by fair and impartial jurors. The jurors' service is

complete upon return of a verdict.

7 A-5320-14T4 Sentencing is not intended for jurors to voice concerns

about the verdict or appropriate punishment for a defendant.

The time for the jury to focus on the verdict is during

deliberations, where the jurors must consult with each other and

deliberate after an impartial consideration of the evidence.

Jurors are instructed not to surrender their honest conviction

as to the weight or effect of the evidence for the mere purpose

of returning a verdict. The role of the jury – being judges of

the facts – would therefore be significantly undermined by

allowing jurors to advocate for or against aggravating or

mitigating factors at sentencing.

III.

A judge's role at sentencing, on the other hand, is well

defined and circumscribed. In determining what sentence to

impose, the judge "must identify any relevant aggravating and

mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that

apply to the case" and "[t]he finding of any factor must be

supported by competent, credible evidence in the record." State

v. Case, 220 N.J. 49, 64 (2014). In arriving at these findings,

a judge "should consider whether the individual seeking to be

heard on defendant's behalf has information that bears upon an

aggravating or mitigating factor." Blackmon, supra, 202 N.J. at

305.

8 A-5320-14T4 The jury plays no role at sentencing in assisting the judge

to identify aggravating and mitigating factors. This is

especially so because they have no information relevant to

establishing aggravating and mitigating factors other than what

they and the judge learned through the evidence adduced at the

trial. The only other information they have is derived from

their mental impressions developed during the deliberative

process, which cannot be revealed.

We fully understand and appreciate the genuine concerns

expressed by jurors two and ten. This was a tragic case. There

are well-settled safeguards in place, however, to assist the

judge in sentencing defendant and making the requisite findings

as to applicable aggravating and mitigating factors.

"[A] defendant has the right to allocute, that is to

address the court directly, in connection with his or her

sentence." Id. at 297-98 (citing State v. Cerce, 46 N.J. 387,

393-95 (1966)). Rule 3:21-4(b) states the "court shall address

the defendant personally and ask the defendant if he or she

wishes to make a statement in his or her own behalf and to

present any information in mitigation of punishment." If a

defendant so elects, he or she may speak or his or her counsel

may speak on the defendant's behalf. Ibid.; see also Blackmon,

supra, 202 N.J. at 298.

9 A-5320-14T4 Other individuals also have the right to express themselves

at sentencing. In 1985, the Legislature passed the Crime

Victim's Bill of Rights, N.J.S.A. 52:4B-34 to -38, and soon

thereafter victims or family members of murder victims were

granted the right to have written statements included in a

defendant's presentence report and be advised of the right to do

so. N.J.S.A. 2C:44-6; Blackmon, supra, 202 N.J. at 298. In

1991, the Crime Victim's Bill of Rights was amended to grant the

crime victim or the victim's family increased rights:

The Legislature finds and declares that crime victims and witnesses are entitled to the following rights:

. . . .

n. To make, prior to sentencing, an in- person statement directly to the sentencing court concerning the impact of the crime.

This statement is to be made in addition to the statement permitted for inclusion in the presentence report by N.J.S.[A.] 2C:44-6[.]

[N.J.S.A. 52:4B-36(n).]

"[O]ther than defendants, and crime victims or their

survivors, there is no absolute right to speak at a sentencing

proceeding; instead, permitting others to address the court

directly is a matter entrusted to the sentencing court's

discretion." Blackmon, supra, 202 N.J. at 305. Our Supreme

Court explained:

10 A-5320-14T4 In exercising that discretion, courts should be guided by this Court's recognition that they need not entertain mere pleas for mercy and need not permit presentations that are cumulative or that merely repeat previously- submitted written comments. Nor are they required to permit presentations that are scurrilous, vengeful, or inflammatory. Moreover, courts should consider whether the individual seeking to be heard on defendant's behalf has information that bears upon an aggravating or mitigating factor, and may require a proffer consistent with one of those factors from defendant's counsel, electing to limit the grant of permission accordingly.

[Ibid. (emphasis added).]

In some instances, judges have also allowed family members

and individuals close to a defendant to speak on his or her

behalf at sentencing. See, e.g., State v. Bieniek, 200 N.J.

601, 605 (2010) (stating the court "heard from [the] defendant's

father, grandmother, and aunt"); see also Blackmon, supra, 202

N.J. at 304 (remanding for a statement of reasons as to why the

defendant's stepfather was not allowed to speak at the

sentencing hearing). In those instances, however, the

individuals who spoke at the defendant's sentencing presumably

had a close personal relationship with the defendant, or had

pertinent information to contribute at sentencing other than,

like here, that which is based solely on the evidence introduced

during the trial.

11 A-5320-14T4 Consequently, these safeguards afford the parties ample

opportunity to adequately present evidence of relevant

aggravating and mitigating factors for the sentencing judge's

consideration. Moreover, precluding deliberating jurors from

speaking at defendant's sentence would not result in a manifest

injustice or otherwise prejudice defendant or the State.

IV.

Although not binding on us, we respectfully conclude that

the judge's reliance on the Wisconsin appellate court's opinion

in State v. Marhal, 493 N.W.2d 758 (Wis. Ct. App. 1992), is

misplaced. In Marhal, the majority's opinion indirectly

referenced, in a footnote, the subject of jurors participating

during sentencing. Marhal, supra, 493 N.W.2d at 763 n.7. The

majority's reasoning was tempered by a well-reasoned concurrence

discouraging such practice. Consequently, the issue before us

was not squarely addressed by the appellate court in Marhal.

In Marhal, the defendant argued he was denied due process

because the judge allowed a juror to speak at sentencing. Id.

at 762. The defendant contended that allowing the juror to

speak "destroyed the trial judge's impartiality, and resulted in

a sentence that was influenced by the juror's comments." Ibid.

The juror stated at sentencing that "the vast majority of people

on the jury felt that [the defendant] was guilty of first[-]

12 A-5320-14T4 degree intentional homicide" and that the jury only changed its

verdict to the lesser offense because of one persistent juror.

Id. at 762-63. The juror opined that the maximum sentence

should be given. Id. at 763. However, during the hearing on

the defendant's post-conviction motion, the trial court "found

as a fact[] that it did not consider those comments at

sentencing." Ibid. The appellate court, in a footnote,

explained without any meaningful analysis that a sentencing

judge may consider a juror's statements so long as the jury's

deliberations or mental processes are not revealed. Id. at 763

n.7.4

Judge Schudson's concurrence in Marhal correctly cautioned

against reading the opinion too broadly, explaining "we have

affirmed the decision of the trial court that allowed and then

circumscribed its consideration of a juror's comments. This is

not to suggest, however, that appellate courts approve juror

participation in sentencing." Id. at 766 (Schudson, J.,

concurring). Judge Schudson explained the danger in allowing

jurors to have a role in sentencing, namely that allowing such a

role may influence the verdict they reach, causing them to weigh

punishments and options rather than simply deciding guilt or

4 The Marhal court reached this conclusion even though the juror in that case revealed the jury's deliberations and mental processes.

13 A-5320-14T4 innocence. Ibid. Acknowledging that juror participation in

sentencing was not the issue in Marhal, Judge Schudson properly

noted that "sentence recommendations by jurors would relate to

the deliberative process." Id. at 767. Judge Schudson

concluded that "[the court's] holding . . . should not be

interpreted as one that approves or encourages juror

participation in sentencing." Ibid.

Other courts considering this issue have come to the same

conclusion as Judge Schudson in Marhal. In People v. Byer, 394

N.E.2d 632, 642 (Ill. App. Ct. 1979), an appellate court in

Illinois rejected the defendant's argument that the judge "erred

in refusing to hear the testimony of two jurors who wished to

testify on her behalf at the hearing on aggravation and

mitigation." The court properly noted "[i]t is the jury's

function to determine guilt and the judge's function to impose

sentence. Because the judge heard all the testimony that was

heard by the jurors, there is no reason to believe that they

could have added any pertinent information at the hearing on

aggravation and mitigation." Id. at 643.

Likewise, in Parker v. State, 577 S.W.2d 414, 414 (Ark.

1979), the Supreme Court of Arkansas reversed the circuit

judge's sentence where the judge "had requested his probation

officer to interview members of the jury about what they thought

14 A-5320-14T4 to be a proper sentence." The court was "unanimously of the

opinion that the jurors should not have been questioned about

their views, especially after they had separated, had returned

to their homes, and had been subjected to the possibility of

being influenced by out-of-court occurrences." Ibid.

Reversed and remanded. We do not retain jurisdiction.

15 A-5320-14T4