September 10, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KARLA FREEMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-02-0122.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 1, 2010
Before Judges Lisa, R. B. Coleman and Baxter.
Following a trial before Judge Delehey and a jury, defendant Karla Freeman was found guilty on two counts of a seven-count indictment that charged her with: first-degree, purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1), (count one); murder during the commission of, the attempt to commit, or flight from a robbery, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); first-degree robbery, N.J.S.A. 2C:15-1 (count four); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count six); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (count seven).*fn1 Defendant was found guilty of second-degree robbery, a lesser-included offense of count four, and felony murder for the murder of William Goldware that resulted from defendant's and co-defendant Maurice Turner's plan and attempt to rob Goldware. Count four was merged into count two, and defendant was sentenced to a term of thirty years, with a parole ineligibility period of thirty years. This appeal ensued.
On appeal, defendant argues:
POINT I: THE TRIAL COURT ERRED BY FAILING TO ADEQUATELY INSTRUCT THE JURY REGARDING THE ISSUE OF CAUSATION. (NOT RAISED BELOW)
POINT II: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ON THE BASIS THAT THE JURY MAY HAVE BEEN TAINTED AS A RESULT OF A JUROR'S OBSERVATION OF THE DEFENDANT WHILE IN CUSTODY.
POINT III: THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE. (PARTIALLY RAISED BELOW)
POINT IV: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL ON THE BASIS THAT ONCE THE JURY FOUND THE DEFENDANT NOT GUILTY OF PURPOSEFUL/KNOWING MURDER AS WELL AS FIRST DEGREE ROBBERY, ITS ENSUING VERDICT FINDING THE DEFENDANT GUILTY OF FELONY MURDER WAS FATALLY FLAWED.
We have carefully considered defendant's arguments in light of the facts and applicable law, and we affirm the judgment of conviction.
This matter stems from an incident that occurred in the early morning hours of May 24, 2003 that resulted in the death of William Goldware. Earlier that evening, Goldware and his friends, Michael Murray and Warren "Cisco" Littlejohn, visited Black Jack's Lounge (Black Jack's) in Trenton. Murray last saw Goldware around 1:30 a.m. after Goldware dropped him off. While at Black Jack's, Murray had observed Goldware speaking to several women, including defendant.
At 2:44 a.m., the Trenton Police Department received a 911 call for which police responded to defendant's home address. Detective Ryan Burger and Officer Alex Cartegena arrived at the house and entered through the open door after they received no response to their knocking. Inside the house, the officers observed a flipped-over barstool and a blood stain on the wall. On the second floor, they found defendant sitting on a bed in the bedroom. The bedroom showed obvious signs of struggle, as there was an overturned ironing board and blood on the walls and dresser. Defendant was crying and talking on the phone. She was wearing a blood-stained nightgown, and one of the fingernails on her left hand was missing. The fingernail was found in another bedroom.
Goldware was found lying in a puddle of blood on the bathroom floor. He was wearing boxer shorts, and he had twenty-four stab wounds, two of which were later described as fatal.*fn2 The cause of his death was massive hemothorax and hemopericardium due to stab wounds to the lungs and heart.
Two cell phones were also found at the scene. One, a Motorola belonging to defendant, was found in the bedroom under an ironing board. The other, an LG Sprint phone which was registered to a Kandis Queen, was found near the bathroom. When the LG Sprint phone was opened, the screen read "Young Reese," a nickname for co-defendant Maurice Turner.
Officer George Muschal also reported to the scene. While investigating the kitchen, he observed an open utensils drawer.
Muschal also spoke with defendant, who informed him that she had met Goldware at Black Jack's and invited him back to her house. She further told him that after Goldware arrived, she locked both locks on her front door, went upstairs, "put a record on, and . . . [they] proceeded to have sex." Defendant told Muschal that during this time she heard a loud bang and that a man came into the bedroom, said "Give it up," and instigated a struggle. During this struggle, defendant said she was kicked about the face and back. Defendant further related that Goldware tried unsuccessfully to flee by way of the bathroom window, but the window was blocked by bars. Defendant told Muschal that when the attacker fled the house, she called 911 several times. During her recounting of the incident to Muschal, defendant was "nervous" but "talked calmly."
Defendant also spoke to Detective Timothy Thomas. According to Thomas, defendant was crying, covered in blood, and was "visibly upset." Defendant told Thomas that she had met Goldware at a bar, that they returned to her home and "started to fool around," until someone "barged in, [and] started beating them both up." Defendant then agreed to go to police headquarters with Thomas.
At headquarters, defendant executed a waiver of her Miranda*fn3 rights, and then described the evening's events to Thomas. She stated that while at Black Jack's, she saw Warren "Cisco" Littlejohn, whom she recognized. Cisco told her Goldware was interested in her, and she and Goldware exchanged phone numbers. Goldware later called her and asked if he could come over to her house. She said yes, and the two exchanged several additional phone calls before Goldware arrived. While upstairs with Goldware, defendant heard a "screech," and an intruder began beating both her and Goldware. The intruder made demands for property, saying "[w]here the fuck it at?". When defendant responded with confusion, the intruder said "shut the fuck up, bitch." Defendant and Goldware then went into the bathroom, but they could not escape because of the bars on the window. Defendant told Thomas that the intruder was 6'1", slim, twenty-nine years old, and that he "sounded like a black male." Defendant also stated that she believed the intruder had hit her and Goldware with the ironing board and stool.
Defendant reported that after the attack, she first called her grandmother because "when you're in trouble, you think about talking to your mom." Thomas asked why she felt she was in trouble if she did nothing wrong; defendant responded "I feel like I did something wrong." Before her grandmother answered the phone, defendant hung up and called 911. After relating this story, defendant asked Thomas if he thought she had committed the crime. He stated, "I think you did it or someone who you know did it," at which point defendant started "crying hysterically."
Defendant then told Thomas she killed Goldware and she agreed to give a formal statement to that effect. Defendant stated that Littlejohn facilitated a sex-for-money arrangement between defendant and Goldware, and Goldware came to defendant's house. A fight ensued when Goldware demanded sex and refused to pay for it. Defendant stated that during the fight, she grabbed a knife from her kitchen and when Goldware started to choke her, she used the knife to stab him.
Later, however, while Thomas was compiling defendant's statement defendant presented a different version of the evening's events. She said "Detective, that's not what happened. Me and Maurice set him up to rob him, and Maurice stabbed him." When Thomas asked if she was sure, she replied "No, no, that's not what happened. . . . I killed him."
Detective Edgar Rios next interviewed defendant in order to clarify her answers. Defendant stated that Goldware called her and asked her how much it would cost to have sex; she informed him it would be $250. Goldware propositioned defendant which defendant told Rios, made her feel "sleazy" because she felt that Goldware thought he could have sex with her for free. Defendant admitted that she would not have had sex with Goldware for free but that she would have done it for $250; she needed money to pay her bills. Defendant further stated that after she had stabbed Goldware, she called her cousin's boyfriend, co-defendant Maurice Turner. When Turner arrived, she gave him the knife, told him she stabbed someone, and then directed him to leave. When asked why she called Turner, defendant stated, "[b]ecause I know he has a car. And I needed someone to get rid of the knife so I could tell you the story about someone breaking in and beating us up."
Upon meeting with Thomas again, defendant told him her sister told her she better tell Thomas the truth about what happened. Defendant executed another Miranda waiver form, and again related to Thomas that Littlejohn arranged a meeting between her and Goldware. When Goldware called her later that evening, she informed him that she was going home and that she would call him when she got there. After defendant left Black Jack's, she asked Turner for a ride home. She declined Turner's offer to go to an after-hours bar, stating that she "got some money coming to my house." After hearing this, Turner told defendant to leave her door open so that he could enter and rob Goldware. Defendant stated:
[Reese] was saying he was going to hit [Goldware] in his head and go in his pockets and leave. So me and [Reese] got to my house. I went upstairs, and I asked [Reese] how he was going to rob [Goldware]. [Reese] said just have the lights out and I'm going to wrap something around my mouth. [Reese] said he was going to knock him off of the bed and go into his pockets and take his money. But I didn't think that he had guns or knives. So I just figured it was going to be just like he said it was going to be, just knock him off the bed, take his money and run. [Reese] said after he got the money, it would be half and half. Reese left and told me to call him when the boy came.
Defendant then told Thomas that after Goldware arrived, she left the door open so that Turner could enter. Defendant heard Turner as he entered the house and climbed the stairs, so she distracted Goldware by kissing him. When Turner arrived in the bedroom, he pushed defendant and Goldware to the floor and began asking "where it's at?". Turner then stabbed Goldware "three or four times." Defendant and Goldware escaped to the bathroom, but Turner followed them. When Turner finally fled the scene, defendant first dialed her grandmother's telephone number before calling 911.
When Thomas asked defendant why she had given the earlier, contradictory versions of the events, she stated, "[b]ecause I was terrified, and I knew I had part in robbing [Goldware], but I did not know [Turner] was going to stab [Goldware]." She further stated that she had confessed to stabbing Goldware herself in an earlier statement because she felt that if she had not left her door open, Goldware would have never been stabbed, and she was also worried about her cousin, Kandis Queen, who had a child with Turner. When asked why this statement was more reliable than her previous statements, defendant said, "[b]ecause I'm willing to take my punishment, but I'm not willing to pay for somebody else murdering. Also, this is the truth about what happened."
An arrest warrant was issued for Turner, who subsequently turned himself in to the Mercer County Prosecutor's Office. At the time, Turner had a laceration on his right forearm and several smaller lacerations around it.
The forensic investigation showed that DNA from Goldware was present on Turner's shirt, the gas pedal of Turner's car, and defendant's panties and top. DNA from Turner was found on the front door of the house, the top of the stairwell wall, the driver-side seat of Turner's car, and the steering wheel and dashboard of Turner's car. In addition, telephone records confirmed that, between 1:31 a.m. and 2:16 a.m. on the night of Goldware's murder, there were several calls between defendant's cell phone and Goldware's cell phone, as well as calls between defendant's cell phone and the cell phone belonging to Queen that was being used by Turner.
A Miranda hearing concerning the admissibility of defendant's various statements to the police was held before Judge Mathesius. Judge Mathesius ruled that none of defendant's statements to police would be suppressed and that the prosecutor could use those statements at trial.
Defendant's trial began before Judge Delehey on October 17, 2006.*fn4 During the course of the trial, Juror Number Twelve (Juror Twelve) saw defendant in the custody of sheriff's officers during a lunch break. When the court questioned Juror Twelve, he stated that he told the other jurors that he had seen defendant during the lunch break but that he had not said anything else and had not indicated defendant was in custody. Asked whether he previously knew defendant was in custody, Juror Twelve responded I believe it was discussed this morning as a matter of fact. People were wondering if the defendant was incarcerated or not incarcerated, during this time and preceding up into this. We were discussing that, but we didn't know. That was the extent of it.
The court inquired further of Juror Twelve as to whether he had seen defendant in handcuffs or shackles. He had seen this, but he stated he had not communicated that information to his fellow jurors.
The judge next questioned Juror Number Six (Juror Six), who was with Juror Twelve, when he saw defendant in custody. Because of his placement on the elevator, Juror Six had not seen defendant. He further stated that Juror Twelve had not told him what he saw. Notably, Juror Six, also denied that there had been conversations in the jury room about whether defendant was in custody.
Defendant moved for a mistrial or, alternatively, for the dismissal of Juror Twelve. The court denied the motion for a mistrial, but excused Juror Twelve. The judge questioned each juror individually about what, if anything, they had heard that might make it difficult for them to be fair and impartial. After asking each juror whether he or she had heard any discussions about defendant's custody status or any discussion concerning what Juror Twelve saw during the lunch hour, the court found that no jurors had heard any such discussions.
Claiming inconsistencies between Juror Twelve's statements and those of the rest of the jury, defendant urged the court to declare a mistrial. The court denied this request, ruling as follows:
All right, the [c]court is faced, obviously, with the inconsistent statement of [Juror Twelve], that there was a discussion in the jury room concerning bail or custody of the defendant. The [c]court has interviewed twelve remaining jurors. The jurors have been interviewed individually. To a person, they have said there were no discussions about bail or custody, and they have said that [Juror Twelve] didn't tell them anything that he observed during the luncheon hour.
Now, the argument is that with that inconsistency, the [c]court must grant a mistrial. The [c]court doesn't see it that way. One, it's quite possible [Juror Twelve's] talking and no one is listening. That could have happened. The second possibility is that while [Juror Twelve] may have been curious about bail, and thought that others were talking about it, maybe they weren't.
And why does the [c]court say that? The [c]court is asked to believe that twelve people interviewed individually, without the opportunity for collusion, all told a consistent story, and that [Juror Twelve] is therefore, the one in the minority. The [c]court isn't certain what happened. What it does know is this: [i]t knows that it has removed [Juror Twelve] from the case who saw the defendant in shackles. Whether the jury discussed bail or custody, the [c]court does not view as a reason for mistrial. I think every juror in this courthouse has to wonder whether a defendant is in bail or in custody. And quite frankly, with a murder charge, even a non-lawyer would probably believe that the likelihood is . . . custody as opposed to bail.
The [c]court is aware that defendants are not to be exhibited with indicia of guilt, that is, prison garb, shackles or handcuffs. With the removal of [Juror Twelve], that has been accomplished. None of the other jurors heard [Juror Twelve] say anything about what he observed at the luncheon hour, and [Juror Twelve] himself says that he did not discuss the handcuffing or shackling of [defendant] with any of the jurors. As the [c]court sees it, while the proceedings of this trial insofar as the movement of [defendant] and the avoidance of having jury contact have not been ideal, they are not detrimental so as to require a new trial.
The court then instructed the jury that defendant's ability or inability to post bail was of no consequence to the case.
Later, after both the State and defendant had rested, the prosecutor said during closing arguments:
These are the undisputed facts:
William Goldware was brutally and savagely murdered, no doubt about that. The murder occurred in the home of [defendant]. She wasn't a visitor, she wasn't just staying there, that's where she lived. She had met him earlier that night in Blackjack's. And at some point he had gone to her house. These are facts which are not in dispute, ladies and gentlemen.
He was stabbed numerous times; you heard the medical examiner say 24 times. That is not counting the physical blows he received on top of the head[.]
At this point, defendant objected to the State's use of the phrase "undisputed facts," arguing that such wording implied that defendant had a burden to dispute the facts or that defendant had admitted these facts. In response to such arguments, the court issued a curative instruction to the jury, stating: any comment by either counsel concerning the evidence is not binding on you. So if counsel suggests that something is unrefuted and you believe it is, you're going to follow your own recollection. Again, you are the judges of the facts, and the [c]court reminds you, defendant has no burden of proof here at all.
During his charge to the jury, the judge explained the elements of first-degree robbery and its lesser-included offenses of second-degree robbery and theft from the person; felony murder; and purposeful or knowing murder. In providing the jury charge for felony murder, the judge instructed:
Felony murder is committed when the actor, acting either alone or with one or more other persons, is engaged in the commission of, or attempt to commit, or the flight after committing or attempting to commit robbery. And in the course of such crime, or immediate flight therefrom any person causes the death of the robbery victim.
Thus it does not matter that the act which caused death was committed by a participant in the robbery other than the defendant. Nor does it generally matter that the act was -- that the act which caused death was committed recklessly or unintentionally or accidentally. Each participant in the crime of robbery, whether the participant herself caused the death or not, would be guilty of felony murder.
You cannot find the defendant guilty of felony murder unless you first find her guilty beyond a reasonable doubt of having committed the crime of robbery in the first or second degree.
In order to meet its burden of proof, the [S]tate must prove beyond a reasonable doubt the following:
One, that but for the defendant's conduct in the commission of, or attempt to commit, or flight after committing or attempting to commit robbery, the victim would not have died. In other words, that the victim's death would not have occurred without the commission of the robbery.
Two, that the victim's death was a probable consequence of the commission of, or attempt to commit, or flight after committing or attempting to commit robbery.
In order for the death to be a probable consequence of robbery, the death must not have been too remote or too accidental in its occurrence, or too dependent upon another's volitional act to have a just bearing on the defendant's liability or the gravity of her offense.
In other words, you must decide if the [S]tate has proven beyond a reasonable doubt that under all the circumstances, the death did not occur in such an unexpected or unusual manner that it would be unjust to find the defendant responsible for the death of William Goldware.
The jury deliberated and returned its verdict, finding defendant not guilty of first-degree robbery and purposeful or knowing murder, but guilty of second-degree robbery and felony murder. Counts three (first-degree robbery), five (possession of a weapon for unlawful purpose), six (unlawful possession of a weapon), and seven (tampering with physical evidence) were dismissed.
Defendant thereafter moved for a new trial, alleging an inconsistent verdict, error in the court's not charging conspiracy, and a taint of the jury based upon Juror Twelve seeing defendant in handcuffs and shackles. The judge denied the motion, finding that the verdict was not inconsistent because the jury could have concluded that defendant planned the strong-armed robbery with co-defendant Turner and because Goldware's death was a foreseeable consequence of the robbery. The judge further ruled that a separate conspiracy charge to murder was not necessary and that defendant had suffered no prejudice as a result of the asserted jury taint because the only juror who saw defendant in shackles had been promptly excused and the remaining jurors had been given a limiting instruction. Judge Delehey then proceeded to sentence defendant to a term of thirty years with thirty years of parole ineligibility.
Defendant argues that her conviction should be reversed because the trial court's jury charge was inadequate in that it failed to instruct the jury on "divergent factual versions" of causation for felony murder. The State argues the charge was adequate because the jury charge followed the model jury charge and because there were no divergent theories of causation. We agree with the State.
"Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). These jury charges must provide a "comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 287-88. When this court reviews a jury charge, it reads the charge as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973). If the defendant does not object to the charge at the time it is given, however, there is a presumption that the charge was not error and was unlikely to prejudice her case. State v. Macon, 57 N.J. 325, 333-34 (1971). Furthermore, where a defendant does not object to the charge, the charge will be reviewed under the plain error standard, Rule 1:7-2, and any error will be disregarded unless it was "clearly capable of producing an unjust result." R. 2:10-2.
While model jury charges are often helpful to trial courts in charging a jury, State v. Concepcion, 111 N.J. 373, 379 (1988), where "the statement of relevant law, when divorced from the facts, [is] potentially confusing or misleading to the jury," the model jury charge should be molded "to the facts adduced at trial." State v. Robinson, 165 N.J. 32, 42 (2000).
To support her claim that the felony murder charge was insufficient, defendant cites State v. Martin, 119 N.J. 2 (1990). In Martin, the Court found that the trial court's jury instructions were inadequate because they failed to properly instruct the jury on the issue of causation. Id. at 34. The defendant in Martin was charged with both knowing and purposeful murder and felony murder for lighting a fire that killed a woman. Id. at 5. At trial, the defendant and the State presented versions of the facts that "differed materially." Id. at 6. Defendant stated that he lit a paper bag of trash on fire and that he expected the fire to go out, while the State argued that defendant used kerosene and deliberately lit the fire using an accelerant. Id. at 6-7. Defendant further argued that the resulting death was not a foreseeable, intended, or a probable consequence of his actions; he cited to several intervening events and conditions that made the victim's death too remotely related to his conduct as to allow a finding that his actions were the cause of death. Id. at 9-10.
The Court discussed the issue of causation, stating it "is a term of art, the meaning of which varies with the mental state of the actor. It means one thing when an offense is committed knowingly or purposely, and something else for a crime of strict or absolute liability, such as felony murder." Id. at 11 (internal citations omitted). "Causation, like criminal knowledge or intent, is often a nettlesome proposition to explain to a jury. The explanation, however, is essential if the jury is to apply the dispositive legal principles to the facts." Id. at 18. In determining causation, the Court found two requirements. The first is "that the actor's conduct must be 'an antecedent but for which the result in question would not have occurred.' Under this 'but-for' test, the defendant's conduct is deemed a cause of the event if the event would not have occurred without that conduct." Id. at 11 (quoting N.J.S.A. 2C:2-3a(1)). The second requirement is that the death did not differ "in kind from that designed or contemplated or that the death was [not] too remote, accidental in its occurrence, or dependent on another's volitional act to justify a murder conviction." Id. at 13.
The Court further found that the jury charge was inadequate because the defendant was entitled to a jury charge that was consistent with his version of the facts and which would have supplied the jury with the legal predicate to find that the victim's death was too remotely related to his conduct. Id. at 16. The Court stated: When, as here, divergent factual versions give rise to different theories of causation, the trial court should provide the jury with appropriate instructions, depending on which version it chooses to accept. Because defendant's version was predicated on a divergence between the actual and designed or contemplated results, the court should have included an instruction that was consistent with the defendant's version. Without that charge, the jury could not properly consider the significance of defendant's version of the facts. So essential to the jury's deliberations was the charge that the failure to provide it clearly possessed the capacity to bring about an unjust result. [Id. at 16-17 (internal citations omitted).]
The Court also discussed the issue of instructing the jury as to causation on a felony murder charge. It stated, "[t]he court should instruct the jury that the defendant, whether a sole perpetrator or an accomplice, is liable for felony murder only if the death is not too remote, accidental in its occurrence, or too dependent on another's volitional act to have a just bearing on the defendant's culpability." Id. at 32. The Court set forth a more adequate felony murder jury charge, stating that such a charge would have instructed the jury that it must find not only that defendant committed the crime . . . and that the death of the victim occurred in the course of that crime, but also that her death would not have occurred but for the [defendant's actions] and that her death was not too remote or accidental in its occurrence. [Id. at 33.]
Here, the State did not dispute that Turner killed Goldware. The instruction, which followed the model charge, included the required language about the death not occurring in such an unexpected or unusual manner that it would be unjust to find the defendant responsible for the death because of her participation in the robbery. Defendant maintains that, at trial, her version of the facts was not that Turner did not kill Goldware, but that she did not know Turner would be armed, and that she did not anticipate that he would kill Goldware.
As the State points out, the present case is distinguishable from Martin because there is no factual dispute as to the cause of Goldware's death. In Martin, the defendant asserted numerous intervening causes that made the victim's death too remote. Here, no such intervening causes were presented. Rather, defendant's argument is that she did not intend for Turner to use a weapon in robbing Goldware and instead she anticipated and consented only to a theft. This is not a factual dispute, but is instead a state-of-mind argument that was resolved in the jury's decision to find defendant not guilty of first-degree robbery and to convict her of second-degree robbery.
Furthermore, even if there were differing factual accounts, the judge's felony murder jury charge was adequate under Martin. Unlike the trial court in Martin, Judge Delehey included instructions on causation, stating that for the jury to find felony murder, they must find: that the victim's death was a probable consequence of the commission of, or attempt to commit, or flight after committing or attempting to commit robbery.
In order for the death to be a probable consequence of robbery, the death must not have been too remote or too accidental in its occurrence, or too dependent upon another's volitional act to have a just bearing on the defendant's liability or the gravity of her offense. [(emphasis added).]
This language mirrors the language set forth in Martin for a proper jury charge on felony murder and requires the jury to find causation before it finds felony murder. We thus reject the claim defendant advances in Point I.
Next, defendant argues that the trial court erred in not granting her motion for a mistrial after Juror Twelve saw defendant in handcuffs and shackles and in the custody of sheriff's officers and allegedly relayed this information to his fellow jurors. The State argues that because Juror Twelve was dismissed, the remaining jurors denied any knowledge of defendant being in custody, and the court issued a curative instruction that there was no jury taint and defendant's mistrial motion was properly denied. We are satisfied that the judge was justified in his belief that the remaining jurors had no knowledge of defendant's being shackled and in custody, and that the dismissal of Juror Twelve and curative instruction was adequate to address any potential prejudice to defendant. There is nothing in the record that would cause us to question the judge's findings and ruling on this issue.
"[A] criminal defendant's right to a fair trial requires that he be tried before a jury panel not tainted by prejudice." State v. Biegenwald, 106 N.J. 13, 32 (1987). A new trial must be granted when improper influence "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. Weiler, 211 N.J. Super. 602, 610 (App. Div.) (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)), certif. denied, 107 N.J. 37 (1986). Such improper influence may include instances where jurors view defendant dressed in prison clothing or in restraints. Estelle v. Williams, 425 U.S. 501, 512-13, 96 S.Ct. 1691, 1697, 48 L.Ed. 2d 126, 135 (1976); State v. Kuchera, 198 N.J. 482, 496-97 (2009); State v. Damon, 286 N.J. Super. 492, 497-98 (App. Div. 1996).
We have recognized however, that where such improper influence is suspected, the trial court should examine the potentially prejudicial information, determine if it has the capacity to prejudice defendant, and conduct voir dire to determine which jurors were exposed to the information. State v. Scherzer, 301 N.J. Super. 363, 487 (App. Div.), certif. denied, 151 N.J. 466 (1997). "[T]he trial 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." Id. at 487-88. However, any such decision on potential bias "is addressed to the sound discretion of the trial judge. Ordinarily, a juror's declaration of impartiality will be accorded great weight and a judge's assessment of a juror's credibility in responding to questions will be respected." State v. Carroll, 256 N.J. Super. 575, 599 (App. Div.), certif. denied, 130 N.J. 18 (1992).
Here, the judge's actions were proper, avoided prejudice to defendant, and his determination will be afforded deference by this court. After Juror Twelve saw defendant in custody, Judge Delehey questioned him in camera and outside of the presence of the other jurors. Based on the information provided, that Juror Twelve had seen defendant in the custody of sheriff's officers and informed his fellow jurors as such, the judge excused Juror Twelve and proceeded to question each member of the jury individually. All the other jurors stated that they had not heard any discussions regarding whether defendant was in custody or released on bail nor any discussions relating to what Juror Twelve had seen. As noted above, there is no evidence in the record to support defendant's claim that Judge Delehey abused his discretion in believing the remaining jurors, rather than Juror Twelve.
The judge acted decisively. He promptly excused the tainted juror, questioned the others, and denied the mistrial motion upon a finding that the remaining jurors were not improperly influenced. The measures taken by the judge were reasonable and adequate. We thus reject the claim raised by defendant in Point II.
Defendant next argues that the State's comments in summation improperly made reference to "undisputed facts," and exceeded the bounds of propriety by inferentially commenting upon defendant's Fifth Amendment rights.*fn5 The State argues these remarks did not prejudice defendant and any potential prejudice was prevented by the trial court's curative instruction. At issue is whether the prosecutor's remarks had the capacity to deny defendant her right to a fair trial. We think not.
"[A] prosecutor is afforded considerable leeway to make forceful arguments in summation." State v. Bradshaw, 195 N.J. 493, 510 (2008). However, in the prosecutor's effort to see that justice is done, the prosecutor "should not make inaccurate legal or factual assertions during a trial." State v. Frost, 158 N.J. 76, 85 (1999). Rather, a prosecutor should "confine [his or her] comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Smith, 167 N.J. 158, 178 (2001). Nor should the prosecutor vouch for the credibility of a witness. Frost, supra, 158 N.J. at 85. So long as the prosecutor's comments are based on the evidence in the case and the reasonable inferences from that evidence, the prosecutor's comments "will afford no ground for reversal." State v. Johnson, 31 N.J. 489, 510 (1960). [Ibid.]
Furthermore, a prosecutor is allowed to make remarks in summation that constitute legitimate inferences from the facts. State v. Perry, 65 N.J. 45, 48 (1974).
If the prosecutor's remarks in summation are found to be enough to constitute misconduct, reversal is only required when the conduct "was so egregious that it deprive[d] the defendant of a fair trial." Frost, supra, 158 N.J. at 83. To determine whether the conduct deprived defendant of her right to a fair trial, this court considers whether defense counsel made a timely and proper objection, and whether the court ordered the remarks stricken and ordered the jury to disregard them. State v. Ramseur, 106 N.J. 123, 322-23 (1987).
In support of her argument that the comments were improper, defendant cites to State v. Sinclair, 49 N.J. 525 (1967) to argue that such comments were improper warranting reversal. In Sinclair, the prosecutor's repeated remarks that a witness's testimony was "uncontradicted" when only the defendant or co-defendant could have presented contrary testimony raised the danger that the jury would draw an improper inference from the defendant's failure to testify. Id. at 549. While the prosecutor's remarks here do bear some similarity to those the Court criticizes in Sinclair, we are satisfied that the judge's immediate and forceful curative instruction preserved defendant's right to a fair trial. He stated: any comment by either counsel concerning the evidence is not binding on you. So if counsel suggests that something is unrefuted and you believe it is, you're going to follow your own recollection. Again, you are the judges of the facts, and the [c]court reminds you, defendant has no burden of proof here at all.
It is presumed that the jury followed the judge's instruction. State v. Burns, 192 N.J. 312, 335 (2007). In any event, we find no reversible error.
Finally, defendant argues that the jury's acquittal on the charges of purposeful and knowing murder and first-degree robbery indicate that they "did not believe the defendant was aware the co-defendant would be armed with a deadly weapon and/or inflict serious bodily injury upon the victim." As such, defendant argues that these not guilty verdicts were inconsistent with the guilty verdict on the felony murder charge, that the not guilty verdicts precluded a finding of guilty on the felony murder charge, and that the guilty verdict was thus "fatally defective."
We disagree. Notably, the verdicts are not defective because second-degree robbery is a predicate offense under the felony murder statute and because the jury was properly instructed in that regard.
Beyond that, consistency in verdicts is not necessary, and inconsistent verdicts will be upheld when there is sufficient evidence to uphold the convictions beyond a reasonable doubt. United States v. Powell, 469 U.S. 57, 65, 105 S.Ct. 471, 476, 83 L.Ed. 2d 461, 468 (1984); Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356, 358-59 (1932); State v. Banko, 182 N.J. 44, 53 (2004). "Any inquiry in this regard is limited to whether the counts of which defendant was convicted were supported by sufficient evidence to permit a rational fact finder to find guilt beyond a reasonable doubt." State v. Ortiz, 253 N.J. Super. 239, 245 (App. Div.), certif. denied, 130 N.J. 6 (1992). This analysis of the verdict "is warranted only in those cases 'where an acquittal on one count precludes the finding of one or more elements of an offense charged in a second count as a matter of law.'" Ibid. (quoting State v. Peterson, 181 N.J. Super. 261, 266 (App. Div. 1981), certif. denied, 89 N.J. 413 (1982)).
Here, defendant's conviction on felony murder was not precluded by her acquittal of purposeful or knowing murder or first-degree robbery. The felony murder statute states that felony murder: is committed when the actor, acting either alone or with one or more other persons, is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, sexual assault, arson, burglary, kidnapping, carjacking, criminal escape or terrorism . . . and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants . . . . [N.J.S.A. 2C:11-3(a)(3) (emphasis added).]
The statute lists robbery, which under N.J.S.A. 2C:15-1 includes both first-degree and second-degree robbery, as a predicate offense for a conviction of felony murder. As such, defendant's conviction for felony murder was not precluded, as a matter of law, by her acquittal of purposeful or knowing murder or first-degree robbery.