Opinion
DOCKET NO. A-0573-11T4
08-08-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID FERNANDEZ, Defendant-Appellant.
Marcia Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Blum, of counsel and on the brief). John E. Anderson, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Anderson, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Fasciale and Haas. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-09-2742. Marcia Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Blum, of counsel and on the brief). John E. Anderson, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Anderson, of counsel and on the brief). PER CURIAM
A grand jury indicted defendant David Fernandez for first-degree attempted murder of Mr. Ocasio, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); first-degree murder of Jose Rivera, N.J.S.A. 2C:11-3a(1) and (2) (count two); third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5(b) (count three); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). The same grand jury indicted co-defendant Jimmy Zamuz for third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5b, and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. The court severed defendant's and Zamuz's trials.
The court elected to use only his last name to provide some privacy to the victim.
A jury found defendant guilty on all counts. After merging count four into count two, the trial judge sentenced defendant as follows: a thirty-year term of imprisonment with a thirty-year period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count two; a consecutive ten-year term of imprisonment subject to NERA on count one; and a concurrent three-year term of imprisonment with a one-year period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6, on count three.
On appeal, defendant raises the following contentions:
POINT I
DEFENDANT'S RIGHT TO TRIAL BY JURY WAS VIOLATED WHEN A JUROR WITHHELD PREJUDICIAL INFORMATION DURING JURY SELECTION ONLY TO REVEAL IT TO THE OTHER JURORS DURING
DELIBERATIONS[;] AND DEFENDANT'S RIGHTS TO BE PRESENT AT TRIAL AND TO EFFECTIVE REPRESENTATION WERE VIOLATED WHEN, AFTER THE PROBLEM CAME TO LIGHT, COUNSEL FAILED TO CONFER WITH DEFENDANT BEFORE DECIDING NOT TO SEEK VOIR DIRE OF THE FULL JURY OR A MISTRIAL
A. Introduction.
B. The Court Should Have Declared a Mistrial When, During Deliberations, Juror No. 2 Told the Other Jurors, "in a Very Emotional Manner," About Her Brother's Shooting and Caused "a Group Concern."
1. The Loss of a Peremptory Challenge Is Per Se Reversible Error.
2. The Juror's Comments Tainted the Panel and Mandated Reversal.
C. Defendant's Rights To Be Present at Trial and to Effective Representation Were Violated by Counsel's Failures to Confer With Him, Seek Full Voir Dire, or Move for a Mistrial.
1. Defendant's Exclusion from the Sidebar Conferences Mandated Reversal.
2. Counsel Was Ineffective for Failing to Confer With Defendant About the Sidebars, Seek Full Voir Dire, or Move for a Mistrial.
POINT II
THE OMISSION OF A CHARGE ON AGGRAVATED ASSAULT AS A LESSER OFFENSE OF ATTEMPTED MURDER WAS REVERSIBLE ERROR.POINT III
THE COURT ERRED IN DENYING DEFENDANT'S REQUEST TO INSTRUCT THE JURY THAT IT COULD NOT INFER FROM THE CO[-]DEFENDANT'S POST-DETENTION SILENCE THAT HE WAS UNINJURED.
POINT IV
THE JUDGE'S REPEATED ADMONITION TO THE JURORS TO REPORT ANYONE WHO TRIED TO CONTACT THEM ABOUT THE TRIAL IN THE "MIDDLE OF THE NIGHT" INVITED THE JURORS TO INFER THAT DEFENDANT WAS A DANGEROUS MAN AND HAD DANGEROUS ASSOCIATES. (Not Raised Below).
POINT V
IN VIEW OF THE FACT THAT DEFENDANT MUST SERVE [THIRTY] YEARS WITHOUT PAROLE ON THE MURDER, THE IMPOSITION OF AN ADDITIONAL 8[-] 1/2 YEARS WITHOUT PAROLE ON THE ATTEMPTED MURDER WAS GROSSLY EXCESSIVE.
We decline to consider defendant's contention in Point I.C.2 that trial counsel rendered ineffective assistance. Defendant may raise this contention in a petition for post-conviction relief. State v. Castagna, 187 N.J. 293, 313 (2006). As to defendant's remaining contentions, we affirm.
We derive the following facts from the record. On the evening of December 25, 2007 and into the early morning of December 26, Ocasio and Rivera were working as bouncers inside a social club that was hosting a Christmas party. Defendant and Zamuz arrived at the club sometime after midnight. They were denied entrance to the party because they were not dressed properly and were visibly intoxicated. Upon being denied entrance a second time, Zamuz became extremely angry and repeatedly kicked a glass door as he exited the club. As defendant and Zamuz drove away from the club, Zamuz retrieved a gun from the glove compartment and fired several shots out the front passenger window. Defendant grabbed the gun, threw it under the seat, and "took off." Defendant later put the gun in his waistband.
Later on the morning of December 26, defendant and Zamuz went to a diner, where they encountered Ocasio and Rivera. Although defendant's version about what happened at the diner differed from that of other witnesses, the record indicates that: Ocasio said something to Zamuz as he and Rivera were exiting the diner; Zamuz became angry and began shouting; Zamuz, Ocasio, and Rivera exited the diner; the three men began fighting; defendant exited the diner and fired shots into the ground; defendant and Ocasio began struggling; Ocasio grabbed defendant's arm containing the gun and struck defendant with an object; defendant shot Ocasio three times and then shot Rivera three times. A surveillance camera captured part of the incident. The video was played to the jury.
Defendant's sole theory was that he acted in self-defense and in defense of Zamuz. He testified that as he exited the diner, he saw Ocasio and Rivera "beating up" Zamuz. One of them held Zamuz by the neck and the other threw blows at Zamuz's body. He screamed at Ocasio and Rivera to stop beating Zamuz, but to no avail. He panicked and, as he came down the diner's stairs, pulled out the gun and fired shots into the ground in order to "scare [Ocasio and Rivera], make them go away;" however, they "just started beating [Zamuz] harder." He ran toward the three men with the gun pointed down toward the ground. Ocasio grabbed him by the belt and arm and hit him with an object he thought was a gun. He was "stunned" and went a few steps backwards. Ocasio then grabbed the arm containing the gun, pulled the arm and gun towards himself, swung defendant around, threw him, and tried to "slam [him] into the ground." He pulled the trigger once or twice as they fell to the ground. He insisted that he never pointed the gun at Ocasio because Ocasio had "total control" over his arm, and never intended to shoot anyone.
Defendant also testified that he got up from the ground and saw Rivera on top of Zamuz, choking him and "making a motion as to break [Zamuz's] neck." Zamuz was turning purple and it appeared he was not breathing. Defendant screamed to Rivera to stop and let Zamuz go, but to no avail. He then hit Rivera in the head with the gun, but Rivera continued choking Zamuz. At that point, he "had no choice but to shoot Rivera." He did not intend to kill Rivera; he "just wanted to get [Rivera] off [Zamuz]." After he shot Rivera, hit tried to pull Zamuz out from under Rivera, but someone hit him from behind and other people were coming toward him. He then ran from the scene without Zamuz.
I.
Defendant objected to a charge on aggravated assault as a lesser-included offense of attempted murder of Ocasio. He now contends for the first time on appeal in Point II that the judge erred in failing to sua sponte charge on aggravated assault-serious bodily injury, N.J.S.A. 2C:12-1b(1), and aggravated assault-significant bodily injury, N.J.S.A. 2C:12-1b(7), as lesser-included offenses of attempted murder of Ocasio. We disagree.
The State initially requested a lesser-included attempted aggravated assault charge, but withdrew its request.
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A person is guilty of attempted murder if he purposely attempted to cause the victim's death. N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3a(1). Aggravated assault is a lesser-included offense of attempted murder. See State v. Natale, 184 N.J. 458, 468 (2005). A person is guilty of aggravated assault if he attempts to cause serious or significant bodily injury to another, or causes such injury purposely, knowingly, or recklessly. N.J.S.A. 2C:12-1b(1), (7). A person acts "purposely" if he acts with design, a specific intent, a particular object or purpose, or if he means to cause serious or significant bodily harm. See Model Jury Charges (Criminal), "Aggravated Assault-Serious Bodily Injury" (2012); Model Jury Charge (Criminal), "Aggravated Assault-Significant Bodily Injury" (2012).
Where neither the defendant nor the State requests a charge of a lesser-included offense, "a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 17 8 N.J. 347, 361 (2004). However, the court may not sua sponte charge a lesser-included offense where it would "cause complete surprise, or [be] so inconsistent with the defense as to undermine the fairness of the proceedings." State v. Garron, 177 N.J. 147, 181 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). As our Supreme Court has held:
Trial courts must carefully refrain from preempting defense counsel's strategic
and tactical decisions and possibly prejudicing defendant's chance of acquittal. The public interest, while important, may not overwhelm defendant's interest in pursuing a legitimate defense in the complex setting of a criminal trial. . . .
. . . .
In a close case, forcing counsel to incorporate defenses that pre-suppose the existence of the very fact his main method of defense contests destroys the credibility and coherence of the defense entirely. Our analysis of the duties of a trial judge must be seasoned by a degree of deference to defense counsel's strategic decisions.
[State v. Perry, 124 N.J. 128, 163 (1991) (internal citations and quotation marks omitted).]
Here, defendant denied that he aimed the gun at Ocasio or intended to shoot him. His trial strategy rested solely on the theory of self-defense and defense of Zamuz. Advising the jury of the possibility that defendant may have intended to cause serious or significant bodily injury to Ocasio would have had the severe impact of prejudicing his ability to defend the attempted murder charge and increased the likelihood of the attempted murder conviction. We are satisfied there was no error, let alone plain error, in the lack of a sua sponte charge on attempted aggravated assault.
II.
Defendant contends in Point I that the judge should have sua sponte declared a mistrial due to juror misconduct. He argues that Juror No. 2 withheld relevant and prejudicial information during jury selection, and he was deprived of his right to challenge the juror for cause or by exercising a peremptory challenge.
During jury voir dire, the judge asked potential jurors whether they or any family member or close friend were accused of committing an offense other than a minor motor vehicle offense, or were a victim of a crime, whether it was reported to law enforcement or not. Juror No. 2 revealed that her brother had been falsely accused of assaulting her ex-husband. Nonetheless, she said she was "extremely objective" and what happened to her brother would not affect her ability to serve. She also indicated she could support the defenses of self-defense and defense of others, as well as the proposition that the defendant is presumed innocent and the State must present enough facts to prove he was guilty beyond a reasonable doubt.
During deliberations, the jury foreperson advised the judge that some jurors expressed concern about Juror No. 2 because she had become emotional when she revealed that her brother had also been a crime victim and the perpetrator twice escaped punishment. When questioned by the judge on the record in defendant's presence, Juror No. 2 said after other jurors revealed their personal experiences, she told them "to try to be objective and be reasonable, let's just examine the evidence and stick to that." She also told them, "[w]e have to look at it from an objective point of view. We have lots of evidence nobody has touched. Let's look at it and collect our thoughts and look at the evidence and take that into consideration and leave [personal experiences] out . . . and get to it." Juror No. 2 confirmed to the judge that her personal experience about her brother would not affect her objectivity about the case and she could proceed and consider all the evidence.
Defendant did not request Juror No. 2's removal, nor did he request voir dire of the other jurors or a mistrial. The judge determined that Juror No. 2 did not act inappropriately and had, in fact, admonished her fellow jurors to decide the case strictly on the evidence admitted at trial and not on extraneous information. The judge found that Juror No. 2 did not express any bias or prejudice against defendant but merely expressed her general observations based on her own experiences. We find no fault with the judge's determination.
The Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants the right to trial by an impartial jury. State v. R.D., 169 N.J. 551, 557 (2001). Thus, a criminal defendant "is entitled to a jury that is free of outside influences and [that] will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself." State v. Williams, 93 N.J. 39, 60 (1983). "The securing and preservation of an impartial jury goes to the very essence of a fair trial." Ibid.
"[I]f during the course of the trial it becomes apparent that a juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." R.D., supra, 169 N.J. at 557-58. As we have held,
The thrust of the New Jersey and federal cases on mid-trial allegations of jury misconduct [like juror exposure to outside influences] is that the trial judge must make a probing inquiry into the possible prejudice caused by any jury irregularity, relying on his or her own objective evaluation of the potential for prejudice rather than on the jurors' subjective evaluation of their own impartiality. Although the trial judge has discretion in the way to investigate allegations of jury misconduct, an adequate inquiry on the record is necessary for the purposes of appellate review.
[State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div.) (citations omitted), certif. denied, 151 N.J. 466 (1997).]
Where it becomes apparent at trial that a juror may have been exposed to extraneous information or outside influences, the trial "court is obliged to interrogate the juror, in the presence of counsel, to determine if there is a taint; if so, the inquiry must expand to determine whether any other jurors have been tainted thereby." R.D., supra, 169 N.J. at 558. Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on Rule 1:16-1 (2014) (citations omitted) pertinently states that:
Although the rule is drawn in terms of a post-verdict interrogation of jurors, the technique provided by the rule for determining juror taint is obviously applicable during the course of the trial as well when a circumstance arises suggesting that a juror may in fact be tainted. In that situation the trial court, upon being apprised of such a circumstance, is obliged to interrogate the juror in the presence of counsel to determine if there is a taint. If so, the court is then obliged to interview the other jurors to determine if they or any of them have been infected by the taint. The court is then obliged to determine, assuming a sufficient number of jurors remain, whether the trial may proceed upon excusing the tainted juror or jurors or whether a mistrial must be declared. . . .See also State v. Bisaccia, 319 N.J. Super. 1, 13 (App. Div. 1999) (holding that "where . . . 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").
If the trial court fails to so proceed and the circumstance is indeed one which is apparently tainting, the taint must be presumed and a new trial ordered.
In compliance with R.D., as explained in Rule 1:16-1, the judge questioned Juror No. 2 to determine if there was taint and correctly determined she had not been exposed to extraneous information or outside influence that could have possibly impinged on her impartiality. We are satisfied that Juror No. 2 did not prematurely form an unalterable opinion of the defendant's guilt, nor was she swayed by any outside influences prejudicial to defendant. To the contrary, the juror clearly expressed views favorable to defendant, including the view she expressed to her fellow jurors during deliberations that they must put aside personal experiences, be objective and reasonable, and consider all the evidence. Accordingly, there was no reason to question the other jurors, sua sponte remove the Juror No. 2, or declare a mistrial.
We reject defendant's contention that he was denied the opportunity to challenge Juror No. 2 for cause or by exercising a peremptory challenge. "Responses to questions on voir dire that indicate bias may result in a juror being excused for cause. Hints of bias short of that required for a challenge for cause may be combatted by exercise of a peremptory challenge." State v. Scher, 278 N.J. Super. 249, 263 (App. Div. 1994 ), certif. denied, 140 N.J. 276 (1995). As our Supreme Court has explained:
Where a juror on voir dire fails to disclose potentially prejudicial material . . . a party may be regarded as having been denied fair trial. This is not necessarily because of any actual or provable prejudice to his case attributable to such juror, but rather because of his loss, by reason of that failure of disclosure, of the opportunity to have excused the juror by appropriate challenge, thus assuring with maximum possible certainty that he be judged fairly by an impartial jury.
[In re Kozlov, 79 N.J. 232, 239 (1979).]
It is irrelevant whether "the juror's failure to respond to the voir dire inquiry was deliberate or that the juror was in fact prejudiced or that his background tainted his verdict or that of his fellow jurors." State v. Thompson, 142 N.J. Super. 274, 280 (App. Div. 1976). "The key determinant is whether defendant has been deprived of a fair trial by jury by virtue of his inability to exercise a peremptory challenge because of the failure of the juror to make a candid response to the inquiry relating to a significant fact of potential bias." Ibid.
Despite the presumption that a juror's omission of information during voir dire is prejudicial, a defendant is required "to demonstrate that, had he or she known of the omitted information, he or she would have exercised a peremptory challenge to exclude the juror." State v. Cooper, 151 N.J. 326, 349 (1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000). That is so because
[o]nce the jury is sworn, . . . the law presumes that every juror in a case is indifferent and above legal exception, or otherwise he would have been challenged for cause. This presumption puts a duty on a party to show that they were or would have been dissatisfied with the jury as finally impaneled, and that they would have exercised the right of additional peremptory challenges given them by statute if they were aware of the true situation."Absent an affirmative showing that a litigant would have exercised a peremptory challenge to exclude a juror, the voir dire omission is harmless." Id. at 350.
[Ibid. (quoting Wright v. Bernstein, 23 N.J. 284, 295 (1957)).]
Other than his bald assertions that "there is no question that he would have excluded" Juror No. 2, defendant made no affirmative showing that he would have challenged her for cause or through a peremptory challenge. In fact, the record supports the opposition conclusion. During jury selection and jury deliberations, the juror clearly expressed views favorable to defendant, and even after learning of the omission, defendant did not request the juror's removal or a mistrial. In addition, defendant did not challenge three other empaneled jurors who had revealed during jury selection that they were victims of violent crimes, or had family members who were victims of violent crimes or accused of crimes. We, thus, conclude that no error occurred with respect to Juror No. 2.
III.
Defendant challenges his consecutive sentence in Point V. He argues that four of the criteria set forth in State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986) supported a concurrent sentence. This contention lacks merit.
Our review of a sentence is limited. State v. Miller, 2 05 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must determine whether:
(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.
[State v. Fuentes, 217 N.J. 57, 70 (2014) internal quotation marks omitted) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
In Yarbough, our Supreme Court identified the relevant criteria for determining when consecutive, as opposed to concurrent, sentences should be imposed. The Court noted that it is "senseless" to give a criminal free crimes. Yarbough, supra, 100 N.J. at 639. Instead, a sentencing court should consider the factual content of the crimes, including whether or not: (1) the crimes and their objectives were predominantly independent of each other; (2) the crimes involved separate acts of violence or threats of violence; (3) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; (4) any of the crimes involved multiple victims; and (5) the convictions for which the sentences were imposed were numerous. Id. at 643-44. These five factors are to be applied qualitatively, rather than quantitatively. Thus, a consecutive sentence can be imposed, even if a majority of the Yarbough factors support concurrent sentences. State v. Carey, 168 N.J. 413, 427-28 (2001).
"Crimes involving multiple deaths or victims who have sustained serious bodily injuries represent especially suitable circumstances for the imposition of consecutive sentences." Id. at 428; see also State v. Molina, 168 N.J. 436, 443 (2001) (holding that "the multiple-victims factor under the Yarbough sentencing guidelines is entitled to great weight and should ordinarily result in the imposition of at least two consecutive sentences"); State v. Roach, 167 N.J. 565, 568 (2001) (holding that "[c]onsecutive sentences are not an abuse of discretion when the crimes involve multiple victims and separate acts of violence").
Here, in deciding to impose consecutive sentences, the judge found there were two separate acts of violence involving multiple victims, and three crimes for which defendant was convicted. We discern no abuse of discretion in the sentence imposed. While the incident may be considered a single incident of aberrant behavior on defendant's part, he committed two acts of violence which resulted in numerous convictions for distinct crimes. Because there were multiple victims, the judge properly imposed consecutive sentences.
IV.
We have considered defendant's contentions in Points T.C.1, III and IV in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.
"Every criminal defendant has the right of presence at his own trial." State v. W.A., 184 N.J. 45, 53 (2005). Rule 3:16(b) provides, in pertinent part, as follows:
The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule. Nothing in this Rule, however, shall prevent a defendantThe right to be present at every stage of trial includes sidebar conferences during jury selection. W.A., supra, 184 N.J. at 59-60. "If a defendant seeks to be present at sidebar during voir dire he should be accommodated as far as security will allow." Ibid. However, "[a] defendant who does not affirmatively request the right to participate in voir dire sidebar conferences should be considered to have waived the right." Id. at 63-64.
from waiving the right to be present at trial[.]
Defendant did not affirmatively request the right to participate in voir dire sidebar conferences. To the contrary, he specifically waived his right to personally participate in those conferences. Because the right to be present is waivable, defendant was not deprived of a fair trial as a result of his absences from the voir dire sidebar conferences. In addition, there is nothing in the record indicating that defendant did not knowingly and intelligently waive participation in sidebar proceedings. There were numerous sidebar conferences throughout the fifteen-day trial, and defendant never personally objected or requested to be present at them. Accordingly, defendant's exclusion from sidebar conferences does not mandate reversal of his convictions.
The privilege against self-incrimination is personal in nature and must be claimed by the person seeking its protection, not by someone on another's behalf. In re Boiardo, 34 N.J. 599, 604 (1961). The right to be free from self-incrimination is personal and does not "accord standing to a third party . . . to vicariously assert that another's right against self-incrimination has been violated." State v. Baum, 199 N.J. 407, 417 (2009). Accordingly, defendant lacked standing to assert Zamuz's Fifth Amendment right to remain silent about his physical condition after the police detained him.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION