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State v. Venable

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 29, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAHEEM VENABLE, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MALIK SIMMONS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-05-1284.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 14, 2009

Before Judges Skillman, Fuentes and Simonelli.

A jury found co-defendants Raheem Venable and Malik Simmons guilty of purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3(a)(1),(2); possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b); and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a). The trial court sentenced Venable to life imprisonment, subject to the sixty-three year and nine-month period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the murder, and a concurrent ten-year term of imprisonment for possession of a handgun without a permit. The court sentenced Simmons to a forty-year term of imprisonment, subject to the thirty-four year period of parole ineligibility mandated by NERA for the murder, and a concurrent five-year term for possession of a handgun without a permit.

The court merged defendants' convictions for possession of a weapon for an unlawful purpose.

Defendants' convictions were based on the death of Fahiym Phelps as a result of a shooting outside a bar in Irvington on the night of November 27, 2004. Before the shooting, Phelps was inside the bar with his brother, Sharif, and a cousin, Tashon Young. During that time, Phelps had a verbal altercation with Venable, which was witnessed by Sharif, Young, and the manager of the bar, Sean Dubose. The altercation was interrupted by Dubose, who had a security guard, Michael Gibbs, escort Venable outside the bar, while Dubose stayed inside with Phelps.

The bar closed approximately ten minutes later, at which time Phelps, Sharif, and Young walked outside, where they encountered Venable and Simmons, both of whom were armed with handguns. Defendants began shooting in Phelps's direction, discharging between six and ten bullets. Six of the bullets struck Phelps, causing fatal injuries.

After the crime, Sharif and Young identified both Venable and Simmons as the shooters from photographic arrays shown to them by the police. Sharif and Young also identified Venable and Simmons as the shooters at trial. In addition, although he did not witness the shooting, Gibbs identified Venable as the person who had the altercation with Phelps and was escorted out of the bar.

Neither Venable nor Simmons testified or presented any other witnesses in their defense.

Venable and Simmons have both appealed from their convictions and sentences. We consolidate the appeals.

On appeal, Venable's private counsel has presented the following arguments on his behalf:

POINT I: FAILURE OF THE COURT TO PROPERLY CHARGE THE JURY DENIED THE DEFENDANT OF A FAIR TRIAL.

POINT II: THE USE OF THE DEFENDANT'S ALIAS WAS PREJUDICIAL DENYING THE DEFENDANT OF A FAIR TRIAL.

POINT III: INEFFECTIVENESS OF DEFENSE COUNSEL DENIED DEFENDANT OF A FAIR TRIAL.

Venable has also submitted a supplemental pro se brief, which presents the following arguments:

POINT I: EXCLUSION OF DEFENDANTS' AND VICTIM'S FAMILIES DURING JURY SELECTION VIOLATED THE FEDERAL CONSTITUTIONAL RIGHTS OF DEFENDANTS.

POINT II: THE PROSECUTOR'S SUMMATION VOUCH- ING FOR THE CREDIBILITY OF STATE WITNESSES VIOLATED THE RIGHT TO FAIR TRIAL AND DUE PROCESS.

POINT III: THE JURY CHARGE PROVIDED WAS UNCONSTITUTIONAL.

POINT IV: EXTRANEOUS INFLUENCES ON DEFEN- DANTS' PETIT JURY SERVED TO COMPROMISE HIS RIGHT TO FAIR TRIAL AND DUE PROCESS IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS.

POINT V: THE FAILURE TO CONDUCT A VOIR DIRE WADE HEARING REGARDING THE PHELPS AND YOUNG IDENTIFICATIONS SERVED TO VIOLATE DEFENDANTS' RIGHTS GUARANTEED BY THE FEDERAL AND STATE CONSTITUTIONS.

POINT VI: DEFENDANTS WERE DENIED THE EFFEC- TIVE ASSISTANCE OF COUNSEL VIOLATIVE OF THE SIXTH AND FOURTEENTH AMENDMENTS.

The Public Defender has presented the following arguments on Simmons's behalf:

POINT I: THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN ERROR IN LIMITING DEFENSE COUNSEL'S ABILITY TO CROSS-EXAMINE SHARIF PHELPS BECAUSE THE STATE'S PROFFER FAILED TO SATISFY THE "RULE OF FORFEITURE BY WRONGDOING DOCTRINE" AND BECAUSE THE TRIAL COURT FAILED TO RECOGNIZE THAT THE PROSECUTOR'S CONDUCT RESULTED IN A "HOLD" OVER THE WITNESS WHICH THE DEFENDANT WAS ENTITLED TO EXPLORE (NOT RAISED BELOW).

POINT II: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BECAUSE, CONTRARY TO REPRESENTATIONS MADE TO THE TRIAL COURT AND TO DEFENSE COUNSEL, THE PROSECUTOR INTRODUCED INTO THE TRIAL THE ISSUE OF SHARIF PHELPS'S FEAR OF THE DEFENDANT (NOT RAISED BELOW).

POINT III: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW). POINT IV: THE TRIAL COURT ABUSED ITS DIS- CRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE AND THE DEFENDANT'S POST-VERDICT MOTION FOR A NEW TRIAL.

(A) THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE SHOULD HAVE BEEN GRANTED BECAUSE THE STATE ONLY PRODUCED SPECULATIVE EVIDENCE IDENTIFYING DEFENDANT AS ONE OF THE ACTORS.

(B) THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND REPRESENTED A MANIFEST DENIAL OF JUSTICE UNDER THE LAW.

POINT V: THE 40 YEAR BASE CUSTODIAL TERM IMPOSED ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION.

POINT VI: THE TRIAL COURT'S JURY CHARGE ON COUNT ONE ALLEGING MURDER WAS INADEQUATE AND PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL (RAISED IN PART BELOW).

(A) THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING THE DEFENDANT'S REQUEST FOR A JURY INSTRUC- TION ON THE LESSER INCLUDED OFFENSE OF AGGRAVATED ASSAULT.

(B) ABSENT A SPECIFIC INSTRUCTION ON ACCOMPLICE LIABILITY, THE TRIAL COURT'S JURY INSTRUCTIONS ON CAUSATION CONSTITUTE PLAIN ERROR (NOT RAISED BELOW).

Simmons has also submitted a supplemental pro se brief, which presents the following arguments:

POINT I: EXCLUSION OF DEFENDANTS' AND VICTIM'S FAMILIES DURING JURY SELECTION VIOLATED THE FEDERAL CONSTITUTIONAL RIGHTS OF DEFENDANTS.

POINT II: THE PROSECUTOR'S SUMMATION VOUCHING FOR THE CREDIBILITY OF STATE WITNESSES VIOLATED THE RIGHT TO FAIR TRIAL AND DUE PROCESS.

POINT III: THE JURY CHARGE PROVIDED WAS UNCONSTITUTIONAL.

POINT IV: EXTRANEOUS INFLUENCES ON DEFEN- DANTS' PETIT JURY SERVED TO COMPROMISE HIS RIGHT TO FAIR TRIAL AND DUE PROCESS IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS.

POINT V: THE FAILURE TO CONDUCT A VOIR DIRE WADE HEARING REGARDING THE PHELPS AND YOUNG IDENTIFICATIONS SERVED TO VIOLATE DEFENDANTS' RIGHTS GUARANTEED BY THE FEDERAL AND STATE CONSTITUTIONS.

POINT VI: DEFENDANTS WERE DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL VIOLATIVE OF THE SIXTH AND FOURTEENTH AMENDMENTS.

We reject these arguments and affirm defendants' convictions and sentences.

I.

Both defendants argue that the trial court committed reversible error in denying Venable's request to instruct the jury with respect to aggravated assault as a lesser included offense of purposeful or knowing murder.

"N.J.S.A. 2C:1-8e provides that a court 'shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.'" State v. Brent, 137 N.J. 107, 113 (1994). Under this section of the Code, there must be "not only a rational basis in the evidence for a jury to convict the defendant of the included offense but . . . also a rational basis in the evidence for a jury to acquit the defendant of the charged offense before the court may instruct the jury on an uncharged offense." Id. at 113-14.

A person is guilty of murder if he "purposely" or "knowingly" "causes death or serious bodily injury resulting in death." N.J.S.A. 2C:11-3(a)(1),(2). Consequently, in a prosecution for purposeful or knowing murder, the State is not required to show that the defendant's purpose or intent was to cause death; it is sufficient for the State to show either that the defendant's "purpose was to inflict serious bodily injury," but that he "knew that the injury created a substantial risk of death and that it was highly probable that death would result[;]" or that defendant did not have the "conscious objective" of causing serious bodily injury, but that he "was aware that it was practically certain that his conduct would cause serious bodily injury." State v. Wilder, 193 N.J. 398, 408-09 (2008) (internal quotation marks and citations omitted).

In this case, the only two witnesses to the crime who testified at trial, Sharif and Young, testified that Venable and Simmons both fired a total of six to ten shots at Phelps from a distance of approximately five feet, six of which hit him in his chest, back, hip, knee, leg, and arm. The only rational finding that could be made from this evidence was that Venable and Simmons at least had the purpose of inflicting serious bodily injury upon Phelps or had to be aware it was practically certain their conduct would cause serious bodily injury. Therefore, there was no rational basis for acquitting them of purposeful or knowing murder and only finding them guilty of aggravated assault.

II.

Defendants also both argue that the trial court committed reversible error in failing to instruct the jury with respect to accomplice liability. Defendants did not request such an instruction or object to its omission at trial. Therefore, the argument is raised as plain error. R. 2:10-2.

An accomplice is one who, with the purpose of promoting or facilitating a crime, solicits another to commit the crime, aids or agrees or attempts to aid another in the commission of a crime, or fails to prevent a crime which he has a legal duty to prevent. N.J.S.A. 2C:2-6(c)(1). An accomplice liability instruction is only required if the evidence would support a finding that the defendant was an accomplice rather than a principal in the commission of the crime. See State v. Rue, 296 N.J. Super. 108, 115-16 (App. Div. 1996), certif. denied, 148 N.J. 463 (1997).

As discussed in section I of this opinion, Sharif and Young, the only eyewitnesses to the murder who testified at trial, stated that Venable and Simmons jointly participated as principals in the fatal shooting of Phelps. Consequently, there was no rational basis for a jury finding that either defendant acted only as an accomplice or with a less culpable state of mind than required to be found guilty of purposeful or knowing murder. Therefore, the trial court did not commit plain error in failing to give an accomplice liability instruction.

III.

Venable argues that the trial court committed reversible error in failing to instruct the jury with respect to passion/ provocation manslaughter as a lesser included offense of purposeful or knowing murder. Venable did not request this instruction at trial. Therefore, the trial court was only required to instruct the jury regarding the lesser included offense of passion/provocation manslaughter if the appropriateness of this instruction was "clearly indicated" by the evidence. State v. Choice, 98 N.J. 295, 299 (1985).

"Passion/provocation manslaughter has four elements: the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying." State v. Mauricio, 117 N.J. 402, 411 (1990). "The first two criteria are objective, the other two subjective. If a slaying does not include all of those elements, the offense of passion/provocation manslaughter cannot be demonstrated." Ibid.

There was no basis for finding any of these elements based on the evidence presented at trial. To justify a finding of adequate provocation, "the provocation must be 'sufficient to arouse the passions of an ordinary [person] beyond the power of his [or her] control.'" Id. at 412 (quoting State v. King, 37 N.J. 285, 301-02 (1962)). Generally, "words alone, no matter how offensive or insulting, do not constitute adequate provocation to reduce murder to manslaughter." State v. Chrisantos, 102 N.J. 265, 274 (1986).

The evidence in this case only indicated that Venable and Phelps had a heated exchange of words and that Venable shoved Phelps, following which Dubose interceded and had Venable escorted out of the bar. There was no evidence that Phelps attacked or attempted to attack Venable. Whatever Phelps may have said to Venable could not be found to constitute "adequate provocation" that would justify a finding of passion/provocation manslaughter.

Moreover, Gibbs, who escorted Venable out of the bar, testified that Venable was "rather calm" and showed no signs of anger at that time. Therefore, even assuming that Venable had been impassioned by his verbal altercation with Phelps, the only evidence regarding his state of mind afterwards is that he had "actually cooled off before the slaying." Mauricio, supra, 117 N.J. at 411.

Furthermore, a passion/provocation manslaughter instruction would have been inconsistent with Venable's defense strategy. In his summation, Venable's counsel did not dispute the State's evidence that Venable was the person who had a verbal altercation with Phelps in the bar, particularly Gibbs's identification of Venable as the person he escorted out of the bar. However, Venable's counsel argued that Sharif's and Young's identifications of Venable and Simmons as the shooters were not credible. As part of this argument, Venable's counsel pointed out that the verbal altercation between Venable and Phelps had been broken up, that the dispute had been resolved peacefully, and that Venable was calm when he left the bar:

The only two witnesses in this case who were completely, totally credible were Sean Dubose and Michael Gibbs. They told you what happened. There was an altercation.

So what? The State is trying to tell you that because somebody had a couple of words with somebody they're going to go outside and shoot them. That's the State's premise. That's the State's entire premise. There was an altercation. There's no dispute to that. But if I recall, it was Sharif Phelps who said he was the peacemaker.

Michael Gibbs escorted, escorted Raheem Venable out of the bar. First I had him by the arm just to be sure -- if you remember what Michael Gibbs said -- and then he just walked with me. He just walked, walked with me, and we walked and talked, and he walked outside with me. Was he calm? Yeah, he was calm. It was fine.

A passion/provocation manslaughter jury instruction, which would have been premised on the assumption that the evidence could support a finding that Venable killed Phelps, but did so while he was actually impassioned by an adequate provocation before Venable had cooled off, would have been inconsistent with the view of the evidence presented in Venable's summation.

Therefore, the appropriateness of submission to the jury of passion/provocation manslaughter, as a lesser included offense of purposeful or knowing murder, was not "clearly indicated" by the evidence.

IV.

Venable argues that the trial court did not properly instruct the jury regarding causation.

The requirements of a causal relationship between a defendant's alleged unlawful conduct and the alleged result of that conduct are set forth in N.J.S.A. 2C:2-3. N.J.S.A. 2C:2-3(a)(1) provides:

Conduct is the cause of a result when:

(1) It is an antecedent but for which the result in question would not have occurred[.]

In addition, N.J.S.A. 2C:2-3(b) provides:

When the offense requires that the defendant purposely or knowingly cause a particular result, the actual result must be within the design or contemplation, as the case may be, of the actor, or, if not, the actual result must involve the same kind of injury or harm as that designed or contemplated and not be too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the actor's liability or on the gravity of his offense.

The trial court gave the following instruction regarding causation:

Causation has a special meaning under the law. To establish causation the State must prove two elements, each beyond a reasonable doubt.

First, with regard to each defendant you must consider whether the State's proven beyond a reasonable doubt that but for that defendant's conduct Fayihm Phelps would not have died.

Second, with regard to each defendant, Fayihm Phelps' death must have been within the design or contemplation of that defendant. If not, it must involve the same kind of injury or harm as that designed or contemplated, and must not be too remote, too accidental in its occurrence or too dependent on another's volitional act to have a just bearing on the defendant's liability or on the gravity of his offense. In other words, the State must prove beyond a reasonable doubt that Fayihm Phelps' death was not so unexpected or unusual that it would be unjust to find the defendant guilty of murder.

As to the first element of causation, the State is not obligated to prove which of the defendants fired the shot or shots which fatally wounded Fayihm Phelps. Nor must the State prove whether one or more of the shots were fired from one or more of the guns. It's sufficient if the State proves beyond a reasonable doubt that but for this defendant's act of firing his weapon, Fayihm Phelps would not have died. The but for element is satisfied if the result, in this case death, would not have occurred without the conduct, in this case firing of the weapons.

As to the second element of causation, if the death of Fayihm Phelps or the serious bodily injury resulting in his death was the type of result which is contemplated by shooting a weapon at someone, then even if this defendant did not contemplate that death would result, you may find this defendant acted purposely or knowingly as is required in the charge of murder.

If you find, as to the defendant you are considering, that he fired a weapon at Mr. Phelps, and death or serious bodily injury is the type of injury which is contemplated or designed by doing so, and that's what occurred, then you should find the defendant guilty of murder. The State does not have to prove that it was that specific defendant's weapon from which the shot resulting in death was actually fired.

Again, you must consider purposeful or knowing murder as to each defendant separately.

This instruction adequately explained to the jury the required causal connection between defendants' alleged conduct and Phelps's death. We also note that the only real issue at trial was the identification of defendants as the shooters and that there could be no genuine doubt that the cause of Phelps's death was the six bullets fired into him by the shooters.

V.

Venable argues that the trial court committed reversible error in allowing the State to present evidence of his use of aliases.

"[I]t is well-settled that 'the fact of alias names should be kept from the jury unless relevant for some purpose[.]'" State v. Salaam, 225 N.J. Super. 66, 72 (App. Div.), certif. denied, 111 N.J. 609 (1988) (quoting State v. Stanhope, 676 P.2d 1146, 1151 (Ariz. App. 1984)). However, "the admission of irrelevant aliases into evidence will not afford a basis for reversal unless some tangible form of prejudice is demonstrated, i.e., where such names have been intentionally offered as indicia of guilt." Id. at 73.

The State presented evidence of Venable's use of two aliases. The first was "Rahkil Shakyer," which was the name on the photographs shown to Sharif and Young. Evidence of this name was placed before the jury in the form of a stipulation between the prosecutor and Venable's counsel. Moreover, Venable's counsel indicated that he had discussed the stipulation with Venable, who had no objection. Consequently, Venable not only failed to object but acquiesced in the presentation of evidence of this alias. Therefore, even if the reference to this alias could have been avoided, we consider the introduction of this evidence to be invited error, which courts are especially reluctant to find sufficiently prejudicial to warrant reversal. See State v. Harper, 128 N.J. Super. 270, 276-77 (App. Div.), certif. denied, 65 N.J. 574 (1974).

The second alias used by Venable referred to in the State's case was "Rasheed Rosier." This was the name that Venable gave to the police when he was stopped for a motor vehicle violation in Virginia. This evidence, to which Venable did not object, was presented to show that Venable fled from New Jersey after the murder to avoid apprehension, which was probative of his consciousness of guilt. The trial court granted the State's request for a flight instruction based on this evidence, which Venable does not challenge on appeal. Because Venable's use of an alias when he was apprehended in Virginia was an integral part of the State's evidence that his purpose in leaving the State was to avoid apprehension, it satisfied the relevancy test for admission of evidence of a defendant's use of an alias.

VI.

Defendants make a series of claims of ineffective assistance of trial counsel. To establish a claim of ineffective assistance of counsel, a defendant must show: 1) his counsel's performance was deficient; and 2) this deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

Venable argues that his trial counsel was ineffective in failing to request a Wade*fn1 hearing with respect to the admissibility of Sharif's out-of-court identification of him. However, it is clear from the testimony presented at trial that a Wade hearing would not have resulted in the exclusion of that evidence. Before Sharif was shown the photograph of Venable, who he identified as one of the shooters, Sharif was shown a substantial number of computer-generated photographs of other persons matching the description of the shooter with whom Phelps had the confrontation in the bar. Sharif did not make any identification of Venable from those photographs. He was then shown a photographic array that included Venable with all identifying tattoos blocked out. Therefore, Venable was not prejudiced by his trial counsel's failure to request a Wade hearing because the Irvington police officers investigating the Phelps murder followed proper non-suggestive procedures in showing photographs to Sharif, which resulted in his unequivocal and emphatic identification of Venable as one of the shooters.

Simmons argues that his trial counsel was ineffective in failing to request the submission to the jury of passion/ provocation manslaughter as a lesser included offense of purposeful or knowing murder. However, for the reasons set forth in section III of this opinion, there was no basis in the evidence for this lesser included offense instruction and such an instruction would have been inconsistent with the strategy of Simmons's trial counsel to downplay the verbal altercation between Phelps and Venable and argue that Sharif's and Young's identifications were mistaken.

Defendants' various other claims of ineffective assistance of counsel are clearly without merit. R. 2:11-3(e)(2).

VII.

Simmons argues that the trial court improperly limited his cross-examination of Sharif. This argument arises out of the issuance of a warrant for Sharif's arrest on theft charges shortly before the trial. Sharif's family expressed concern to the prosecutor that Sharif's anticipated testimony in this murder case could place him in danger if he was arrested on that warrant and incarcerated. Consequently, the prosecutor made arrangements with the South Orange Police Department to have Sharif brought to South Orange to be processed there after his testimony was completed, which could have resulted in a reduction of his $750 bail or release on his own recognizance. The prosecutor suggested that any questioning of Sharif regarding these arrangements should be avoided because he would be likely to respond by "express[ing] his fear of being locked up in the county and not protected from the individuals who he's testifying against." In response, Venable's counsel said, "I do tend to agree that that's not an issue that we should get into[,]" and Simmons's counsel was silent. The trial court agreed with the prosecutor's suggestion that Sharif's answers to any questioning about the arrest warrant could be prejudicial to defendants and therefore should be avoided:

If we start getting into what [Sharif's] fears are, I think we're going to open up a whole Pandora's box against the defendants in this case.

So for that reason I'm not going to allow the attorneys to get into it.

On appeal, Simmons now argues that his rights of confrontation and cross-examination were violated by this limitation on Sharif's cross-examination. Because Simmons did not object to this limitation at trial, it could provide grounds for a reversal of his conviction only if it was "clearly capable of producing an unjust result." R. 2:10-2.

It is firmly established that a defendant's right of cross-examination is not absolute, but rather is limited by the rules of evidence and other legitimate trial interests. See State v. Smith, 158 N.J. 376, 384-85 (1999). A limitation upon a defendant's right to pursue a line of cross-examination that would have had only limited probative value but could potentially elicit answers that would be highly prejudicial to the defendant constitutes a reasonable limitation. Sharif had positively identified both defendants in photographic arrays when there was no warrant for his arrest. Consequently, evidence of that warrant could not have affected the credibility of those pretrial identifications. Moreover, the trial court did not preclude defendant from questioning Sharif about the theft charges pending against him at the time of trial. The court only precluded testimony about the warrant, and defendant's fear of incarceration on that warrant. Therefore, if defendants thought that the credibility of Sharif's identification of them as the shooters at trial could be undermined by seeking to show that he hoped, by his trial testimony, to curry favor with the prosecutor regarding the disposition of those charges, defendants could have pursued that line of cross-examination. The fact that defendants refrained from such cross-examination indicates that they probably considered it unlikely they could convince the jury that Sharif's trial testimony was influenced by the pendency of minor theft charges against him.

VIII.

The only one of the numerous arguments presented in defendants' pro se supplemental briefs that warrants discussion is the argument that the trial court violated their federal and state constitutional right to a public trial by excluding the victim's and defendants' families from the courtroom during jury selection.

This argument is based on the following statement by the trial court before the beginning of jury selection:

Are there individuals here from either the defense'[s] family or the victim's family because if so I don't want anybody from either family in the courtroom during jury selection because we're going to have 85 jurors, and the courtroom is just going to be too crowded. I don't, for security reasons, I don't want members of the defendants' family or the victim's family in the courtroom during jury selection.

Venable's counsel responded to this statement by saying: "Oh, okay. No problem." Simmons's counsel did not respond to this statement, and instead requested the removal of defendants' handcuffs before the jury panel entered the courtroom.

We make two initial observations before reviewing the law applicable to defendants' claim of the denial of their right to a public trial. First, there is no evidence any members of the victim's or defendants' families were in the courthouse and desired to attend jury selection. Thus, there is no basis for a finding that any specific person was excluded from the jury selection stage of the trial. Second, neither defendant objected to the court's statement that members of the victim's and defendants' families would not be allowed in the courtroom during jury selection. As a result, the court did not have an opportunity to explore whether there were other measures available, short of total exclusion of family members, for preserving the security of the courtroom during jury selection.

The United States and New Jersey Constitutions contain nearly identical guarantees of a criminal defendant's right to a public trial.*fn2 The guarantee of a public trial helps assure that a defendant is "not unjustly condemned" and that the judge and jury remain "keenly alive" through the "presence of interested spectators" of "their responsibility and . . . the importance of their function[.]" Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 2215, 81 L.Ed. 2d 31, 38 (1984) (quoting Gannett Co. v. De Pasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 2905, 61 L.Ed. 2d 608, 622 (1979)). The right to a public trial extends to pretrial proceedings such as jury selection. Gibbons v. Savage, 555 F.3d 112, 115 (2d Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 61, 175 L.Ed. 2d 233 (2009); State v. Cuccio, 350 N.J. Super. 248, 260 (App. Div.), certif. denied, 174 N.J. 43 (2002). If a defendant's right to a public trial has been denied, the error is considered to be "structural" and therefore requires a reversal of a conviction without a showing that the defendant was prejudiced by the denial. Neder v. United States, 527 U.S. 1, 7-9, 119 S.Ct. 1827, 1833, 144 L.Ed. 2d 35, 45-46 (1999); Waller, supra, 467 U.S. at 49-50, 104 S.Ct. at 2217, 81 L.Ed. 2d at 40-41; Cuccio, supra, 350 N.J. Super. at 261.

However, this does not mean that any exclusion of persons from the courtroom during the course of trial proceedings, no matter how brief or insignificant, automatically constitutes a denial of the right to a public trial that necessitates a new trial. Instead, courts in various jurisdictions have held that some exclusions from the courtroom are "too trivial" to constitute a denial of the defendant's right to a public trial. See, e.g., Gibbons, supra, 555 F.3d at 119-21; United States v. Perry, 479 F.3d 885, 889-91 (D.C. Cir. 2007); Carson v. Fischer, 421 F.3d 83, 92-94 (2d Cir. 2005); United States v. Ivester, 316 F.3d 955, 958-60 (9th Cir. 2003); Braun v. Powell, 227 F.3d 908, 917-20 (7th Cir. 2000), cert. denied, 531 U.S. 1182, 121 S.Ct. 1164, 148 L.Ed. 2d 1023 (2001); United States v. Al Smadi, 15 F.3d 153, 154-55 (10th Cir. 1997); Peterson v. Williams, 85 F.3d 39, 42-44 (2d Cir.), cert. denied, 519 U.S. 878, 117 S.Ct. 202, 136 L.Ed. 2d 138 (1996); State v. Ndina, 761 N.W.2d 612, 622-28 (Wisc. 2009).

In Peterson, the court observed:

A triviality standard, properly understood, does not dismiss a defendant's claim on the grounds that the defendant was guilty anyway or that he did not suffer "prejudice" or "specific injury." It is, in other words, very different from a harmless error inquiry. It looks, rather, to whether the actions of the court and the effect that they had on the conduct of the trial deprived the defendant--whether otherwise innocent or guilty--of the protections conferred by the Sixth Amendment.

[85 F.3d at 42.]

In Gibbons, the court held that the temporary exclusion from the courtroom during jury selection of all spectators, including the defendant's mother, could be found too trivial to warrant a reversal of the defendant's conviction. The court indicated that "[i]n evaluating whether a closure is trivial," a court should "look to the values the Supreme Court explained were furthered by the public trial guarantee, focusing on (1) ensuring a fair trial, (2) reminding the prosecutor and judge of their responsibility to the accused and the importance of their function, (3) encouraging witnesses to come forward, and (4) discouraging perjury." 555 F.3d at 121 (citing Waller, supra, 467 U.S. at 46-47, 104 S.Ct. at 2215-16, 81 L.Ed. 2d at 38-39). The court concluded that "[t]he third and fourth values derived from Waller . . . [were] not implicated by [the] voir dire [of prospective jurors] because no witnesses testified." Ibid. The court further concluded:

As to the first and second values, in the particular circumstances of this case, limiting presence at the voir dire proceedings to only the attorneys, judge, defendant, and prospective jurors for one afternoon did not subvert these values. Even if the trial judge had not excluded Gibbons's mother from the courtroom, she would not have been able to watch a significant portion of what occurred during that afternoon session because the private interviews of individual jurors as to their reasons for inability to serve were justifiably conducted in an adjacent room out of the hearing and sight of the other jurors. Further, nothing of significance happened during the part of the session that took place in the courtroom.*fn3

[Ibid.]

For these reasons, the court held:

Although the closure was not justified, we conclude upon examination of all the details of what occurred, that event was too trivial to warrant the remedy of nullifying an otherwise properly conducted state court criminal trial. [Ibid.]

In contrast to the temporary exclusion from the courtroom of the defendant's mother in Gibbons, we concluded in Cuccio that the exclusion of members of the defendant's and victim's family members during jury selection constituted a violation of the defendant's right to a public trial. The excluded family members included the defendant's brother, who had been assisting defense counsel in the preparation of defendant's case. 350 N.J. Super. at 258. Defense counsel vigorously objected to the exclusion of family members and moved for a mistrial on this basis. Under these circumstances, we concluded that the exclusion from the courtroom during jury selection of the public, including defendant's family, constituted a violation of defendant's right to a public trial that required a reversal of his conviction. Id. at 265-69. In reaching this conclusion, we noted that "defendant's family and the victim's family had been present in the courtroom for all of the pretrial proceedings" until the moment the court excluded them. Id. at 267. In addition, although not deciding the issue, we noted that "the exclusion of defendant's brother, an attorney-at-law who was assisting in the defense, [was] a likely violation of defendant's right to counsel, . . . guaranteed by the Sixth Amendment to the United States Constitution and article I, ¶ 10 of the New Jersey Constitution." Id. at 268. We rejected the State's argument, based on Peterson, supra, 85 F.3d 39, that the total closure of the courtroom could be found to be "too trivial to amount to a violation of defendant's constitutional right to a public trial," relying among other things upon the length of time the public was excluded. Ibid.

We conclude that this case has more similarities to Gibbons than to Cuccio and that the trial court's announcement that members of the victim's and defendants' families, if any, would not be allowed in the courtroom during jury selection was too trivial to warrant a finding of a violation of defendants' right to a public trial that requires a reversal of their convictions. In fact, this is an even stronger case than Gibbons for the conclusion that the exclusion of family members during jury selection does not require a reversal of defendants' convictions. Initially, we note that unlike in both Gibbons and Cuccio, where the trial courts closed the courtrooms to all spectators, Gibbons, supra, 555 F.3d at 114; Cuccio, supra, 350 N.J. Super. at 258, the closure in this case was a partial one, limited to members of the victim's and defendants' families. Moreover, unlike both Gibbons and Cuccio, where the defense objected to the exclusion of family members from the courtroom during jury selection, Gibbons, supra, 555 F.3d at 114; Cuccio, 350 N.J. Super. at 258, Venable consented and Simmons did not object to the exclusion.*fn4 Most significantly, unlike both Gibbons and Cuccio, where the record clearly indicated that actual members of the defendants' families who desired to be present in the courtroom during jury selection had been excluded, Gibbons, supra, 555 F.3d at 114; Cuccio, supra, 350 N.J. Super. at 258, there is no evidence that any specific members of Venable's or Simmons's families were present in the courthouse and desired to attend the often tedious process of jury selection. Furthermore, this case did not involve a situation, such as in Cuccio, where a member of the defendant's family was qualified and prepared to assist in his defense if allowed to remain in the courtroom. Therefore, the circumstances of this case satisfy the triviality standard articulated in Peterson and applied to the jury selection stage of a criminal trial in Gibbons.

Indeed, because there is no indication that any members of the victim's or defendants' families sought to attend jury selection, and defendants did not object to the court's announcement that family members would not be allowed in the courtroom during that process, the claimed denial of the right to a public trial in this case is not merely trivial but hypothetical. We cannot say with any assurance that any actual person who desired to be present during jury selection was excluded. Therefore, as in Levine v. United States, 362 U.S. 610, 619-20, 80 S.Ct. 1038, 1044, 4 L.Ed. 2d 989, 997 (1960), defendants' claimed denial of their right to a public trial is "an abstract claim [raised] only as an afterthought on appeal[,]" which does not warrant a reversal of their convictions.

IX.

Defendants' other arguments are clearly without merit and do not warrant discussion. R. 2:11-3(e)(2).

Affirmed.


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