NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5799-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DEVON STOUT, a/k/a DEVIN STOUT, and DEVIN AGOLIO-STOUT,
Defendant-Appellant. ___________________________
Submitted February 24, 2020 – Decided May 7, 2020
Before Judges Fasciale and Moynihan.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 17-10- 1463.
Joseph E. Krakora, Public Defender, attorney for appellant (David J. Reich, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Devon Stout appeals from his conviction by jury of second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and fourth-
degree unlawful possession of a defaced firearm, N.J.S.A. 2C:39-3(d), and the
sentence imposed by the trial judge,1 arguing:
POINT I
THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS BECAUSE THE POLICE OFFICER DID NOT HAVE A VALID BASIS TO STOP OR SEIZE [DEFENDANT].
POINT II
THE IMPROPER ADMISSION OF THE POLICE OFFICER'S LAY OPINION TESTIMONY AND REMARKS BY THE ASSISTANT PROSECUTOR INDICATING [DEFENDANT] DISCARDED THE GUN WHICH WAS SUBSEQUENTLY DISCOVERED DEPRIVED [DEFENDANT] OF A FAIR TRIAL.
POINT III
THE TRIAL COURT ERRED IN ADMITTING [DEFENDANT'S] JAILHOUSE STATEMENT.
1 The State dismissed count three of the indictment, charging fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2), before trial. A-5799-17T4 2 POINT IV
A NEW TRIAL IS REQUIRED IN VIEW OF THE TRIAL COURT'S FAILURE TO MAKE SUFFICIENT VOIR DIRE INQUIRY TO ENSURE THAT DISCUSSION AMONG CERTAIN JURORS OUTSIDE THE JURY ROOM AFTER DELIBERATIONS HAD BEGUN DID NOT IMPROPERLY TAINT THE JURY DELIBERATION PROCESS.
POINT V
A REMAND IS REQUIRED IN VIEW OF ERRORS THE TRIAL COURT COMMITTED IN IMPOSING SENTENCE.2
We are unpersuaded by these arguments and affirm.
I.
In considering defendant's argument that the Asbury Park police officer
who first encountered defendant had no right to stop him, we "must uphold the
factual findings underlying the trial court's decision so long as those findings
are 'supported by sufficient credible evidence in the record.'" State v. Elders,
192 N.J. 224, 243 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228
(App. Div. 2006)). Those facts found credible by the motion judge from the
2 Defendant was sentenced to a concurrent five-year term for third-degree theft, N.J.S.A. 2C:20-3(a), charged in a separate indictment, after pleading guilty to a violation of probation (VOP). A-5799-17T4 3 testimony of the officer at the suppression hearing reveal the officer was on
patrol at approximately 9:20 p.m. on a mid-August evening when he heard "two
loud pops" which he "immediately recognized" as gunshots. About thirty to
sixty seconds after he heard the shots, as he proceeded in his unmarked police
car to the area approximately two blocks west of his position from whence the
sound of the shots came, he saw defendant walking out of a backyard and cross
directly in front of the officer's vehicle.
Defendant was immediately recognizable to the officer from previous
investigations, and from encounters with defendant who had been previously
fired upon thrice. The officer knew defendant to be affiliated with the Bloods
and that his street name was "Balie." The officer "slowed his vehicle and called
. . . defendant by [his given] name," whereupon defendant looked at the officer
"and immediately began to flee while clutching at his waistband."
The officer exited his vehicle and gave serpentine chase to defendant,
"repeatedly shout[ing] out commands to . . . defendant, by name, . . . directing
him to [']stop, police['], in a loud, clear voice." As defendant ran, the officer
observed from a distance of five to ten yards in a "lightly illuminated" backyard,
the silhouette of defendant's right hand motioning toward the ground and "heard
a thud, consistent with something heavy landing on the ground."
A-5799-17T4 4 Within five minutes, the officer lost sight of defendant and returned to the
area where he heard the thud; there he located the handgun which defendant was
charged with possessing.
We defer to the motion judge's findings, especially because they "are
substantially influenced by [the judge's] opportunity to hear and see the
witnesses and to have the 'feel' of the case, which a reviewing court cannot
enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson,
42 N.J. 146, 161 (1964)). The motion judge's application of his factual findings
to the law, however, is subject to plenary review. State v. Cryan, 320 N.J. Super.
325, 328 (App. Div. 1999).
Defendant's present contention that the motion judge "incorrectly assumed
that the stop and seizure of [defendant] did not occur until after the police officer
began to chase him on foot rather than when the police officer first confronted
[defendant] from his motor vehicle" is at odds with the motion judge's
perception, "[b]ased on the submissions of both parties['] counsel . . . that the
seizure occurred when [the officer] began chasing . . . defendant." We were not
provided with those submissions. See R. 2:6-1(a)(2). As such, we do not know
what defendant contended therein. But if the motion judge correctly explained
defendant's position—and we have no reason to doubt he did, especially
A-5799-17T4 5 considering defendant did not deny that position in his merits brief—the
concession that the stop did not occur until the officer gave chase amounts to
invited error which bars a party from taking a position on appeal contrary to a
position advanced to the motion judge. See State v. Pontery, 19 N.J. 457, 471
(1955). "Elementary justice in reviewing the action of a [motion judge] requires
that [the judge] should not be reversed for an error committed at the instance of
[the] party alleging it." State v. Scioscia, 200 N.J. Super. 28, 47 (App. Div.
1985) (third alteration in original) (quoting Bahrey v. Poniatishin, 95 N.J.L. 128,
133 (E. & A. 1920)).
Nonetheless, we find no such error was committed by the motion judge.
"A 'field inquiry' is the least intrusive" form of police encounter, occurring
"when a police officer approaches an individual and asks 'if [the person] is
willing to answer some questions.'" State v. Pineiro, 181 N.J. 13, 20 (2004)
(alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). "[A]
field [inquiry] is not a Fourth Amendment event 'so long as the officer does not
deny the individual the right to move.'" State v. Egan, 325 N.J. Super. 402, 409
(Law Div. 1999) (quoting State v. Sheffield, 62 N.J. 441, 447 (1973)); see also
State v. Rosario, 229 N.J. 263, 273-74 (2017) (citing Egan favorably). The
A-5799-17T4 6 officer is permitted to ask questions during the field inquiry as long as they are
not "harassing, overbearing, or accusatory in nature." Nishina, 175 N.J. at 510.
By contrast, an investigatory stop, familiarly known as a Terry stop,
occurs when police detain a person who would not reasonably feel free to leave,
even though the encounter falls short of a formal arrest. State v. Stovall, 170
N.J. 346, 355-56 (2002); see also Terry v. Ohio, 392 U.S. 1, 21 (1968). Under
Terry, a police officer can detain an individual for a brief period, if the stop "is
based on 'specific and articulable facts which, taken together with rational
inferences from those facts,' give rise to a reasonable suspicion of criminal
activity." State v. Rodriguez, 172 N.J. 117, 126-27 (2002) (quoting Terry, 392
U.S. at 21). Under this standard, "[a]n investigatory stop is valid only if the
officer has a 'particularized suspicion' based upon an objective observation that
the person stopped has been [engaged] or is about to engage in criminal
wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986).
Applying these principles and our standard of review, we discern no basis
for disturbing the motion judge's determination that the stop and subsequent
search were valid. By calling defendant's name, the officer did not conduct an
investigatory stop. Indeed, although his clear purpose was to inquire about
defendant's knowledge, if any, about the gunshots, the officer did not even have
A-5799-17T4 7 an opportunity to pose a question to defendant before he ran. Obviously,
defendant did not feel compelled to remain at the location. See Rosario, 229
N.J. at 271-72 ("The test of a field inquiry is 'whether [a] defendant, under all
of the attendant circumstances, reasonably believed he [or she] could walk away
without answering any of [the officer's] questions." (first and third alterations
in original) (quoting State v. Maryland, 167 N.J. 471, 483 (2001))). To that
point in time, the encounter was no more than a field inquiry.
That inquiry quickly escalated to a Terry stop when the officer gave chase,
announced he was a police officer—a status evidenced by the officer's neck-
worn badge and top with "police" emblazoned in large silver lettering on front
and back—and commanded him to stop. See State v. Tucker, 136 N.J. 158, 166
(1994) (holding an investigatory stop occurs when police officers chase a
suspect and, under the totality of the circumstances, "the police conduct would
have communicated to a reasonable person that the person was not free to
decline the officers' requests or otherwise terminate the encounter" (quoting
Florida v. Bostick, 501 U.S. 429, 439 (1991))). We agree that defendant's flight
alone did not justify a Terry stop. State v. Williams, 410 N.J. Super. 549, 555
(App. Div. 2009).
A-5799-17T4 8 "However, flight 'in combination with other circumstances . . . may
support [the] reasonable and articulable suspicion' required to justify a stop."
Ibid. (alterations in original) (quoting Pineiro, 181 N.J. at 26); see also State v.
Citarella, 154 N.J. 272, 281 (1998) (recognizing flight as one factor justifying
police chase of a bike rider who was a known narcotics offender acting
suspiciously); State v. Morrison, 322 N.J. Super. 147, 155-56 (App. Div. 1999)
(upholding the stop of a fleeing suspect based upon high-narcotics area and
resident complaints of his involvement in drug sales); State v. Ruiz, 286 N.J.
Super. 155, 163 (App. Div. 1995) (holding the stop of a fleeing suspect was
justified based upon prior arrests and suspicious conduct).
Unlike the defendant in Tucker, who was observed by police simply
sitting on a curb before he fled, was chased and stopped, 136 N.J. at 161-62, the
totality of the circumstances justified the officer's pursuit of defendant. The stop
began only after defendant ran and immediately clutched at his waistband,
signaling to the officer that defendant was armed with a weapon. As the officer
testified, based on his training and experience, "[s]ubjects who carry firearms
typically keep them in their waistband area or conceal them in their waistband
area rather." That the clutching may have been unrelated to defendant's attempt
to retain a firearm does not discount the officer's reasonable suspicion.
A-5799-17T4 9 In evaluating the facts giving rise to the officer's suspicion of criminal activity, courts are to give weight to "the officer's knowledge and experience" as well as "rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." The fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions as long as "a reasonable person would find the actions are consistent with guilt."
[Citarella, 154 N.J. at 279-80 (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)).]
Defendant's actions, combined with his proximity to the area in which the
gunshots were heard shortly after the gunfire, and his prior involvement as the
target of shootings, justified the investigatory stop. 3
The motion judge likened the circumstances of this stop to those in State
v. Dunbar, 434 N.J. Super. 522 (App. Div. 2014), where we determined an
investigatory stop was justified when officers, who "arrived within moments of
the report of shots being fired," observed a nervous defendant duck into an alley,
3 Defendant contends the motion judge incorrectly found defendant was a "defendant in . . . weapon and shooting investigations," and not the target of same. We do not agree with that interpretation. Viewing the entirety of the judge's oral opinion, we understand the judge meant the officer knew defendant as a victim of prior shootings and as a defendant in cases relating to drugs and criminal trespass. In any event, we consider only that the officer knew defendant in that light, not as a person who had been previously arrested on gun charges. A-5799-17T4 10 began to walk away "while looking over his shoulder at" police, did not respond
when an officer attempted to speak to him and, instead, ran, id. at 527-28. We
agree that the circumstances here similarly justified the stop. And, as we did in
Dunbar, we observe defendant discarded the handgun as he "ignored the police
directive to stop and was attempting to flee the scene," and that the police "had
reason to fear that the suspect might be armed." Id. at 528. To those
circumstances, we add defendant in this case had a known gang affiliation and
concomitant reputation for carrying handguns.
Inasmuch as both the officer's attempted initial inquiry and investigatory
stop fell within the delineated exceptions to the warrant requirement, Maryland,
167 N.J. at 482; Pineiro, 181 N.J. at 19-21, the seizure of the handgun was
constitutionally permissible, and the motion to suppress was properly denied. 4
II.
Defendant argues the officer's lay opinion linking the thud he heard to the
handgun he found did not meet the requirements of N.J.R.E. 701 and should
have also been excluded under N.J.R.E. 403(a). He adds, the officer's testimony
that defendant's extension of his right arm as he ran suggested to the officer that
defendant "was discarding something in a discrete manner," was also
4 The issue of abandonment of the handgun was not raised on appeal. A-5799-17T4 11 inadmissible lay opinion. Defendant also avers the officer's testimony that
nothing else on the ground in the area where the handgun was found could have
made that sound was, likewise, inadmissible lay opinion.
The officer described to the jury his observation of defendant's arm motion
as he ran, extending "to the side of his body towards the ground, so his right arm
basically just went into a straight extension" "at which point [the officer] heard
a loud thud on the ground as if a heavy object just fell into the ground." He
explained that arm angle was different from the angle defendant had otherwise
assumed as he ran—with his arms "slightly bent at the elbow"—and provided
the jury with a demonstration of the difference between that angle and the
defendant's arm "fully extended facing the direction of the ground."
The officer later testified that other items—small branches, small rocks,
leaves, small shreds of wood and an empty fifteen- or twenty-gallon plastic
bin—he observed on the ground near the handgun, and which were depicted in
photographs of that area posted to the jury could not have made the "thud" he
heard.
A-5799-17T4 12 Defendant did not interpose an objection under either N.J.R.E. 701 or
N.J.R.E. 403(a). 5 Unless defendant timely made the "objection to admission
known to the trial court, the reviewing court will review for plain error, only
reversing if the error is 'clearly capable of producing an unjust result.'" State v.
Rose, 206 N.J. 141, 157 (2011) (quoting R. 2:10-2). "Under that standard,
defendant has the burden of proving that the error was clear and obvious and
that it affected his substantial rights." State v. Morton, 155 N.J. 383, 421 (1998).
Most of the officer's testimony centered on his perceptions; those were not
lay opinions. The description of defendant's arm motion described defendant's
actions at the point the officer heard the "thud" that caused him to return to the
area where he found the handgun. His description that it was "a loud thud" and
that "[i]t was a heavy object that hit the ground" cannot be viewed as anything
5 When the assistant prosecutor asked, "What if anything did [defendant's arm] motion suggest to you?" defendant objected that it "calls for speculation"; the objection was overruled. Defendant also objected twice that the assistant prosecutor asked questions calling for an expert opinion. The first objection was followed by a sidebar, whereafter the assistant prosecutor rephrased the question and asked the officer if "there [was] anything else on the ground in that area that could have made the ['thud'] noise" the officer heard; no objection was made to that question and answer. Defendant made the same objection when the assistant prosecutor asked if any other items on the ground could have made the "thud"; that objection was overruled. A-5799-17T4 13 but the officer's recount of what his senses perceived. The same holds true for
the officer's description of the defendant's arm movement.
Even if the descriptions included lay opinion, they were admissible, as
was the officer's testimony that there was nothing else on the ground that could
have made the "thud." Lay opinion is admissible under N.J.R.E. 701 which
provides:
If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.
"Lay opinion testimony, therefore, when offered . . . in criminal
prosecutions, can only be admitted if it falls within the narrow bounds of
testimony that is based on the perception of the witness and that will assist the
jury in performing its function." State v. McLean, 205 N.J. 438, 456
(2011). "The witness's perception must 'rest[] on the acquisition of knowledge
through use of one's sense of touch, taste, sight, smell or hearing.'" State v.
Hyman, 451 N.J. Super. 429, 442 (App. Div. 2017) (alteration in original)
(quoting McLean, 205 N.J. at 457). Further, lay opinions "may not intrude on
the province of the jury by offering, in the guise of opinions, views on the
A-5799-17T4 14 meaning of facts that the jury is fully able to sort out . . . [or] express a view on
the ultimate question of guilt or innocence." McLean, 205 N.J. at 461. Police
officers are allowed "to testify as lay witnesses, based on their personal
observations and their long experience in areas where expert testimony might
otherwise be deemed necessary." State v. LaBrutto, 114 N.J. 187, 198 (1989).
The officer had extensive experience in firearms. He testified that he had
been a police officer in two municipal departments for about seven years, and
was previously "in the military security forces, Air Force." He not only received
firearms training at the police academy and was required to requalify biannually,
he had participated in over 100 firearms-related investigations and had made
dozens of firearms-related arrests as a police officer. He was thus familiar with
the heft of handguns. His description of the sound he heard obviously related
to his perception as he chased defendant, satisfying the first prong of N.J.R.E.
701.
His testimony also assisted the jury in understanding the "thud" he heard.
Notwithstanding the photographs of the area, including the other objects on the
ground near the handgun, the jury was not present at the scene to visualize the
other debris. The officer's description of the "thud" did not impart to the jury
the volume or timbre of that noise. We see nothing improper about the officer
A-5799-17T4 15 distinguishing the sound he heard from sounds that could be made from the other
items. The determination that defendant possessed the handgun was left entirely
to the jury which could have rejected the inference that defendant possessed the
handgun and discarded it during the chase. Thus, the testimony did not intrude
on the jury's province or express the officer's view of defendant's guilt. McLean,
205 N.J. at 461.
The balance of defendant's arguments about the officer's testimony and
the assistant prosecutor's comments thereon are without sufficient merit to
warrant discussion. R. 2:11-3(e)(2). Again, defendant did not object that the
evidence should have been excluded on the grounds the probative value of
relevant evidence was "substantially outweighed by the risk of (a) undue
prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste
of time, or needless presentation of cumulative evidence." N.J.R.E. 403(a).
Indeed, such an objection would have been baseless. The evidence was relevant
and admissible; the assistant prosecutor's comments were within the
"considerable leeway" the State's attorney is afforded in opening and closing
statements. State v. Echols, 199 N.J. 344, 359-60 (2009) (quoting State v.
Williams, 113 N.J. 393, 447 (1988)). And, neither the admission of the officer's
A-5799-17T4 16 testimony, nor the assistant prosecutor's comments were "clearly capable of
producing an unjust result." See Rose, 206 N.J. at 157 (quoting R. 2:10-2).
III.
Defendant also contends the trial judge erred in denying his April
application to: preclude the State from introducing a conversation among
defendant, his father and girlfriend recorded when defendant was in the county
jail because the State "flagrantly violated" the discovery Rule; and, once
admitted, to redact that recording.
In denying the motion, the trial judge considered that, when defendant was
arraigned in November 2017, the State demanded, pursuant to Rule 3:12-2(a),
that defendant file a notice of alibi within ten days. Defendant, however, did
not serve the signed notice until February 2018, after plea cutoff on January 30,
2018; the State received an unsigned notice "[a]bout a week prior to that[.]" At
oral argument on the motion, defense counsel claimed the tardy service was
unintentional; he was not "confident providing . . . a[n] alibi defense" until he
talked to witnesses, some of which he "had trouble tracking down[.]" Upon
receiving the notice, the State "launched an investigation" that led to what the
A-5799-17T4 17 State at oral argument termed a "request" to the county jail on March 14, 2018; 6
the State noticed defense counsel of that request. The State forwarded what
defense counsel described at oral argument as "697 jail calls . . . rang[ing] from
one minute to [fifteen] minutes and, on average, they were ten minutes" which
counsel received on April 2, 2018 "at the earliest[.]" The State, however,
advised defense counsel in an email of a narrower focus, and later provided a
transcript of just one fifteen-minute call that it intended to use.
The trial judge observed that defendant's notice of alibi was served after
the plea cutoff, and the State, instead of moving for preclusion of defendant's
alibi proofs, see R. 3:12-2(b), "conducted an additional investigation,"
subpoenaed the phone records "and provided [them] to the defense as soon as
practicable." The judge found "the State did not sit on this information or . . .
sit on conducting any investigation. [It] acted . . . reasonably promptly as soon
as [it] received the notice of alibi."
The trial judge permitted defendant to interpose an alibi defense despite
his "untimely notice to the State" and permitted the State to introduce the
6 In its merits brief, the State averred it sent a grand jury subpoena "seeking defendant's jail calls to the [county jail]." The subpoena is not part of the record. A-5799-17T4 18 recording of the single phone call "which the defense . . . had an opportunity to
hear and to review[.]" The judge found the call
certainly relevant to refute the alibi defense insofar as it appears that the phone call indicates first that -- defendant first advises his father that he's at his mother's home and then later on he says, ["]well, I was actually at the scene but I was running.["] That statement coming from . . . defendant's own mouth is probative on the issue of whether or not the defense can sustain its burden on the alibi defense.
We see no abuse of discretion in the trial judge's ruling. State v. Brown,
236 N.J. 497, 522 (2019). Although Rule 3:13-3(b)(1) requires that the State
provide post-indictment discovery "upon the return or unsealing of the
indictment," the duty to disclose discovery is continuing, R. 3:13-3(f). Trial
judges are invested with broad discretion in determining appropriate sanctions
for discovery violations. State v. Marshall, 123 N.J. 1, 130 (1991). When a
trial judge perceives
that a party has failed to comply with [Rule 3:13-3(f)] or with an order issued pursuant to this [R]ule, [the judge] may order such party to permit the discovery of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or [the judge] may enter such other order as [the judge] deems appropriate.
A-5799-17T4 19 [R. 3:13-3(f).]
"An adjournment or continuance is a preferred remedy where circumstances
permit." State v. Clark, 347 N.J. Super. 497, 509 (App. Div. 2002).
We defer to such determinations unless that are "wide of the mark" or
"based on a mistaken understanding of the applicable law." State v. Washington,
453 N.J. Super. 164, 180 (App. Div. 2018) (quoting State v. Hernandez, 225 N.J.
451, 461 (2016)). That, certainly, is not the case here where the trial judge's
ruling accomplished the goal of the discovery rules: "to accomplish fairness,"
State v. Bellamy, 329 N.J. Super. 371, 376 (App. Div. 2000) (quoting State v.
Kearney, 109 N.J. Super. 502, 505 (Law Div. 1970)), and their principal
purpose: "to assure the parties every legitimate avenue of inquiry prior to trial to
enhance the search for the truth," State v. Burnett, 198 N.J. Super. 53, 58 (App.
Div. 1984). Obviously, defendant was aware of the call and its contents; he was
a participant. He did not claim surprise or request a continuance; there is no
evidence he suffered any prejudice from the timing of the recording's delivery
to his counsel. The trial judge properly applied his discretion in denying
defendant's preclusion application.
Likewise, the trial judge did not abuse his discretion in denying
defendant's application to redact that portion of the recording which he now
A-5799-17T4 20 contends could have led the jury to "conclude[] that the reference to [a judge
other than the trial court judge] related to an earlier case" involving defendant.
Defendant avers he appeared before the other judge for a detention hearing
relating to this case and on an unrelated theft charge. The portion of the
recording, as related in defendant's merits brief, is a conversation defendant had
with his father: 7
[DEFENDANT'S FATHER]: Wednesday and Thursday I gotta work right now. (inaudible) You have court Thursday. What time is court on Thursday?
[DEFENDANT]: I think court is in the morning, early morning. It's in front of the same judge that I went to.
[DEFENDANT'S FATHER]: Where?
[DEFENDANT]: In Freehold.
[DEFENDANT'S FATHER]: Where, [defendant]?
[DEFENDANT'S FATHER]: In the Freehold court house?
[DEFENDANT]: Yes, in front of [a judge other than the trial judge].
[DEFENDANT'S FATHER]: The same judge?
7 The transcript of the call is largely "[i]ndicernible," but the State does not dispute defendant's version of the call. A-5799-17T4 21 [DEFENDANT]: Yeah, [a judge other than the trial judge].
[DEFENDANT'S FATHER]: You sayin . . . [s]ame judge?
[DEFENDANT]: Yes, dad.
[DEFENDANT'S FATHER]: Same lady that said ["]hey listen, you know you (inaudible) fuckin['] problem.["]
We note the call does not reference the nature of the proceedings before
the other judge. No mention of any other crime is made, including the prior
theft. As the trial judge recognized, the jury knew defendant had criminal
charges. No inference to another crime or bad act could have reasonably been
drawn from that portion of the recording. Defendant's father's reference to
"[s]ame lady that said [']hey listen, you know you (inaudible) fuckin[']
problem[']," contains neither context of the judge's alleged remark or the subject
of same. Although it may have been ordered redacted in an abundance of
caution, we discern no abuse of discretion by the judge's admission. And, even
if error, the fleeting, ambiguous statement was not "clearly capable of producing
an unjust result[.]" R. 2:10-2.
A-5799-17T4 22 IV.
Following the commencement of jury deliberations, the trial judge advised
the collective jury, including alternates, "it has come to my attention that during
the lunch recess one or two of the jurors, either the [twelve] jurors that were
selected or the two alternates or some combination of the two, were discussing
the case in contravention of my instructions not to do so." The record does not
reveal who advised the judge of the juror transgression or what was disclosed to
him. Defense counsel, in arguing for a mistrial after each of the jurors was
questioned by the court out of the presence of any other juror, told the judge
based on the information I received from the deputy, stated (sic) someone must be guilty because it was on video, something along those nature of the lines (sic), he clearly states he doesn't recall the statements that he made. And I don't know the extent if it was just the jury members or they (sic) received any input from anybody else that was in line, or if it was just tailored to just those four jurors
who had admitted having discussions in the lunch line. The record does not
reveal the source of the information imparted to the judge by defense counsel.
The trial judge appropriately took "action to assure that the jurors ha[d]
not become prejudiced as a result of facts which 'could have a tendency to
influence the jury in arriving at its verdict in a manner inconsistent with the legal
A-5799-17T4 23 proofs and the court's charge.'" State v. Bisaccia, 319 N.J. Super. 1, 12 (App.
Div. 1999) (quoting State v. Scherzer, 301 N.J. Super. 363, 486 (App. Div.
1997)). "[W]here . . . there is the possibility of actual juror taint or exposure to
extraneous influences (including jury misconduct and 'comments made to jurors
by outside sources'), the judge must voir dire that juror and, in appropriate
circumstances, the remaining jurors." Id. at 13 (quoting Scherzer, 301 N.J.
Super. at 486).
The judge asked each juror if they discussed the case with anyone during
the lunch recess. Juror number two admitted discussing her "past experience as
a juror[; j]ust about the process itself," but denied discussing "the case at all."
Eight jurors denied having or overhearing any conversation. Juror number four
denied having any conversations but was not asked if she overheard any
discussions; she, however, ate lunch in her car and saw her fellow jurors "[j]ust
at the end in front of the elevator" so she was not present in the room in which
four of the jurors admitted having discussions.
Juror number one admitted overhearing a discussion in the lunch line
about "[h]ow do we get things read back and things like that," but did not
remember "exactly what was said[.]" The juror said the discussion "wasn't
pertinent to any of the facts or anything like that. We were basically trying to
A-5799-17T4 24 figure out . . . if we could ask questions and stuff like that." Juror number one
said the discussion "took place [for] like maybe a minute and then we shut up."
Juror number six also said she overheard a discussion in the lunch line between
two jurors "about process . . . like when can you ask questions and filling out
the piece of paper."
Juror thirteen said she was in the cafe "just kind of talking about what we
could ask and not [ask,] but nothing, no evidence or names or anything like that
was brought up. And then we just - - you know, we were, like, it's not the place."
Further questioning by the judge elicited that there were a few jurors behind her,
but "it wasn't like a discussion. It was just a couple, few words" but reiterated
"nobody brought anything up of . . . any names or evidence[.]"
Juror fourteen admitted he "probably did say one or two things" while in
line but did not "remember what they were." He responded to further
questioning that he believed they were comments, not questions. Pressed by the
judge, he said he thought the comments were prompted by questions the jurors
could ask. During continued colloquy, he said the communication took twenty-
five to fifty seconds and took place only in the lunch line.
From our review of the trial judge's voir dire, we see no abuse of
discretion. State v. R.D., 169 N.J. 551, 559-60 (2001). The judge ascertained
A-5799-17T4 25 from each juror what was discussed or what was overheard. The judge's
questioning was not cursory. He did not simply accept a juror's brief answers.
We are unpersuaded by defendant's contention that the judge should have
explicitly asked each juror if they said or heard that "someone must be guilty
because it was on video." The judge's initial comments to the jury reveal he was
advised that one or two jurors had a discussion about the case. Only defense
counsel stated that there was a discussion about defendant's guilt based on a
video. Unless one of the jurors admitted saying or hearing that comment, or if
a reliable source for that information was before the judge—and we see no
evidence that it was 8—it would have been imprudent for the trial judge to impart
such information, claimed now by defendant to be so prejudicial so as to warrant
a mistrial, to the jury. There was no evidence the jury was tainted. The trial
judge sagely maintained that status and did not unnecessarily highlight a portion
of the evidence—the video.
8 The "deputy" who purportedly revealed the comment to defense counsel is not identified in the record. Moreover, the source of the deputy's information is unknown. A-5799-17T4 26 V.
Defendant argues the trial judge erred by: (1) failing to take into account
defendant's rehabilitative efforts to address his drug addiction after arrest and
before sentencing; (2) "plac[ing] weight on [defendant's] failure to show
remorse"; and (3) "impos[ing] the maximum possible sentence for [defendant's
VOP] without fully explaining how a sentence of that duration was warranted."
We "review sentencing determinations in accordance with a deferential
standard," and "must not substitute [our] judgment for that of the sentencing
court." State v. Fuentes, 217 N.J. 57, 70 (2014). We will affirm a sentence,
unless:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
At the June 2018 sentencing, the trial judge properly exercised his
discretion when he based his finding of aggravating three, N.J.S.A. 2C:44-
A-5799-17T4 27 1(a)(3) (risk of reoffense), on defendant's "daily ingestion of marijuana and
Percocet" through August 2017, and defendant's failure to complete an intensive
outpatient treatment program, noting defendant's failure to attend a group
session on February 27, 2018. The judge also recognized defendant's ingestion
of Xanax on five occasions. Defendant also pleaded guilty on the sentencing
date to violating probation, in part, by testing positive for drugs, thereby failing
to comply completely with the substance abuse treatment condition of probation.
Against this history, the judge was warranted in rejecting defendant's claim that
his efforts at post-arrest rehabilitation negated aggravating factor three. We also
note defendant received jail credits from August 31, 2017 to September 7, 2017
and November 3, 2017 through the day prior to sentencing; and gap time from
September 8, 2017 through November 2, 2017. He was thus incarcerated during
his purported "clean time," the period during which he claims he was drug-free.
We determine defendant's remaining arguments to be without sufficient
merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We add only that
the judge recognized defendant's lack of remorse as one of the many reasons he
found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (need to deter), a practice
we sanctioned in State v. Rivers, 252 N.J. Super. 142, 153-54 (App. Div. 1991).
Further, defendant's notice of appeal does not list or reference the indictment on
A-5799-17T4 28 which he was sentenced for third-degree theft after the VOP; and his criminal
case information statement merely references his guilty plea on that VOP
without challenging it. We, therefore, need not address the arguments relating
to the VOP sentence because we have made clear "it is only the judgment or
orders designated in the notice of appeal which are subject to the appeal process
and review[.]" 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J.
Super. 456, 459 (App. Div. 2004). We will not review an order if the appellant
"did not indicate in his notice of appeal or case information statement that he
was appealing from the order[.]" Fusco v. Bd. of Educ. of Newark, 349 N.J.
Super. 455, 460 (App. Div. 2002).
Nevertheless, our review of the presentence reports for both indictments
leaves us unpersuaded that the five-year sentence the trial judge imposed on the
theft—concurrent to defendant's sentence on the weapons conviction—was not
supported by the same aggravating factors—three, six, (extent of prior criminal
record and seriousness of offenses), and nine, N.J.S.A. 2C:44-1(a)(3), (6), and
(9)—found by the original sentencing judge; and that the mitigating factors, six,
(defendant has or will compensate the victim of his or her conduct for the
damage or injury that he or she sustained, or will participate in a program of
community service), ten, (defendant is likely to respond positively to
A-5799-17T4 29 probationary treatment), and eleven, (excessive hardship that imprisonment
would bring to defendant or his or her dependents), N.J.S.A. 2C:44-1(b)(6), (10)
and (11), none of which were requested of or found by the trial judge in
connection with either sentence, still applied. The latest presentence report
indicates: defendant has never held a job "on the books" and there is no evidence
he ever paid restitution; he violated probation; and no evidence was proffered
regarding excessive hardship.
Affirmed.
A-5799-17T4 30