January 10, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PARRISH BING, A/K/A RICK JOHNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-04-0559.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 15, 2010
Before Judges Cuff and Sapp-Peterson.
A jury found defendant guilty of third degree knowingly or purposely possessing a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1) (Count One); third degree knowingly or purposely possessing with intent to dispense or distribute CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Two); third degree knowingly or purposely possessing with intent to dispense or distribute CDS within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Three); third degree knowingly or purposely dispensing or distributing CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Four); and third degree knowingly or purposely dispensing or distributing CDS within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Five). Judge Kracov merged Counts One through Four with Count Five and imposed a ten-year term of imprisonment with a five-year period of parole ineligibility, to be served concurrent to the sentence imposed on a violation of probation under Indictment No. 06-05-812. The appropriate fees, fines, penalties, and assessments were also imposed.
On appeal, defendant raises the following arguments:
THE TRIAL COURT'S FAILURES TO BEGIN VOIR DIRE ANEW FOLLOWING CONTAMINATION OF THE ARRAY AND TO EXCUSE POLICE AND GUILT-PRONE POTENTIAL JURORS FOR CAUSE CONSTITUTED ABUSES OF DISCRETION REQUIRING REVERSAL.
A) THE POSSIBLE TAINT RESULTING FROM A CORRECTIONS OFFICER VENIREMAN'S COMMENT THAT HE SAW MR. BING "ON THE INSIDE" AND THE TRIAL COURT'S FAILURE TO BEGIN VOIR DIRE ANEW DEPRIVED MR. BING OF HIS RIGHT TO A FAIR AND IMPARTIAL JURY (Partially Raised Below) (U.S. Const. VI, XIV; N.J. Const. (1947) Art. I Par. 10)
B. THE TRIAL COURT'S FAILURE TO CONDUCT PROBING VOIR DIRE OF POLICE/GUILT-PRONE JURORS, IT'S CLOSED-ENDED LECTURES AND QUESTIONING, AND IT'S REFUSAL TO EXCUSE SUCH JURORS FOR CAUSE WERE ABUSES OF DISCRETION REQUIRING REVERSAL (Partially Raised Below).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND WAS REACHED BECAUSE OF THE IMPROPER REJECTION OF APPLICABLE MITIGATING FACTORS AND THE IMPROPER ADOPTION OF AN INAPPLICABLE AGGRAVATING FACTOR.
Jury selection began on October 30, 2007. Judge Kracov instructed the array on the process of jury selection and the trial in general. He noted that defendant and the State were entitled to jurors who are impartial and agree to keep their minds open until a verdict is reached[,] [j]urors who will listen to the case, decide it on the evidence they have heard in the courtroom, will keep an open mind, and are not biased or prejudice[d] to anyone or either side.
The judge gave the potential jurors some time to fill out voir dire questionnaires. Of the questions asked, one asked whether a potential juror had any family or friends involved in law enforcement, two sought to determine whether the juror would show a preference to a police officer's testimony, and one asked whether the juror would be able to accept the principle that the indictment is not evidence of guilt. After eliminating prospective jurors with scheduling or medical concerns, the judge placed the first fourteen potential jurors in the jury box. He then engaged each potential juror in a discussion of his or her answers to the questions.
Several of the potential jurors expressed doubts they could be impartial with respect to police officers. Some noted they had family members or friends in law enforcement. Two potential jurors expressed doubt they would not view the indictment as evidence of guilt. In all cases, however, the judge attempted to rehabilitate the jurors by explaining the impartiality that was required of them. The majority of the potential jurors said that in light of the judge's instruction, they would try to remain impartial. However, even after an attempt to rehabilitate, the judge excused one juror who said that he could not remain impartial. At the end of the questioning, the judge asked each person if he or she would be a good juror and, if so, why. They all answered they would be good jurors.
On the first day of jury selection, the judge requested that juror H-M*fn1 engage in a sidebar conversation with him based on an answer she gave. She told the judge she heard "one of the other jurors tell the Sheriff's Officer that the defendant was on the inside. He was a corrections officer and knew him from the inside." H-M felt this statement affected her view of defendant and she "would feel that he's been convicted before" and thus could not be fair. The juror mentioned that the other prospective juror did not make the comment very loudly. She described it as a "low utterance."
In her response, defense counsel suggested that they "get a whole new panel and start over." However, because H-M did not know whether anyone else around her heard the comment, the judge addressed all the potential jurors and asked if "any of you folks out there or over here hear one of the jurors, who may have been a corrections officer, say anything to you or to someone around you about the defendant?"
Another potential juror, J.E., raised his hand and told the judge at sidebar that this person said "he worked in a corrections institut[ion] and he saw the defendant inside." The prospective juror mentioned that he "imagine[d] other people heard [the corrections officer]."
Judge Kracov expanded his inquiry by taking testimony from the Sheriff's Officer. He accepted the Sheriff's Officer's statement that the corrections officer spoke to the prospective juror in a tone low enough to prevent others from hearing his remark. Judge Kracov opined that the entire array had not been tainted. He stated: "If I thought there was the slightest taint, I would order a new panel. Since I cannot find anything after having a hearing here, I will continue the process." The judge, however, dismissed both H-M and J.E., and continued with jury selection.
As voir dire continued, Judge Kracov dismissed several jurors who expressed their relationships with law enforcement personnel might influence their assessment of the case. Frequently, he did so as soon as a prospective juror noted the relationship or stated that s/he may be biased, but before the juror had an opportunity to fully explain his or her reasons. Similarly, any juror who seemed guilt prone was quickly excused. Judge Kracov explained he did not want their reasons to influence other jurors. Defense counsel did not object.
Defendant challenged several witnesses for cause, and the judge denied these requests. Thus, each side used peremptory challenges to remove several potential jurors. As a result, the judge called for a new panel of potential jurors on the second day. He followed the same procedures with the second panel as he did with the first. After challenging several more jurors, both parties agreed that they were "satisfied with the jury as presently constituted."
The final jury panel was composed of jurors J.C., C.F., S.C., Sa.C., M.M., F.E., I.M., J.S., J.N., J.R., A.R., and L.Mc.. The two alternates were H.D. and J.P. The record reveals that jurors Sa.C., F.E., J.N., J.R., L.Mc., and H.D. were part of the first array. Jurors J.C., C.F., and S.C. were members of the second array. The record does not disclose the source of the remaining jurors.
"'Voir dire procedures and standards are traditionally within the broad discretionary powers vested in the trial court [and] its exercise of discretion will ordinarily not be disturbed on appeal.'" State v. Wakefield, 190 N.J. 397, 496 (2007) (quoting State v. Papasavvas, 163 N.J. 565, 595 (2000)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008); see also State v. Williams, 113 N.J. 393, 410 (1988); State v. Singletary, 80 N.J. 55, 62-63 (1979). This is because [d]ecisions concerning the potential bias of prospective jurors are primarily subjective in nature. They require at bottom a judgment concerning the juror's credibility as he responds to questions designed to detect whether he is able to sit as a fair and impartial trier of fact. Consequently, such evaluations are necessarily dependent upon an observation of the juror's demeanor during the course of voir dire -- observations which an appellate court is precluded from making. [Singletary, supra, 80 N.J. at 63.]
The Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution provide all criminal defendants with "'the right to . . . trial by an impartial jury.'" State v. Williams, 93 N.J. 39, 60 (1983); State v. Bisaccia, 319 N.J. Super. 1, 12 (App. Div. 1999). Thus, "the trial judge must take action to assure that the jurors have not become prejudiced as a result of facts which '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.'" Bisaccia, supra, 319 N.J. Super. at 12 (quoting State v. Scherzer, 301 N.J. Super. 363, 486 (App. Div.), certif. denied, 151 N.J. 466 (1997)). Therefore,
[w]here the court concludes there is a realistic possibility that information with the capacity to prejudice defendant's right to a fair trial may have reached members of jury, it should conduct a voir dire to determine whether any exposure has occurred. If there is any indication of such exposure or knowledge of extra-judicial information, the court should question those jurors individually in order to determine precisely what was learned, and establish whether they are capable of fulfilling their duty to judge the facts in an impartial and unbiased manner, based strictly on the evidence presented in court. [State v. Bey, 112 N.J. 45, 86-87 (1988).]
Defendant argues his constitutional right to a fair and impartial jury was denied when the trial judge failed to "begin voir dire anew after the possibility that the array had been tainted by an array member's comment, in open court, that he saw Mr. Bing 'on the inside.'" He also suggests that this taint was "compounded by the trial court's question to the entire remaining array as to whether anyone had heard 'one of the jurors, who may have been a corrections officer, say anything to you or to someone around you about the defendant?'"
The State argues that defendant received a fair and impartial trial with an impartial jury, and the trial judge properly denied his request to begin voir dire anew. Specifically, the State contends that the "corrections officer's comment was of no consequence, and the trial judge was correct in choosing to voir dire the jurors who had heard the comment and to ultimately dismiss them."
We are satisfied that the trial judge acted appropriately when informed by prospective juror H-M of the overheard remark.
He questioned her and then posed a question to the entire array. By including the phrase "who may be a corrections officer" in his question, the judge sought to identify the speaker without disclosing the nature of the information. When one prospective juror and a Sheriff's Officer responded to the question, Judge Kracov questioned them. The prosecutor and defense counsel had the opportunity to question the three persons who disclosed they heard the remark. In addition, the judge learned that two other prospective jurors may have heard the remark, but one had already been excused and the other did not understand English.
The inquiry conducted by the trial judge was entirely consistent with his obligation "to assure that the jurors have not become prejudiced . . . ." Bisaccia, supra, 319 N.J. Super. at 12. The trial judge's ultimate finding that the entire array had not been tainted is reasonably based on the record adduced at trial.
Defendant also complains that the trial judge abused his discretion when he failed to conduct probing voir dire of police/guilt-prone jurors. We disagree.
When conducting voir dire, "the decision concerning excusal [is] dependent upon an evaluation of all the facts and circumstances . . . and the juror's ability to act impartially." Singletary, supra, 80 N.J. at 64. Furthermore, "[a] sensitive weighing and appraisal of a juror's entire response must be made by the trial court in its duty to resolve the question of whether the juror has shown bias or prejudgment . . . ." State v. Ramseur, 106 N.J. 123, 257 (1987). "[A] juror who has formed an unalterable opinion of the defendant's guilt or innocence must be excused from service on the panel." State v. Loftin, 191 N.J. 172, 187 (2007); see also Bey, supra, 112 N.J. at 87.
Defendant argues that the trial court failed to fulfill its responsibility to "ferret out any potential jurors that had relevant biases and to excuse any such jurors for cause." Furthermore, he suggests that the court "should have excused the police/guilt prone jurors, just like it had the anti-police, anti-drug, and like jurors." Finally, he suggests that the trial court's attempts at rehabilitating these jurors were either ineffectual or nonexistent, and "impacted some of those in the array who had yet to be voir dired, but who would be more reluctant to admit such a bias knowing the judicial lecture that would ensue from such an admission."
The State, on the other hand, contends that the "trial court properly conducted probing voir dire of potential jurors when necessary and excused jurors when necessary, resulting in a fair and impartial jury." It also argues that "the trial judge went above and beyond in his questioning, asking supplemental questions in those instances where it appeared that a potential juror might have a bias." Furthermore, the State contends that defendant's "claim that the court's questions were leading and prompted the reflexive answer of yes, is without merit."
Here, defendant suggests there are six potential jurors who showed a bias towards police: jurors M.D., D.H., S.S., V.R., M.A., and S.A. He further suggests that two potential jurors showed a bias towards guilt: jurors Sh.C. and C.O. Defendant argues that these potential jurors should have been dismissed by the court. He argues that the trial judge erred in not excusing them when, after he attempted to rehabilitate them, they responded either that they would try to be fair or were not asked whether his efforts at rehabilitation affected them at all. The interaction between the judge and potential juror Sh.C. is instructive:
Sh.C.: Not really yeses, but Number 21. I can feel that obviously my intention is no, but I cannot say that honestly I won't be affected at all.
The Court: You understand that the indictment or the charges are simply that, charges, that when it comes down to it you have to decide the case on what you hear from the evidence here and the evidence here has to show you that the defendant is guilty of the crime he's charged with, not what the charge is. You have to say, here's what the charge is, did I find enough evidence to find him guilty beyond a reasonable doubt. Do you think you can do that fairly?
Sh.C.: I can try.
The Court: Okay. And, again, we want people -- everyone has a little idea of things when they come here, but we try to have you concentrate on the evidence and decide the case on what you hear here or the lack of what you hear. Okay. And at the end I'll tell you what has to be proven. As I said, on this charge you have to prove 1, 2, and 3, and you'll decide from what you have heard from your analysis of the evidence that you find credible whether they prove 1, Number 2, and Number 3 beyond a reasonable doubt. That's what we ask you to do. Okay? Do you think you can do that, ma'am?
Sh.C.: I can try.
The Court: Okay. Now do you believe you could be a good juror in the case? And please tell us why you believe whatever you believe.
Sh.C.: I think I can be very fair because the kind of work I do basically you just have to be very logical. You cannot make assumptions. You just have to look at all -- in our case we have to look at what (indiscernible) need. You cannot make assumptions, okay, they would probably need this one and we can preach something that you really don't necessary. I can -- I guess I can apply the same kind of a thinking.
The judge here conducted a probing voir dire because he evaluated "all the facts and circumstances . . . and [each] juror's ability to act impartially." Singletary, supra, 80 N.J. at 64. Furthermore, Judge Kracov engaged in a "sensitive weighing and appraisal of [each] juror's entire response . . . ." Ramseur, supra, 106 N.J. at 257. Defendant fails to recognize that in each case, the judge inquired whether the potential juror believed that he or she would be a good juror and why. Thus, under all the circumstances, these eight potential jurors indicated that they could be fair triers of fact.
Moreover, the assertion by each of these eight potential jurors that they would make good jurors indicates that none of them had an unalterable opinion one way or the other. See Loftin, supra, 191 N.J. at 187. Indeed, in one specific case the judge excused a potential juror who indicated that even in light of the judge's efforts to rehabilitate him, he would still be unable to eliminate his bias. Considering the totality of the responses that these eight potential jurors provided, the trial judge acted well within his discretion not to excuse them because each indicated that he or she would be a good juror.
Defendant argues that the trial judge abused his discretion when he refused to excuse police/guilt-prone jurors for cause when requested to do so by defense counsel. As a result of this failure, defendant's trial counsel was forced to "use seven of her ten peremptory challenges on such jurors[,] . . . leaving Mr. Bing with a jury that included four jurors with police/friends/relatives and two jurors who knew crime victims, after his counsel exhausted all ten of her peremptory challenges." Thus, defendant argues that the "trial court's voir dire 'undermined' the selection of an impartial jury and, therefore, Mr. Bing's conviction must be reversed." We disagree.
The State argues that the trial judge did not abuse his discretion when he refused to dismiss certain jurors who claimed they could be fair and impartial. It suggests that although defendant states that he had to use all of his peremptory challenges to remove jurors who should have been removed for cause, he "has not demonstrated that any jurors who remained on the final panel should have been removed for cause."
In deciding whether to dismiss a potential juror for cause, "a trial court in the exercise of sound discretion, must decide whether the responses elicited from a prospective juror indicate a view that would prevent or substantially impair that juror's performance in accordance with the court's instruction and that juror's oath." State v. DiFrisco, 137 N.J. 434, 460 (1994); see also Williams, supra, 113 N.J. at 415.
Defendant sought to remove three jurors for cause: Sh.C., M.D., and S.S. There is no evidence that any of the jurors defendant challenged for cause held a view that "would prevent or substantially impair that juror's performance in accordance with the court's instructions and that juror's oath," DiFrisco, supra, 137 N.J. at 460, because each responded that in light of the court's rehabilitative efforts, he or she would be a good juror.
In response to defense counsel's request that the judge excuse prospective juror Sh.C., the judge responded:
The Court: Because I think she assured me that she could be fair about it when I --I questioned her further. So I thought that --
Defense Counsel: She said she would try. Those were her exact words.
The Court: Yes. And that's all we can ask people. We can't -- there's no surety in the world. She's being honest, and I didn't think that was enough to show she shouldn't be fair, so I will not excuse her for cause.
With regard to potential juror M.D., the court stated:
Okay. I will not excuse him for cause. I've listened carefully to him. I think he answered Number 17, the next one, he didn't answer -- he answered that in a way that didn't indicate -- he didn't say yes, he would give the greater or lesser weight to a police officer. He didn't answer that yes. And I listened to him. He said he would be a fair juror, and if I thought that he couldn't be fair, I would have excused him. So I didn't think that his answers indicated anything other than he could be a fair juror, so I won't excuse him.
Finally, with respect to potential juror S.S., the court determined:
Okay. I will not grant the cause challenge here. I listened very carefully to the witness. She answered the questions, as you indicated, but that is not enough. I try to explain to them and each juror that I treat each juror carefully. I said a dozen times that no one gets any special treatment, and I tried to explain that to this juror and others. She under -- she told me she understands that she treats all witnesses the same, and I believe she can do that. Therefore, I don't find need for a challenge for cause. If I thought she couldn't do it in the slightest way, I would excuse her, but, hopefully, because of her answer that indicated when I explained to her what it means to be a juror, she satisfied me that she could be a fair juror.
We discern no error or mistaken exercise of discretion. The judge conducted the appropriate inquiry and received assurances that each juror would fairly and impartially hear and weigh the evidence.
Judge Kracov imposed a discretionary extended term of ten years in prison, five years of which must be served before eligibility for parole. Defendant argues that his "offense was not a 'serious,' greater than average, third-degree offense." Therefore, he maintains the sentence is manifestly excessive.
Defendant's argument overlooks that he was also eligible for a mandatory extended term due to a November 2000 drug conviction. In addition, this set of offenses represented his fifth indictable conviction in this State. We discern no error in the exercise of the considerable discretion reposed in the trial judge. State v. Roth, 95 N.J. 334, 364-66 (1984).