November 29, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID ALLEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-11-04356.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, and then for various definitions and elements of lesser included offenses.
At 9:50 p.m. the judge called the jurors into the courtroom, acknowledged he had "requested a great deal" of the jurors, and inquired whether they believed "further deliberations tonight would be fruitful, or whether [it] would be favorable to suspend deliberations this evening and to resume tomorrow morning." The jurors returned to the jury room to consider the question, and "sent a note out asking to stay to 11 o'clock." At 11:00 the judge released the jurors, saying, among other things:
In order to assist you in leaving here this morning, I'm going to ask you to return to the jury room. You are excused until 9:30 tomorrow morning. But I'm going to ask you to return to the jury room, and that Chief Doe and/or the Under Sheriff McGee and their officers will confer with you to arrange your departure from here, and provide any other assistance that is appropriate to guide you on your way home. When you come in tomorrow morning, they will explain to you where you're to park. I will tell you that I anticipate that lunch will be provided for you should your deliberations take you until lunch. And we will make plans for further deliberations as appropriate. I urge you to continue in your deliberations at your leisure in the interest of achieving justice in this case.
Ladies and gentlemen, I mention to you that if deliberations on Sunday were necessary, and any of you needed to follow through on any religious concerns, I will try to address that with you. If you do have some religious concerns for Sunday, and you'll mention those to the officers, they will attempt to accommodate those concerns.
I don't know what your religious affiliations are, if any, or whether you wish to disclose them. I don't know whether you feel any need to participate in a religious ceremony, and you do, and you would like to try to have arrangements made, I know that the Sheriff has a Catholic Chapl[a]in and Prodecent [sic] Chapl[a]in, and I suspect others as well. Those are two familiar with the Sheriff, and he didn't have any other chaplains, I'm certain that the chaplains he did have have contacts with clergymen of other religious background, so I ask you to please confer with the officers about that, and they will advise you as to other arrangements for parking, and items such as that when they confer with you in the jury room. I'll see you [at] 9:30 tomorrow morning, and they'll advise you on how to enter the  building, and they will escort you to the courtroom because the [building]  is generally closed on Saturday.
All rise, please.
Ladies and gentlemen, before you leave if you have any questions that you think you should address to me, please write them down [for] Miss Williams, and I'll be happy to address them as well.
We have not been presented with a transcript of any further proceedings before sentencing, so we know of no other discussions on the issue.
The recusal point is without merit. Even assuming the judge made an erroneous decision at trial in letting the sheriff's officers speak with jurors in the jury room or to speak with the jurors off the record, that does not mean that he was prejudiced. State v. Marshall, 148 N.J. 89, 275-79, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). There is no basis for reversal for lack of recusal. R. 1:12- 1(f); State v. Flowers, 109 N.J. Super. 309, 311-12 (App. Div. 1970). See also State v. Medina, 349 N.J. Super. 108, 131-32 (App. Div.), certif. denied, 174 N.J. 193 (2002). The other bases for relief are procedurally barred. On the defendant's direct appeal we detailed threats that were made during the course of the trial to prosecutor's investigators,*fn2 and then stated the following with respect to events which occurred as a result of the decision to press for further deliberations and provide heightened security:
Following the charge, the judge, with the jurors' assent, told them that they would be deliberating beyond the usual court hours. Several jurors had concerns about picking up children and making other arrangements in view of their anticipated late arrival home. There was also concern about the safety of the jurors leaving the Essex County Courthouse late at night to retrieve their cars from the jurors' parking lot or leaving the city by public transportation. The judge had consulted with the Sheriff's office, and the Sheriff himself and a deputy were making arrangements to attend to the jurors' personal concerns, to escort them out of the courthouse, to provide medical services if necessary and to provide an evening meal. The judge addressed the jury, introduced the Sheriff and a Sheriff's deputy, and told the jurors that prior to their commencement of deliberations, the two officers would meet with them in the jury room to explain the security procedures arranged for them and to answer their questions regarding those "practical matters." He then assured them that thereafter they could commence their deliberations, continuing with them during their dinner. By agreement of the jurors, they continued their deliberations until 11 p.m. Having not yet reached a verdict, they were instructed to return the following morning, Saturday, when deliberations concluded with a finding of guilt of murder and conspiracy and an acquittal of the weapons charges, a verdict evidently based on the jury's conclusion that while Allen was guilty as an accomplice, it was not satisfied that he, rather than the other pursuer, was the actual shooter. The verdict was evidently also based on the jury's acceptance of the credibility of the various eye witnesses, despite their criminal records and pending charges.
Finally, defendant complains of the security arrangements made for the jurors in respect of leaving the courthouse late on Friday night and returning to an essentially empty courthouse on Saturday morning. We think it plain that these arrangements were entirely proper in the circumstances. The jurors were already being imposed upon by the Friday night and Saturday deliberations. Responding, as the court did, to what surely would be their normal concerns for personal security in the circumstances was clearly appropriate.
Defendant next argues that jury inviolability was prejudicially compromised by the judge permitting the Sheriff and his deputy to enter the jury room to discuss security, medical, and other necessary arrangements with the jurors. We are constrained to conclude, despite defense counsel's acquiescence in that procedure, that it would have been better for the judge to have required this procedure to have been conducted either in open court, or at least recorded, to obviate any speculation that the conversation between the Sheriff and the jurors contained any reference to the case itself. We are mindful of the principle that undisclosed communications with jurors, even by court personnel, are presumed to be prejudicial. State v. Auld, 2 N.J. 426, 432 (1949); State v. Buffa, 51 N.J. Super. 218, 238 (App. Div. 1958), aff'd, 31 N.J. 378 (1960), cert. denied, 364 U.S. 916, 81 S.Ct. 279, 5 L.Ed. 2d 288 (1960); Guzzi v. Jersey Central Power & Light Co., 36 N.J. Super. 255, 264-265 (App. Div.), certif. denied, 19 N.J. 339 (1955). Nevertheless, as the Supreme Court held in State v. Auld, op. cit. supra, if the record affirmatively shows that the impropriety in permitting the communication with the jury had no tendency to influence it, a reversal is not required. That appears to be the federal rule as well. See United States v. Olano, 507 U.S. 725, 737-738, 113 S.Ct. 1770, 1780, 123 L.Ed. 2d 508, 521-522 (1993) (unauthorized entry into the jury room requires analysis of its prejudicial impact on the jury verdict and absent such showing is not cause for reversal).
We are persuaded that that is the case here. We think it clear that the communications authorized by the trial judge dealt only with the "practical matters" of juror arrangements for staying late and coming to the courthouse on Saturday. Consideration of those "practical matters" was all that the judge had authorized. The Sheriff's officers were, moreover, under oath as prescribed by N.J.S.A. 2B:23-7 not only to prevent others from speaking to the jurors but also not to speak to them themselves except under express court order. There is no basis for any assumption that the Sheriff's officers violated the clear limitations of the court's express authorization. Moreover, the jurors were repeatedly reminded that they were not to discuss the case, even with each other, until deliberations commenced, and the judge made it clear that they would not be commencing deliberations until the Sheriff's instructions and communications were completed. Finally, we have no doubt that if there were the slightest suspicion by the court, the prosecutor or defense counsel, that there was anything untoward, anything prejudicial to defendant, in the communication procedure, a voir dire of the jurors would have been requested and ordered. Under all these circumstances, we cannot conclude that this procedure, even though it was improvident, had any real capacity to have compromised the jury's impartiality or to have prejudiced defendant.
It seems to us that the judge at the PCR did not have to grant an evidentiary hearing on the issues now raised in light of our prior ruling on the matter and the procedural bar to consideration of this issue again. R. 3:22-5. While defendant is correct that there was no evidentiary hearing and that the calling of witnesses may have shown that something improper was said or conveyed the suggestion of a security threat or that defendant was dangerous, enough was not shown to warrant that in light of what we had concluded. State v. Cummings, 321 N.J. Super. 154, 168 (App. Div. 1999); see also R. 1:16; State v. Athorn, 46 N.J. 247 (1966) (precluding inquiry of jurors); State v. Basit, 378 N.J. Super. 125 (App. Div. 2005) (direct appeal; no record made concerning communications). To the contrary, we find nothing presented to warrant more than an endeavor for discovery or to question what the prior panel held.
There was no objection to the discussions with the officers or their entry into the jury room in an effort to accommodate the jury, and given our prior ruling, there was an insufficient showing or indication that any Sheriff's officer went beyond what was authorized or appropriate to discuss off the record. Moreover, the jurors were told the purpose of the discussions, and no one suggested that more was discussed. Furthermore, the Sheriff's officers were under oath which prevented them from speaking to the jurors about the case except as expressly authorized by the judge, see N.J.S.A. 2B:23-7, and we previously held the record justified the decision to send the Sheriff's officers into the jury room.
We emphasize that we are not re-examining or reconsidering what a prior panel held. We see no basis for so doing. Defendant asks us to reconsider the direct appeal in light of State v. Basit, supra, 378 N.J. Super. 125, which was subsequently decided. But Basit, which was a direct appeal, dealt with the trial judge's ex parte and off-the-record communications with the jurors in the jury room in response to two questions asked during deliberations. Id. at 130-31. And "at no time . . . did the trial judge ever describe what occurred when he had his ex parte, unrecorded discussion with the jury." Id. at 131.
Finally, we did not expressly address the issue of coercion if it was raised on the direct appeal. However, there is no suggestion that there was any coercive charge or statement by the judge. There was no deadlocked jury, the jury did not indicate any inability to reach a verdict, and there is no prohibition on deliberations over the weekend. Thus, State v. Figueroa, 190 N.J. 219, 231-43 (2007), involving instructions to a deadlocked jury without a proper reinstruction about the failure to agree but with a suggestion that the deliberations might have to continue over the weekend, does not apply.