State v. Blann

57 A.3d 1102, 429 N.J. Super. 220, 2013 N.J. Super. LEXIS 1

• Court: New Jersey Superior Court Appellate Division
• Decided: January 9, 2013
• Status: Published

Opinions

The opinion of the court was delivered by

ACCURSO, J.S.C. (temporarily assigned).

Following a bench trial, defendant John C. Blann was convicted of two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one and two) and one count of second-degree robbery, N.J.S.A. 2C:15-1 (count three). The trial judge denied the State’s motion for an extended term, merged counts two and three into count one, and sentenced defendant to eighteen years, subject to a mandatory eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant raises the following arguments on appeal:

POINT I:

THE TRIAL COURT ERRED IN GRANTING [DEFENDANT’S] REQUEST TO WAIVE HIS RIGHT TO A JURY TRIAL WITHOUT APPLYING THE TEST SET FORTH BY STATE V. DUNNE, 124 N.J. 303 [590 A.2d 1144] (1991), FOR REVIEWING SUCH A REQUEST, THEREBY RESULTING IN A WAIVER THAT WAS NOT VOLUNTARY OR KNOWING. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS. 1, 9 & 10). (Not Raised Below)

POINT II:

BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT [DEFENDANT] POSSESSED A DEADLY WEAPON OR PURPOSELY LED MITCHELL TO REASONABLY BELIEVE BY HIS GESTURES THAT HE POSSESSED A DEADLY WEAPON, THE TRIAL COURT SHOULD HAVE ACQUITTED [DEFENDANT] OF THE FIRST-DEGREE ROBBERY CHARGES.

POINT III:

THE SENTENCE IMPOSED, AN EIGHTEEN-YEAR STATE PRISON TERM SUBJECT TO NERA, WAS EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED.

Although we find no error in the trial judge’s assessment of the proofs or in his imposition of sentence, the absence of a signed jury waiver in accordance with Rule l:8-l(a), coupled with the judge’s failure to question defendant on the record regarding his request to waive a jury and the judge’s failure to state his reasons for granting defendant’s request, make it impossible for a reviewing court to assess whether defendant’s waiver was knowing and voluntary. Accordingly, we are constrained to reverse.

The facts as found by the trial judge can be briefly summarized. Walter Mitchell, a thirty-year resident of Atlantic City, was in his car, a white Mercedes, on his way for coffee at about 7:00 a.m. on August 6, 2010. While stopped at a red light at Kentucky and Pacific Avenues, Blann approached Mitchell’s car, demanding money. Although Mitchell had his windows closed, his sunroof was open, and he could clearly hear Blann ranting at him from the sidewalk along the passenger side of his car.

Mitchell initially determined to ignore Blann, and stared out ahead of his car waiting for the light to change. Blann, however, became more agitated, starting off the sidewalk toward Mitchell’s car while screaming profanities at Mitchell and still demanding money. When the light did not change, Mitchell finally yelled back at Blann, using equally profane language, that he did not have any money and that Blann should go bother someone else. Blann, who had walked to the front of Mitchell’s car and returned to the sidewalk, again started toward Mitchell’s car. This time, however, as he did so, Blann put his hand under his shirt as if reaching for something in his waistband, and screamed at Mitchell that he would “blow him away” if Mitchell did not give him money.

Mitchell, afraid that Blann had a gun and intended to use it, accelerated through the red light and fled. Mitchell flagged down a police car a few blocks away and excitedly told the officers that he had just been approached by a man yelling and screaming, and that the man had a gun. The officers directed Mitchell to get into their patrol car and direct them to where the incident had happened. When the officers neared the scene, Mitchell identified Blann and he was arrested. Although the officers searched the area, they found no gun.

Blann, who had several prior convictions, testified in his own behalf. He claimed that he was homeless, had been on the street for two days, and had not slept the night before. He admitted approaching Mitchell for money, but claimed that he was simply panhandling and that Mitchell swore at him first. Blann admitted that he yelled profanities at Mitchell when he refused to give him money, but denied that he had a gun or that he had threatened to blow Mitchell away. Blann claimed that he never made any threatening gestures toward Mitchell, other than “giving him the finger” as he walked away.

Although Blann claims that the State failed to prove that he possessed a gun or purposely led Mitchell to reasonably believe by his gestures that he possessed one, we disagree and find no error in the trial judge’s assessment of the evidence. Our review of the factual findings of a trial judge is a deferential one. Our role is limited to a consideration of “whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.” State v. Locurto, 157 N.J. 463, 471, 724 A.2d 234 (1999) (quoting State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964)). We defer “to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the ‘feel’ of the case, which a reviewing court cannot enjoy.” Ibid, (quoting Johnson, supra, 42 N.J. at 161, 199 A.2d 809).

Here, the trial judge noted that Blann and Mitchell were in substantial agreement about the altercation that took place between them. The only significant difference in their testimony was whether Blann threatened to “blow away” Mitchell while reaching a hand under his shirt as if going for a gun at his waist. In his thorough and well-reasoned written opinion, the judge explained the basis for his determination that Mitchell was the more credible of these witnesses on the only two issues that divided them.

Blann confirmed Mitchell’s account that he had demanded money from Mitchell in a loud and argumentative manner, replete with shouted profanities and, in Blann’s words, “street talk.” The judge found Blann’s testimony self-serving, contradicting Mitchell only on the two facts most crucial to the State’s case, and in his own interests. Further, the judge found Blann’s description of his behavior as “aggressive begging,” and his repeated admissions of guilt to that offense, in the precise language of the Atlantic City ordinance, suggested that Blann’s “recollection may have been colored” by a desire to conform his conduct to that less serious offense.

In contrast, the judge found Mitchell’s testimony free of any motive of untruthfulness. Mitchell’s command of nuanced details of a quickly progressing and stressful situation, which he relayed consistently from his immediate notification of the police to his testimony at trial, convinced the court that he was a credible witness telling a credible narrative. The judge noted that encountering a person begging for money on a -street in Atlantic City would probably not impel an average resident to seek immediate assistance from the police. Being reasonably certain, however, that one was being threatened by a man with a gun would likely impel that same person to run a red light and go immediately to the police for help.

We likewise find no error in the trial court’s imposition of sentence. A trial court possesses considerable discretion in sentencing. State v. Dalziel, 182 N.J. 494, 500, 867 A.2d 1167 (2005). Consequently, our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127, 13 A.3d 873 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors the trial judge found are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608, 985 A.2d 1251 (2010).

Applying those standards, we discern no error in defendant’s sentence. There is no dispute that defendant was eligible for an extended-term sentence based on his prior criminal convictions. N.J.S.A. 2C:44-3a. The trial judge, however, determined that Blann was a drug addict who commits crimes “in order to feed his drug habit” and “that while he need[ed] to be kept off the streets in order to protect the public for a substantial period of time, based on his present age,” it was not necessary “to impose an extended term to achieve the two goals of the sentence, which are protection of the public and to give [defendant] access through the New Jersey State Prison system to all possible drug programs.” The judge determined that a sentence on the high end of the ordinary term would suffice to achieve those goals. In addition, the record amply supports the application of aggravating factors three, N.J.S.A. 2C:44-la(3) (the risk that defendant will commit another offense), six, N.J.S.A 2C:44-la(6) (extent of defendant’s prior criminal record), and nine, N.J.S.A. 2C:44-la(9) (the need to deter defendant and others from violating the law), and mitigating factor two, N.J.S.A. 2C:44-lb(2) (defendant did not contemplate that his conduct would cause or threaten serious harm). The sentence imposed was within the statutory guidelines, and it does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65, 471 A.2d 370 (1984).

We turn now to the jury waiver. Rule 1:8-1 (a), the provision in the Court Rules relating to non-jury trials in criminal cases, requires that a defendant put in writing his request to waive trial by jury and obtain the approval of the court for such waiver. The State concedes that there is no written waiver in this record as required by Rule l:8-l(a). Over forty years ago in State v. Paolino, 110 N.J.Super. 284, 265 A.2d 398 (App.Div.), certif. denied, 57 N.J. 127, 270 A.2d 30 (1970), we determined that the absence of the written consent to waiver required by the rule “does not go to the jurisdiction of the court to try the case without a jury,” so long as the “trial record indicates a thorough understanding of, and unequivocal assent in open court by the defendant, personally, to his attorney’s agreement to waive jury trial.” Id. at 285, 265 A.2d 398.

The trial judge addressed Blann two times on the record regarding the waiver. The first time was at the pre-trial conference. We quote the portion of the exchange relating to the jury-waiver in full.

[Defense Counsel]: Judge, I have discussed with Mr. Blann his right to a jury-trial on this matter. Mr. Blann has advised me that he is willing to waive his right to a jury trial in this matter. Judge, I have completed the pretrial memorandum. Mr. Blann has initialed it and the Prosecutor has signed it as well.

[[Image here]]

THE COURT: All right. And you wish to have a bench trial to the Court?

THE DEFENDANT: Yes, sir. Yes, sir.

THE COURT: Yes?

THE DEFENDANT: Yes.

The second time was a month later on the first day of trial. Again, we quote the portion of the exchange relating to the jury waiver in full.

THE COURT: All right. I understand that, [counsel], you discussed this matter with your client and he hereby has waived a jury.

[Defense Counsel]: That’s correct, Judge.

THE COURT: All right. Is that correct, sir?

THE DEFENDANT: Yes, sir.

THE COURT: All right. Call the first witness.

The State contends that the quoted colloquies are sufficient to confer jurisdiction on the court to try Blann without a jury. We disagree.

In Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930), the United States Supreme Court determined that Article III, Section 2, Clause 3 of the United States Constitution and the Sixth Amendment conferred the right of trial by jury as a protection of the accused, as opposed to part of the structure of government, which the accused may forego at his election. Id. at 298, 50 S.Ct. at 258, 74 L.Ed. at 863. Notwithstanding, the Court held that the value and appropriateness of jury trial has been so long established that

[n]ot only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant.

[Id. at 312, 50 S.Ct at 263, 74 L.Ed. at 870.]

The Court went on to address the role of the trial court in approving a defendant’s request to waive a jury in words that inform our decision in this case:

And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.

[Id at 312-13, 50 S.Ct. at 263, 74 L.Ed. at 870.]

In Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965), a case challenging the constitutionality of Rule 23(a) of the Federal Rules of Criminal Procedure, the federal analog to Rule l:8-l(a),² the defendant argued that he had a constitutional right to waive a jury trial as he determined in his own best interest, regardless of whether the prosecution and the court were willing to acquiesce in his waiver. The Court disagreed, holding that while a defendant in a federal criminal case has an unconditional right guaranteed by Article III, Section 2, and the Sixth Amendment to a trial by jury, there is no correlative federal constitutional right to a bench trial. Id. at 34, 85 S.Ct. at 790, 13 L.Ed.2d at 637. The Singer Court reaffirmed that trial by jury as established by the Constitution remains the “normal and ... preferable mode of disposing of issues of fact in criminal cases.” Id. at 35, 85 S.Ct. at 790, 13 L.Ed.2d at 638 (quoting Patton, supra, 281 U.S. at 312, 50 S.Ct. at 263, 74 L.Ed. at 870). Reviewing these cases, our Supreme Court in State v. Dunne, 124 N.J. 303, 311-12, 590 A.2d 1144 (1991), determined that nothing in New Jersey’s history or tradition suggests that New Jersey’s constitutional provision for trial by jury should bo interpreted in any significantly-different manner.

Dunne involved what the Court characterized as “a bizarre murder” in the South Mountain Reservation in 1986. Id. at 306, 590 A.2d 1144. The defendant had made a pre-trial motion for a non-jury trial because he planned to mount an insanity defense requiring psychiatric testimony on the “abnormal homosexual fantasies that may have moved [him] to attack the victim.” Id. at 307, 590 A.2d 1144. The motion was denied and the jury convicted him of murder. On appeal, the Court addressed the factors that trial judges are to consider in determining a motion to waive a jury trial in a criminal case. The Court identified three factors that the trial court must take into account. First, the court must determine “whether a defendant has voluntarily, knowingly, and competently waived the constitutional right to jury trial with advice of counsel.” Id. at 317, 590 A.2d 1144. Second, that “the waiver is tendered in good faith” as opposed to “as a stratagem to procure an otherwise impermissible advantage.” Ibid. And third, the trial court must determine, “with an accompanying statement of reasons,” whether, weighing all relevant factors, including the gravity of the crime, the position of the State, the duration and complexity of the State’s case, the amenability of the issues to jury resolution, the existence of a highly-charged emotional atmosphere, the presence of particularly-technical matters, and the anticipated need for numerous evidentiary rulings, “it should grant or deny the defendant’s request in the circumstances of the case.” Ibid. The Court emphasized the need for a statement of reasons that “will give structure to the trial court’s discretionary judgment and will soundly guide appellate review.” Id. at 317-18, 590 A.2d 1144 (citing Roth, supra, 95 N.J. at 363-64, 471 A.2d 370).

Dunne, of course, is a case in which the trial judge had denied the defendant’s request for a bench trial. We have, however, recently considered an appeal from the grant of the defendant’s request to waive a jury in State v. Jackson, 404 N.J.Super. 483, 962 A.2d 572 (App.Div.), certif. denied, 199 N.J. 129, 970 A.2d 1046 (2009). Jackson was to be tried for the murder of a drug dealer. Id. at 490, 962 A.2d 572. Against his counsel’s advice, he sought to waive a jury trial. Id. at 486, 962 A.2d 572. Jackson executed a waiver of trial form which his attorney had reviewed with him. Id. at 487, 962 A.2d 572. After the judge conducted a painstaking inquiry on two occasions, which included asking the defendant to explain in his own words why he wanted to waive the jury, the judge granted the motion. Id. at 486-88, 962 A.2d 572. The judge put a statement on the record detailing his explanation to the defendant of the charges against him and the sentences he could receive if convicted, his confirmation of the defendant’s understanding that a jury would be composed of twelve persons, that he and his counsel would participate in jury selection, and that any verdict would have to be unanimous. Id. at 487-88, 962 A.2d 572. The judge also inquired as to whether the defendant was under the influence of any drugs, alcohol, medications, or anything else that would impair his ability to understand the proceedings, and whether he had been forced or threatened into waiving his right to a jury trial, and made findings as to the defendant’s demeanor. Ibid. Following trial, the judge convicted defendant of all charges and sentenced him to fifty years with an eighty-five percent period of parole ineligibility and a consecutive five-year term with no parole eligibility. Id. at 488, 962 A.2d 572.

On appeal, Jackson contended that the judge erred in granting his motion to waive a jury trial because the court’s findings were only focused on whether his waiver was voluntary and knowing and had ignored the other Dunne factors. We rejected that argument, reasoning that the remaining Dunne factors are all focused on assuring that the grant of a waiver will not undermine public confidence in the criminal justice system. We concluded that

it would be antithetical to the objective of maintaining public confidence in the criminal justice system, which the other Dunne factors were intended to guide a court in considering, to grant a defendant who has voluntarily and knowingly waived his right to a jury trial a new trial before a jury solely because the trial court misapplied those factors.

[Id. at 491, 962 A.2d 572.]

Accordingly, we held that “a defendant who has persuaded the trial court to grant his motion to waive the right to a jury trial may challenge that decision only if he can show that his waiver was not voluntary and knowing.” Id. at 490, 962 A.2d 572.

There is nothing in this record from which we can conclude that Blann’s waiver was voluntary and knowing. There was no signed jury waiver form as required by Rule 1:8—1(a). The trial judge engaged in no colloquy with defendant to ascertain his understanding of his constitutional right to a jury trial and whether his request to waive that right was knowing and voluntary, and made no findings to that effect on the record.

As the United States Supreme Court determined over eighty years ago in Patton, the trial judge’s role in preserving the right of the accused to trial by jury and maintaining the jury as a fact finding body in criminal cases is of such importance that it cannot “be discharged as a mere matter of rote” but must be undertaken “with sound and advised discretion.” Patton, supra, 281 U.S. at 312, 50 S.Ct. at 263, 74 L.Ed. at 870. There is no doubt on this record that the experienced trial judge did not treat defendant’s request to waive a jury with the same care that he took in making factual findings and imposing sentence. We think the federal and state cases impose an affirmative duty on trial judges to treat those requests with that same degree of attention. It is imperative that a trial judge considering a defendant’s request to waive a jury trial consider each of the Dunne factors and state his or her reasons for granting or denying the request on the record.³ Dunne, supra, 124 N.J. at 317-18, 590 A.2d 1144.

Although the State argues that defendant had good strategic reasons for preferring a bench trial, this is nothing more than surmise, as there is no record from which we can judge defendant’s actual reasons for requesting the waiver and whether such request was personal, knowing and voluntary.⁴ Here, defense counsel merely announced to the court that defendant “is willing to waive his right to a jury trial in this matter.” As we held in Wyman, a defendant’s mere acquiescence in proceeding without a jury is not sufficient to constitute a waiver of his right to a jury trial. Wyman, supra, 232 N.J.Super. at 568, 557 A.2d 1043; see also State v. Mazza, 330 N.J.Super. 467, 472, 750 A.2d 133 (App.Div.2000) (defense counsel may not waive defendant’s constitutional right to trial by jury). In the absence of a written jury form waiver required under Rule l:8-l(a), or an express and understanding waiver by defendant personally on the record, he cannot justly be deemed to have waived his fundamental constitutional right to a jury trial and the trial court was without jurisdiction to try the case without a jury.

We address only briefly the thoughtful remarks of our dissenting colleague. We emphasize that our disagreement is a narrow one. Our dissenting colleague agrees with us that the judge’s handling of the jury waiver was inadequate and that a more expansive on-the-record colloquy should take place in all cases in which the defendant asks to waive a jury. We agree with him that the Criminal Practice Committee should consider whether Rule l:8-l(a) should be revised to incorporate this requirement into the Rule. We suspect that the lack of an express requirement in the Rule, notwithstanding the Court’s direction in Dunne, guided the actions of the able trial judge in this instance and may likewise inform the actions of other judges in similar circumstances. We also agree that the Committee should take up the jury waiver form with the goal of making it more informative and uniform.

Our disagreement centers on the remedy in this particular case. Unlike our colleague, we believe the jury waiver form, although in need of revision, has been an important point of distinction in our prior cases and remains so here. Because the United States and the New Jersey Constitutions guarantee defendant a trial by jury, compliance with these constitutional mandates is an essential jurisdictional prerequisite to the court’s authority to deprive him of his liberty. When the right is properly waived, trial by jury is no longer among the necessary elements of the court’s jurisdiction to proceed to conviction and sentence. Cf. Johnson v. Zerbst, 304 U.S. 458, 467-68, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461, 1468 (1938) (“Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court’s authority to deprive an accused of his life or liberty. When this right is properly waived, the assistance of counsel is no longer a necessary element of the court’s jurisdiction to proceed to conviction and sentence.”).

A signed waiver confers jurisdiction on the court to try defendant without a jury. Although a painstaking inquiry of a defendant by the judge as to why the defendant seeks to waive a jury is always good practice that we agree should be expressly required, it is essential in the absence of a signed jury waiver form in order to insure the court has jurisdiction to proceed without a jury. This is the import of the holdings of Paolino and Wyman.5 While we can certainly agree that a defendant in a PCR proceeding may raise the adequacy of his informed consent to a waiver appearing on the face of the record, we think it inappropriate to have to search beyond the four corners of that record to determine the threshold issue of the court’s jurisdiction. See R. 3:22-2(b). Because this record contains neither the written jury form waiver required under Rule l:8-l(a), nor an express and understanding waiver by defendant personally*⁶ on the record, we believe reversal is required.

The judgment of conviction and order of commitment are reversed and the matter is remanded to the trial court for a new trial.

2 Unlike its federal counterpart, Rule 1:8-1(a) does not require approval of the prosecutor to effect a jury waiver. The Rule provides only that the prosecutor is entitled to notice and an opportunity to be heard.

3 We are aware of our decision in State v. Shawn Jackson, 272 N.J.Super. 543, 553, 640 A.2d 863 (App.Div.1994), certif. denied, 142 N.J. 450, 663 A.2d 1358 (1995), in which we concluded that the Court in Dunne "did not impose an affirmative obligation upon the trial court to require verbalization on the record by a defendant seeking to waive a trial by jury." The defendant in Shawn Jackson, however, had executed a written waiver pursuant to Rule l:8-l(a). It was on this basis that we distinguished our holding in Shawn Jackson from our prior holding in State v. Wyman, 232 N.J.Super. 565, 557 A.2d 1043 (App.Div.1989). Shawn Jackson, supra, 272 N.J.Super. at 549-550, 640 A.2d 863 ("Clearly our statement in Wyman implies that in requiring verbalization by a defendant, an 'express and understanding waiver' is required where the waiver is not in writing. Confirmatory verbalization of a defendant's written waiver is not specifically mandated by Rule l:8-l(a).”).

As the discussion in the text makes plain, however, we are of the view that Dunne imposes an affirmative obligation on trial judges to voir dire the defendant, on the record, in every case in which a defendant seeks to waive a jury notwithstanding the lack of any requirement in Rule 1:8-1 (a). Thus, although not essential to the holding in this case, we note our disagreement with that aspect of Shawn Jackson holding to the contrary.

4 We note that the prosecutor could, and should, have requested the court to voir dire defendant on the record as to his reasons for requesting a bench trial.

5 Our dissenting colleague quotes Patton to suggest that the United States Supreme Court has determined that the right to jury trial is not jurisdictional. Infra at 240, 57 A.3d at 1114. In Patton, the Court determined that the framers of the Constitution did not incorporate trial by jury into the structure of government, which a defendant is not free to alter. Patton, supra, 281 U.S. at 297-98, 50 S.Ct at 257-58, 74 L.Ed. at 862-63. So in that sense trial by jury is not “jurisdictional" but may be waived by a defendant at his election. We, however, do not read Patton to suggest that a trial court has jurisdiction to deprive a defendant of liberty or property by proceeding with a bench trial in the absence of a valid juiy waiver by the defendant. Cf. Johnson v. Zerbst, supra, 304 U.S. at 467-68, 58 S.Ct at 1024, 82 L.Ed. at 1468 (1938) (holding that a trial court does not have jurisdiction to deprive a defendant of liberty or property by proceeding with a jury trial in the absence of defendant's valid waiver of his Sixth Amendment right to counsel).

6 Notwithstanding Patton, at least one member of the Supreme Court believes that the Court has not squarely addressed the issue of whether a defendant's waiver of trial by jury must be personal or may be accomplished through counsel. See Gonzalez v. United States, 553 U.S. 242, 254-56, 128 S.Ct. 1765, 1773-74, 170 L.Ed.2d 616, 628-29 (2008) (Scalia, J., concurring).