NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0063-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTONIO JONES,
Defendant-Appellant.
_______________________________
Argued November 15, 2016 – Remanded December 7, 2016 Resubmitted June 6, 2017 – Decided August 30, 2017
Before Judges Espinosa and Guadagno.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 12-05-1001.
Peter Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief).
Nicholas Norcia, Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Chief Appellate Attorney, of counsel; Mr. Norcia, on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
This matter returns to us after a remand to the trial court
for a review of defendant's speedy trial motion, considering the
factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct.
2182, 33 L. Ed. 2d 101 (1972), and to set forth its findings on
the record. At the time we ordered the remand, we determined
the arguments raised in defendant's supplemental pro se brief
lacked sufficient merit to warrant discussion, R. 2:11-3(e)(2),
and deferred any decision on the argument raised in Point I of
defendant's appeal concerning the trial court's refusal to
include a question regarding possible racial bias in the voir
dire of the jury. We now address those issues.
I.
In Barker, the United States Supreme Court established a
balancing test that continues to govern the evaluation of claims
of speedy trial violations in all criminal and quasi-criminal
matters. 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at
117; State v. Cahill, 213 N.J. 253, 258 (2013). Under this
test, the trial court must assess four non-exclusive factors:
"[l]ength of delay, the reason for the delay, the defendant's
assertion of [the right to speedy trial] and prejudice to the
defendant." Barker, supra, 407 U.S. at 530, 92 S. Ct. at 2192,
33 L. Ed. 2d at 117. Our Supreme Court has instructed that a
2 A-0063-14T3 delay of more than one year is sufficient to warrant
consideration of the remaining Barker factors. Cahill, supra,
213 N.J. at 266.
Defendant's trial was conducted two years after his arrest
in February 2012, appreciably longer than the sixteen-month
"unexplained delay" the Court found to be "inordinate and
unreasonable" in Cahill. Id at 258. Following the remand and
the trial court's careful review of the case, the reasons for
the delay have been explored and identified. Of paramount
importance, the trial court found no evidence the State took any
action to deliberately delay the trial, and defendant does not
argue to the contrary. The trial court found the factors that
contributed to the delay included a crowded court calendar,
changes in the judge and defense counsel assigned to the case,
requests for additional discovery, the time taken by the New
Jersey State Police Laboratory to process evidence requests, and
the trial court's own mistaken belief that defense counsel was
seeking a date certain for trial rather than the dismissal of
the indictment as relief in the speedy motion that was filed.
The trial court identified the periods of delay, the
reasons for delay and its assessment of responsibility for delay
as follows:
3 A-0063-14T3 February 2012 to May 2012
Defendant was arrested and charged with armed robbery and
obstruction of justice on February 8, 2012 and indicted ninety-
eight days later. No reason was given for this delay. The
trial court observed the period was slightly longer than the
ninety days set forth in the current rules. See R. 3:25-
4(b)(1). He found this period "weighs slightly in the
defendant's favor and against the State."
May 2012 to August 2013
Defendant's first speedy trial motion was withdrawn, and
the second motion was carried by the court to August 2013, a
period of sixteen months. During that time, there was a
transfer from another judge to the trial court and a change in
defense counsel. During this period, defense counsel requested
more detailed discovery and a six-week adjournment to review the
discovery. There was also a three-week delay due to Hurricane
Sandy.
On October 24, 2012, defense counsel made another request
for additional discovery: additional MVR videos from a second
patrol car, a booking video and criminal investigation pictures
taken by the Sheriff's Department. The trial court issued an
order requiring that the additional discovery be provided by
January 14, 2013. It was ultimately determined that the booking
4 A-0063-14T3 video and the MVR did not exist and the court entered an order
on January 15, 2013 to permit defense counsel to inspect the
subject police car and to require the Sheriff's Department to
provide pictures to defense counsel in electronic form so she
could make her own prints without charge.
In January 2013, defense counsel filed a suppression motion
that, due to the court's calendar, was not heard until May 2013.
The trial court noted the Administrative Office of the Courts
(AOC) report for the 2013-14 fiscal year, which stated Ocean
County had the second highest post-indictment filings and the
highest number of dispositions per judge in the state for that
year. The court further noted that, during this time period,
there was a significant increase in the number of post-
indictment filings in Ocean County.
Among the items recovered from the crime scene following
defendant's arrest was a "novelty handgun" wrapped in a black
sock. At the suppression hearing in May 2013, it was learned
that the sock had not been sent for DNA analysis despite defense
counsel's request for such testing. The sock was sent to the
lab in June 2013. The trial court found "this lapse of time
[was] due to the inattentiveness of the State" regarding the
items sent for DNA testing. The period was weighed against the
5 A-0063-14T3 State but, because there was no evidence the delay was
"intentional or . . . strategical," only slightly.
The court found the delays due to Hurricane Sandy and
defense counsel's request for time to review discovery should
not weigh against the State. The delay attributable to the
State's response to discovery requests "was partly the result of
the State's failure to promptly respond." The trial court found
this a "more neutral" cause for the delay and gave it "slight
weight favoring the defendant."
The court concluded that, of the sixteen-month delay
between arrest and the speedy trial motion, the State was
responsible for approximately eleven months of the delay and
that this delay was "a result of negligence." The court noted
further that there were "high stakes" in this case because it
was a "three strike case." As a result, the DNA results were
"important" because the results could prove either inculpatory
or exculpatory. Recognizing that the process of obtaining this
evidence "takes more time than just collecting the report," the
court concluded that the lapse of time should be weighted
against the State but given "slight weight."
August 2013 to February 2014
This six-month period lasted from the time of defendant's
speedy trial motion to the trial date.
6 A-0063-14T3 The trial court observed that, at the August 2 hearing,
defense counsel stated she would like to try the matter sooner
than the scheduled February trial date but "never sought the
dismissal of the matter during the hearing." Rather, she wanted
assurance the trial would proceed in February as she was aware
other trials were being listed for that date.
The prosecutor expressed a preference for not proceeding
until DNA results on the sock, expected within a few weeks, were
received. The court agreed it would not be prudent until those
results were received as they could be either inculpatory or
exculpatory.
The court stated the "primary cause" for the delay from
August 2012 to February 2013 was the delay in receiving the DNA
test. Of the six months, the court found approximately one
month was attributable to the court's calendar, holidays and
vacation, and the remaining five months was attributable to the
State.
In sum, the trial court found that approximately fifteen to
sixteen months of the delay was "primarily due to the State's
actions," although those actions "were not deliberate." As a
result, the court concluded the delay "should only be weighed
against the State slightly."
7 A-0063-14T3 Turning to the defendant's assertion of his right to a
speedy trial, the trial court noted that "[a]lthough defendant
asserted his right early, he initially withdrew his application
when he received discovery and then did not assert the
right . . . until well after plea cut-off, and never sought
dismissal on the record." The trial court stated defense
counsel initially filed the motion because "she viewed discovery
as not being forthcoming." At the motion hearing in August
2013, defense counsel "never sought dismissal but only
assurances that the February date would not be adjourned" and a
request that the trial be moved up. The trial court stated, "As
a result, this Court was under the mistaken belief that the
defendant was . . . seeking only to advance [his] rights under
R. 3:25-2[] to ensure that [his] trial date was secure." The
trial court set the trial date accordingly.
The trial court found this third Barker factor weighs
against the State but did not merit "heavy weight."
Finally, addressing prejudice to defendant, the trial court
acknowledged that three interests are assessed: prevention of
oppressive pretrial incarceration, minimization of defendant's
anxiety concerns and whether the defense has been impaired by
the delay. See Barker, supra, 407 U.S. at 532, 92 S. Ct. at
2193, 33 L. Ed. 2d at 118; Cahill, supra, 213 N.J. at 266. The
8 A-0063-14T3 trial court acknowledged the presence of the first two factors.
Turning to the issue of actual prejudice to the defense, the
trial court noted defendant "ha[d] not identified any specific
prejudice arising from the delay. And there has been no
indication that witnesses were lost and memories not as good or
effective at trial."
Balancing the Barker factors, the trial court found that,
although the delay was significant, it was "not inordinate,"
given the changes in judges, lawyers, the court calendar and
delay in DNA testing. The court concluded the Barker factors
did not weigh in favor of granting the defendant's request for
the dismissal of the indictment.
In our review, we apply the same framework and standard as
the trial court in evaluating undue delay. State v. Misurella,
421 N.J. Super. 538, 544 (App. Div. 2011). The picture that
emerges from the trial court's findings, which have ample
support in the record, is that, first and foremost, there was no
intentional delay by the State. Although some delays were
attributable to negligence or inattention by the State, there
was no evidence of gross negligence in the handling of discovery
requests or the prosecution of the case. As the trial court
noted, this was a serious offense and a conviction carried dire
consequences for defendant as he would be subject to a sentence
9 A-0063-14T3 of life imprisonment with no parole under the "three strikes"
law, N.J.S.A. 2C:43-7.1. These circumstances merited the
diligent pursuit of discovery beyond that initially provided
for, as the trial court observed, the evidence had the potential
to exculpate defendant as well as be probative of his guilt.
Defense counsel did diligently pursue these avenues and prodded
the State into greater responsiveness by filing a speedy trial
motion. We also note that some of the delay was caused by the
court's congested calendar and that, rather than simply offer an
explanation that might seem hackneyed, the trial court backed
that observation with support from the AOC report. Thus,
despite delays due to the State's negligence and the court's
scheduling issues, this is not a situation where the
prosecution, defense or adjudication lay fallow while defendant
was incarcerated pending trial.
While defendant suffered the hardship of waiting for trial,
that alone "is insufficient to constitute meaningful prejudice."
Misurella, supra, 421 N.J. Super. at 546 (quoting State v. Le
Furge, 222 N.J. Super. 92, 99-100 (App. Div. 1988)). As the
trial court observed, the defense was not impaired by the delay
here. There were no witnesses or evidence lost. Therefore, our
balancing of the Barker factors leads us to conclude defendant's
10 A-0063-14T3 constitutional rights were not violated by the delay before his
trial.
II.
In Point I of his appeal, defendant argued:
A NEW TRIAL SHOULD OCCUR BECAUSE THE TRIAL COURT IMPROPERLY REFUSED TO QUESTION THE PROSPECTIVE JURORS ABOUT POSSIBLE RACIAL BIAS, EVEN THOUGH JONES WAS AN AFRICAN- AMERICAN MAN AND THE ROBBERY COMPLAINANT WAS A WHITE ORTHODOX JEWISH MAN. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, PARA. 1, 10.
Although we conclude it was an abuse of discretion for the
trial court to decline to ask any questions regarding possible
racial bias during the voir dire, we are not persuaded that
reversal of defendant's conviction is required in this case.
The evidence at trial can be summarized as follows:
The victim, C.L., left his apartment at approximately 9:00
p.m. on February 7, 2012, to attend a night session class. He
was accosted by a person who brandished a small black gun and
demanded his money. The person also demanded that C.L. not look
at him. C.L. handed over some cash and his wallet, which
contained an Israeli shekel coin and a 200 shekel note. After
ascertaining that C.L. did not have any car keys on him, the
assailant instructed him to run ahead, but not to turn around.
11 A-0063-14T3 C.L., a yeshiva student, proceeded to his school, where his
friend called 9-1-1. C.L. described his assailant to the
dispatcher as "a short stocky, black fellow" wearing a bomber
jacket, dark in color, black or brown.
Officer Steven Kowaleski responded on behalf of the
Lakewood Police Department. C.L. told him the assailant "was
possibly a black male that was approximately the height of [his]
shoulder and that he was wearing a dark-colored leather jacket."
Officer Kowaleski also spoke to a neighbor of C.L.'s, Z.K.,
who observed the interaction between C.L. and his assailant and,
initially, "didn't think anything of it." Once Z.K. was told by
a police officer that a mugging had occurred, he told them he
had just seen someone ride off on a bike. The man was
approximately five to ten feet away when he drove past Z.K. and
"muttered . . . to get out of the way." Z.K. stated the man on
the bike "was colored and maybe had a little beard," but he
"wasn't sure if he was black." He told police the man could be
Hispanic. Z.K. further described the person to the officers as
wearing a black jacket, ski hat, and gloves.
Another resident of the apartment complex, C.K., also
observed the man on the bike in the parking lot. He described
the man as "a black male. He had a beard and he was wearing a
black coat, shiny, fluffy black coat."
12 A-0063-14T3 Officer Kowaleski related Z.K.'s description of the suspect
as a heavyset black male wearing a dark leather jacket and
possibly on a bicycle to other patrol units in the area.
Roughly one block east and between six and seven blocks
south of where the incident occurred, Officer Eric Miick
encountered defendant, who was of the appropriate height and
build, wearing a black leather jacket and riding a bicycle.
Officer Miick stopped his patrol vehicle and defendant stopped
his bike, positioning it toward him, approximately eight feet
away. Officer Miick asked defendant "where he was going and
what he was up to." Defendant responded "what's the matter?
What's the matter?" in a very nervous and jittery manner.
Defendant began moving toward the patrol vehicle, so Officer
Miick instructed him to keep his hands out and to back up for
safety reasons. When Officer Miick stepped out of the patrol
car, defendant fled on his bike.
Officer Miick returned to the patrol car and followed
defendant down the street. He told defendant to stop several
times. Defendant ditched his bike, continued running away and
dropped several items as Officer Miick pursued him on foot.
Eventually, defendant stopped, got on the ground per Officer
Miick's command and was arrested.
13 A-0063-14T3 Items recovered from the crime scene and defendant's path
were a black wool hat, a leather jacket, a brown glove and a
"novelty handgun" wrapped in a black sock. When defendant was
arrested, he had a shekel coin in his possession. C.L. was
brought to the scene but was unable to identify defendant,
stating defendant could be his assailant but he was not certain.
The shekel coin was returned to C.L. He did not, however,
get back his wallet, American money, his credit cards, social
security card, or the 200 shekel note.
Defendant was convicted of first-degree robbery, N.J.S.A.
2C:15-1, and fourth-degree obstructing the administration of
law, N.J.S.A. 2C:29-1, and was sentenced to an extended term of
life without parole and a concurrent sentence for obstruction.
III.
Defendant argues the trial judge erred in failing to
include a question about possible racial bias in voir dire. 1 The
argument pertains to the following request made by defense
counsel:
We requested that, "Do you believe the crime rate is higher in the black community than in other racial groups?" And the reason we asked for this question is that specifically Directive 21-06 specifically states in the last paragraph on Standard No. 3, Supplemental Questions, that "Racial issues
1 Defendant is African-American and C.L. is Caucasian.
14 A-0063-14T3 are relevant when there is a difference in the race of the victim from the race of the defendant." Thus, we ask for this question to be read.
If Your Honor were to reject that question, we would then ask as a supplement that . . . you ask "Tell me about the crime in your neighborhood."
If you were to reject that one, we would then settle for the proposed question, No. 8, which is about gun control.
The State did not explicitly object to any of these
requests and stated only that it asked the court to read the
open-ended questions set forth in Directive 4-07. The trial
court responded to the defense request as follows:
I'm not going to ask any question with regard to or instruct with regard to any relevant crime rates or question with regard to crime rates, as a difference may apply culturally or -- or neighborhood-wise. I don’t think that’s appropriate. I don’t think that would be relevant. I don’t want to inject race into this case.
The judge went on to assure counsel he would be "vigilant
and remind counsel" that peremptory challenges could not be
exercised for reasons of race and that he would "consider" the
cross-racial identification charge if there was an
identification in the case. He ended the discussion by stating,
"Other than that, I don’t think it's appropriate to inject race
or - - or comparative crime rates. So I'm not going to ask any
questions with regard to that."
15 A-0063-14T3 "Questions asked during voir dire are a matter of judicial
discretion, the exercise of which 'will ordinarily not be
disturbed on appeal.'" State v. Kelly, 302 N.J. Super. 145, 151
(App. Div. 1997) (citations omitted). Nonetheless, "our courts
encourage inquiry into racial bias if requested during voir
dire, recognizing 'that jurors may be racially or ethnically
biased against the defendant, even in the absence of an
explicitly racially divisive factual situation.'" Ibid.
(quoting State v. McDougald, 120 N.J. 523, 553 (1990)).
"Whenever there is a racial or ethnic difference between victim
and accused, at defendant's request the trial judge should
inquire of the prospective jurors as to whether the disparity
will affect their ability to be impartial." State v. Horcey,
266 N.J. Super. 415, 418 (App. Div. 1993).
In this case, there was a racial difference between the
victim and the defendant and a request for an instruction that
touched on racial prejudice. Moreover, defendant was charged
with first-degree robbery, a crime of violence. In Rosales-
Lopez v. United States, 451 U.S. 182, 101 S. Ct. 1629, 68 L. Ed.
2d 22 (1981), the United States Supreme Court noted, "federal
trial courts must make such an inquiry when requested by a
defendant accused of a violent crime and where the defendant and
16 A-0063-14T3 victim are members of different racial or ethnic groups." Id.
at 192, 101 S. Ct. at 1636, 68 L. Ed. 2d at 31 (emphasis added).
Defendant urges us to reverse, citing our conclusion in
Horcey that it was "reversible error for the trial judge to
refuse a request to ask at least a threshold question about bias
where there is racial disparity and defendant is charged with a
crime of violence." 266 N.J. Super. at 419-20. In a later
decision, we did not find reversal required under similar
circumstances. See State v. Kelly, 302 N.J. Super. 145 (App.
Div. 1997), certif. denied, 156 N.J. 409 (1998) (affirming
defendant's murder and robbery convictions despite trial court's
refusal to question jurors about racial prejudice). We agree
that the circumstances here required the trial judge to ask at
least a threshold question about potential bias,2 but do not
agree that a bright line rule applies to require reversal.
2 By way of example, Appendix 3 to the New Jersey Judiciary Bench Manual, which was adopted after the trial of this matter, provides the following sample question for use in criminal cases: 9. It is alleged that the victim and the defendant in this matter are not of the same race. Would that affect your ability to be fair and impartial?
New Jersey Judiciary Bench Manual on Jury Selection, Appendix 3 (Dec. 4, 2014).
http://home2.courts.judiciary.state.nj.us/forms/repository/ co/pnp/jdgs_bench_man_jury_select.pdf
17 A-0063-14T3 A refusal to inquire about potential prejudice is an error
of constitutional magnitude
where racial issues are 'inextricably bound up with the conduct of the trial,' Ristaino v. Ross, 424 U.S. 589, 597, 96 S. Ct. 1017, 1021, 47 L. Ed. 2d 258, 264 (1976), or where there exists 'substantial indications of the likelihood of racial or ethnic prejudice affecting the jurors in a particular case.' Rosales-Lopez, supra, 451 U.S. at 190, 101 S. Ct. at 1635, 68 L. Ed. 2d at 29.
[Kelly, supra, 302 N.J. Super. at 151.]
Even if the refusal to make such inquiry does not rise to
the level of constitutional error, it constitutes "an abuse of
discretion requiring reversal 'where the circumstances of the
case indicate that there is a reasonable possibility that racial
or ethnic prejudice might have influenced the jury.'" Id. at
152 (quoting Rosales-Lopez, supra, 451 U.S. at 191, 101 S. Ct.
at 1636, 68 L. Ed. 2d at 30).
Defendant does not contend that any of the jurors were
tainted by racial prejudice. According to the trial judge,
three jurors appeared to be African-American. The witnesses'
descriptions of the suspect referred to the race of the suspect
but did not include any racially charged words in their
descriptions. Indeed, one witness was equivocal about the race
of the robber and the victim was unable to make a positive
identification. The evidence presented was that of a
18 A-0063-14T3 straightforward street robbery. Neither the crime itself nor
the reactions of the victim and other witnesses suggested a
racial motive for the robbery or the allegations against
defendant. Compare State v. Harris, 156 N.J. 122, 237 (1998)
(finding race was a central feature of the case "given the
multiple racially motivated statements attributed to defendant,"
such as referring to the victim as a "white bitch" and that he
had "knocked off some white girl," and the crime itself, which
"appeared to have been racially motivated"), with Rosales-Lopez,
supra, 451 U.S. at 191, 101 S. Ct. at 1636, 68 L. Ed. 2d at 30
(finding no reversible error where neither the government's case
nor the defendant's defense involved any allegations of racial
or ethnic prejudice), and Ristaino, supra, 424 U.S. at 597-98,
96 S. Ct. at 1022, 47 L. Ed. 2d at 265 (finding no
constitutional issue where the circumstances did not "suggest a
significant likelihood that racial prejudice might infect
[defendant's] trial," simply due to the "mere fact that the
victim of the crimes alleged was a white man and the defendants
were Negroes"); see also State v. Morton, 155 N.J. 383, 459-60
(1998) (rejecting the argument that failure to conduct voir dire
into the venire persons' racial attitudes was reversible error
where no evidence indicated that any juror was racially biased).
19 A-0063-14T3 Although the evidence was not overwhelming, there was
persuasive evidence of defendant's guilt. The one-shekel coin
stolen from the victim can fairly be described as an item that
is not commonly possessed by the public at large. The fact that
defendant possessed a one-shekel coin soon after and in close
proximity to the robbery is therefore highly incriminating. In
addition, his flight from the investigating officer may fairly
be considered evidence of a consciousness of guilt.
We reiterate that where a defendant accused of a crime of
violence against a victim of a different race asks the trial
judge to ask potential jurors about possible racial bias, the
judge should make at least a threshold inquiry and that the
failure to do so constitutes an abuse of discretion. However,
our examination of the record here, which includes no evidence
the jurors or the trial were tainted by racial bias, leads us to
conclude defendant was not prejudiced by the trial judge's
refusal.
Affirmed.
20 A-0063-14T3