On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-00638.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Simonelli.
Following a trial on two counts of second-degree robbery before a jury and Judge Stuart Peim, defendant Horacio Palaez was found guilty of the lesser included offense of simple assault, a disorderly persons offense, on the first count and guilty of the charged offense of second-degree robbery on the second count. Before sentencing, defendant moved for a new trial based upon allegations communicated by an anonymous juror to defense counsel charging that at least one and possibly three jurors had made bigoted comments that may have affected their ability to render a fair and impartial verdict. The judge denied the motion, finding that there was no evidence that racial prejudice played any role in the jury's deliberations. Defendant was sentenced to five years in prison, with a period of parole ineligibility for eighty-five percent of the term and with three years of parole supervision upon release, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This appeal followed.
A brief summary of the facts will suffice to provide the context of the issues raised on appeal. In the early morning hours of April 8, 2006, two separate incidents took place in Hillside. In one of the incidents, Anthony Mangrella and his girlfriend, Melissa DeFina were returning to Mangrella's home following a birthday celebration when they were accosted by two individuals who punched them and threw them to the ground. The individuals, described as a stocky white man with a crew cut, a striped polo shirt and sneakers, and a taller, skinny kid wearing a black shirt with a fitted hat on backwards, were later identified by the victims as Greg Fazewski and defendant. In addition to assaulting Mangrella and DeFina, one of the individuals picked up from the ground and ran away with a Houston Rockets jersey that Mangrella had been given as a birthday gift.
The second incident involved Bandy DaSilma. As he was walking home from work, a man approached DaSilma and said that a couple of guys were in a car chasing him and that they should hide in the bushes behind a house. DaSilma thought the situation was suspicious, but before he could protect himself, the man tackled him. DaSilma fought back and got on top of the man, but then a "bigger kid" grabbed DaSilma and held him. According to DaSilma, as the first man got up, he took DaSilma's backpack or duffel bag and ran. The second man followed, as DaSilma shouted for them to drop his bag.
Almost immediately after this second incident, the Hillside police approached two men coming out of rear yards over a fence. DaSilma's duffle bag or backpack was in the possession of one of the men, defendant.
At trial, defendant testified on his own behalf. Although his version of the events differed somewhat, he did not deny being present at and playing some role in the two incidents described above, however, he denied ever touching Mangrella or DeFina. He stated that he was sitting on the grass at a party with Greg Fazewski on the evening in question when Mangrella and DeFina came walking down the sidewalk. Defendant testified he did not know Mangrella and DeFina personally but he believed Fazewski knew them. In fact, Fazewski appeared angry when he saw Mangrella and DeFina together. Defendant stated that Fazewski began making comments towards the couple, getting louder and louder; and Fazewski began walking toward them. About eight others, including defendant followed Fazewski, crossing the street. Defendant testified that Fazewski then ran up behind Mangrella, hit him and got on top of him. Then DeFina "jumped on [Fazewski] and started pounding away." Defendant testified he was just watching. Defendant stated that once Fazewski got up, he picked up the jersey that had been on Mangrella's shoulder and ran away.
Defendant testified that he and Fazewski later left the party again to go get cigarettes. Defendant stated that he and Fazewski encountered another individual (DaSilma), walking in front of them, and defendant walked ahead of Fazewski and told the individual to "hide behind a bush or a house" because "he was going to get into a fist fight." Defendant explained that he was "trying to distract [DaSilma], so [Fazewski] could go and you know, hit him." Defendant claims that DaSilma suddenly hit him, and he went down, grabbing onto DaSilma, who continued to hit him. Defendant stated Fazewski then tackled DaSilma and they struggled. During the fight, DaSilma's bag fell to the ground. When defendant was able to scramble free, he ran away. Eventually, Fazewski broke free and ran toward defendant with the bag in his hand. Defendant testified he did not see Fazewski pick the bag up, but he had it in his hand.
Defendant and Fazewski then ducked behind a few houses, ran through some backyards and jumped over fences and shrubs to get away. He thought DaSilma was following them. When they came to a big fence, defendant jumped over, but Fazewski was unable to jump the fence with the bag; so, he tossed the bag to defendant and began to climb over. By the time Fazewski got down, they turned around and the police were there with weapons drawn on them.
Fazewski was present at trial on one or more days, but he did not testify. During her summation, defense counsel attempted to argue that the State had failed to call Fazewski as a witness, however, the State objected and the trial court sustained the objection. The trial court limited defense counsel's argument to the issue of the State's lack of evidence. Upon the completion of its deliberations, the jury found defendant guilty of simple assault on Mangrella, a disorderly persons offense (count one), and guilty of second-degree robbery as to DaSilma (count two).
Thereafter, defendant filed a notice of motion for a new trial, pursuant to Rule 3:20-1 or, alternatively, to examine the jurors, pursuant to Rule 1:16-1, to determine whether a new trial was warranted. In her certification in support of the motion, defense counsel stated that approximately two weeks after the jury returned its verdict, one of the jurors had telephoned her and stated that, during the trial, juror number five, "repeatedly made negative comments regarding [defense counsel's] African American hair style and how she disliked [her]." The anonymous juror further alleged that before any deliberations took place, juror number five "stated to the other jurors that they should just find Horacio Palaez guilty of everything and just go home." According to defense counsel, the anonymous juror also informed her that during deliberations, juror number five, along with juror number three and juror number four "commented to Black jurors who spoke with accents that their pro-defense assessments of the evidence in the case was due to their inability to understand the English language." The anonymous juror added that the referenced comments "le[d] to heated arguments about the racial biases, bigotry and prejudice of [the three] jurors" and "almost erupted into physical altercations." None of this information had been communicated to the court or to counsel during jury deliberation or before the jury was discharged.
The trial court heard argument on the motion and denied the motion, reasoning as follows:
Even if I accept these facts as true, I do not find that there's a sufficient basis to grant the relief that you're asking for. Once again, as noted in the argument, the defendant here is Hispanic, not black. The juror expressed some dislike for . . . defense counsel and counsel's hair.
There is no evidence whatsoever presented that any racial prejudice played any role in the jury deliberations and in the jury making their decisions as to who they believed and who they didn't believe, and I noted they were very discriminating in terms of what evidence they accepted and what evidence they didn't accept.
I would further note that they accepted the evidence of an Afro-American male with a prior conviction and they rejected the testimony of . . . [a] Hispanic couple, a male and a female.
Once again, as I previously noted, I do not find that there is sufficient evidence to make the showing here based on the anonymous juror, but there is no evidence here, even if the allegations are accepted, that the defendant was convicted out of bigotry or that -- or -- once again, ...