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State v. Allen

November 29, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID ALLEN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-11-04356.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 13, 2007

Before Judges Stern and C.L. Miniman.

Defendant appeals from an order of July 28, 2006 denying his petition for post-conviction relief ("PCR") for the reasons expressed by Judge Michael Petrolle in the relevant portions of his oral opinion of that day.*fn1 Defendant specifically appeals from another order of the same day denying his motion for recusal. Defendant is serving a sentence of life in prison with thirty years to be served before parole eligibility after we modified the parole ineligibility term on the direct appeal.

The PCR petition was premised on the fact that, after defendant allegedly made threats to members of the prosecutor's office that were reported to the judge, the judge permitted sheriff's officers to enter the jury room, and by his charge to the jury, allowed discussions off the record with sheriff's officers as part of the "heightened security" in the case.

According to defendant, two officers were permitted to enter the jury room and explain the security being undertaken without recordation and that "any ex parte off the record communications with a jury clearly put the sanctity of the judicial process and defendant's constitutional right to a fair trial at risk." Defendant asserts there were communications with the jurors which "were never memorialized in the record."

Defendant adds that there was at least "a one-way communication relaying specific information from the officers to the jurors," because the judge charged that the sheriff's officers were going to talk to the jurors and that "the risk of extraneous information being brought within the purview of the deliberating jury is easily perceptible." Defendant further argues that "because the improper ex parte communication with appellant's jury was never remedied by a subsequent affirmative showing in the record regarding the contents of the improper communications, the taint of prejudice cannot be found to be lifted and therefore appellant's conviction must be reversed as a matter of law." Additionally, defendant asserts that he is entitled to post-conviction relief because the jury was told that the judge "considered directing deliberations on Saturday and thereafter if and as necessary . . . ." Defendant insists that this had a prejudicial effect on the outcome of the trial. We have been presented with only portions of the trial record. On Thursday, January 25, 2001, there was a discussion about having the jury report for trial the following day to hear a defense witness who had not appeared, and about the possibility of deliberations on the weekend if necessary.

Defense counsel stated he had no objection, and the judge advised the jury and asked the jury if that "poses a severe hardship to anyone." The jurors retired and discussed the matter, and some jurors expressed concerns. After the judge spoke with jurors individually, he told the panel:

Ladies and gentlemen, I have as you know conferred with individual jurors who have indicated that they have concerns and inconveniences or outright hardships they want to bring to my attention. There are legal issues and considerations I have mentioned I will take into play in consideration, including all that each one of you who has come to sidebar, and told me in confidence. I do want you to know that decision that I do make is the decision that I will have made after considering all that you have told me. At this time, I am not in a position to tell you what my decision is, I will notify you first thing in the morning, and if you need to know sooner than that, then you will indicate that to our clerk as soon as I will have made the decision. I will have the clerk give you a telephone call to [] let you know that, but I will in any event let you all know in the morning.

Now, I will ask you tomorrow morning to return at 9:30 unless you tell me you want to come in at 9 o'clock. Anyone prefers to come in [at] 9 o'clock rather than 9:30? I don't see any hand raised. If you do, please raise your hands. I don't see any hand raised, so we will proceed [at] 9:30 tomorrow morning. And I anticipate proceeding promptly, and I anticipate concluding the presentation of evidence, arguments, and instructions, and enabling you to begin deliberating tomorrow. If it's appropriate, we will proceed with deliberations in the event a verdict is not reached tomorrow, then, proceeding with deliberations in accordance with the determination I make as whether there should be continuation on Saturday or later than Saturday. You have items in the jury room [and] before you leave today be sure to retrieve those items as you know the jury room will not be secured over night.

Defendant testified on Friday, January 26, 2001, followed by summations and the judge's charge. Thereafter the judge again reviewed the concerns of individual jurors who had not resolved their problems caused by weekend deliberations. There was then a discussion with representatives of the Sheriff's Department and trial court administrator, after which the judge addressed the entire jury:

Ladies and gentlemen, I have made provision for dinner for you at approximately 6 o'clock, and I will ask you shortly to begin your deliberations. We'll take the opportunity for you to have something to eat, and we'll then proceed with deliberations for a reasonable time. If you determine that it would not be fruitful for you to continue any longer, and you let me know that evening, then we'll resume in the morning. The Sheriff's Department is here with certain provisions to assist you. They will give you the assurance concerning the steps that they have taken for you. I will not place all of that information on the record, I simply point out some information to you, and then if you have questions, I will ask you to direct them to the Sheriff's personnel who will -- I will permit to join you in the jury room before you start your deliberations, so that we can have those matters clarified. The parking lot where your cars are parked because you will be staying late tonight will be kept [open for] [] you, and will be secured, and proceed by a Sheriff's officer. The Sheriff will keep available for you any medical service that you may need while here. The Sheriff also will take other security precautions because we are here at a later hour at night, and they will take those precautions for you, and also provide an escort for you in leaving going to the parking lot, and in the event that there is any juror who has been involved here by public transportation, when we do complete the proceedings this evening, or suspend it, we will be accompanied, escorted home, driven home in if necessary by any Sheriff's Officer, and public transportation here and need assistance going home. The food that we are providing will be delivered to the jury room, and you will have an opportunity to take something to eat there, and at that time once you're alone, whether food in the room or not, you may deliberate, if you wish. I'm going to ask you to step into the jury room, and if you have questions I will have the Sheriff speak with you there. We have with us the Chief of the Sheriff's Department John Doe who's present here in the first row very close to you, and also with us Under Sheriff Leonard McGee, who is here as well to try to address your needs, and answer any questions you have, along with the Chief. So, I'm going to permit them, and ask you to speak with them in the jury room. If there are any questions you have, they will be answer[ed] [] for you. I don't believe that the notices have on the record your individual concerns that they may be able to address for you, but I will permit you to speak [] with them, and address any of those concerns as practical matters in the jury room with them.

Again there was no objection. One juror selected for deliberations was excused, and another juror was substituted before deliberations began at 6:50 p.m. During deliberations, the jury asked questions about the elements of murder by one's own conduct and accomplice liability, ...


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