April 19, 2006
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LEWIS D. HARGROVE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Atlantic County, 00-04-0737.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 29, 2006
Before Judges Conley and Weissbard.
Following a hung jury on defendant and co-defendants' aggravated assault and related offenses, co-defendants pled guilty and defendant was retried. He was convicted of second- degree aggravated assault, N.J.S.A. 2C:12-1b(1); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4a; unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and conspiracy, N.J.S.A. 2C:5-2. An eight-year term with an 85 percent NERA disqualifier was imposed on the second-degree aggravated assault. Two concurrent five-year terms were imposed on the weapon convictions. The remaining convictions were merged. The necessary fines and penalties were also imposed.
On March 4, 2000, Kirk Banks, Sr., was on his way to pick up his son. He was early and stopped by an apartment complex to visit his brother-in-law. He pulled into the parking lot and saw his cousin, Louis Murphy. He stopped to talk to Murphy. They spoke for about ten minutes when Murphy saw a black SUV pull into the parking lot. Three men jumped out, and opened fire, resulting in the shooting of Banks. Murphy identified those people as defendant and his co-defendants. One co- defendant was the driver. The other two had weapons, but only defendant fired the shots. Another witness also saw the shooting. She identified defendant as the shooter.
On appeal, defendant raises the following contentions:
POINT I: THE TRIAL JUDGE ERRED IN FAILING TO SUFFICIENTLY TAILOR THE IDENTIFICATION CHARGE TO POINT OUT THE INCONSISTENCIES IN THE ACCOUNTS OF THE VARIOUS WITNESSES (Not Raised Below).
POINT II: THE TRIAL JUDGE ERRED IN FAILING TO HOLD A HEARING AFTER EVIDENCE OF JUROR INTIMIDATION WAS ALLEGED.
POINT III: THE DEFENDANT'S SENTENCE IS EXCESSIVE.
We have considered these contentions in light of the entire record and the applicable law. As defendant received terms above the presumptive, a sentencing remand is required. State v. Natale, 184 N.J. 458, 484 (2005). In all other respects, we are convinced defendant's contentions are of insufficient merit to require further opinion. R. 2:11-3(e)(2). We add the following brief comments.
Defendant did not raise the identification issue below. Before us, he contends the judge unfairly emphasized the State's evidence. Not so. The charge is as follows:
The Defendant, as part of his general denial of guilt, contends that the State has not presented sufficient reliable evidence to establish, beyond a reasonable doubt, that he is the person who committed the alleged offenses of March 4th, 2000. The burden of proving the identity of the person who committed the crime is always upon the State. For you to find this Defendant guilty, the State must prove, beyond a reasonable doubt, that this Defendant is the person who committed the crime. The Defendant has neither the burden, nor the duty to show that the crime, if committed, was committed by someone else or to prove the identity of that other person. You must determine, therefore, not only whether the State has proved each and every element of an offense charged, beyond a reasonable doubt, but also whether the State has proved, beyond a reasonable doubt, that this Defendant . . . is the person who committed it. The State has presented the testimony of Louis Murphy and Catherine Fisher-Garretson. You will recall that these witnesses, through the transcript from the prior proceeding, identified the Defendant in Court as the person who committed the offense or offenses charged.
The State also presented testimony that on a prior occasion before this trial, the witness, Louis Murphy, identified the Defendant as the person who committed this offense. According to the witnesses, their identifications of the Defendant was based upon the observations and perceptions that they made of the perpetrator at the time the offense was being committed back in March of 2000. It is your function to determine whether any witnesses' identification of the Defendant is reliable and believable or whether it is based on a mistake or for any reason not worthy of belief. You must decide whether it is sufficiently reliable evidence upon which to conclude that this Defendant is the person who committed the offenses charged. In evaluating those identifications, you should consider the observations and perceptions on which the identifications were based and the witnesses' abilities to make those observations and perceptions.
If you determine that an out-of-court identification is not reliable, you may still consider the witnesses' in-court identification of the Defendant, if you find it to be reliable. Unless the in-court identification resulted from the witnesses' observations or perceptions of the perpetrator during the commission of the offense, rather than being the product of an impression gained at the out-of-court identification procedure, it should be afforded no weight. The ultimate issues of the trustworthiness of both in-court and out-of-court identifications are for you to decide. To decide whether identification testimony is sufficiently reliable evidence upon which to conclude that this Defendant is the person who committed the offenses charged, you should evaluate the testimony of the witnesses in light of the factors for considering credibility that I have already explained to you.
But in addition to those, you may consider the following factors:
One, the witnesses' opportunity to view the person who committed the offense at the time of the offense.
Two, the witnesses' degree of attention on the perpetrator when he or she observed the crime as it was being committed.
Three, the accuracy of any description a witness gave prior to identifying the perpetrator.
Four, the degree of certainty expressed by the witness in making any identification.
Five, the length of time between the witnesses' observation of the offense and the first identification.
Six, any discrepancies or inconsistencies between their identifications.
Seven, the circumstances under which any out-of-court identification was made.
Here you heard reference in the transcript of the prior proceeding that [Louis Murphy] -- and you also heard Sergeant Bell refer to the fact that Mr. Murphy looked at various photos in the State's Exhibits and identified [defendant] as the alleged perpetrator. That was the out-of-court identification referred to.
Number eight, any other factor based on the evidence or lack of evidence in the case which you consider relevant to your determination as to whether those identifications were reliable.
If, after consideration of all of the evidence, you determine that the State has not proven, beyond a reasonable doubt, that the Defendant was the person who committed these offenses, then you must find the Defendant not guilty. If, on the other hand, after consideration of all the evidence, you are convinced, beyond a reasonable doubt, that the Defendant was correctly identified, you will then consider whether the State has proven each and every element of any offense charged, beyond a reasonable doubt.
We see no impropriety in this charge. See State v. Green, 86 N.J. 281, 293-94 (1981). Defendant's reliance upon State v. Edmonds, 293 N.J. Super. 113 (App. Div. 1996), certif. denied, 148 N.J. 459 (1997), is misplaced. See State v. Robinson, 165 N.J. 32, 43, 45 (2000). And, unlike the trial judge in State v. Reddish, 181 N.J. 553, 613-15 (2004), the judge here made no comments upon the strengths or weaknesses of the State's evidence but did no more than point the jury to the identification evidence which it was to evaluate using the appropriate identification factors.
As to defendant's contention in point II, a juror wrote the judge, post-verdict, that another juror "was very boisterous and somewhat intimidating because he was so forceful [in his] convictions." As a result, she claimed to have been intimidated, along with a number of other jurors. But this is all part of the give and take during jury deliberations. A trial court should only reconvene a jury and interrogate them in rare circumstances as it "is an extraordinary procedure which should be invoked only upon a strong showing that a litigant may have been harmed by jury misconduct." State v. Athorn, 46 N.J. 247, 250, cert. denied, 384 U.S. 962, 86 S.Ct. 1589, 16 L.Ed. 2d 674 (1966). "For strong policy reasons, courts 'have generally refused to accept from jurors, for the purpose of impeaching a verdict, any evidence of the discussion which they may have had among themselves while considering their verdict.'" State v. Koedatich, 112 N.J. 225, 288 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989) (quoting State v. Athorn, supra, 46 N.J. at 251). There are, of course, general exceptions to this rule. "[A]ny racial or religious bigotry manifested in jury deliberations may invalidate a verdict." Ibid. So too "when a juror informs or misinforms his or her colleagues in the jury room about the facts of the case based on his personal knowledge of facts not in evidence." Ibid.
As the Court summarized in State v. Harris, 181 N.J. 391 (2004), cert. denied, ___ U.S. ___, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005):
Defendant's motion for post-verdict juror interrogation is governed by Rule 1:16-1, which states:
Except by leave of court granted on good cause shown, no attorney or party shall directly, or through any investigator or other person acting for the attorney interview, examine, or question any grand or petit juror with respect to any matter relating to the case.
It is a high bar that defendant must hurdle to show good cause: "Calling back jurors for interrogation after they have been discharged is an extraordinary procedure which should be invoked only upon a strong showing that a litigant may have been harmed by jury misconduct." State v. Athorn, 46 N.J. 247, 250 (1966).
We have reaffirmed repeatedly our adherence to that high bar. See, e.g., [State v.] DiFrisco, 174 N.J. [195,] 241 [(2002)]; [State v.] Harris, 156 N.J. [122,] 154 [(1998)]; State v. Koedatich, 112 N.J. 225, 289-90 (1988) (citing Athorn, supra, 46 N.J. at 247). By allowing post-verdict interviews for good cause, a remedy is provided for extraordinary circumstances to prevent an injustice. However, the Rule also balances defendant's interests against other crucial concerns. "The requirement that a defendant make such a strong showing is intended to prevent juror harassment and avoid chilling jury deliberations." DiFrisco, supra, 174 N.J. at 241 (citing Harris, supra, 156 N.J. at 154). "Privacy and secrecy must attach to the process, not only to promote the finality of jury verdicts but also to aid the deliberative process itself, allowing each juror the freedom to discuss his or her thoughts." Harris, supra, 156 N.J. at 154. See also State v. Loftin, 287 N.J. Super. 76, 109 (App. Div.)[, certif. denied, 144 N.J. 175 (1996)] (stating that Rule [1:16-1] protects "free debate in cases to come," and "prevent[s] the unsettling of verdicts after they have been recorded") (citations omitted).
No good cause was shown here to warrant a post-verdict voir dire.
The convictions are affirmed. The sentence is remanded for a Natale resentencing. We do not retain jurisdiction.
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