May 15, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LANCE BEAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-03-1151-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2008
Before Judges Stern, Rodríguez and Payne.
Defendant Lance Bean appeals from his convictions, following a jury trial, for murder, N.J.S.A. 2C:11-3(a)(1)(2); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and possession of a handgun without a permit, N.J.S.A. 2C:39-5(b). The judge merged the first two convictions and imposed a forty-five year term with a NERA*fn1 parole disqualifier to run consecutive to a sentence which defendant was already serving. On the unlawful possession conviction, the judge imposed a concurrent five-year term. We reverse, concluding that the replacement of a deliberating juror for non-personal reasons was plain error.
This is a summary of the evidence. On April 16, 2003, at approximately 11:00 p.m., Donald Sanders died of multiple gunshot wounds. The shooting took place at the 1300 block of Lakeshore Drive in Camden. Dr. Ian Hood, the Deputy Medical Examiner for Camden County, testified as an expert in forensic pathology and wound ballistics. Dr. Hood's examination revealed at least ten gunshot wounds, and more than twenty "superficial" wounds from fragments of bullets and/or concrete. Dr. Hood opined that there were several fatal gunshot wounds. One bullet entered the top of Sanders' head, entering his right frontal scalp, traveling through his skull and brain, and then exiting through his jaw. From the nature of this wound, with the bullet going almost straight down through Sanders' head, Dr. Hood concluded that the shooter must have been shooting down on Sanders, with the victim's head tilted forward toward the shooter.
Another bullet entered the top of Sanders' right shoulder and proceeded "down a long way," through Sanders' rib, lung, heart, diaphragm, stomach, several loops of the small bowel, ending in the front of Sanders' pelvis. From the bullet's downward trajectory, Dr. Hood concluded that Sanders must have been "bent right over at the waist and fired at by a shooter on much the same level as him."
A third bullet entered the bottom end of Sanders' right shoulder blade and traveled diagonally across his body, exiting out his left lower back, fracturing some of the spinous processes. Given the angles of the various wounds, Dr. Hood concluded that Sanders was shot, started to fall and was hit with the fatal bullets while falling. Sanders then fell to the ground. The shooting continued while Sanders was lying on the concrete sidewalk.
New Jersey State Police Lieutenant James Storey, of the ballistics unit, was qualified by the court as an expert in firearms identification. Based upon everything submitted to him, including bullets, fragments, metal jackets, and discharged shells, Storey concluded that at least two different firearms were involved. Storey testified that the eight .45 automatic caliber Speer shells were discharged from the same firearm, and that the nine .40 S&W caliber Winchester shells were discharged from the same firearm. No weapons were recovered. The police found $1,000 in cash in Sanders' pocket.
There were three eyewitnesses to the murder. Nieith Potter, an admitted drug dealer, had known defendant for ten years and was related to Sanders. Potter used to sell drugs with Sanders and had sold drugs every night in March and April 2003 in the 1300 block of Lakeshore Drive. According to Potter, defendant was also a drug dealer in that area. He described the 1300 block of Lakeshore Drive as a high narcotics trafficking area, where drugs were openly bought and sold. Two days before the murder, Potter saw Sanders in Camden for the first time in six years because Sanders had been incarcerated in New York. Potter told Sanders that he was operating on Lakeshore Drive. Potter told Sanders that, earlier in the day, he had a fight with a drug dealer nicknamed "Itchy" over money. Defendant intervened, stopped the fight, and told Potter to "stay off the block until [he] simmer[ed] down." Potter admitted being mad at defendant for stopping the fight.
About one hour before the murder, Potter called Sanders and agreed to meet in another area of Camden. Potter waited for about twenty minutes. When Sanders did not show up, Potter went to Lakeshore Drive. There he saw defendant standing with "Slick" and others. About ten minutes later, Sanders drove up. Potter spoke briefly with him. Sanders then crossed the street to where defendant was standing.
Sanders approached defendant and said he wanted to talk. They did so for five minutes while Potter and Slick were talking about eight feet away. Potter heard defendant start to scream at Sanders, "Nah, nigger, fuck that . . . ." Potter turned around and saw defendant stand right in front of Sanders and shoot repeatedly. After the third shot, Potter saw Sanders fall. Potter took off running from the area. While running, Potter met up with a relative who gave him a ride to his uncle's house in Lindenwold. Once in Lindenwold, Potter called 9-1-1.
Gerome DeShields knew defendant. He testified that, at the time of the shooting, he lived on the 1300 block of Lakeshore Drive with Sonji Carter. DeShields saw defendant selling drugs on Lakeshore Drive on a daily basis. The following exchange occurred during DeShields's direct examination:
[ASST. PROSECUTOR]: So you would see him on Lakeshore Drive?
Q: And what would he be doing?
A: Making traps, selling drugs.
Q: Okay. What do you mean -- if you could explain what making traps means for the jury.
A: He would have young people come out and sell and he would give it to them to sell and he would walk away and collect the money afterwards.
Q: Did you see that occur?
A: Yes, quite a few times.
On the afternoon of the murder, DeShields recalled hearing an argument between defendant and Sanders. Defendant told Sanders that he needed permission from defendant to sell drugs on that block and proceeded to call him a snitch. Shortly before 11:00 p.m., DeShields was in Carter's second-floor apartment. DeShields went to the open window overlooking the street as he heard "steady arguing down there." DeShields looked out and saw defendant arguing with someone he later learned was Sanders. As the argument grew louder, DeShields left the window to tell Carter, "[defendant] is out there acting crazy." As he was heading back to the window, he heard a shot. He looked out and saw defendant still shooting in the direction of the ground. Defendant continued to shoot at the ground as he was walking away. DeShields recalled hearing eleven shots fired "rapidly . . . right behind each other." DeShields testified that he was "100 percent" positive in his identification of defendant.
Carter had known defendant for thirteen years. She testified that she saw defendant almost everyday selling drugs in the 1300 block of Lakeshore Drive. At times, Carter would even hold defendant's drugs for him. On the afternoon of the murder, Carter recalled seeing defendant in the street at about 5:00 p.m., telling someone, who Carter later recognized as Sanders, that he needed defendant's permission to sell drugs on Lakeshore Drive.
Around 11:00 p.m., Carter was in her bedroom when DeShields called her to come to the window. Before she got up, she heard the first gunshot. In the seconds it took her to get to the living room window, she heard as many as six gunshots. She looked out and saw only defendant standing over a guy lying dead on the ground holding a bottle against his chest "as if he was drinking it." Defendant appeared to be putting a gun in his waistband. Carter watched as defendant turned, walked across the street to the end of Lakeshore Drive, and started running away.
Five days after the murder, Camden County Prosecutor's Sergeant Frank Falco, went to Deptford to interview defendant. Defendant agreed to talk to the police. He also consented to a search of the apartment where he was staying and of his vehicle, which was parked in front of the apartment building. Drugs were found in the vehicle. Defendant was not charged with possession of the drugs.
According to Falco, after receiving Miranda*fn2 warnings, defendant admitted that he had stopped by Lakeshore Drive the night of the murder, after dropping some friends off in Philadelphia. Defendant confirmed that he regularly drove his girlfriend's burgundy 1997 Buick Royal. He also acknowledged that he had seen Sanders on the corner. He shook Sanders' hand and spoke briefly with him. According to defendant, he went home at about 9:30 p.m. He denied shooting Sanders.
During Falco's direct examination, the following exchange occurred:
Q: What did you question [defendant] about?
A: What happened in Deptford?
Q: Specific -- did you question him about the motor vehicle?
A: The motor vehicle we had a consent for and the drugs were found in. (Sidebar discussion on the record)
MR. ZUCKER: I move for mistrial. I think reference to drugs being found in the house or car were specifically excluded by this Court and the prosecutor was told not to go into that area.
THE COURT: I agree that it shouldn't have been said, but I'm not going to grant a mistrial. That would give -- I will give instruction right now they're not to consider that in any way.
MR. ZUCKER: Respectfully, Judge, I don't want a curative instruction. Again, it highlights something that has no place in this trial. Before this witness is asked one further question, I'm going to request the jury be excused and the witness be instructed what the Court's prior ruling was so we can't have another inadvertent slip by the witness.
THE COURT: So you don't want me to give a limiting?
MR. ZUCKER: No, I don't.
THE COURT: Okay.
Defendant elected not to testify at trial. He presented four witnesses, his nephew, Brandon Flowers, and three of defendant's childhood friends, James Drennon, Sheron White, and Dwayne Sheppard. The four witnesses denied seeing defendant talking to Sanders that night. All recalled specifically that defendant had actually been dropped off in a "dark-colored van" at Lakeshore, rather than having driven there himself.
Defense witnesses testified that they were hanging out on the 1300 block of Lakeshore Drive as often as everyday around the time of the murder. However, Drennon denied knowing that the block was a drug area. None of the defense witnesses admitted selling drugs, or knowing defendant to have sold drugs there. They described seeing defendant dropped off on Lakeshore as a passenger in the dark minivan at about 9:30 p.m. on the night of the shooting. Defendant stayed for only a few minutes, got into his burgundy Buick, and left the area by 10:30 p.m. Defense witnesses testified that, between thirty to sixty minutes later, two "tall, slim" black men appeared, dressed all in black with black "hoodies." One of the men started to pull a silver gun from his pocket and then they heard several gunshots. Flowers guessed that the men "could have been stick-up boys or something."
On Thursday, January 25, 2006, at 2:30 p.m., the jury began its deliberations. A half-hour later, the jury requested a map and transcripts. The judge answered this request. Later that afternoon, the foreperson reported to a sheriff's officer, who conveyed the information to the judge, that there was an impropriety on the part of a deliberating juror. The judge reported to counsel that:
I gather it's one, but I'll say one or more of the jurors, its alleged, had gone to the scene of the shooting and taken some measurements and possibly done some other things at the scene which, as counsel are aware, would be a direct violation of this Court's instructions to the jury.
The judge laid out his proposed plan of action:
I propose [to] bring the entire panel in, question the entire panel and just find out if what was reported is true. Then send the panel out. Assuming it's one juror, question that juror on the record. Counsel will have the opportunity to ask questions.
And depending on what is reported [that] will determine events thereafter.
The judge questioned the foreperson, who indicated that only one juror had claimed to visit the scene. At the request of the judge, Juror No. 11 identified himself. The other jurors were excused. Juror No. 11 reported:
In the jury room I wasn't under oath. In there when we're doing discussions . . .
The diagram with the cars, the size of about 4.5 to one of the width of the road. But the diagram on the photo looks to me like its about 4.1 or 4.2 to one because I'm an engineer. I can recognize that they are. However, sometimes I bullshit . . . .
I've never go[ne] to Lakeshore Drive.
I wouldn't dare. . . . I am an engineer for 35 years, so I can tell that the diagram wasn't drawn to scale.
The judge pointedly asked the juror whether he told the other jurors that he had been out to Lakeshore Drive? The juror replied:
Well, its just like any trial case. Its not a cut and dry. One and zero. . . . There's no weapon on this case. There is no witnesses that's 100 percent convince me one way or the other.
In order to convince these 11 people that don't hear my arguments, I exaggerate. . . .
They were trying to say all the witnesses that the prosecutor cannot be believed because one says baseball cap, one says white T-shirt, one says red T-shirt. Those stories cannot corroborate. None of them probably see very clearly.
At that juncture, defense counsel stated openly that "in the interest of both sides this [juror] should be replaced by an alternate." Defense counsel further stated that the juror "apparently can't answer the court's question." The juror initially replied "I have no problem." Thereafter, palpably offended by defense counsel's remark concerning his ability to answer, the juror sarcastically stated "[b]ecause I'm stupid." The juror then said:
Very simple question. I'm Chinese. I'm stupid. I'm third world country. . . . I never go to Lakeshore Drive. . . . Because I am stupid . . . I'm not as right as you, Your Honor. . . . I can't even answer a simple question like [defense counsel].
See, I can't remember his last name too well.
The judge granted defense counsel's application and dismissed the juror, without objection. The jury was released for the day.
The following day, the judge explained the basis of his ruling to discharge the juror on the record. He stated:
I felt it was appropriate to dismiss [Juror No. 11] based upon the fact that he admittedly lied to the other jurors . . . because he was trying to sway them to his point of view or his thinking, at least in that direction.
Defense counsel requested that the court also "tell the remaining jurors on the panel why [Juror No. 11] was dismissed." The State agreed.
At 9:40 a.m., the eleven remaining jurors were summoned into the courtroom. The court told them about the dismissal of Juror No. 11 by stating that Juror No. 11 "had lied to you about being out on Lakeshore Drive."
Without objection, an alternate juror was then selected. General instructions were given to the newly-composed jury to begin deliberations anew. Approximately two hours later, the newly-composed jury reached a unanimous verdict on all three counts.
On appeal, defendant contends:
THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT DISCHARGED A JUROR DURING DELIBERATIONS FOR NON-PERSONAL REASONS RELATED TO HIS INTERACTION WITH OTHER JURORS AND SUBSTITUTED AN ALTERNATE IN LIEU OF DECLARING A MISTRIAL (Not Raised Below).
Specifically, defendant argues:
THIS COURT MUST REVERSE BECAUSE THE INABILITY TO CONTINUE HEREIN RELATED EXCLUSIVELY TO NON-PERSONAL REASONS AND INTERACTION WITH THE OTHER JURORS DURING THE DELIBERATIVE PROCESS.
Pursuant to Rule 1:8-2(d)(1),*fn3 a trial court's discretion to remove and replace a deliberating juror is limited to juror "illness or other inability to continue." However, it is settled that in order to replace a juror, rather than granting a mistrial, the "other inability to continue" must be personal to the juror. State v. Jenkins, 182 N.J. 112, 124-25 (2004). Interaction with the other members of the jury cannot be a basis for removal and replacement of the juror. Ibid. In such circumstances, the judge must grant a mistrial. Ibid.
In Banks, the judge discharged a juror after finding that the juror held a bias relevant to his assessment of the credibility and conduct of police officers. State v. Banks, 395 N.J. Super. 205, 214 (App. Div.), certif. denied, 192 N.J. 598 (2007). The judge replaced the juror with an alternate over the defendant's objections and a request for a mistrial. Ibid. The discharge occurred after the original panel had advised the court that it could not reach an unanimous verdict. Ibid. Less than two hours after the court instructed the reconstituted jury to begin deliberations anew, the jury returned a guilty verdict. Ibid. We reversed, holding that the "jury deliberations ha[d] progressed too far to permit substitution of an alternate juror . . . ." Id. at 218. The initial panel's inability to reach an unanimous verdict indicated "that the individual jurors ha[d] resolved, but not agreed on the resolution of, the factual issues." Ibid.
The removal and substitution of a deliberating juror involves two distinct inquiries: (1) whether there are grounds for removal; and (2) whether substitution of an alternate or grant of a mistrial is required. Id. at 215.
A juror who "has declared an inability to follow the law due to bias, prejudice or sympathy" must be removed. Ibid. However, even if removal is warranted, substitution of an alternate juror must "be employed sparingly." Ibid. (quoting State v. Valenzuela, 136 N.J. 458, 468 (1994)).
A court must consider whether the cause for removal is likely to influence the remaining jurors to arrive at a verdict based on factors other than the law and evidence and whether the jury's deliberations had proceeded to the point where a reconstituted jury would not be capable of considering the defendant's guilt or innocence anew. Jenkins, supra, 182 N.J. at 130; Banks supra, 395 N.J. Super. at 216-17.
Here, the judge dismissed a juror who admittedly lied, evidently because he was trying to sway the other jurors to his point of view. Clearly, removal was warranted. But, just as clearly, the judge had to declare a mistrial. Juror No. 11's misconduct arose precisely out of his interaction with the other jurors. He admitted lying in order to bolster his apparently dissenting view of the credibility of the State's witnesses. Substitution by the judge of an alternative juror would not cure the taint on these deliberations.
We reject the State's argument that, because defendant sought the result of removal and substitution and did not move for a mistrial, defendant is barred from raising this issue. That argument is contrary to Rule 1:8-2(d)(1), and the holdings of Valenzuela, Jenkins and Banks. A similar argument was rejected by the Supreme Court in State v. Corsaro, 107 N.J. 339, 347 (1987). The Court held:
In light of the centrality of jury deliberations to our criminal justice system, errors that could upset or alter the sensitive process of juror deliberations, such as improper substitution, "trench directly upon the proper discharge of the judicial function"; for this reason such errors are "cognizable on appeal as plain error notwithstanding their having been precipitated by a defendant at the trial level." State v. Harper, 128 N.J. Super. 270, 278 (App. Div.), certif. denied, 65 N.J. 574 (1974).
[T]he magnitude of the alleged error [herein] is undiminished by the conduct of defense counsel. . . . The transcripts reflect not guile in inducing error, but confusion in ascertaining the proper course to take. [Corsaro, 107 N.J. at 347.]
That analysis has been reiterated in subsequent case law. See State v. Williams, 171 N.J. 151, 170 (2002); State v. Hightower, 146 N.J. 239, 266-67 (1996). Thus, we conclude that the State's reliance on the invited error doctrine is misplaced.
Moreover, Juror No. 11's conduct directly impacted the deliberation process. See Hightower, supra, 146 N.J. at 254; State v. Kociolek, 20 N.J. 92, 100-01 (1955); State v. Phillips, 322 N.J. Super. 429, 440-41 (App. Div. 1999); State v. Adams, 320 N.J. Super. 360, 367 (App. Div.), certif. denied, 161 N.J. 333 (1999).
We also conclude that a reversal is necessary, for a different reason. Defendant contends:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN THE MANNER OF ITS ADMISSION AND SUPERVISION OF OTHER CRIMES EVIDENCE (Partially Raised Below).
We agree in part.
Defendant argues that the testimony that: (1) he was a drug dealer on Lakeshore Drive; and (2) he was using young people in his drug traffic activity was inadmissible. The judge conducted a N.J.R.E. 104 hearing and found that "evidence that the defendant was involved in the drug trade . . . may be introduced by the State at trial" pursuant to N.J.R.E. 803(c)(3) "to establish intent and/or motive" for the killing. The judge indicated that he would charge the jury on the limited relevance of other crimes evidence.
Defendant contends on appeal that the State produced evidence that defendant committed the uncharged offense of employing minors to distribute narcotics. DeShields testified that defendant would use "young people" to sell drugs. We are satisfied that the judge's original ruling, permitting evidence that defendant sold drugs, was admissible to prove motive pursuant to N.J.R.E. 803(c)(3). This ruling was not an abuse of discretion. However, the testimony by DeShields, about using young people to sell drugs, went beyond the ambit of the judge's ruling. At the retrial, there should be no mention that defendant used "minors" or "young people" to sell drugs. We reverse defendant's conviction on this independent ground.
Defendant also contends that Falco's response that drugs were found in defendant's vehicle is a ground for reversal. We disagree. An appropriate instruction would have cured the problem, however, defense counsel refused such an instruction. Defendant elected as a matter of trial strategy to refuse the trial court's offers to issue instructions pursuant to State v. Cofield, 127 N.J. 328, 341 (1992).
We reject defendant's argument that, although a curative instruction was rejected by defendant, the judge committed plain error in not giving the instruction anyway. We are mindful that in some circumstances the judge must give a curative instruction even if defendant rejects it. State v. Reddish, 181 N.J. 553, 611, 615 (2004). In Reddish, plain error was found where evidence at a murder trial was introduced that permitted the jury to infer that defendant had previously been arrested for the murder of his girlfriend. Id. at 611-12.
Here, the reference to drugs in the car defendant was driving provided background with respect to the drug activity. This provided evidence of a "motive" for the shooting. We do not reverse on this ground.
We decline to address the second contention in light of the reversal.
THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO INSTRUCT THE JURY AS TO LESSER-INCLUDED MANSLAUGHTER OFFENSES (Not Raised Below).
At the retrial, defendant may or may not request a charge on lesser-included offenses.
The convictions are reversed and remanded for a new trial.