June 23, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANGEL MEDINA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-09-2973.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 28, 2008
Before Judges Fuentes and Waugh.
Defendant, Angel Medina, appeals from a judgment of conviction for the purposeful murder of Mutah Coleman, along with two related weapons possession charges, arising out of a shooting in the early morning hours of January 1, 2004 in Newark. He was sentenced to 40 years in prison, with a 35-year parole ineligibility period. On this direct appeal, defendant raises three issues: (1) The trial judge's charge improperly instructed the jury to deliberate on the passion/provocation element of manslaughter only after finding defendant not guilty of murder, which he alleges amounted to an "acquit first" charge in violation of State v. Coyle, 119 N.J. 194 (1990); (2) The charge on flight was erroneous because it improperly placed the burden to disprove the reason for flight on defendant; and (3) The trial judge erred by sending the jury for further deliberations, after the jurors said they were deadlocked, without asking whether the jury would benefit from further deliberations. We affirm.
On September 3, 2004, the Essex County Grand Jury returned Indictment Number 2004-09-2973, charging defendant with knowing or purposeful murder, in violation of N.J.S.A. 2C:3-11a(1) and (2) (Count 1), unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(b) (Count 2), and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a) (Count 3).
The jury trial began on September 28, 2005 and continued for five more trial days. Testimony was completed on October 18th.*fn1 The trial judge charged the jury on October 19th. During the next three days, the jury deliberated and requested read-backs of both testimony and portions of the charge.
The jury returned on October 25th and continued its deliberations. At the end of the day, the jury sent the following note to the trial judge: "After four days of deliberations this jury cannot arrive at a unanimous decision, and all 12 jurors believe that further deliberations will not yield a different result". In response to the note, he excused the jurors for that day and directed them to return the next day at 9 a.m.
The following day, the trial judge gave the jury a supplemental charge about continuing their deliberations. After further deliberations and read backs, including the entire charge on the murder and possession for an unlawful purpose counts, the jury returned guilty verdicts on all counts.
The trial judge sentenced defendant to an extended term of 40-years, with a 35-year parole ineligibility period, on the murder charge. He imposed a concurrent 5-year term on the unlawful possession count. The remaining count, possession of a weapon for an unlawful purpose, was merged with the murder.
The testimony at trial revealed the following facts relevant to the appeal. On December 31, 2003, Makisia Haskins and her boyfriend Yusef Battle went to the Club Elaganza in Newark. They arrived at the Club, which they described as being dark, crowded and with loud music playing, after midnight. After approximately ten minutes in the Club, Haskins saw people fighting and recognized defendant to be one of the people involved. Haskins became separated from Battle because of the fight, but ended up being escorted out of the building by the Club's security personnel, along with defendant and Battle.
Haskins and Battle left the Club in Battle's burgundy Honda Civic and drove to Battle's mother's house. After sitting outside the house for a few minutes talking with Battle, Haskins went into the house and talked to Battle's sister. After Battle called her on the cell phone, she left the house and returned to the car, where she found defendant in the car with Battle.
Haskins described Battle as being a little upset and Defendant as calm. They drove around with little conversation for less than an hour, going nowhere in particular. They eventually ended up at a store called King's Fried Chicken, which is referred to as the "Chicken Shack." Battle parked the car down the street from the store. Defendant got out of the car and went into the store. Haskins saw him talking to people in the store. She could not see clearly into the store because the windows were "foggy". She described the lighting outside of the store as dark, but said that there was light inside the store.
Battle then moved his car to a spot on the street right in front of the Chicken Shack. After a few minutes, Battle got out of the car and went inside to get a soda for Haskins. A few minutes later, six or seven people, including defendant and Battle, came outside. Haskins then saw defendant and two other males arguing in front of the store. One was light-skinned and the other, the victim, was dark-skinned and wearing a "colorful hat." Haskins saw the light-skinned male trying to push defendant away, apparently to prevent a fight. The arguing continued for about five minutes.
According to Haskins, shortly before she heard a shot, defendant was face-to-face with the victim and only a few feet away from him. The other male grabbed defendant, but then let him go. Defendant started to walk closer to the victim. Haskins testified that she did not see the shooting itself.
After she heard the shot, Haskins turned towards defendant and saw the victim fall. Defendant walked back to the car and got in. At almost the same time, Battle got in the driver's seat and they drove away quickly. Haskins testified that they drove away going about 70 mph and that defendant said he wanted to drive on the highway.
According to Haskins, defendant told Battle he wanted to stop at housing projects referred to as "Seth Boyden." Haskins' initial testimony was that she did not see anything in defendant's hands while they were driving around. She was subsequently shown her statement to the police and then testified that she saw a gun fall out of defendant's pocket, which defendant picked up from the floor. After they arrived at the projects, defendant got out, went into a building and came right back out again.
They then drove to the Ritz Hotel on the border of Newark and Elizabeth. When they arrived at the hotel, defendant asked Haskins to go into the office and get a room. After some initial reluctance, the clerk rented her a room. Haskins used a fictitious name. Defendant also asked Haskins to request the clerk to make the check-in time an hour earlier than it really had been, but the clerk refused. Haskins returned to the car and handed the room key to defendant, who left the car. Battle and Haskins then drove to Battle's mother's house.*fn2
Ferming Wilson was a friend of the victim who was present at the Chicken Shack at the time of the shooting. Wilson described the victim as being in a good mood and acting normally. He knew defendant because they had grown up in the same neighborhood. Wilson is a member of a gang known as the "Bloods," but testified that the victim was not a member. Wilson believed that defendant knew that he (Wilson) was a member of the Bloods.
Wilson saw defendant and Battle come into the Chicken Shack. Wilson thought that defendant looked angry. Defendant said that he had been "jumped," presumably meaning at the Club. According to Wilson, defendant had been jumped by members of the Bloods. The victim and defendant then started arguing. A third individual stepped between defendant and the victim to move the two men apart.
After the victim left the Chicken Shack with the third individual, defendant followed them outside. Wilson, who had initially turned away from the front of the store, turned back towards the front windows in time to see defendant walk behind the victim and shoot him in the head. Defendant walked away and got into a red Honda Civic, which pulled away very quickly. Wilson left the store and tried to help the victim, staying with him until the police arrived.
Battle's testimony concerning the preliminary events of the evening was similar to that of his girlfriend, Haskins. Battle had known defendant for a few years. Battle saw defendant and the victim arguing in the Chicken Shack. After the victim and defendant left the store, he was talking to Wilson when he heard a gun shot. Upon hearing the gun shot, Battle ran to the car because he was concerned about Haskins. After Defendant got into the car, Battle drove away quickly. They drove around for a little while, ending up at the Ritz Hotel.
Irena Suvhocka, an employee of the Ritz Hotel, testified that someone came to the hotel in the early morning hours on January 1, 2004, and asked to rent a room. Suvhocka was asked to stamp the check-in time one hour earlier than the actual time, but refused to do so.
Dr. Thomas A. Blumfeld, the medical examiner, testified that the victim had been shot in the back of the head. Based on the toxicology tests done, the victim had a blood alcohol level of 0.085 and an alcohol level in his stomach of 0.104 at the time of his death.
Defendant called two witnesses, but exercised his right not to testify himself. Terrance Harris was inside the Chicken Shack on the night of the shooting. He testified that the windows of the Chicken Shack are "really blurry" and that one cannot really see through them. One of the investigating officers, who had testified for the State and was then called as a defense witness, testified on cross-examination that when the police entered an apartment to arrest defendant, he started running and tried to jump out of a window.
Defendant raises the following points on appeal:
THE SEQUENTIAL "ACQUIT FIRST" JURY INSTRUCTIONS AND THOSE CONTAINED ON THE VERDICT SHEET TOLD THE JURY, IN DIRECT VIOLATION OF STATE v. COYLE, 119 N.J. 194 (1990), TO DELIBERATE ON PASSION/PROVOCATION MANSLAUGHTER ONLY AFTER FINDING DEFENDANT NOT QUILTY OF MURDER. (Partially Raised Below)
THE TRIAL JUDGE IMPROPERLY PLACED UPON DEFENDANT THE BURDEN OF DISPROVING THE REASONS FOR THE DEFENDANT'S ALLEGED FLIGHT. (Not Raised Below)
THE TRIAL JUDGE ERRED IN NOT ASKING THE JURORS IF FURTHER DELIBERATIONS WOULD HELP RESOLVE THEIR DEADLOCK, RESULTING IN A UNANIMOUS GUILTY VERDICT, WHICH WAS RETURNED AFTER THEY WERE SENT TO DELIBERATE FURTHER. (Not Raised Below)
With respect to the jury instructions on the murder charge, defendant does not dispute that the trial judge gave the correct charge for knowing or purposeful murder (N.J.S.A. 2C:3-11a(1) and (2)) and passion/provocation manslaughter (N.J.S.A. 2C:11-4b (2)). Defendant argues that the trial judge's reading of the verdict sheet to the jury at the end of the charge created the impression that the jury had to acquit him of murder before it could consider passion/provocation manslaughter. Such an "acquittal first" charge was prohibited by the Supreme Court in State v. Coyle, 119 N.J. 194 (1990). See also State v. Cooper, 151 N.J. 326, 369 (1997). We reject defendant's contention.
After completing the charge and ascertaining that neither the State nor defense counsel had any objection to it, the trial judge briefly explained the verdict sheet, in pertinent part, as follows:
Begins with Count 1. Murder of Mutah Coleman purposely or knowingly. Not guilty or guilty. It says if you find the defendant guilty of murder, then you move on to Count 2. If you find the defendant not guilty of murder, then you will consider passion/provocation manslaughter as I have defined that. Make a determination, not guilty or guilty.
If you find the defendant guilty of passion/provocation manslaughter, then you move on to Count 2. If you found the defendant not guilty of murder, and not guilty of passion/provocation, then you will consider aggravated manslaughter. Not guilty or guilty.
Defense counsel, who did not object to the verdict sheet itself, did not raise an objection after this instruction was given to the jury.*fn3
Consequently, we apply the plain error rule (R. 2:10-2). State v. Adams, 194 N.J. 186, 207 (2008) ("Generally, a defendant waives the right to contest an instruction on appeal if he does not object to the instructions as required by Rule 1:7-2"). We are, however, also cognizant of the Supreme Court's observation in Adams that "because clear and correct jury instructions are fundamental to a fair trial, erroneous instructions in a criminal case are 'poor candidates for rehabilitation under the plain error theory.'" Id. at 207 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).
Having reviewed the charge as a whole in the context of the overall record, we find no error sufficient "[to raise] a reasonable doubt as to whether the error led the jury to a result that it otherwise might not have reached." State v. Daniels, 182 N.J. 80, 102 (2004) (internal citation and quotations omitted); State v. Adams, supra, 194 N.J. at 207 ("[P]lain error in the context of a jury charge is legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." (citation and internal quotations omitted)).
Here, the charge as given was correct and detailed. The initial charge, which included the brief discussion of the verdict sheet at the end, was given to the jury on October 19th. The verdict itself was not returned until October 26th, seven days later. Significantly, in our view, the jury heard the entire substantive charge re-read to them on the morning of October 26th, without any re-reading of the instruction concerning the verdict sheet.
In State v. Reese, 267 N.J. Super. 278 (App. Div.), certif. denied, 134 N.J. 563 (1993), we affirmed a conviction based upon a proper charge under circumstances quite similar to those before us now. As was the case in Reese, it is clear from the trial judge's placement of the discussion of the verdict sheet at the very end of the charge, just before the jury was sent to deliberate, that he "intended to focus the jury's attention on the verdict sheet for the recordation of its verdict, not for the sequence of its deliberations or the elements of the offense." Id. at 287.
While the trial judge in Reese had advised the jury that the verdict sheet did not set forth the elements of the offenses (id. at 284), we are satisfied here that the seven-day passage of time between the initial charge and the verdict, together with the fact that the jury heard the correct charge again just prior to reaching a verdict, had a similar effect of curing any confusion on their part. Finally, there was little if any evidence presented to the jury to support a finding of passion/provocation manslaughter. See State v. Reese, supra, 267 N.J. Super. at 289. It would, however, be better practice to use a modified version of the model verdict sheet found in Judges Bench Manual for Capital Causes, Appendix G(2) (March 1, 1998), which uses non-sequential language.
Defendant's second contention concerns the flight charge, an issue that was not raised below. Defendant argues that the charge given by the trial judge impermissibly shifted the burden of proof with respect to defendant's consciousness of guilt to defendant, even though it should have stayed with the State. We disagree.
The trial judge gave the following charge:
There has been some testimony in this case from which you may infer that the defendant fled shortly after the alleged commission of the crime. The defense has suggested the following explanation: That a shot or shots was [sic] fired, and that he left the scene with Yusef Battle. If you find the defendant's explanation credible, you should not draw any inference of a defendant's consciousness of guilt from the defendant's departure. If after consideration of all of the evidence you find that the defendant fearing that an accusation or arrest would be made against him on the charge or charges involved in this indictment took refuge in flight for the purpose of evading the accusation or arrest, then you may consider such flight in connection with all other evidence in the case as an indication or proof of a consciousness of guilt. It is for you as judges of the facts to decide whether or not evidence of flight shows a consciousness of guilt, and the weight to be given such evidence in light of all of the other evidence in the case. [Emphasis added].
The trial judge's charge was consistent with the model jury charge on flight. See Model Jury Charge (Criminal), "Flight" (2000). In addition, and more importantly, the language of the charge was totally consistent with the Supreme Court's decision in State v. Mann, 132 N.J. 410, 421 (1993), which held that "the trial court should instruct the jury that if it finds the defendant's explanation credible, it should not draw any inference of the defendant's consciousness of guilt." For those reasons, there was no error. State v. Rodriquez, 365 N.J. Super. 38, 53-54 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004).
Finally, with respect to another issue that was not raised below, defendant contends that the trial judge should not have required the jury to continue its deliberations after it reported itself deadlocked without first asking whether continued deliberations would help resolve their deadlock. He relies on State v. Figueroa, 190 N.J. 219, 240 (2007), which holds that the appropriate course in the event of a reported deadlock is to ask the jury whether further deliberations would "likely result in a verdict." We find no error in the trial judge's decision to send the jury back for further deliberations without making that additional inquiry, as is ordinarily required by Figueroa, under the particular circumstances facing him.
The issue of continued deliberations after the reported deadlock must be viewed in its overall context. As noted earlier, jury deliberations started on October 19th, following delivery of the charge. The jury continued to deliberate on October 20th and 21st. During each of those days, portions of the testimony and charge were read back at the jury's request. There was then a short hiatus in the deliberations because members of the jury had scheduling conflicts. The deliberations resumed on Tuesday, October 25th, but did not start until 10:30 a.m. because one juror was returning to New Jersey by airplane that morning.
After the jury left the courtroom to deliberate mid-morning on October 25th, the trial judge and counsel discussed conflicts that the juror who had returned earlier that morning had for the following two days. Defense counsel responded by noting that "the jury [had become] quite comfortable with each other, and they [have] gotten so comfortable they think they're setting their own schedule." He continued:
I think we're only enforcing a bad habit if it is just for a work-related conflict. We're now going to start yes or no a half day of a case and coming back. Haphazard scheduling. I ask the Court instruct the jury, unless there's a dire emergency you want them here at whatever reasonable time tomorrow to begin their deliberations.
The State agreed with the defense position. After the jurors returned from the lunch break, the trial judge told them that they would be expected to attend court for the entire day on Wednesday.
At the end of the day on Tuesday, the jury sent out the note, quoted in full at the beginning of the opinion, to the effect that they were in deadlock and did not believe that "further deliberations" would "yield a different result." The trial judge, however, excused the jurors for the "evening" and told them to return at 9 a.m. the next day.
The jury returned on Wednesday morning and the trial judge gave the following supplemental instruction:
The verdicts in this case must represent the considered judgment of each juror. In order to return a verdict it is necessary that each juror agree thereto. Your verdict, as I told you, must be unanimous. It is your duty, however, as jurors to consult with one another, and to deliberate with a view towards reaching an agreement if you can do so without violence to your own individual judgment. Each of you must decide the case for yourself. But do so only after an impartial consideration of the evidence with your fellow jurors.
In the course of your deliberations do not hesitate to re-examine your own views and change your opinion if convinced that that opinion is erroneous, but do not surrender your honest conviction as to weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. As I told you, you are not partisans in this case, you are judges, you are judges of the facts. Your sole interest is to ascertained [sic] the truth from the evidence in this case.
Now, that may assist you or guide you in considering your respective positions or it may not. But I'm going to ask you to go back into the jury room and see if you can reach a unanimous agreement. If you can, fine. If you can't, then please notify us after you have endeavored to do so. [Emphasis added.]
That charge, to which there was no objection, was consistent with Model Jury Charge (Criminal), "Further Jury Deliberations" (1994) and with State v. Czachor, 82 N.J. 392 (1980).
After further deliberations, the jury sent out a note asking to be excused for lunch at 11:25 a.m. and to resume deliberations at 12:30 p.m. The trial judge agreed to the request. He received another note, prior to the early lunch recess, asking that, following the lunch break, he re-read "all four Count 1 definitions: Murder, passion/provocation, aggravated manslaughter and reckless manslaughter," as well as the definition of possession for an illegal purpose.
After the early lunch break, the trial judge complied with the jury's request and re-read the substantive charge. The jury resumed deliberations. The jury then sent out a note asking why reckless manslaughter, which had not been included in the charge, was on the verdict sheet. The trial judge explained to counsel that the jury had inadvertently received a prior draft of the verdict sheet. He then instructed the foreperson that the jury should not consider reckless manslaughter and provided a corrected verdict sheet. The deliberations resumed. The jury reached a verdict of guilty on all counts at approximately 1:50 p.m.
As a practical matter, in light of the jury's statement at the end of the day on Tuesday, October 25th, that "further deliberations" would not "yield a different result," the trial judge did not need to solicit the jury's opinion about whether further deliberations would help resolve the deadlock because he already had the answer. The better practice, however, would have been to question the jury, perhaps the following morning, about the possibility of reaching a verdict through further deliberations.
The real issue before us, however, is whether the trial judge erred by continuing the deliberations after receiving that note from the jury. As the Supreme Court articulated it in Figueroa, the question is "whether the supplemental instruction has improperly influenced the dissenting jurors to change their votes." 190 N.J. at 238.
Having reviewed both the specific context of the trial judge's decision to have the jury continue deliberations and the record as a whole, we are satisfied that there was no error. While the jury in this case had not been deliberating as briefly as the jury in Figueroa, they had only deliberated over four days, not all of which were full days and during which there had been numerous read-backs of portions of testimony and the charge. The supplemental instructions were not defective, as was the case in Figueroa, nor was the jury led to believe that deliberations might continue for the rest of the week and perhaps into the weekend if a verdict was not reached, as was also the case in Figueroa. 190 N.J. at 239-42.
Indeed, the trial judge specifically told the jury: "I'm going to ask you to go back into the jury room and see if you can reach a unanimous agreement. If you can, fine. If you can't, then please notify us after you have endeavored to do so." Rather than implying that the jury would be forced to deliberate indefinitely, the trial judge's statement suggested that he was only asking them to try one more time. There is simply nothing in this record to suggest that the trial judge's actions "coerced [a] dissenting juror or jurors into reaching a verdict with which he or she did not honestly agree." Id. at 242-43.