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State v. Palaez

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 13, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HORACIO PALAEZ, DEFENDANT-APPELLANT.

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 18, 2009

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, there's no evidence here that defendant was convicted out of any bigotry.

Just to recap, the defendant is Hispanic here. The jury did not find him guilty of all charges. I do not find the defendant here made a strong showing that a litigant was harmed by any jury in its conduct. There was a split verdict. There was no indication that any juror's prejudice in any way affected the verdict in this case. And for those reasons, the motion to examine jurors or for a new trial is denied.

The trial court then sentenced defendant to the low end of the range of sentences for a second-degree crime, five years with an eighty-five percent parole disqualifier and jail credit of 185 days. A three-year period of special parole supervision was imposed, and defendant was assessed the appropriate fines.

In his appellate brief, presented by new counsel, defendant raises the following arguments:

POINT I: THE DEFENDANT DID NOT RECEIVE A TRIAL BEFORE AN IMPARTIAL JURY IN VIOLATION OF HIS SIXTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT II: THE TRIAL JUDGE ERRED IF [sic] DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL DUE TO RACIAL BIAS.

POINT III: THE DEFENDANT/APPELLANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

1. THE APPELLANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL IS PROPERLY RAISED ON DIRECT APPEAL.

2. DEFENSE COUNSEL FAILED TO MEET THE STRICKLAND STANDARD BY MAKING PREJUDICIAL STATEMENTS REGARDING THE DEFENDANT/APPELLANT TO THE JURY.

3. DEFENSE COUNSEL FAILED TO MEET THE STRICKLAND STANDARD BY FAILING TO PROPERLY REQUEST A FAILURE TO CALL A WITNESS CHARGE.

4. THE APPELLANT'S TRIAL COUNSEL WAS NOT WHO THE APPELLANT HIRED TO REPRESENT HIM AT TRIAL AND WAS TOO INEXPERIENCED TO CONDUCT A SECOND DEGREE ROBBERY TRIAL.

Points I and II are essentially the same and will be treated together. Point III, the arguments relating to ineffective-assistance of counsel are not properly before us at this time.

I.

At the outset, we note that "[A] motion for a new trial is addressed to the sound discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless a clear abuse has been shown." State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2001). Moreover, the governing standard as set forth in Rule 3:20-1, states, in pertinent part, that The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

The trial court perceived no manifest denial of justice, and based on our independent review of the record, nor do we.

Here, of course, defendant seeks a new trial based on evidence implying racial bias on the part of one or more of the jurors. This evidence is offered through a post-verdict telephone communication from an anonymous juror to defense counsel. As an alternate remedy, defendant requested that the jurors be questioned in court, pursuant to Rule 1:16-1, to determine whether or not a new trial is warranted. Rule 1:16-1 provides that "good cause" must be shown in order to interview the jurors on a claim of juror misconduct.

Except by leave of court granted on good cause shown, no attorney or party shall directly, or through any investigator or other person acting for the attorney interview, examine, or question any grand or petit juror with respect to any matter relating to the case.

[R. 1:16-1.]

"'Good cause' intended by the rule . . . is some event or occurrence [] injected into the deliberation in which the capacity for prejudice inheres." State v. Loftin, 146 N.J. 295, 381 (1996) (quoting Pressler, Current N.J. Rules, comment 1 on R. 1:16-1 (1996)) (quoting State v. LaFera, 42 N.J. 96, 106 (1964)). Thus, the court has observed that the "rule recognizes that there may be extraordinary circumstances in which jury misconduct or the introduction of extraneous information into the jury deliberations brought about an unjust result." State v. Loftin, 191 N.J. 172, 189 (2007). The judge is to first examine the information to determine if it has the capacity to prejudice the defendant, and if it does, the judge must conduct voir dire, preferably individually, in camera, to determine whether any jurors were exposed to the information. State v. Scherzer, 301 N.J. Super. 363, 487 (App. Div.), certif. denied, 151 N.J. 466 (1997).

Here, the trial court denied defendant's motion for a new trial and found "[t]here was no indication that any juror's prejudice in any way affected the verdict in this case." On appeal, defendant argues that any racial bias which was held against defense counsel "has a direct bearing on how a jury determines their verdict" and that juror number five had "made up her mind prior to deliberations and was not going to be swayed by the other jurors." The State counters that defendant has failed to show that a manifest injustice has occurred and points out that the jury verdict finding defendant not guilty of the charge or second-degree robbery contained in count one is evidence that even juror number five was open to consideration of the proofs presented at trial.

"[A]ny predetermination of guilt, whether or not motivated by racial bias, is inconsistent with a juror's duty of impartiality." Loftin, supra, 191 N.J. at 189. Moreover, we are cognizant that "The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee a criminal defendant the right to trial by an impartial jury." Scherzer, supra, 301 N.J. Super. at 486. "That constitutional privilege includes the right to have the jury decide the case based solely on the evidence presented at trial, free from the taint of outside influences and extraneous matters." State v. R.D., 169 N.J. 551, 557 (2001). "'Securing and preserving an impartial jury goes to the very essence of a fair trial.'" Ibid. (quoting State v. Bey, 112 N.J. 45, 74 (1988)). "A new trial is warranted where 'jury misconduct . . . could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge.'" State v. McLaughlin, 310 N.J. Super. 242, 256 (App. Div.) (quoting Scherzer, supra, 301 N.J. Super. at 486 (additional internal quotations omitted)), certif. denied, 156 N.J. 381 (1998). "The test is 'not whether the irregular matter actually influenced the result but whether it had the capacity of doing so.'" Scherzer, supra, 301 N.J. Super. at 486 (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)).

In considering the interests at stake, the Supreme Court has stated that "[c]alling back jurors for interrogation after they have been discharged is an extraordinary procedure which should be invoked only upon a strong showing that a litigant may have been harmed by jury misconduct." State v. DiFrisco, 174 N.J. 195, 241 (2002) (quoting State v. Athorn, 46 N.J. 247, 250 (1966)); State v. Walkings, 388 N.J. Super. 149, 157 (App. Div. 2006) (quoting State v. Koedatich, 112 N.J. 225, 288 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989)). "The Koedatich Court recognized two exceptions to [this] rule." Loftin, supra, 146 N.J. at 382.

First, post-verdict interviews may occur when "any racial or religious bigotry manifested in jury deliberations may invalidate a verdict." The second exception "arises when a juror informs or misinforms his or her colleagues in the jury room about the facts of the case based upon his personal knowledge of facts not in evidence." [Ibid. (quoting Koedatich, supra, 112 N.J. at 288).]

The judge assumed, as we do, in spite of the anonymous source of the allegations, that juror number five did make negative comments about defense counsel's hairstyle and that juror number five personally disliked defense counsel. These are both personal and highly subjective matters of preference that are nevertheless hinged no more on racial bias than on a differing sense of fashion, style or personality. The judge found also that the juror's dislike for defense counsel did not necessarily equate to a dislike of the defendant himself. In addition, the judge noted that the jury "accepted the evidence of an Afro-American male and rejected the testimony of . . . [a] Hispanic couple, a male and a female."

In State v. Roberts, 47 N.J. 286 (1966), the defendant, a black man, was convicted of manslaughter in connection with the killing of another black man. The defendant appealed the conviction on the grounds of racial bias. Id. at 288. The issue of race came about in that case, however, as a result of a comment the judge made during defense counsel's voir dire of jurors regarding prejudice against blacks. Ibid. According to the court transcript, during the voir dire, the judge used a racial epithet, which the judge categorically denied. Id. at 288-89. Defense counsel did not object to the comment at the time and upon review, the Supreme Court found that the trial itself was fair in every way. Id. at 291. Despite this, the Court reversed and remanded for a new trial, explaining its decision to require the defendant to initiate proceedings to prove that the judge actually used the offensive racial epithet:

We understand the stenographer stands by her notes, and we are certain of the integrity of the trial court's certification. The question then would be whether the stenographer's record reflects an unconscious slip of the judge's tongue or the error of the stenographer in hearing or in recording. It would be awkward to resolve an issue of that kind. And if the stenographer's version were upheld, the trier of the facts would then have to deal with defendant's assertion of his alleged emotional reaction to the word. The record of defendant's testimony does not reflect the despair he now asserts. And it seems incredible that, if he was so deeply moved, he would have said nothing to his counsel at that time. His silence, as well as the silence of counsel, who was at that very moment searching for unconscious prejudice in a prospective juror, is difficult to comprehend. But we are in an area of great current sensitivity, and no matter how the courts deal with the issue, there may remain a doubt that the issue was handled objectively. For this reason, and although we are satisfied justice was done, we conclude, with much reluctance, that the image of justice would be better served by a new trial. [Id. at 290-91.]

We do not believe a valid comparison can be made between a judge's presumed use of a clearly offensive racial epithet in the mid-sixties, and a juror's expression of her personal feelings about a trial attorney and the attorney's hairstyle. The capacity for prejudice engendered by the two situations are not analogous.

In State v. Levitt, 36 N.J. 266, 268 (1961), after defendant had been convicted of "committing a private act of lewdness," a juror contacted the trial judge and stated that there had been "prejudicial statements made by other jurors during the jury's deliberations." In that case, unlike in this case where the juror remains anonymous, the juror signed an affidavit describing the alleged juror misconduct.

There, the trial court ordered a new trial and found:

There seems to be little doubt in this case this man's religion [defendant is Jewish] was injected into the deliberations of this jury; that is corroborated. There seems to be little doubt that at least one person on the jury was affected, and it seems prejudicially so and it makes little difference that the infection was only slight so long as it is present. . . . .

[T]he deliberations . . . should be free of taint of passion, prejudice or mistake. [Id. at 270.]

The Supreme Court affirmed, finding that "[s]ince the trial judge could find, as he did, that the element of religious prejudice had contaminated the jury verdict," the trial court did not abuse its discretion. Id. at 273.

In the case at bar, the anonymous juror contacted defense counsel approximately two weeks after defendant was convicted and made the allegations, which the trial court accepted as true for purposes of the motion. The comments describe a racially charged environment during deliberations, wherein one or more jurors were making racial comments which nearly led to "physical altercations." It is surprising that in a setting so highly charged with emotion, that no one contemporaneously reported any impropriety to the judge, and none of it was detected by the court or the court staff. The judge found, however, that the assertions made by the anonymous juror did not manifest such racial hostility or animus towards defense counsel or toward defendant that a new trial or a hearing should be ordered to interrogate all of the jurors concerning the alleged comments. The judge, who we trust had a good feel for the case, found no evidence that any racial prejudice played any role in the jury deliberations.

This is a matter addressed to the sound discretion of the trial court. Levitt, supra, 36 N.J. at 272. We do not perceive that the court's exercise of that discretion was mistaken or that the matters reported by the anonymous juror had the capacity to result in an unjust result or a manifest miscarriage of justice. Accordingly, we affirm.

II.

Defendant also argues that he was denied effective assistance of counsel at trial. "Our courts have expressed a general policy against entertaining ineffective-assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Castagna, 187 N.J. 293, 313 (2006) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)). "However, when the trial itself provides an adequately developed record upon which to evaluate defendant's claims, appellate courts may consider the issue on direct appeal." Ibid. (citing State v. Allah, 170 N.J. 269, 285 (2002)).

Defendant's grounds for his ineffective-assistance of counsel in this case arise out of (a) allegedly prejudicial statements or admissions made by his attorney during closing arguments, (b) the failure of counsel to request in advance a failure-to-call-a-witness charge, and (c) the contention that trial counsel was too inexperienced to competently try a second-degree robbery case.

The key issue behind the allegedly prejudicial statements is whether they were made as a part of sound trial strategy. In order to understand defense counsel's strategy and thought process, the court would need to question defense counsel herself. While we might make reasoned deductions, we have before us no record of why defense counsel made the statements now challenged by defendant during summation. Therefore, we cannot reliably analyze whether these statements equated to "sound trial strategy." See State v. Allegro, 193 N.J. 352, 366 (2008) (internal quotations and citations omitted).

In a similar vein, we do not know why defense counsel did not request in advance that the court give a charge on the State's failure to call Fazewski as a witness, and we offer no opinion on whether such a charge would have been appropriate. See generally State v. Clawans, 38 N.J. 162, 170-71 (1962). This also might have been strategy or it could have simply been in error. However, without questioning defense counsel, there is no way of knowing which it was.

Likewise, without an inquiry into defense counsel's past criminal trial experience, one cannot conclude that she was "too inexperienced to conduct a second degree robbery trial." It has been observed, however, that "inexperience does not, in and of itself, prove ineffectiveness." DiFrisco, supra, 174 N.J. at 247.

In this instance, we adhere to the practice of deferring the issues of alleged ineffective-assistance of counsel to post- conviction relief proceedings where the necessary factual record can be established. See Castagna, supra, 187 N.J. at 316.

Affirmed.

20100513

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