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State v. Massey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 31, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LLOYD A. MASSEY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-12-2444.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: April 18, 2007

Remanded: August 13, 2007

Reargued: October 1, 2009

Before Judges Stern, Sabatino and Newman.

Defendant was convicted of three capital murders but the jury could not reach a unanimous verdict as to the penalty and defendant was sentenced to three consecutive sentences of life imprisonment without parole. Defendant was also convicted of the attempted murder of Terrance Harris (Harris) for which he received a twenty-year sentence with eighty-five percent to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. After merger of other offenses, the judgment provided for two additional sentences, which appear inconsistent with the sentence as orally imposed, and our remand opinion of August 13, 2007 required clarification of the aggregate sentence imposed. State v. Massey, No. A-1794-02 (App. Div. Aug. 13, 2007) (slip op. at 2). Unfortunately, that clarification never completely occurred, and because we affirm the convictions, we are compelled to remand once more for clarification of the sentence and entry of an amended judgment.

The judgment, as amended on May 13, 2008, provides for: a life sentence without parole on count one for purposeful or knowing murder; the same sentences for purposeful or knowing murder on counts two and three, to be served "consecutive to ct 1," (emphasis added); a twenty-year sentence, with eighty-five percent to be served before parole eligibility under NERA, for attempted murder on count four; and five-year sentences, "consecutive to each other and Ct. 1," on counts seven and eight embodying the unlawful possession of the assault firearm and hindering apprehension convictions (emphasis added). The statement of reasons on the amended judgment includes the following:

This may very well be the longest sentence ever meted out in Atlantic County, if not the State of New Jersey, but the massacre that this defendant perpetrated on 9/8/00, certainly justifies the extraordinary length of the sentence.

As we stated in our remand opinion, the judgment as originally imposed was not clear, because the consecutive sentences were all imposed consecutive to count one. The same is true of the sentence embodied in the amended judgment filed on the remand. It is therefore possible that, as all sentences were made consecutive to the sentence imposed on count one, the judgment can be read to provide an aggregate sentence based on count one, and a single life sentence among the numerous sentences made consecutive to it.

But, as we also noted in our remand opinion, the oral sentence imposed controls any inconsistency with the written judgment, Massey, supra, slip op. at 2 n.1, and it is clear that the judge originally endeavored to impose three consecutive sentences for the purposeful or knowing murders on counts one, two, and three. They may stand. See State v. Carey, 168 N.J. 413, 419 (2001); State v. Yarbough, 100 N.J. 627 (1985). A separate amended judgment entered on the remand as to counts seven and eight seems to resolve those terms and also suggests count four was intended to be consecutive to counts one, two, and three.*fn1

However, given the length of the terms, to run until after all the people related to the case are no longer available, we believe one clear judgment should be entered and the two judgments now extant embodied therein. This is significant, in part, because the present judgment provides a "[t]otal [c]ustodial [t]erm" of "88Y 88M 088D," which is clearly a ministerial or technical error. A statement of reasons addressed to the consecutive sentences as clearly imposed will be required. Yarbough, supra, 100 N.J. at 643-44.

A.

A person identified as defendant fired an AK47 assault rifle into a car killing three occupants. The fourth, Harris, was able to get away. The State's proofs, which we incorporate from our remand opinion, included identification testimony and evidence that defendant had previously possessed an AK47, that all of the bullets came from the same AK47, and that defendant had a prior fight with a friend of the victims and a confrontation with one of the victims, Michael Demps, who had threatened defendant earlier on the morning of the 4:00 a.m. shootings.

The passenger in defendant's vehicle at the time of the shootings, Gary Way, was a witness, as were passing motorists including Karen Simpkins, and Harris, the surviving passenger. Harris did not identify the shooter, but he testified that he did not see Way with a gun as he approached the victims' vehicle and he knew Way had nothing to do with the shooting. A cellmate of defendant's testified that defendant said he killed the victims because they "pissed him off."

The shooting occurred at an intersection in Atlantic City. Way exited the car and was approaching the victims' vehicle when the driver exited defendant's car and started shooting. Karen Simpkins testified that the scene near casinos was "pretty bright" and that she made eye contact with the shooter. Her ultimate photo identification and her in-court identification of defendant were "positive." Her husband stated that the shooter was the driver of defendant's vehicle, and that he got back in the car and drove away. Way, whose skin was much darker than the shooter's was described to be, ran from the scene while defendant drove away.

The defendant asserts he was wrongly convicted: that Way was the shooter; that Simpkins, who made a positive identification of defendant, did so after seeing his photo "at least five times in three different arrays;" that the jail mate who reported the inculpatory statement was not in the same location of the jail as defendant; and that a Harrah's security officer believed he saw Way with a gun.

In his original brief on the appeal, defendant made the following specific arguments:

POINT I.

THE TRIAL COURT ERRONEOUSLY APPLIED N.J.R.E. 702 AND VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE WHEN IT PRECLUDED DR. STEVEN PENROD FROM TESTIFYING AS AN EXPERT ON PROBLEMS WITH THE EYEWITNESS IDENTIFICATION IN THIS CASE.

POINT II.

THE DEFENDANT WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS BY THE STATE'S FAILURE TO DISCLOSE UNTIL MID-TRIAL THAT IT HAD RECOVERED AND TESTED A NORINCO AK-47 ASSAULT RIFLE THAT MAY HAVE BEEN THE MURDER WEAPON; BY THE COURT'S FAILURE TO TAKE ANY MEANINGFUL REMEDIAL ACTION; AND BY HIS ATTORNEYS' FAILURE TO PRESENT EXCULPATORY EVIDENCE RELATED TO THE GUN.

POINT III.

THE DEFENDANT'S CONSTITUTIIONAL RIGHTS WERE VIOLATED BY THE TRIAL COURT'S RULINGS THAT THE STATE NEED NOT PROVIDE DISCOVERY RELATING TO GARY WAY'S FAILED POLYGRAPH EXAM; THAT NO EVIDENCE COULD BE PRESENTED AT THE GUILT PHASE RELATING TO WAY'S INTERVIEW WITH THE POLYGRAPH EXAMINER; AND THAT THE DEFENSE COULD NOT PRESENT TESTIMONY AT THE SENTENCING PHASE SHOWING THAT WAY HAD BEEN DECEPTIVE ON THE CRUCIAL ISSUE OF WHETHER HE WAS THE SHOOTER.

POINT IV.

THE DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW WAS VIOLATED BY THE STATE'S CONTINUING FAILURE TO TURN OVER EXCULPATORY EVIDENCE CONTAINED IN TWO AFFIDAVITS FILED BY PROSECUTOR'S INVESTIGATORS WHEN APPLYING FOR SEARCH WARRANTS.

POINT V.

THE DEFENDANT WAS DENIED A FAIR TRIAL BY THE PROSECUTOR'S ARGUMENTS IN SUMMATION, WHICH ACCUSED DEFENSE COUNSEL OF MAKING "SCURRILOUS AND LARGELY IRRELEVANT" ATTACKS ON THE POLICE OFFICERS IN THE CYNICAL BELIEF THAT THEY WOULD DISTRACT THE JURY FROM THE FACTS OF THE CASE.

POINT VI.

THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW WAS VIOLATED BY THE PROSECUTOR'S USE OF PEREMPTORY CHALLENGES TO STRIKE AFRICAN-AMERICAN JURORS FROM THE PANEL FOR REASONS THAT WERE NOT RACE-NEUTRAL, BUT WERE AIMED AT REMOVING BLACK JURORS WHO WERE SENSITIVE TO ISSUES OF RACIAL DISCRIMINATION OR CROSS-RACIAL IDENTIFICATIONS.

On August 13, 2007, we remanded to the Law Division for findings as to discovery issues and their impact on the right to a new trial, and for a harmless error analysis concerning the lack of cross-examination of Way regarding his polygraph and related statements. Massey, supra, slip op. at 21.

On this appeal, after the unsuccessful remand, defendant also argues:

POINT I.

THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT OF CONFRONTATION BY THE TRIAL COURT'S REFUSAL TO ALLOW HIM TO CROSS-EXAMINE GARY WAY OR THE INVESTIGATORS WITH THE RESULTS OF THE POLYGRAPH EXAM AND ANY INTERVIEWS TAKEN IN CONFORMITY WITH THAT EXAM. THE STATE HAS FAILED TO DEMONSTRATE THAT THE CONSTITUTIONAL VIOLATION WAS HARMLESS BEYOND A REASONABLE DOUBT.

POINT II.

BECAUSE THE STATE WAS UNABLE TO DEMONSTRATE THAT THE ERROR IN FAILING TO TURN OVER DISCOVERY ABOUT THE SOURCE OF THE INFORMATION IN THE INVESTIGATOR'S AFFIDAVITS WAS HARMLESS, THERE WAS CONSTITUTIONAL ERROR WARRANTING A NEW TRIAL.

POINT III.

WHETHER OR NOT THE GUN PARTS COULD BE CONCLUSIVELY IDENTIFIED AS THE WEAPON USED IN THE KILLING, THEY WERE CLEARLY BRADY MATERIAL AND THE STATE'S FAILURE TO TURN THEM OVER DENIED DEFENDANT HIS RIGHT TO DUE PROCESS OF LAW.

While the original appeal was pending, the Supreme Court decided State v. Castagna, 187 N.J. 293 (2006). Way had provided two statements to the police, one on September 10, 2000, and a second on September 18, 2000. Prior to trial, in addition to receiving those statements, defendant received two documents in discovery that indicated the State had administered a polygraph test to Way on September 18, 2000, the day he gave the second statement.

At 3:25 p.m. on September 18, 2000, after he took the polygraph, which showed he failed as to shooting "any of the victims," Way provided the police with the second statement, which was recorded, in which he admitted that he had seen the gun used in the shootings at defendant's home some time prior to August 11, 2000, and that he also had seen the gun in the back seat of the car before the shooting began. In that statement, Way also said he had been "feeling a little scared, a little responsible for what happened," at the time he was previously interviewed by Sergeant George Rochelle.

Defendant had moved for discovery that included a request for "[r]eports by Sergeant Rochelle on polygraph tests and interviews of Terrence [sic] Harris and Gary Way," but the trial court ruled the polygraph was "unstipulated" and "would not be discoverable." The judge precluded any reference to the polygraph at trial. During defendant's cross-examination of Way, his counsel reviewed the discrepancies between Way's preand post-polygraph police statements, but could not develop why Way changed his story.

Prior to commencement of the penalty phase, the prosecutor again argued the polygraph information was not discoverable because unstipulated polygraphs were inadmissible at the penalty phase as well. However, he gave the court a sealed envelope with the "originals" of the "polygraph materials." In our remand opinion, we held that any polygraph exam results and related statements were discoverable, stating that "[n]othing in [R. 3:13-3(c)] precludes the production of a witness's statement to the police or a police report because it was provided in connection with the administration of a polygraph exam." Massey, supra, slip op. at 13.

We noted that in Castagna, supra, 187 N.J. at 311-12, the Supreme Court held that a defendant could cross-examine a witness on the fact that she "changed her story" after learning that she failed a polygraph test, and could develop the differences in her stories, even though no stipulation existed between the defendants and the State as to the admissibility of the witness's polygraph exam results. Massey, supra, slip. op. at 18. The Court held "that the trial court erred in denying defendants the right to cross-examine Arias concerning the polygraph test results, not because those results were reliable, but because the test results caused Arias to change her statement." Ibid. (quoting Castagna, supra, 187 N.J. at 311-12). The Court further held that "[t]he jury was entitled to hear that Arias changed her story after she was confronted with the results of her polygraph test." Castagna, supra, 187 N.J. at 311.

In light of the holding in Castagna, we concluded that the trial court abused its discretion when it denied defendant's efforts to introduce Way's polygraph results as impeachment evidence. As with Castagna, defendant was entitled to show the jury that the State's primary witness changed his story after he failed a polygraph exam.

Massey, supra, slip op. at 18. See also State v. A.O., 198 N.J. 69 (2009); State v. Domicz, 188 N.J. 285, 313 (2006) (adhering to the general rule that polygraph results are inadmissible in the absence of a stipulation).

"Although the Castagna Court found evidence of Arias's polygraph results admissible, it ultimately decided that the preclusion of the information was harmless error under the circumstances." Massey, supra, slip op. at 20. In this case, we found "it inappropriate to perform a harmless error analysis without knowledge of what may have been withheld in discovery and what defendant asserts he could have provided in terms of actual or concrete testimony based thereon." Id. at 20-21. Moreover, as the trial judge did not have the benefit of Castagna when he made his rulings, we did "not have the benefit of his review of its impact on how it may have affected his ruling on the motion for new trial." Id. at 21. Accordingly, we remanded for "discovery of all information concerning the notes and records of Way's polygraph examination and related reports, and a determination of whether that information warrants a new trial." Ibid.

In addition to the polygraph results, defendant had claimed that he was entitled to the source of the information the police obtained and used to obtain search warrants to search defendant's person, home, and car. Id. at 21. Defendant asserts the information in paragraph one of the affidavits of Investigators Harry Carr and Larry Wade was partially false, and if properly developed, would support defendant's view that Way possessed the murder weapon upon entry to the bar prior to the shootings. Id. at 27.

In light of the remand and the harmless error analysis which had to be performed in light of Castagna, we also directed the trial judge "to clarify if there was any information in the possession of the State which was not provided in connection with the source of the information in paragraph one of the Carr and Wade affidavits," id. at 28, which may have suggested Way may have possessed the murder weapon, "and the impact of any non-disclosure or non-development of the source issue in connection with defendant's right to a new trial." Ibid.

On the remand, we also requested "the parties . . . [to] update the record on the issue" concerning discovery of an AK47 and the ability to test fire it, which might affect the harmless error analysis. Id. at 29-30. Parts of an AK47 had been found prior to trial, and defendant contends its location precluded defendant from discarding the weapon, thus providing an inference that he did not possess it. After the firearm was briefly referred to at trial, the judge determined and told the jury that "there is no evidence or testimony in this trial to suggest those parts are in any way related to the assault firearm used on September 8, 2000." Id. at 29. Defendant nevertheless sought to have it tested by an expert. As of the time of sentencing, the expert did not come up with "anything of substance beneficial to the defense," id. at 30, but before us, counsel sought even more time to test the weapon.

B.

We affirm the convictions based on the harmless error doctrine. We are satisfied under our scope of review that the pre-Castagna errors regarding use of the polygraph material were harmless for the reasons comprehensively and thoroughly expressed by Judge Isman in his opinion of March 27, 2008.

We must, of course, give deference to the judge's findings not only because he heard and evaluated the witnesses at the remand hearing, but also because he was the trial judge. Moreover, the issue before the trial judge, and us on review, is only whether "[t]here . . . [is] a real possibility that the evidence [not produced] would have affected the result." State v. Marshall, 123 N.J. 1, 199-200 (1991). See also State v. Brown, 118 N.J. 595, 604 (1990); State v. Carter, 91 N.J. 86, 113 (1982).

We cannot disagree with the trial judge that the result would have been the same without Way's testimony and that there was no reasonable possibility that disclosure of the polygraph evidence would have affected the result.*fn2 The only substantive difference in the second statement was the additional comments about seeing the gun before the shooting.

Moreover, among other evidence, Harris testified that he saw Way without a gun before the shooting began from the adjacent vehicle, and there was testimony Way exited the car before the shooting started and, according to Harris, that the shooting came from the driver's side of the vehicle. Karen Simpkins also identified defendant as the driver, and Steven Hassenpat, a cell mate of defendant at the Ocean County Jail, testified that defendant told him he killed the trio because "they pissed [me] off."

C.

As defendant has still been unable to develop anything exculpatory with respect to the AK47 found before trial, there is no viable issue remaining on that subject. Accordingly, there is nothing further to address on that issue.

D.

On the remand, the trial judge directed the prosecutor to ask investigators "specifically whether they have notes or independent recollection or recollection refreshed" regarding the source of the information for the affidavits. Defense counsel was also permitted to inspect the prosecutor's files for such information. Carr had died before the remand proceedings, but Wade testified that he undoubtedly learned about the endeavor to enter the bar at meetings during which investigating officers on the case would "pass information around."

Wade admitted that after the warrants were executed, he and Carr learned the information in the affidavits was wrong to the extent that they were told the bar was closed as a result of someone's attempt to enter the bar by avoiding security. Investigator Michael Mattioli of the Atlantic County Prosecutor's Office testified at the remand proceedings that he contacted investigators and detectives who worked on the case, including municipal officers from Little Egg Harbor, and none had any reports, notes or recollections concerning the source of the information about an alleged endeavor to elude security to enter the bar.

Defendant called the bar's owner and bartender at the remand hearing. The owner said the allegedly unauthorized entry "never happened," and she "had never heard of" such an incident on the night in question.

Defendant now contends that the State failed to prove that the affidavit asserting someone entered the bar by circumventing security was untrue. Defendant further argues the State had the burden of so proving or of identifying the source of the information embodied in the affidavit, the absence of which requires a new trial because defendant is entitled to interview and call the source at trial.

We fail to appreciate the argument, and we agree with Judge Isman that a new trial was not required in the absence of identification of the source. Defendant's present contention, as we understand it, is that some unidentified person may have exculpatory evidence and might be able to point the finger at Way, assuming that Way was the one who tried to by-pass security and did so because he was carrying an AK47. The contention is simply too remote and hypothetical to require relief merely because there was a mistake in the affidavit, the validity of which is not being challenged. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed. 2d 667 (1978).

E.

We now turn to the remainder of the arguments raised in the original briefs which we did not address incident to the remand.

(1)

We summarily reject the arguments addressed to the identification without prejudice to any argument defendant may want to make in his petition for certification or any petition for post-conviction relief based on whatever the Supreme Court may do in response to the report of the master relating to the admissibility of identification testimony. Judge Geoffrey Gaulkin, Report of Special Master (2010), http://www.judiciary.state.nj.us/pressrel/HENDERSON%20FINAL%20BR IEF%20.PDF%20(00621142).PDF. See also, Henry Gottlieb, Eyewitness IDs Often Flawed, Safeguards Required, Report Says, 200 N.J.L.J. 13 (June 28, 2010); Editorial, Clearing Blurred Vision, 201 N.J.L.J. 18 (July 5, 2010). We merely note for present purposes that this case does not involve an identification that tests the reliability of identification testimony in the normal course -- such as when a victim is attacked or robbed by a stranger. Certainly, Mrs. Simpkins was a stranger when she made her identification, but Harris and Way both knew defendant, and there was no real dispute as to his presence at the scene. We do not intend, particularly given what is now before the Supreme Court, to re-examine the New Jersey law on identification testimony based on developments in other jurisdictions.

Moreover, there was no dispute that the shots were fired from a car identified as one owned by defendant's mother and considered by defendant's friends to be his. For purposes of the harmless error analysis, we also note there was confirming evidence that Way was with his girlfriend at the time of the altercation in the parking lot of the bar, and witness Hakim testified as to defendant's threats at that time about owning a gun that "spits rapid." Moreover, Steven Hassenpat, a cellmate of defendant while at the Ocean County Jail, and who testified that he killed the trio because they "pissed [him] off" said to be "credible" by the trial judge in his remand opinion. Further, defendant took flight to Georgia where he was arrested, suggesting consciousness of guilt. State v. Williams, 190 N.J. 114, 125-26 (2007).

(2)

Defendant also complains that he is entitled to a new trial because two African-American jurors were excused for reasons that were neither "race neutral" nor "legitimate." While recognizing there was a legitimate basis in their answers on which to exercise these peremptory challenges, defendant insists that we should "hold that all of the prosecutor's reasons for excluding a minority juror must be race neutral." But that is simply not the law at present nor a policy an intermediate appellate court can establish. State v. Gilmore, 103 N.J. 508 (1986). See also Gattis v Snyder, 278 F. 3d 222, 233-35 (3d Cir.), cert. denied, 537 U.S. 1049, 123 S.Ct. 660, 154 L.Ed. 2d 524 (2002).

Gilmore provides that when a defendant establishes a prima facie case of challenges based on impermissible racial grounds or the exercise of a disproportionate number challenges of members of an identifiable group, Gilmore, supra, 103 N.J. at 535-36, the State has the burden to "come forward with evidence that the peremptory challenges under review are justifiable on the basis of concerns about situation-specific bias," id. at 537, -- that is something "reasonably relevant to the particular case on trial or its parties or witnesses." Id. at 538 (quoting People v. Wheeler, 583 P.2d 748, 765 (Cal. 1978)).

The jurors were interviewed individually and under oath as this was a capital prosecution. Potential juror A.D. had "doubts" about defendant's guilt based on "the family he came from," and said she did not think he should get the death penalty. But A.D. later said she felt that people should automatically be put to death if they kill someone. The judge thought A.D. "began formatting her answers" after she "caught on," but would not excuse her for cause. The prosecutor excused her. Defendant does not contend that she should not have been excused.

Juror D.I. indicated it would be "somewhat difficult" for him to listen to the evidence with an open mind and to wait until all the evidence was presented to decide guilt or innocence, and to decide the case based on the judge's charge. Further, juror D.I. had been convicted by pleading guilty to shoplifting and thought "the Court system is a big business and they're going to collect money and that's all it was about . . . to me." The juror had positive and negative feelings about race relations and experiences with people of other races, and was upset by a stop by the police on his way home from church in Camden, but said he was treated well and fairly when pulled over by a State trooper.

Juror J.W. was the neighbor of the sister of Demp, one of the victims. She felt there was some discrimination by law enforcement against minorities and that the criminal justice system was unfair to African-Americans. But she also felt her feelings would not affect her thinking in a case in which the victims and defendant were both black. She believed in the death penalty, but felt it would be "very difficult" to apply it as a juror herself.

The prosecutor was unable to represent whether J.W.'s neighbor, Lisa Demps, would testify as "the designated victim impact person" if the case reached the penalty phase. Juror J.W. also wrote a note to the judge that she had a vacation planned for days during the trial, and the prosecutor indicated that he was planning to excuse her as a childhood friend of Demp's sister. He thereupon used a peremptory challenge to excuse her.

After the State challenged juror D.I., the third excused African-American juror, there were thirty-three prospective jurors, including two African-Americans, remaining in the pool. In defending against defendant's claim of a "Batson issue," the prosecutor stated his challenges were based on the answers, concerns and views of the jurors.

The Gilmore approach was essentially followed in defending and challenging the jurors. As to juror D.I, the judge ultimately concluded that:

I have to find, based on the reasons I cited earlier, that the reasons [the prosecutor] gave are reasonably relevant to the case, the parties or the witnesses and have rational bearing aside from Mr. [I.]'s origins and his being African-American. His feelings about the justice system his feelings, about how it applies to African-Americans, his feelings in particular about the Municipal Court system and what happens there and significantly his feelings about Caucasians, many Caucasians feeling all African-Americans look alike. That is a heavy issue to the State in this case cross racial identification and I cannot say that the Defense has met its ultimate burden of proving that the State exercise[d] --exercise[d] that challenge on any constitutionally impermissible ground of presumed group bias.

The judge also found that the State's reasons were "reasonably relevant to the case" and to the individual and had "been applied in a nondiscriminatory fashion."

The court found "voluminous" reasons for J.W.'s exclusion because she "might potentially taint the jury pool." According to the judge, J.W. "present[ed] a closer case" than D.I. but "falls into that category where I find that the State has consistently either challenged a juror and tr[ied] to challenge a juror for cause and I have overruled the challenge based on the case law" or where the State had stricken Caucasians because of their perceived "difficulty . . . in dealing with death penalty issues."

J.W.'s response that it would be "very difficult" to decide the death penalty issue "would be of concern to me if I were a Prosecutor whether she were Caucasian, African-American, Lithuanian, Afghani, Muslim, whomever." The judge concluded:

I cannot say that the overall pattern of the use of challenges has been disingenuous, unreasonable, or racially motivated. To the contrary. There appears to be an inconsistency here primarily with regard to the answers regarding the death penalty in [sic] capital punishment in particular.

In addition, to that, as the Prosecutor points out, I cannot disagree with his logic that if someone has a view about the law enforcement community in general, a case where he intends to produce maybe thirty or forty police officers, some of whom conducted out-of-court identification[s], some of whom investigated the scene, some of whom t[ook] statements, would be of major concern to me if I were a Prosecutor and to that extent I find he's also been consistent with regard to whether or not they were African-American and answer that way or whether they were Caucasian and answer that way or [H]ispanic and answer that way or any other race or origin or ethnic background.

So under CLARK and GILMORE, I find that the Defense has not satisfied its ultimate and final burden to prove that the State exercise[d] its challenge either individually or as a group collective on constitutionally impermissible grounds of group bias. In this case race.

Despite the diligent supplementary letters presented to us under Rule 2:6-11(d) concerning new case law, defendant makes no argument directed to last summer's opinion in State v. Osorio, 199 N.J. 486 (2009). Moreover, as noted, the court did perform a Gilmore analysis without requiring the defendant to satisfy the first prong of the test because two of the six jurors excused by preemptory challenges were African-American, and Osorio would not come into play. State v. Bey, 129 N.J. 557, 584-85 (1992).

Defendant maintains that the jurors had provided answers that were "unremarkable" and "nothing out of the ordinary" except on issues relating to racial awareness. However, the failure to request a challenge for cause is not a basis for finding race based conduct. See State v. Fuller, 182 N.J. 174, 201 (2004). Suffice it to say the record supports the finding that juror D.I. would have difficulty listening to the evidence before deciding the case and to follow the court's instructions.

Moreover, his feelings about the judicial system was a basis for excusing him. State v. Lewis, 389 N.J. Super. 409, 420 (App. Div.), certif. denied, 190 N.J. 393 (2007).

The same is true with respect to J.W.'s views regarding capital punishment. The State was entitled to a jury which could consider the issue fairly based on the evidence and law as instructed by the judge. Witherspoon v. Illinois, 391 U.S. 510, 528-29, 88 S.Ct. 1770, 1781, 20 L.Ed. 2d 776, 788-89 (1966), (Douglas, J. concurring) (citing Logan v. United States, 144 U.S. 263, 298, 12 S.Ct. 617, 628, 36 L.Ed. 429, 441 (1892)); State v. Hunt, 115 N.J. 330, 356-61 (1989). The prosecutor excused white jurors who had similar views, where insufficient to challenge for cause. State v. Clark, 324 N.J. Super. 558, 573-74 n.3 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). Moreover, she knew the victim's sister and had vacation plans.

The issue before us is not how we would decide the Batson-Gilmore challenge, but whether the record supports the trial judge's conclusions on the subject. As to that issue, the record supports his findings that the prosecutor's exercise of peremptory challenges against D.I. and J.W. were based on their answers to specific questions asked in the questionnaire and orally, and were based on situation-specific reasons related to the case rather than on the basis of presumed group bias. We must uphold that finding. State v. Clark, 316 N.J. Super. 462, 473 (App. Div. 1998). Moreover, "[a] lawyer need not accept an otherwise unacceptable juror merely because the juror is a member of a 'cognizable group.'" State v. Watkins, 114 N.J. 259, 267 (1989).

(3)

Defendant also asserts that the prosecutor's summation was unduly prejudicial and that his trial counsel was ineffective. We find no need to address those subjects in this opinion. See R. 2:11-3(e)(2). We simply note, however with respect to the defendant's attack on the prosecutor's summation that, unlike cases like State v. Frost, 158 N.J. 76 (1999), the police in this case were not principal witnesses against defendant. They took no confession and participated in no undercover activity. They provided no direct evidence. Thus, any overreaching or "line crossing" by the prosecutor with respect to his defense of police conduct could not have affected the result. The issue of ineffective assistance of counsel can be developed in a petition for post conviction relief. See State v. Preciose, 129 N.J. 451, 460 (1992).

F.

The judgment is affirmed and the matter is remanded for clarification of the judgment.


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