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State v. Whitten

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 23, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RASHEED AMID WHITTEN, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-11-1273.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 13, 2010

Before Judges Fisher, Sapp-Peterson and Espinosa.

Defendant appeals from his sentence and convictions for robbery, N.J.S.A. 2C:15-1 (count one); aggravated assault-serious bodily injury, N.J.S.A. 2C:12-1(b)(1) (count two); and aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count three). We affirm.

At approximately 1:30 a.m. on August 11, 2005, Jose Hercules (Hercules) was walking up the driveway to his home when he was attacked by three or four armed men whom he was only able to describe as "black" with long hair. They grabbed him by the neck, threw him against a nearby fence and then asked him for his money. Hercules said "okay, okay" and reached for his wallet but before he could give them anything, the men hit him on the head and stabbed him in the back. He fell to the ground and remained there, face down, until the attack ended a few minutes later, when the men left without taking his wallet.

Bruised and bleeding from the mouth and multiple stab wounds, Hercules got up and ran toward a tool shed on his property. He saw one of his attackers in the driveway, squatted down with a knife. Hercules grabbed a machete from the shed and chased after the man, who ran. As Hercules began to give chase, there were other men standing at the end of the driveway, who also ran from him.

Hercules's brother, Geovani, arrived home from work then to see "four African-American guys" coming from his driveway and then saw his brother, running, bleeding and holding a machete. His brother appeared scared and angry and was yelling at guys who were leaving. Geovani asked what happened and Hercules quickly explained that he was robbed and assaulted. Geovani got out of his car and joined his brother in pursuit of the four men, who were headed toward a nearby park.

The brothers caught up with the men, who had gotten into a car that they were unable to start. When the men saw Hercules approaching, they warned him, "Don't come close. Don't come close. We have guns." Unfazed, Hercules ran up to the car and smashed the rear windshield with his machete. Immediately, the passenger-side door flung open and three of the men ran to a nearby wooded area. Defendant, however, was trapped in the back seat because the front passenger seat failed to slide forward.

Geovani called the police and the two brothers waited next to the driver's side of the car. Approximately five minutes later, defendant was able to escape from the car through the passenger side door. Hercules and Geovani followed him as he ran toward a nearby river. When defendant jumped into the river, Hercules and Geovani were able to corner him as they again waited for the police to arrive. Defendant exclaimed, "it wasn't me, it was the others."

About twenty-five minutes later, Officer Terrance McDonald and another policeman arrived at the park. Geovani ran to him, calling, "Help, help, my brother's been assaulted, robbed."

McDonald left his police cruiser and followed Geovani to the river, where he found defendant wading in the water with Hercules standing over him on dry land. McDonald arrested defendant and transported him to the station for processing.

A knife was recovered from the automobile with the destroyed windshield and submitted to the State Police Laboratory for forensic analysis. Although no fingerprint evidence was found, a DNA analysis of fluids found on the knife matched Hercules's blood.

Defendant was indicted on the following charges: first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count four); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five).

Defendant did not testify at trial.*fn1 During the trial, the court granted the State's motion to dismiss count four, alleging terroristic threats. The jury acquitted defendant on count five and convicted him of the remaining charges.

At sentencing, the court merged count three into count two and imposed the following sentences: on count one, ten years with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a five year period of parole supervision and, on count two, a concurrent sentence of seven years with an eighty-five percent parole disqualifier pursuant to NERA, and appropriate fines and penalties.

In this appeal, defendant presents the following issues:

POINT I

THERE WAS INSUFFICIENT EVIDENCE FOR DEFENDANT'S ROBBERY CONVICTION, WHERE IT WAS UNDISPUTED THAT THE ALLEGED VICTIM'S ASSAILANTS DID NOT TAKE, OR EVEN ATTEMPT TO TAKE, ANYTHING FROM THE VICTIM. (NOT RAISED BELOW).

POINT II

THE TRIAL COURT FAILED TO GIVE CLEAR, ACCURATE, AND COMPLETE JURY INSTRUCTIONS ON THE ROBBERY CHARGE. (NOT RAISED BELOW).

A. THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY THAT DEFENDANT "ABANDONED" A THEFT ATTEMPT DURING THE ASSAULT, WHEN THE ALLEGED VICTIM DID NOT COMPLY WITH THE DEMAND FOR MONEY, WHICH STATEMENT WAS UNTRUE AND WHICH HAD THE EFFECT OF DIRECTING A VERDICT AGAINST DEFENDANT ON "ATTEMPTED THEFT."

B. THE TRIAL COURT FAILED TO GIVE THE COMPLETE CHARGE ON ROBBERY, OMITTING THE ENTIRE INSTRUCTION FOR ONE OF THE ALTERNATIVE BASES FOR ROBBERY.

C. THE TRIAL COURT FAILED TO GIVE SUFFICIENT INSTRUCTION ON "ATTEMPTED THEFT," ESPECIALLY WHERE ATTEMPTED THEFT WAS SUBMITTED TO THE JURY AS A LESSER-INCLUDED OFFENSE.

D. THE VERDICT SHEET ERRONEOUSLY FAILED TO INSTRUCT JURORS THAT THEY WERE DELIBERATING ON THE "ROBBERY" COUNT IN RESPONSE TO QUESTION 1.

POINT III

THE TRIAL COURT FAILED TO GIVE CLEAR, ACCURATE, AND COMPLETE JURY INSTRUCTIONS ON IDENTIFICATION. (NOT RAISED BELOW).

A. THE TRIAL COURT'S COMMENTS TO THE JURY GAVE A MISLEADING SUMMARY OF THE EVIDENCE OF IDENTIFICATION AND THE FACTUAL ISSUES TO BE RESOLVED BY THE JURY.

B. IN ITS CHARGE ON IDENTIFICATION, THE TRIAL COURT FAILED TO ADDRESS A CRITICAL FACTOR CONCERNING THE IDENTIFICATION EVIDENCE: THAT A WITNESS'S IN-COURT IDENTIFICATION OF DEFENDANT WAS INCONSISTENT WITH THE WITNESS'S PREVIOUS STATEMENT TO POLICE THAT HE COULD NOT IDENTIFY DEFENDANT.

C. THE TRIAL COURT FAILED TO ADDRESS ANOTHER CRITICAL FACTOR RELEVANT TO IDENTIFICATION: THAT THE WITNESS WHO IDENTIFIED DEFENDANT IN COURT DID NOT OBSERVE HIM COMMIT THE OFFENSE.

POINT IV

THE TRIAL COURT ERRED IN FAILING TO DECLARE A MISTRIAL OR TAKING OTHER CURATIVE ACTION WHEN JUROR NO. 2 HAD TO BE EXCUSED, AFTER DELIBERATIONS HAD ALREADY COMMENCED.

A. THE COURT WAS REQUIRED TO DECLARE A MISTRIAL WHEN JUROR NO. 2 HAD TO BE EXCUSED, GIVEN THE CONCERNS RAISED BY JUROR NO. 2 THAT THE OTHER JURORS REFUSED TO DELIBERATE PROPERLY BASED ON THE EVIDENCE AND HAD ALREADY PREJUDGED THE CASE.

B. IT WAS ERRONEOUS FOR THE TRIAL COURT NOT TO RE-INSTRUCT THE JURORS ON REASONABLE DOUBT, OR TAKE ANY CURATIVE ACTION IN RESPONSE TO THE SERIOUS CONCERNS RAISED BY JUROR NO. 2.

POINT V

THE TRIAL COURT ERRED IN REFUSING TO CHARGE THE JURY ON SELF-DEFENSE, WHERE THE EVIDENCE AT TRIAL CLEARLY SUPPORTED THE CHARGE.

POINT VI

THE PROSECUTOR MADE IMPROPER REMARKS TO THE JURY, WHICH REMARKS PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL AND WHICH WARRANT REVERSAL. (NOT RAISED BELOW).

A. THE PROSECUTOR REPEATEDLY TOLD JURORS SOMETHING THAT WAS NOT SUPPORTED BY THE EVIDENCE AND IN FACT WAS CONTRADICTED BY THE ALLEGED VICTIM: THAT THE VICTIM DID NOT POSSESS ANY MONEY OR PROPERTY AT THE TIME OF THE ROBBERY.

B. THE PROSECUTOR MADE MISLEADING REMARKS ABOUT THE DEFINITION OF ROBBERY.

C. THE PROSECUTOR MADE COMMENTS THAT VIOLATED DEFENDANT'S FIFTH AMENDMENT RIGHT TO REMAIN SILENT AND WHICH IMPROPERLY SUGGESTED THAT DEFENDANT BORE THE BURDEN OF PROOF AND WAS REQUIRED TO PRESENT EVIDENCE.

POINT VII

EVEN ASSUMING ARGUENDO THAT NONE OF THE ABOVE ERRORS, STANDING ALONE, WAS SUFFICIENTLY EGREGIOUS TO DEPRIVE DEFENDANT OF A FAIR TRIAL, THE COMBINATION THEREOF CONSTITUTES CUMULATIVE ERROR SUFFICENT TO WARRANT REVERSAL. (NOT RAISED BELOW).

POINT VIII

DEFENDANT'S SENTENCE SHOULD BE VACATED WHERE THE SENTENCING COURT ENGAGED IN A DEFICIENT ANALYSIS OF THE AGGRAVATING AND MITIGATING FACTORS, WHICH RESULTED IN AN EXCESSIVE SENTENCE, ESPECIALLY WHERE THE CO-DEFENDANTS WERE NOT EVEN PROSECUTED FOR THEIR INVOLVEMENT IN THE OFFENSE.

After carefully reviewing the record and briefs submitted, we conclude that none of these arguments have merit.

The arguments raised in Points I, II, III, VI, and VII are presented for the first time on appeal. "The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). Because these issues are raised for the first time on appeal, our review is limited to "a search for plain error, Rule 2:10-2[.]" State v. Nesbitt, 185 N.J. 504, 516 (2006).

I.

Defendant's argument in Point I that there was insufficient evidence to support his conviction for robbery is procedurally barred because no motion for a new trial was presented to the trial court on those grounds. See R. 2:10-1. However, even if such a motion had been made, this argument lacks sufficient merit to warrant our consideration in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments. The thrust of defendant's argument is that defendant could not be convicted of robbery because "the alleged victim's assailants did not take - or even attempt to take - anything from the victim[.]" Pursuant to N.J.S.A. 2C:15-1, "A person is guilty of robbery if, in the course of committing a theft, he: (1) Inflicts bodily injury or uses force upon another; or (2) Threatens another with or purposely puts him in fear of immediate bodily injury[.]" The statute further provides, "An act shall be deemed to be included in the phrase 'in the course of committing a theft' if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission." Evidence to satisfy the prerequisite "in the course of committing a theft" is sufficient if a defendant "(1) purposely takes a substantial step (2) to exercise unlawful control over the property of another (3) while threatening another with, or purposely placing another in fear of, immediate bodily injury." State v. Farrad, 164 N.J. 247, 256, 258 (2000). The evidence here that Hercules's assailants grabbed him by the neck, threw him against a nearby fence and then asked him for his money was plainly sufficient to satisfy this prerequisite. See State ex rel. L.W., 333 N.J. Super. 492, 497 (App. Div. 2000).

II.

In Point II, defendant contends that there were several errors in the robbery charge that constituted plain error. These challenges lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments. First, he challenges the court's reference to the defense assertion "that the theft was abandoned when the victim did not give the money, and any force occurred after the attempted theft and did not occur before or coterminous with the theft, as required" for a robbery conviction. This was, in fact, a fair characterization of the argument presented by defense counsel in summation that was intended to target the prerequisite that the assaultive conduct be committed in the course of committing a theft to sustain a robbery conviction, and therefore, did not constitute error. Defendant also argues that, although the court identified the two bases charged for the commission of a robbery, (1) inflicting bodily injury or using force, and (2) threatening or purposely putting the victim in fear of immediate bodily injury, and both bases were included on the verdict sheet, the court provided instructions only as to the first. This was the basis upon which the jury convicted defendant and was amply supported by the evidence, since Hercules was stabbed during the robbery. Therefore, although it was error to omit instruction on the second basis charged, such error was harmless. Third, defendant charges that, although the court gave correct instructions on "attempt" and "theft" during the course of the charge, which lasted approximately one hour and forty-five minutes, the court erred in failing to give a specific charge on "attempted theft." This argument is completely lacking in merit.

Defendant also argues that he was prejudiced by the failure to specify that the first question on the verdict sheet related to the first count of the indictment, first-degree robbery.

Our Supreme Court recently described the legal principles that apply to this argument:

A verdict sheet is intended for recordation of the jury's verdict and is not designed to supplement oral jury instructions. . . .

[O]ur inquiry focuses on whether the jury understood the elements as instructed by the judge, and was not misled by the verdict sheet. Where we conclude that the oral instructions of a court were sufficient to convey an understanding of the elements to the jury, and where we also find that the verdict sheet was not misleading, any error in the verdict sheet can be regarded as harmless. [State v. Gandhi, 201 N.J. 161, 196-97 (2010) (citations omitted).]

It is undisputed that the verdict sheet correctly set forth the elements of robbery and therefore, did not mislead the jury as to what elements the State was required to prove beyond a reasonable doubt to convict defendant on count one. The fact that the verdict sheet omitted the word "robbery" as a heading for the questions is of minimal significance in light of the procedure followed by the court in delivering the charge. After reading the general principles of law, the court interrupted the charge to hand out the verdict sheet to the jurors. He then provided instructions on each of the offenses charged, beginning with robbery, and explicitly identified the first count as robbery with a lesser included offense of theft. The court then proceeded to review the verdict sheet with the jurors:

Now, we go to the verdict sheet. First, you have to answer, did Whitten attempt to commit a theft? Did the defendant Whitten attempt to commit a theft? And you answer not guilty, guilty. If you answer not guilty, you are done with question number 1. If you answer guilty, then you go on to A. If guilty, did the defendant Whitten knowingly inflict bodily injury or use force upon another? Yes or no. Or did Rasheed Whitten threaten another or purposely put him in fear of immediate bodily injury? Yes or no. If you answered both of those no, then you are done. If, however, you find the defendant is guilty, and you have answered either A or B yes, then you have to answer, was the defendant armed with, or used, or threatened the immediate use of a deadly weapon, yes or no, and answering those three questions will answer the questions of whether it's a theft, whether it's a second degree robbery, or whether it's a first degree robbery.

This instruction, given to the jury as part of a review of the verdict sheet, plainly informed the jury that Question Number One and its subparts addressed the charge of robbery. Even if the omission on the verdict sheet is considered error, these instructions vitiated such error. See State v. Vasquez, 265 N.J. Super. 528, 547 (App. Div.) (where verdict sheet was erroneous but jury received proper oral instruction, there was no reversible error because "[t]he jury is presumed to have understood [the] instructions"), certif. denied, 134 N.J. 480 (1993).

III.

In Point III, defendant argues that the trial court gave an erroneous account of the identification evidence in the case and failed to address two critical factors relevant to identification. Pursuant to Rule 1:7-2, defendant's failure to object at trial constitutes a waiver of his right to challenge that instruction on appeal. However, mindful of the principles that "appropriate and proper jury charges are essential to a fair trial," State v. Savage, 172 N.J. 374, 387 (2002), and are even more critical in criminal cases, State v. Jordan, 147 N.J. 409, 422 (1997), we review the charge to determine whether there was plain error clearly capable of producing an unjust result.

R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997).

To constitute plain error, the error must be: "Legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Jordan, supra, 147 N.J. at 422 (citations omitted) (emphasis added). The possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Taffaro, 195 N.J. 442, 454 (2008).

It is undisputed that the charge correctly set forth the legal principles applicable to the identification evidence. The errors alleged are limited to the court's discussion of the evidence, which contained erroneous statements. No witness was able to identify defendant as one of the persons who attacked Hercules. Although he was unable to identify defendant, Hercules testified that the man he had detained in the park had been involved in the attack upon him: "He was the biggest one, the one that was hitting, the one that came on top of me." Geovani was able to make an in-court identification of defendant as the man he and his brother had chased from their driveway to the car and testified that he never lost sight of him from the time he ran out of the driveway until the time when he and his brother detained him in the park and he was arrested. Officer McDonald identified defendant in court as the person he arrested in the park after responding to the call.

Defendant identifies the following statements made by the trial court as false or misleading: (1) "According to the witnesses, their identification of the defendant was based upon observations and perceptions that [were] made of the perpetrator at the time the offense was committed," and (2) "Jose Hercules identified him because he was the victim and his identification of the person who assaulted him." Defendant argues that the first statement was false because the identifications were based upon observations that occurred after the offense was committed. However, the fact that the observations occurred shortly after the assault, when defendant was pursued and arrested, as opposed to the precise time when Hercules was attacked is a distinction of little significance. The court's misstatements regarding Hercules's identification of defendant are, however, clearly erroneous because they referred to him as the victim.

Defendant also argues that the identification charge was deficient because, in reviewing the factors relevant to weighing the identification evidence, the court did not: (1) discuss the fact that Geovani's in-court identification was inconsistent with his prior statement that he would be unable to identify defendant and (2) discuss that, although Geovani had identified defendant in court, he had not observed him actually commit the offense. However, the court did state that Geovani did not observe the offense but "came to the scene after the event." Moreover, these facts were known to the jury. In addition, immediately following the charge on identification evidence, the court gave an instruction on prior inconsistent statements and specifically discussed the fact that Geovani's in-court identification was inconsistent with his prior statement that he would be unable to make an identification. The jury was, therefore, provided adequate instruction on the legal principles applicable to an assessment of the trustworthiness of Geovani's identification. The fact that Geovani's identification was based upon his observations in pursuing and detaining defendant after the offense as opposed to during the offense is of no moment.

When, as here, the error alleged concerns only a portion of a charge, the challenged portion is not to be "dealt with in isolation but the charge should be examined as a whole to determine its overall effect." State v. Torres, 183 N.J. 554, 564 (2005); State v. Wilbely, 63 N.J. 420, 422 (1973). "The standard for assessing the soundness of a jury instruction is 'how and in what sense, under the evidence before them, and the circumstances of the trial, would ordinary . . . jurors understand the instructions as a whole.'" Savage, supra, 172 N.J. at 387.

The weaknesses in the identification evidence were readily apparent and admitted by the witnesses themselves: the victim's inability to identify defendant and the fact that Geovani and Officer McDonald could only identify defendant as the man pursued from the scene of the attack. The court's factual error in describing the evidence is ameliorated by the standard instruction, given by the court here, that the jurors are the judges of the facts, which included the following:

You, and you alone, are the sole and exclusive judges of the evidence, of the credibility of the witnesses and the weight to be attached to the testimony of each witness. Regardless of what the lawyers said or I may have said in recalling the evidence in this case it's your recollection, and your recollection alone, that controls. [(Emphasis added).]

Moreover, the identification evidence was sufficiently strong to support a conviction in the absence of the court's factual error. The chain of observations from the attack to defendant's arrest was unbroken. Geovani testified that he never lost sight of defendant from the time that he first saw defendant fleeing his driveway until his arrest. Although he was unable to identify defendant, Hercules testified that the man he had detained in the park had been involved in the attack upon him: "He was the biggest one, the one that was hitting, the one that came on top of me." Within the context of an instruction that, as a whole, fairly set forth the controlling principles of law, the trial court's factual errors were not "crucial to the jury's deliberations" on defendant's guilt, see Torres, supra, 183 N.J. at 564, or clearly capable of producing an unjust result. See Jordan, supra, 147 N.J. at 422. We therefore conclude that the errors do not rise to the level of plain error.

IV.

In Point IV, defendant argues that the court erred in denying his motion for a mistrial.

A trial court "should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997). Because the trial court "has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting[,]" State v. Wakefield, 190 N.J. 397, 486 (2007), an appellate court "should defer to the decision of the trial court [and] will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of discretion that results in a manifest injustice." Harvey, supra, 151 N.J. at 205. See also State v. Kueny, 411 N.J. Super. 392, 403 (App. Div. 2010); State v. Thompson, 405 N.J. Super. 76, 83 (App. Div.), certif. denied, 199 N.J. 133 (2009).

Shortly after the case was submitted to the jury, a note was sent to the court. The judge read the following into the record: "A juror said 'wished the defendant said something', and then there is, 'Parenthetically, it's almost saying he's guilty. We were instructed a person is presumed innocent whether he takes the stand or not.'" After consulting with counsel, the judge stated that he would ask the foreperson if something was said and then follow up with the other jurors. Defense counsel stated, "I concur with the Court's thinking." During the questioning that followed, Juror Number 3 stated that after the comment was made, another juror said, "Well a lot of us think that, but we can't apply that." The foreperson also stated, "I don't want it to be implied that we think he's guilty." According to the foreperson and Juror Number 3, Juror Number 2 then stated that she wanted to alert the court to this discussion and the remaining jurors proceeded to discuss a different topic. Upon receiving this information, the court immediately repeated the charge regarding defendant's election not to testify, which included instruction that it was his constitutional right to remain silent; that the fact that he did not testify should not be considered and that he was presumed innocent even if he chose not to testify. He then asked the jurors if they could abide by that instruction and received an affirmative response. He asked further if anyone could not abide by that instruction. Getting no response, the judge then asked, "Anyone adversely affected so they can't deliberate any further?" Juror Number 2 replied, "Yes." The court then interviewed her individually in the presence of counsel. She stated, "I raised my hand because after there was silence in the room, as I was walking to the door to give the note, somebody said, 'Jesus, this is going to take a long time.'" Upon further inquiry, she stated that she did not think she could continue deliberations. She explained that her "interpretation of what is going on" was that "[i]t almost seems as if some are intent on what they are going to decide already." In response to additional questions by the court, she repeated her belief that she could not proceed with deliberations. The court excused the jury for the evening. The jury had been deliberating for approximately forty minutes. No objection was posed as to the procedure followed by the court at this time.

On the next morning, the court received a call from Juror Number 2's husband that she had been rushed to the hospital with a heart condition and was undergoing a catheterization. The judge advised counsel that she had been excused from further jury service. Defense counsel requested a mistrial, stating, "In light of the considerable information that we received last night I really question the ability of this jury to continue to function in a fair and impartial manner."

After substituting one of the alternates, the court appropriately charged the jury that it had to begin its deliberations anew and eliminate any impact that Juror Number 2 might have had on their deliberations. In addition, the court instructed the jury again regarding defendant's election not to testify and asked the jurors if they understood that instruction. Getting no negative response, the court again asked if everyone could follow that instruction. The court reported for the record, "Everyone is shaking their head yes."

"[T]he test for determining whether a new trial will be granted because of the misconduct of jurors . . . is whether such matters 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." Barber v. ShopRite of Englewood & Assocs., Inc., 406 N.J. Super. 32, 54 (App. Div.) (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)), certif. denied, 200 N.J. 210 (2009). The exact procedure used to investigate allegations of jury misconduct lies within the trial court's discretion. State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div.), certif. denied, 151 N.J. 466 (1997). In exercising that discretion, however, the judge "must make a probing inquiry into the possible prejudice caused by any jury irregularity, relying on his or her own objective evaluation of the potential for prejudice rather than on the jurors' subjective evaluation of their own impartiality" and must also pursue "an adequate inquiry on the record . . . for the purposes of appellate review." Ibid.

Here, in a procedure approved by defense counsel, the trial court first inquired as to what was said and then questioned the jury as to whether the jurors were capable of deciding the case impartially, with due regard for defendant's right to remain silent. When the judge first explored the issue, one of the jurors candidly volunteered that "after the comment was made, another juror said, 'Well a lot of us think that, but we can't apply that.'" In addition, the foreperson stated, "I don't want it to be implied that we think he's guilty." The description of the events in the jury room as presented to the trial judge therefore revealed that, prior to any action by the court, the jury had dismissed the comment about defendant's silence as an inappropriate consideration during their deliberations. Nevertheless, the court charged the jury twice regarding defendant's right to remain silent and questioned the jury three times as to their ability to apply that instruction. Their repeated assurances that they could do so was, in fact, consistent with their description of how they had reacted to the comment in the jury room. Although it would have been preferable to question the jurors individually and in camera, State v. McLaughlin, 310 N.J. Super. 242, 256 (App. Div.), certif. denied, 156 N.J. 381 (1998), there was no abuse of discretion by the trial judge in the procedure followed or in failing to grant the motion for a mistrial. See State v. Nelson, 318 N.J. Super. 242, 255-56 (App. Div.) (motion for mistrial based upon attorney-juror's remarks about the law and speculation about facts in case was properly denied where "jurors assured the judge that they could forget the attorney's comments and decide the case on the evidence and in accordance with the judge's instructions on the law"), certif. denied, 158 N.J. 687 (1999). The court also acted within its discretion in deciding to repeat its charge on defendant's election not to testify and denying defendant's request for a repetition of the charge on reasonable doubt.

V.

Defendant was sentenced to an aggregate term of ten years imprisonment, the lowest sentence that could lawfully be imposed for a first-degree conviction. He argues that the court abused its discretion in finding certain aggravating factors and failing to find certain mitigating factors and that, if the findings he contends were appropriate were made, he could have been sentenced one degree lower as a second-degree offender pursuant to N.J.S.A. 2C:44-1(f)(2). This argument, as well as the arguments advanced in Points V, VI, and VII, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.


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