January 5, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYRONE HENRY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 03-04-0133-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2009
Before Judges Cuff and C.L. Miniman.
Defendant Tyrone Henry appeals from a November 29, 2006, order denying his application to vacate his conviction and permit him to be retried by a jury. We now reverse.
Defendant was tried before the bench on December 13, 2004, and was convicted on Count I of Indictment No. 03-04-0133-I charging him with third-degree aggravated assault contrary to N.J.S.A. 2C:12-1b(7). He was sentenced to a five-year term on January 28, 2005, with credit for twenty-five days time served,*fn1 at which time Counts II through IV of Indictment No. 03-04-0133-I were formally dismissed pursuant to a pretrial suppression motion the judge had granted.*fn2
Defendant appealed his conviction and sentence, raising the following issues on appeal:
POINT I -- THE DEFENDANT DID NOT EFFECTIVELY WAIVE HIS CONSTITUTIONAL RIGHT TO A JURY TRIAL. (NOT RAISED BELOW)
POINT II -- THE TRIAL COURT ERRED IN GRANTING THE STATE'S REQUEST TO EXTEND THE INTERSTATE AGREEMENT ON DETAINERS.
POINT III -- THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
POINT IV -- ASSUMING THE COURT DOES NOT CONCLUDE THAT THE DEFENDANT'S SENTENCE [WAS] MANIFESTLY EXCESSIVE BASED UPON A REVIEW OF THE APPLICABLE AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY THE RECORD, THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. NATALE.
We addressed only the first two points on appeal. State v. Henry, No. A-3427-04 (App. Div. May 15, 2006) (slip op. at 6). We found no merit to Point II. Id. at 10. However, we remanded the jury-trial issue to the judge for a plenary hearing to determine whether defendant's waiver of his constitutional right to a jury trial met the criteria of State v. Dunne, 124 N.J. 303, 317 (1991). Id. at 17-19. We permitted defendant to "seek review of that determination and also renew his sentencing arguments in a new appeal." Id. at 19. However, in this appeal from the remand proceedings, he has not renewed his sentencing arguments, confining the issues on appeal to the following:
POINT I -- THE TRIAL COURT ERRED IN CONCLUDING THE DEFENDANT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVED HIS RIGHT TO A JURY TRIAL.
A. FACTUAL INTRODUCTION.
B. THE TESTIMONY ELICITED AT THE REMAND HEARING DEMONSTRATED THE DEFENDANT DID NOT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVE HIS RIGHT TO A JURY TRIAL, AND THE TRIAL COURT ERRED BY CONCLUDING OTHERWISE.
As a consequence, we limit our discussion of the facts to those necessary to an understanding of the jury-trial issue. Defendant and Heather Hanson had a dating relationship and on December 20, 2002, they had dinner together. They began to argue after dinner because Hanson did not want defendant to drive her car since he had been drinking. He left, but then made repeated calls to her cell and house phones, which she never answered.
Defendant returned to Hanson's apartment in the early morning hours of December 21 and they again argued, this time over her failure to answer his telephone calls. He grabbed her cell phone, they struggled for possession of it, and it broke. Hanson left her bedroom, where they had been arguing and asked Jameel Stevens, a mutual friend who was also at her apartment, if he could fix it, but he said he could not. She returned to her bedroom where defendant was waiting.
At this point, a physical altercation occurred. Hanson's and defendant's accounts of the altercation varied substantially, with Hanson accusing defendant of being the aggressor and defendant claiming that Hanson punched him in the face when she returned to the bedroom. Hanson denied ever hitting him. Defendant admitted that he swung his arm and hit her face, causing her to fall to the floor, but testified that this occurred while he was fending off blows from her. She briefly lost consciousness and awoke on the bathroom floor with blood on her face. Neighbors called the police on a noise complaint and, when the police entered the apartment with the superintendant's assistance, they arrested defendant. The local rescue squad took Hanson to the hospital, where she was diagnosed with a broken nose and contusions around her eye. There were no other documented injuries to Hanson or defendant.
On the day set for trial of the aggravated-assault charge, defendant's counsel stated defendant wanted to waive his right to a trial by jury and proceed with a bench trial. The judge conducted a limited voir dire of defendant as follows:
THE COURT: Mr. Henry, is that correct?
THE DEFENDANT: Yes, sir, your Honor.
THE COURT: You have a right to have this matter decided at a trial before a jury present or a judge. It's your choice. I just want to make sure it is your choice.
THE DEFENDANT: Yes, sir.
THE COURT: It is. Very well, okay.
On appeal, we found this truncated voir dire did not satisfy the requirements of Dunne. Id. at 17. Because the record was so sparse, we remanded the matter "for further proceedings in the Law Division to ascertain the actual voluntariness of defendant's waiver, and for an informed judicial assessment of the defendant's reasons for giving up his right to jury trial." Id. at 18 (citation omitted). We specifically instructed the court to "explore any discussions that may have taken place between defendant and his trial counsel on this subject" and to "determine why the request was not raised until the brink of the trial." Ibid.
The remand proceedings took place on October 27, 2006. First to take the stand was defendant's trial counsel, Rachelle Jones, a Public Defender who had been assigned to Warren County shortly before meeting defendant in September 2004. She testified that, after the October 8, 2004, ruling on the suppression hearing, defendant discussed "whether or not he wanted to proceed with a jury or go with a bench trial." Jones was surprised at the idea of having a bench trial because in her experience criminal defendants always had jury trials. Defendant said that he wanted a bench trial "based on the nature of the charge that it was an aggravated assault, the fact that he's a Black man and the victim is White that he would not get a fair trial in Warren [C]county." He also said that he was "very comfortable" that the judge "would be fair and listen to his side in light of the fact that [the judge] granted his motion to suppress." After this conversation, Jones spoke with other defense attorneys in Warren County, "only to find out that, yes, in this county there were many [b]ench trials."
Jones acknowledged stating on October 21, 2004, that it was going to be a jury trial, but explained she "would always put on the record that [she was] going to use a jury" to avoid making a disclosure to the prosecutor so far in advance of the December trial date. She then clarified that the discussions about waiving a jury occurred after October 21.
Jones testified that the decision to proceed with a bench trial was not made on the day of trial; that she knew far in advance of the trial that a jury would be waived. She had no doubt that defendant knew what he was doing because he was an intelligent man and would speak with her as though he was an attorney, discussing whether the motion to suppress would be granted based on Wong Sun.*fn3 Furthermore, his letters were always articulate; he had been in the criminal justice system since 1997; and she could converse with him on different levels from other clients.
Jones explained that, if she felt in any way that he did not understand his right to a jury trial, she "would have spoken to him more at length," but he dictated how he wanted things to be done. She was very impressed with him because he was a very, very bright man. She related that defendant never expressed any reservation about the correctness of his decision to waive a jury. She denied having any recollection of any discussions with the prosecutor in chambers about waiving a jury. Although she testified that she spoke with defendant at length about waiving a jury, she also testified that "our conversations were really limited--well, we really talked about, are you sure that's what you want and he was comfortable and confident with that."
Defendant's remand counsel asked Jones to relate the content of these conversations between October and December; she replied that they discussed why defendant wanted to waive a jury and whether he was sure. She did not think defendant was correct that an African-American man could not get a fair jury trial in Warren County. She could not remember any other content to these conversations. She was completely convinced that defendant wanted a bench trial and did not keep checking to make sure he had not changed his mind.
Jones did not tell defendant that there was a jury selection process that might answer his concerns about a racially prejudiced jury, because he told her he knew Warren County better than she and knew "what the makeup of the jury would be." She did not tell him that a jury verdict had to be unanimous because "he came across as if he knew the system well." She had no discussions with him about how a jury decides the case. If he thought it was by majority vote, she would not know that. Defendant did not discuss the fact that one of the grand jurors asked the prosecutor if defendant was Black. She thought he really wanted a bench trial.
On cross-examination by the prosecutor, Jones testified that defendant never told her that he wanted a bench trial because he understood that evidence of injuries to Hanson's hand would not be available in a jury trial. She had no recollection of ever discussing with defendant the requirement that the verdict of twelve jurors had to be unanimous. She rejected the suggestion she had discussed waiving a jury with the prosecutor several days before trial, explaining that she wanted him to spend time on his opening rather than anything else. She explained that she believed at the time that defendant acted voluntarily, knowingly, and competently in waiving a jury and that he did so in good faith, without trying to get an unfair advantage. She believed at the time that defendant's concern about a prejudiced jury was a sufficient factor to waive a jury trial because he felt he could "get a better shot with the [j]udge because he saw what happened on the motion to suppress." Defendant testified next and explained that, when he saw the transcript of the grand-jury proceedings during which a grand juror asked if he was Black, he was shocked, and because "Warren [C]county is known to be racial," he "felt . . . there was a potential for racial bias." He communicated these concerns about the grand-jury proceedings to Jones and she filed a motion to dismiss the indictment. He also told her that was one of the reasons he wanted to waive a jury, "but there was never a major discussion about it." Additionally, he asked his attorney to obtain the x-ray of Hanson's hand showing a fracture to substantiate his claim of self-defense and also to obtain evidence of the medication she was taking to treat aggression to corroborate his claim that she was the aggressor. Because Jones did not do so, he felt there was no need for a jury trial when he could not present evidence substantiating his claim of self-defense.
Jones never discussed with him the differences between a bench trial and a jury trial. She never discussed what would happen in a jury trial. He never had a jury trial before in this or any other jurisdiction. He had bench trials in Municipal Court, but never went to trial in the Superior Court. He thought a jury verdict could be rendered by a majority of twelve jurors.
Defendant testified that he did not know that he had a right to challenge prospective jurors and never had any discussions with his lawyer about peremptory and for-cause challenges. He knew the verdict had to be beyond a reasonable doubt from television shows. He did not know that a prejudiced juror could be removed from the jury; he only knew that a juror would be removed if they stood up and said they were prejudiced. Jones never discussed with him that there were certain hearings about the admissibility of evidence that could be heard outside the presence of the jury. Jones only told him that, if he testified, his "criminal record would be used against [him]." If he had known everything that was discussed at the plenary hearing, he would have chosen a jury trial.
On cross-examination, he admitted he chose a bench trial of his own free will, but did not feel it was voluntary because he "had no other recourse," although he admitted no one forced him to choose. He testified that, given what he knows now, he did not "knowingly" waive a jury trial, although he did know at the time that he was in fact waiving a jury trial. He did not feel that the judge would be fair and impartial when he waived a jury trial.
On questioning by the court, defendant testified that he did not believe he would have a fair trial whether he had a jury or bench trial because Jones did not gather the evidence which would have tended to prove self-defense. The judge reserved decision and issued a written decision and order on November 28, 2006.
The judge found Jones to be a credible witness but did not find defendant to be particularly credible. He found "his testimony to be tailored to fit the constitutional educational background of a laymen's [sic] knowledge of the intricacies of a jury trial." He discredited defendant's "testimony regarding his lack of knowledge in this area, specifically with respect to the unanimity of a verdict and the process by which a jury is selected." He also found his testimony not credible because there was a discrepancy between his "original reasons for seeking a bench trial, and those offered at the plenary hearing," that is, at the plenary hearing he contended for the first time that Jones failed to obtain evidence of self-defense. He concluded that this new reason was "incredible in light of his initial assertion of reasons for seeking the same."
The judge concluded,
Although the colloquy between the [c]court and the defendant on the date of trial may have been brief, it was preceded by days, weeks, and perhaps months of direction concerning the defendant's desire for a bench trial. It was clear to this [c]court that although defense counsel did indicate that she did not explain the intricacies and technicalities of a jury trial to this defendant, he knowingly, intelligently, and willfully made a decision, based upon his own reasons, to have a bench trial rather than a jury trial.
For the foregoing reasons, it is the opinion of this [c]court that [defendant's] waiver of his right to trial by jury was made knowingly, voluntarily, and intelligently, and the defense's request that this [c]court vacate the conviction and permit the defendant to be re-tried by a jury is hereby DENIED.
This appeal followed.
We begin with our limited scope of review of the judge's factual findings. "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We only determine "whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964).
We are not in a good position to judge credibility and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only where we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . [that we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162.
[w]hether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal. See State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001) (quoting Manalapan Realty, L.P. v. Township Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference")); see also State v. Brown, 118 N.J. 595, 604 (1990). [State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).]
Thus, we conduct a plenary review of the legal conclusions implicit in the judge's decision.
As we said previously, "The constitutional right of an accused to a trial by an impartial jury of his or her peers has long been enshrined in our jurisprudence." Henry, supra, slip op. at 12 (citations omitted). A defendant's consent to waive a jury must be intelligent as a matter of constitutional imperative. Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854, 870 (1930). In considering an application to waive a jury, the duty of the trial court . . . is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity. [Id. at 312-13, 50 S.Ct. at 263, 74 L.Ed. at 870.]
A defendant does not have the right to demand a bench trial. Dunne, supra, 124 N.J. at 312. However, under the New Jersey Constitution, he has the right to waive a jury trial. Id. at 311-12; State v. Mazza, 330 N.J. Super. 467, 470 (App. Div. 2000). "[T]he more serious the crime, . . . the greater the burden on the defendant to show why there should be a non-jury trial." Dunne, supra, 124 N.J. at 314-15. In permitting a jury-trial waiver, the judge must:
(1) determine whether a defendant has voluntarily, knowingly, and competently waived the constitutional right to jury trial with advice of counsel;
(2) determine whether the waiver is tendered in good faith or as a stratagem to procure an otherwise impermissible advantage; and
(3) determine, with an accompanying statement of reasons, whether, considering all relevant factors, including those listed below, it should grant or deny the defendant's request in the circumstances of the case. [Id. at 317.]
"'Whether a waiver is given knowingly depends upon whether the totality of the circumstances supports that conclusion.'" Mazza, supra, 330 N.J. Super. at 471 (quoting State v. Jackson, 272 N.J. Super. 543, 550 (App. Div. 1994) (internal quotation omitted), certif. denied, 142 N.J. 450 (1995)).
The Dunne Court explained the factors to be weighed in ruling on an application to waive a jury:
At one end of the scale, tilting in favor of jury trial, will be the gravity of the crime. The higher the degree of the crime, the greater the weight given to that factor.
Other factors that will tip the scale will be the position of the State, the anticipated duration and complexity of the State's presentation of the evidence, the amenability of the issues to jury resolution, the existence of a highly-charged emotional atmosphere (this may work both ways . . .), the presence of particularly-technical matters that are interwoven with fact, and the anticipated need for numerous rulings on the admissibility or inadmissibility of evidence. The sources of principled decision-making will remain rooted in a statement of reasons that will accompany the decision.
This statement of reasons will give structure to the trial court's discretionary judgment and will soundly guide appellate review. State v. Roth, 95 N.J. 334, 363-64 (1984). [Dunne, supra, 124 N.J. at 317-18.]
Defendant contends that the testimony elicited at the remand hearing failed to establish that "defendant voluntarily, knowingly and competently waived his constitutional right to a jury trial with the advice of counsel." He urges that the nature of the charge itself "'tilted'" in favor of a trial by jury, especially because defendant faced the maximum sentence given his prior history. Because the credibility of the victim was pivotal to the outcome, he contends that this issue was particularly suited to resolution by a jury. Additionally, his trial attorney failed to counsel him how his concerns about a jury trial could be alleviated and assure him that there were procedural safeguards in jury selection to ensure an unbiased jury. Finally, he urges there was no record support for the judge's finding that his concern about counsel's failure to secure evidence of self-defense was additional to the "two original reasons" he presented as there were no such reasons.
On the record before us, we cannot say that we are thoroughly satisfied that the judge's rejection of defendant's claimed lack of knowledge respecting jury trials was clearly mistaken. However, we come to the opposite conclusion respecting defendant's testimony about Jones's failure to obtain evidence. It was the judge's duty on the day of trial to elicit from defendant all the reasons for his waiver of a jury. The judge did not do so. To reject this reason as incredible because defendant did not communicate it to his attorney prior to trial is akin to blaming defendant for what the judge failed to do--ensure that the record contained all the reasons, whether communicated to Jones or not--to allow the judge to determine whether defendant's request to waive a jury satisfied the requirements of Dunne.
Although we instructed the judge to consider the Dunne factors on remand, he did not discuss them in his opinion. We now apply those factors to the evidence. Dunne requires the court to "determine whether a defendant has voluntarily, knowingly, and competently waived the constitutional right to jury trial with advice of counsel." Id. at 317 (emphasis added). It is clear from Jones's testimony that she did not provide him with advice of counsel respecting the advantages and disadvantages of waiving a jury nor did she explain the procedural safeguards during jury selection to avoid empanelling a prejudiced juror. Rather, she merely assumed that defendant knew what he was doing in waiving a jury simply because he was an intelligent and articulate man.
Jones made it clear at the remand hearing that although she spoke at length with defendant about waiving a jury, those conversations "were really limited" to making sure that was what defendant wanted and that he was comfortable and confident about it. Furthermore, she did not think defendant was correct that an African-American man could not get a fair jury trial in Warren County, yet she did not communicate that belief before he waived an important constitutional right. Clearly, counsel gave defendant no advice at all about waiving a jury and absent such advice, there is no record support for the judge's conclusion that the waiver was a knowing one. We would come to this conclusion even if we did not consider counsel's failure to secure corroborating evidence of self-defense.
Next, we must "determine whether the waiver [was] tendered in good faith or as a stratagem to procure an otherwise impermissible advantage." Ibid. Nothing in the record suggests an impermissible stratagem; the waiver was apparently tendered in good faith. Defendant was merely seeking to avoid conviction based on racial animus.
Finally, we must consider "all relevant factors" in deciding whether the request to waive a jury should have been granted or denied. Ibid. Those are: (1) "the gravity of the crime," (2) "the position of the State," (3) the "duration and complexity of the State's presentation of the evidence," (4) "the amenability of the issues to jury resolution," (5) "the existence of a highly-charged emotional atmosphere," (6) "the presence of particularly-technical matters that are interwoven with fact," and (7) "the anticipated need for numerous rulings on the . . . evidence." Ibid.
As to the first factor, the crime here was more serious than a fourth-degree crime, but not as serious as a first- or second-degree crime, yet it was closer to a second-degree crime than a fourth-degree crime because defendant would likely have been given a maximum third-degree sentence in light of his criminal record. Thus, he bore a weighty, although not heavy, burden "to show why there should be a non-jury trial." Id. at 314-15. His reasons for waiving a jury did not meet this weighty burden. His fear that a jury would be motivated by racial animus was not objectively reasonable in light of the many safeguards surrounding the empanelling of a jury and the requirement that a verdict be unanimous. Neither was waiving a jury objectively reasonable because his counsel failed to procure evidence, which could have been addressed by an adjournment of the trial and assignment of new counsel. Thus, the gravity of the crime weighed in favor of a jury trial.
Second, the State did not object to a waiver of its right to trial by jury. This weighs in favor of the waiver.
Third, the State's proofs were very short in duration, consuming only one trial day, and not at all complex. This factor weighs in favor of a jury trial.
Fourth, the issues were especially amenable to resolution by a jury because credibility was the central issue in the case in light of defendant's claim that Hanson was the aggressor and he was acting in self-defense. Thus, this factor weighs in favor of a jury trial.
Fifth, there was no highly charged emotional atmosphere. As a result, there was no reason to be concerned that a jury might be influenced by emotional factors. This factor weighs in favor of a jury trial.
Sixth, there were no technical matters interwoven with fact, much less particularly technical ones. This was a factually simple case. Again, this factor weighs in favor of trial by jury.
Finally, the record does not suggest that there would be any need for numerous evidentiary rulings during this one-day trial. As a result, this factor, too, favors a jury trial.
Clearly, almost all of the factors identified by the Dunne Court weigh in favor of trial by jury, not the bench. Equally clearly, the judge should not have granted defendant's application to waive a jury. As a consequence, defendant's conviction must be vacated and this matter remanded to the trial judge, who is to allow defendant a reasonable time to gather the evidence his counsel failed to procure and thereafter schedule the matter for trial by jury.
Reversed and remanded for proceedings consistent with this opinion.