July 6, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY WALKINGS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, No. 02-11-2445.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 31, 2007
Before Judges Wefing, C.S. Fisher and Yannotti.
Defendant appeals from a trial court order entered following a remand hearing conducted pursuant to our opinion in State v. Walkings, 388 N.J. Super. 149 (App. Div. 2006). After reviewing the record in light of the contentions advanced on appeal, we affirm.
The factual circumstances which led to the remand are set forth in our earlier opinion, and there is no need to repeat them here. In connection with the remand proceedings, the trial court took testimony from the juror who had initially contacted the prosecutor's office, the assistant prosecutor who received the telephone message left by that juror, and the investigator who called the juror and merely advised that someone from the court would be in contact with him.
On appeal, defendant raises one contention.
BECAUSE THE RECORD CREATED ON REMAND DOES NOT PROVIDE A SUFFICIENT BASIS FOR THE REVIEWING COURT TO ASSESS THE SIGNIFICANCE OF THE JUROR'S CONCERNS, THE JUDGMENT OF CONVICTION MUST BE REVERSED OR, ALTERNATIVELY, THE MATTER REMANDED FOR FURTHER PROCEEDINGS.
In light of that contention, we set forth at length the relevant portions of the juror's testimony on remand.
THE WITNESS: We had eleven jurors said we were pleading guilty. One man said no. And we did several pollings to find the same results. So the foreman I believe asks the man why he was saying no with the majority saying yes.
THE COURT: Let me stop you for a moment. I want to make sure you're recounting to me, not your recollection of what happened.
THE WITNESS: Right.
THE COURT: -- but the recollection of what you told the investigator.
THE WITNESS: Oh, okay.
THE COURT: Okay?
THE WITNESS: Okay. So I told the investigator exactly that, that this man did that thing. He also said that he went to the scene, walked around and determined that he didn't see that it could happen that way. Judge had given strict instructions that no one was to do that. So that upset all of us.
I'm trying to think of the details past that point. Then they took another polling and he changed his vote, is what I told him, okay? And I was upset with that situation having, you know, just didn't seem right to me that we had this man on our jury.
The juror testified that he relayed this information to someone from the prosecutor's office and that, later, when contacted by the trial judge, the judge would not permit him to offer any details of what had occurred in the jury room. The assistant prosecutor testified he had no contact with the juror other than to receive the voice mail message, and his investigator testified that in accordance with the instructions given him, he had called the juror and relayed that he could not talk with him but that someone from the court system would be in touch. The investigator testified that during this conversation, the juror said nothing of any substance. At the conclusion of the remand proceedings, the trial judge found that the juror's testimony was mistaken in one respect and that the juror did not relate to either the investigator or himself the incident with the recalcitrant juror.
On appeal, defendant argues that the testimony of this juror reveals juror misconduct during the deliberations and that, in consequence, his convictions should be reversed. We are unable to agree.
Although, according to the testimony of this juror, one member of the panel visited the scene at which defendant was alleged to have engaged in drug dealing, in complete violation of the court's instructions not to do so, we are satisfied that defendant was not harmed by this ex parte excursion and should not benefit from it having occurred.
The juror related that eleven members of the panel had voted consistently to convict defendant, while one voted to acquit. When the foreman questioned this juror as to why he or she thought defendant should be acquitted, the juror advised the panel of the trip to the scene and the conclusion that the crimes could not have occurred in the manner in which the prosecution witnesses had testified. At that point, the rest of the panel reminded that juror that the judge had given them strict instructions they should not visit the scene. The judge had also instructed the jury that the case must be decided solely on the basis of evidence produced in the courtroom. Defendant was convicted thereafter.
It is thus apparent that to the extent that improper information was presented to the panel, it was information for defendant's benefit, because the juror sought to use it to acquit defendant. Defendant has no cognizable harm because the members of the panel correctly followed the court's instructions and decided the question of defendant's guilt or innocence solely on the basis of what had transpired in the courtroom.
Defendant's convictions are affirmed.
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