On certification to the Superior Court, Appellate Division, whose opinion is reported at
The opinion of the court was delivered by: Chief Justice Rabner
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
CHIEF JUSTICE RABNER, writing for a unanimous Court.
The Court considers three issues in this appeal: (1) whether it was appropriate for the trial court to play back video-recorded witness testimony at the jury's request; (2) whether the jury charge -- which stated that defendant was "presumed innocent even if he chooses not to testify" -- violated defendant's right not to testify; and (3) whether the trial court properly imposed consecutive fourteen-year terms of imprisonment.
Defendant and a juvenile robbed two construction workers, Benjamin Pichaya and Milton Dominguez, with a sawed-off shotgun. After the victims alerted the police, officers pursued and detained defendant. During the pursuit, defendant was seen tossing an item later found to be a sawed-off shotgun. A grand jury indicted defendant on seven counts, including two counts of first-degree robbery.
At trial, Pichaya, Dominguez, several police officers, and a ballistics expert testified. Defendant neither testified nor called any witnesses. The trial judge instructed the jury that it could "not consider for any purpose or in any manner . . . the fact that the defendant did not testify." The final sentence for that part of the charge declared that the defendant "is presumed innocent even if he chooses not to testify." Defense counsel did not object to the instruction, which was based on the model jury charge in existence at the time. During deliberations, the jury sent a note with the following request: "Could we get a read-back or playback of Pichaya's testimony?" Because no court reporter was present at trial, the court stated that it would play the digital video of Pichaya's full testimony for the jury. Although defense counsel objected, the trial court found that there would be no prejudice to defendant from the playback and directed that the jury be permitted to view the entire video of Pichaya's testimony in open court, with all parties present.
The jury found defendant guilty on all counts. At sentencing, the court identified no mitigating factors, but found three aggravating factors: the risk that defendant would commit another offense, the extent of his prior criminal record and seriousness of the offenses of conviction, and the need to deter defendant and others from violating the law. For each of the two robbery counts, the court imposed identical, consecutive, fourteen-year terms of imprisonment. The court did not mention State v. Yarbough, 100 N.J. 627 (1985), or explain why the sentences on the robbery counts should run consecutively.
The Appellate Division affirmed defendant's conviction and sentence, holding: (1) no error existed in the trial court's decision to allow the jury to watch a recorded playback of Pichaya's testimony; (2) the jury charge given in this case, read as a whole, had no capacity to lead the jurors astray regarding defendant's decision not to testify; and (3) although there was no express mention of the Yarbough criteria, no remand for resentencing was required because the trial court's "factual findings implicitly address two factors identified in Yarbough that militate in favor of consecutive sentences for robberies." The panel deferred to the trial judge because it could "discern" that he had considered the relevant legal principles.
The Supreme Court granted defendant's petition for certification. 202 N.J. 44 (2010).
HELD: (1) The trial court did not err in replaying video-recorded witness testimony at the jury's request; (2) the jury charge concerning defendant's decision not to testify was not plain error; and (3) the court mistakenly did not address the Yarbough factors and its reasoning for imposing consecutive sentences cannot be sufficiently discerned from the record. Thus, defendant's conviction is affirmed and the case is remanded for resentencing.
1. Absent unusual circumstances, juries' requests to review trial testimony while deliberating should be granted. Although court reporters traditionally read from their notes to refresh memory, in recent years, court reporters have become increasingly less common, giving way to digital recording equipment. With the independent use of digital recording equipment to create the record, it is no longer possible to read back testimony promptly without delaying trials to transcribe the recorded testimony. To fulfill their task of determining facts and making credibility determinations, juries should be provided with the best available form of evidence, upon request, unless there is a sufficiently strong, countervailing reason not to proceed in that way. In the digital age, that means presumptively providing video playbacks in favor of read-backs. (pp. 10-13)
2. Trial courts that use video and digital recording equipment to create the entire record should use the following guidelines when exercising their discretion over the playback of testimony: (1) judges should ordinarily grant a jury's request to play back testimony; (2) after redacting sidebars and inadmissible testimony to which counsel objected, the entire testimony requested should be played, including direct and cross examination; (3) courts should honor a jury's specific request to hear only limited parts of a witness's testimony, provided that playback includes relevant direct and cross examination; (4) playbacks, like read-backs, should take place in open court with all parties present; (5) at the time the testimony is repeated, judges should instruct jurors to consider all evidence presented and not give undue weight to the testimony played back; (6) judges should make a precise record of what was played back to the jury; and (7) trial judges must continue to exercise discretion to deny playing back all or part of the evidence requested when necessary to guard against unfair prejudice. The party opposing a playback has the burden to object and demonstrate prejudice. (pp. 13-18)
3. There was no error in the trial court's decision to replay Pichaya's testimony because there was no ambiguity in the jury's request; a read-back was impractical and would have caused unnecessary delay; Pichaya's entire testimony was replayed; the playback took place in open court; and defendant did not claim any particular prejudice from a replay of the testimony. Although the trial court did not give a specific instruction regarding the replayed testimony, the charge directing jurors to consider all of the evidence submitted was sufficient in light of the state of the law at the time. (pp. 18-19)
4. Because defendant did not object to the jury charge concerning his decision not to testify at trial, reversal is only appropriate if the charge was erroneous and "clearly capable of producing an unjust result." Read as a whole, the charge given had no capacity to lead the jurors astray because it clearly directed them that they could not consider defendant's decision not to testify. (pp. 19-21)
5. The trial court's reasons for finding three aggravating and no mitigating factors in determining the length of defendant's sentences are supported by competent credible evidence in the record. (pp. 21-22)
6. Trial judges have discretion to decide if sentences should run concurrently or consecutively. In exercising that discretion, courts should consider the criteria set forth in State v. Yarbough. When a sentencing court properly evaluates the Yarbough factors in light of the record, the court's decision will not normally be disturbed on appeal. However, if the court does not explain why consecutive sentences are warranted, a remand is ordinarily needed for the judge to place reasons on the record. Although sentences can be upheld where the transcript makes it possible to "readily deduce" the judge's reasoning, such cases are the exception and require a record clear enough to avoid doubt as to the facts and principles the court considered and how it meant to apply them. In this case, the sentencing court mistakenly did not address the Yarbough factors, and its reasoning for imposing consecutive sentences cannot be sufficiently discerned from the record. (pp. 22-26)
The judgment of the Appellate Division is AFFIRMED with regard to defendant's conviction, and the matter is REMANDED for resentencing.
JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO, and HOENS and JUDGE STERN (temporarily assigned) join in CHIEF JUSTICE RABNER's opinion.
CHIEF JUSTICE RABNER delivered the opinion of the Court. As advances in modern technology make their way into the courtroom, the Judiciary -- like the rest of society -- must adapt. With increasing frequency, courtrooms are being outfitted with digital recording equipment and no longer use court reporters. That development presents new issues when juries ask for recorded testimony to be played back during their deliberations. To aid trial judges who respond to those requests, we offer certain guidelines for the playback of video-recorded witness testimony.
In this case, a jury found defendant Dashawn Miller guilty of seven counts related to the robbery of two construction workers. During deliberations, the jury asked the trial judge to provide a read-back or playback of the testimony of one of the victims. Because the trial was videotaped and no court reporter was present, the judge permitted the jury to watch a video of the victim's testimony -- both direct and cross examination -- in open court. We find no error in the procedure the trial court followed, which largely comports with the approach outlined below.
Defendant also argues that the jury instructions violated his right not to testify and that the trial court failed to address the requisite Yarbough*fn1 factors when it imposed consecutive sentences on the two robbery counts. We find no harm in the jury instructions and affirm defendant's conviction.
On October 9, 2007, two construction workers, Benjamin Pichaya and Milton Dominguez, were installing hardwood floors at a multi-family house in Irvington. At about 3:00 p.m., defendant and a juvenile entered the house. Both were wearing white t-shirts and red caps. Defendant pointed a sawed-off shotgun at the workers while the juvenile searched their pockets and took $60 from Pichaya and $40 from Dominguez. The robbers also searched a third victim who had no money on him.
Once defendant and the juvenile left the house, Pichaya tried unsuccessfully to call the police on his cell phone. Dominguez then called his boss, who contacted the police but remained on the line. Next, Pichaya and Dominguez followed their assailants out of the building, and Dominguez relayed where the perpetrators were headed. When the victims saw the police arrive, they returned to their worksite.
Officer Jeffrey Kelly of the Irvington Police Department responded to the dispatch about the robbery. He spotted defendant and his accomplice -- who matched the description broadcast on the radio -- and drove toward them. He then jumped out of the car and ordered them to get on the ground. Defendant ran, while Officer Kelly restrained the juvenile. As defendant headed up the block, Officer Kelly saw him toss his jacket and something else toward a bush.
Meanwhile, two other officers arrived and pursued defendant. They arrested him near an abandoned house in the area. Officer Kelly and another officer then searched the bushes where Kelly had seen defendant throw his jacket, and they retrieved a sawed-off shotgun. Soon after, the police transported Pichaya and Dominguez to the site of the arrest, and they both identified defendant and the juvenile.
On January 18, 2008, a grand jury in Essex County indicted defendant for the following offenses: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; two counts of first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; third-degree possession of a sawed-off shotgun, N.J.S.A. 2C:39-3(b); second-degree possession of a firearm with an unlawful purpose, N.J.S.A. 2C:39-4(a); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a).
A three-day trial began on August 26, 2008. Pichaya, Dominguez, and several police officers testified. In addition, a ballistics expert identified the recovered weapon as a sawed-off shotgun.
Defendant neither testified nor called any witnesses. The trial judge instructed the jury that it could "not consider for any purpose or in any manner . . . the fact that the defendant did not testify." The final sentence for that part of the charge declared that the defendant "is presumed innocent even if he chooses not to testify." Defense counsel did not object to the instruction, which was based on the model jury charge in existence at the time.
During deliberations, the jury sent a note with the following request: "Could we get a read-back or playback of Pichaya's testimony?" Because no court reporter was present at trial, the court stated that it would play the video of Pichaya's full testimony for the jury. Defense counsel objected, arguing that a playback "would have the effect of having the witness testify over again." After discussing and distinguishing this Court's decision in State v. Burr, 195 N.J. 119 (2008), the trial court found there would be no prejudice to defendant from a playback and directed that the jury be permitted to view the entire video of Pichaya's testimony in open court, with all parties present.
The jury found defendant guilty on all seven counts. At sentencing, the trial court noted that defendant entered the private home in Irvington in possession of a sawed-off shotgun and while armed committed a robbery against two separate individuals.
Indeed, during the course of the trial it came out that they attempted to rob a third individual, but he had nothing on his person and, therefore, took nothing of his person.
The court also reviewed defendant's criminal history at some length and observed that "from the very age of thirteen or thereabouts, [defendant] has engaged in a pattern of criminal activity that has continued unabated until this day." The court identified no mitigating factors but found three aggravating factors: the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and seriousness of the offenses of conviction, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9).
For the robbery count relating to Dominguez, the court sentenced defendant to a fourteen-year term of imprisonment, subject to an 85-percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. For the robbery count relating to Pichaya, the court imposed an identical, consecutive, fourteen-year term. The court did not mention the Yarbough factors or explain why the sentences on the robbery counts should run consecutively.
As to the remaining counts of conviction, the court merged two counts into the substantive robbery offenses and imposed shorter, concurrent sentences on the other three counts. The court also ...