February 23, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN FLORENCE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-04-1390.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 18, 2010
Before Judges Grall and LeWinn.
Tried to a jury in 1994, defendant was convicted of felony murder and related robbery, assault and weapons offenses stemming from a homicide in January 1993, in which defendant was charged as an accomplice. N.J.S.A. 2C:2-6. On July 29, 1994, defendant was sentenced to an aggregate term of life plus twenty years with a forty-year parole ineligibility period. We affirmed his conviction, and the Supreme Court denied certification. State v. Florence, No. A-6493-93 (App. Div. February 10, 1997), certif. denied, 149 N.J. 410 (1997).
On December 2, 2006, Anna Gordon, who had served as a juror at defendant's trial, sent a letter to the Office of the Public Defender expressing some reservations about the verdict. Noting that her decision to find defendant guilty "was not a clear-cut decision," Gordon added:
What has not set well with me for all these years is that one of the jurors said he knew "the word on the street." He or his children knew some of [defendant's] peers and claimed they were all saying that [defendant] was there. At the time I felt this was inappropriate, so I tried not to let it cloud my judgment. In reality I don't know if I was able to keep it out of my thoughts during deliberation. I don't know if this juror spoke of this to other jurors as well, but certainly he himself was influenced by what he heard. So, at least two of us were potentially prejudiced.
Gordon stated that she "wondered if [her] conscience is troubled because [she does] not agree with the law of accomplice liability that forced [the jury] to find [defendant] guilty of murder even though he did not kill anyone." Concluding that it was "not up to [her] to determine how the misconduct of a fellow juror should be handled," Gordon stated that she was "handing it over to the proper authorities within the system . . . to determine whether under these circumstances [defendant] received a fair trial."
Pursuant to defendant's motion, the trial judge conducted a voir dire of Gordon on April 17, 2007. Gordon stated that "within six months of the trial" she called defendant's attorney and "left a message with someone in his office." When the attorney returned her call, he "got [her] answering machine. And [she] chose not to call him back at that time. [She] decided to just let the whole thing drop." Gordon stated that it was "just a matter of conscience for [her], and [she] wanted to ask [the attorney] some questions about the defendant so [she] could rest easier about the decision [the jury] had made."
Approximately one year before she wrote her letter, Gordon again telephoned the trial attorney; this time she spoke to him. She "explained to him why this has been bothering [her] for all these years, which is mainly just perhaps an overscrupulous conscience, but that [she] thought he might be able to put [her] mind at ease." Gordon also told the attorney that she "was really unclear about whether some things that went on during the deliberations were proper," namely that one of the jurors told her that "he, his children, or friends of his children or something, knew what the word on the street was . . . that [defendant] was present at the one robbery where the murder occurred." According to Gordon, the attorney advised her that if she had "said something about that at the time, . . . they probably would have said it was a mistrial."
Gordon stated that advising the trial attorney about her fellow juror's comment was not her "main reason for contacting him. Mainly, [she] wanted to know something about the character of [defendant]," and hoped the attorney "could tell [her] about [defendant] that [sic] would make it more clear that he was guilty and a bad bloke." The attorney suggested to Gordon that she contact the Office of the Public Defender.
Gordon testified that the juror made the comment during deliberations; she recalled that he was male, and she was "pretty confident" that he was African-American; she could not, however, recall his name. Nor could Gordon recall the names of any of the other trial jurors.
Gordon stated that the information was "conveyed" to her in the presence of other jurors, but "it was [at] a time when just [the juror] and [Gordon] were talking." The other jurors "were talking amongst themselves" at that time. Gordon could not recall how close the other jurors were to her when she had this discussion. When asked if another juror could have heard the communication, she said she thought "someone could have or could not have. It wasn't whispered, but [she did not] really think anybody was listening to what he and [she] were talking about at the time. But whether he said that to anybody else, [she had] no way of knowing." The juror did not "indicate" to Gordon whether he had "said or conveyed the same information to anyone else[.]" Nor did Gordon inquire whether he had done so. No other jurors "indicate[d] that they were privy to that communication[.]" Gordon added that the juror made his comment to her "towards the end of [the jury's] deliberations."
When asked about the statement in her letter that she did not "agree with the law of accomplice liability," Gordon stated that the charge "troubled" her because she thinks "there could be a big difference between somebody who holds people up and somebody who is actually capable of blowing somebody away."
On the day following Gordon's voir dire, defendant moved alternatively for (1) a new trial or (2) to "make a full and complete record" by locating and conducting a voir dire of the other trial jurors. The judge denied the latter motion and determined that it was "critical to a complete and full record regarding this motion for a new trial" to conduct a voir dire of defendant's trial attorney.
That voir dire occurred on September 19, 2007. The attorney recalled speaking to Gordon some time in late 2005. He stated that Gordon "identified herself as a juror and she said that her conscience had been bothering her all these years. And that she felt that she wasn't sure if [defendant] was guilty of these offenses. And that she felt that in some manner she was coerced to reaching [sic] a guilty verdict." He added that "the only specific thing she said, is that at least one juror . . . might have had some local knowledge from the community, either about [defendant] or others involved in the incident. And that was somehow . . . used against her to convince her to reach a guilty verdict." The attorney advised Gordon to contact the Office of the Public Defender. He acknowledged that it was "fair to say" that it was "difficult to recall specific phrases [Gordon] used in the conversation."
On January 10, 2008, the trial judge denied defendant's motion for a new trial in a decision rendered from the bench. The judge noted, initially, that this case involves post-trial revelations of alleged misconduct and is not . . . comparable to an instance where the misconduct is brought to the trial judge, and the trial judge failed in some manner or another to properly voir dire, or to correct, or to ameliorate the misconduct in order to ensure a fair trial. The judge found that Gordon's recollection
as to the characterization of the information imparted to her is less than entirely specific, certainly, understandable due to the passage of time that has gone on since the alleged conversation until her communication with [trial counsel] and the . . . writing of her correspondence. . . .
[I]t lacks trustworthiness, and it's not worthy of post-jury interrogation or post-verdict invalidation.
Citing particularly the passage of time since defendant's trial in 1993, the judge concluded that the juror in question, her veracity, . . . her ability to recollect, her motivation --all these factors being highly questionable, debatable and arguable, weigh against that clear manifestation of valid, extraneous information coming to the attention of this jury, and raises a serious question as to the validity of her contentions as to the impact of the same on the deliberations of the jury.
On appeal, defendant raises the following contention for our consideration:
BECAUSE IMPROPER EXTRANEOUS INFORMATION WITH THE CAPACITY TO INFLUENCE THE TRIAL'S OUTCOME INTRUDED INTO THE JURY'S DELIBERATION A NEW TRIAL IS REQUIRED.
Having carefully scrutinized the record in light of this contention and the controlling legal principles, we conclude that it is without merit. The judge's decision was solidly grounded on his finding that, given the extraordinary lapse of time between defendant's trial in 1993 and Gordon's letter in 2006, the reliability and trustworthiness of Gordon's recollection were insufficient to support the conclusion that the jury verdict had been impermissibly compromised.
Where our "study of the record . . . convinces us that the trial court carefully scrutinized the testimony and the record before making factual determinations," we will not "engage in an independent assessment of the evidence as if [we] were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). Here, Gordon's recollection of the alleged communication in the jury room was sketchy, at best. As noted, she could not recall when the comment was allegedly made, which, if any, other jurors may have been within earshot of the comment, or the specific words stated. Indeed, these gaps in Gordon's recollection may well have accounted for her delay in committing her feelings to writing until December 2006.
We are satisfied that the judge properly denied defendant's motion for a new trial based upon his finding that Gordon's testimony failed to demonstrate that impermissible extraneous information had been communicated to the jury. State v. Athorn, 46 N.J. 247, 252, cert. denied, 384 U.S. 962, 86 S. Ct. 1589, 16 L. Ed. 2d 674 (1966).
It is well settled that the test for determining whether a new trial will be granted because of the misconduct of jurors or the intrusion of irregular influences is whether such matters could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge. If the irregular matter has that tendency on the face of it, a new trial should be granted without further inquiry as to its actual effect. The test is not whether the irregular matter actually influenced the result, but whether it had the capacity of doing so. [Panko v. Flintkote Co., 7 N.J. 55, 61 (1951).]
Notably, Gordon did not testify that the juror's comment definitely influenced her own assessment of defendant's guilt or innocence. Nor did her testimony establish that the juror's comment intruded into the jury's deliberations or in any other way meet the test in Panko, supra. See State v. Grant, 254 N.J. Super. 571, 583 (App. Div. 1992) (a new trial will be granted only "where jury misconduct or intrusion of irregular influences into the jury deliberation" satisfies the test in Panko).*fn1
Finally, we address defendant's contention that, earlier in the proceedings, the judge "seemed to agree that [Gordon's] testimony supported a claim for a new trial." We are satisfied that defendant misreads the statement that he claims supports this position, namely the judge's conclusion that the juror's communication to Gordon, "assuming it was made, indeed it was made at the time as stated by the juror during the deliberative process is indeed inherently likely or has the capacity to have the jury informed about information on facts which were not in evidence . . . . " (Emphasis supplied by defendant).
We do not read this statement as a finding by the judge that the communication was "indeed . . . made"; rather, when read in the context of the judge's entire decision, including his use of the word "assuming" immediately before, we are satisfied that the word "if" was likely omitted after the word "indeed" when the proceedings were transcribed. This presumption is consistent with the judge's next comments that such a "finding . . . does not end [the inquiry]" and that Gordon's testimony lacked the degree of "accuracy and consistency" sufficient to constitute "a basis for a new trial."