March 31, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GREGORY T. DELOACH A/K/A IAN EAIN L. DE LOACH, ABU M. DELOACH, GREGORY DELOAC, DERRICK FLADGER, MOHAMMID MO, GREGORY R. DELOACH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-07-0678.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2011
Before Judges Lisa and Reisner.
Defendant, Gregory T. Deloach, was convicted of second-degree eluding, N.J.S.A. 2C:29-2b, second-degree aggravated assault, N.J.S.A. 2C:12-1b(6), third-degree aggravated assault, N.J.S.A. 2C:12-1b(5) (with bodily injury), fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(5) (without bodily injury), and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). Defendant was sentenced to concurrent terms on all counts as follows: eluding, an extended term of eighteen years imprisonment with an eighty-five-month parole disqualifier; second-degree aggravated assault, ten years imprisonment with an 85% parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2; third-degree aggravated assault, five years imprisonment with a thirty-month parole disqualifier; fourth-degree aggravated assault, five years imprisonment with a thirty-month parole disqualifier;*fn1 and third-degree possession of a controlled dangerous substance, five years imprisonment with a thirty-month parole disqualifier. Accordingly, defendant's aggregate term is eighteen years imprisonment with an eight-and-one-half-year period of parole ineligibility.
On appeal, defendant argues:
THE EXCUSED JUROR'S DISCUSSION WITH OTHER JURORS ABOUT THE UNKNOWN MAN WHO INSTRUCTED HER TO ACQUIT DEFENDANT REQUIRED THAT THE TRIAL COURT GRANT THE DEFENSE MOTION FOR A MISTRIAL, ESPECIALLY SINCE THE COURT'S QUESTIONING OF OTHER JURORS WAS MEANT TO CORRAL THEM INTO CLAIMING IMPARTIALITY AND ALSO RESULTED IN DIFFERENT ACCOUNTS REGARDING THE IMPACT OF THE EXTRANEOUS INFLUENCE.
THE EXCLUSION OF THE CO-DEFENDANT'S SINGLE PAGE AFFIDAVIT -- WHICH EXONERATED DEFENDANT AND WAS ADMITTED INTO EVIDENCE -- FROM THE JURY ROOM DURING DELIBERATIONS REQUIRES A NEW TRIAL.
THE IMPOSITION OF AN EXTENDED 18-YEAR TERM OF IMPRISONMENT FOR SECOND DEGREE ELUDING, SUBJECT TO AN 85-MONTH PAROLE BAR, CONCURRENT WITH A 10-YEAR TERM FOR THE SECOND-DEGREE ASSAULT WHILE ELUDING, SUBJECT TO AN 85% NERA PAROLE BAR, WAS EXCESSIVE.
We reject these arguments and affirm.
These are the pertinent facts as developed at trial. On March 8, 2006, a South Plainfield police officer on patrol observed a van with two occupants bearing a license plate that reflected the vehicle had been reported stolen. The officer signaled the van to stop. The van initially stopped, and pursuant to the officer's verbal commands, the driver placed his left hand out of the window. The officer observed multiple large rings on the driver's hand. The van then abruptly drove off, and led the initial officer and a number of other responding officers on a chase of twenty-five to thirty miles, traversing multiple municipalities and several counties.
In the course of the chase, the operator of the van committed multiple motor vehicle infractions and created a danger to other individuals, his passenger and himself. He rammed one police car and eventually lost control of the van, causing it to flip over several times before it came to rest.
When the police approached the disabled van, both occupants were wearing seatbelts. The passenger was semiconscious, and the driver was unconscious. The officers removed the men and identified defendant as the driver. Defendant was taken to the hospital, where a search of his person revealed the presence of one package of heroin. At the hospital, an officer also removed three rings from defendant's fingers. The passenger was identified as Edward Ward.
A multi-count indictment was returned. Ward and defendant were both indicted in the first count for receiving stolen property, namely the van. Only defendant was charged in the remaining counts. Ward pled guilty to stealing the van. As part of his plea agreement, he agreed to provide truthful testimony if asked to do so at defendant's trial.
In addition to the testimony of various police officers, the State also produced at trial video recordings of the chase and crash of the van as captured from two of the police cars involved in the pursuit. These were played for the jury.
Defendant testified. He denied that he was aware the van was stolen. He said Ward told him it was a company vehicle that Ward was authorized to possess. Defendant also claimed that Ward was the driver during the eluding episode and defendant was the passenger.
In the months following the incident, defendant and Ward were in custody. Ward sent several letters to defendant and executed an affidavit in which he purportedly exonerated defendant and claimed he was the driver. In particular, the affidavit said this:
I,Edward Ward, on the night of March,18,2006 was in full control of said motor vehicle.
That Mr,Deloach was falsely accused of operating. Furthermore, I, Edward Ward would like to clear Mr, Deloach of any and all wrong doing in this matter to W-06-334 / W-06-50 / and W-06-98j It was of my doing not Mr,Deloach.
Defendant called Ward as a witness. Ward told the jury that he had stolen the van and pled guilty to the theft. The affidavit was produced and entered into evidence. As Ward read it from the witness stand, each juror was given a copy with which to follow along. Ward explained that all he meant by the affidavit and his letters was that he took full responsibility for the theft of the van. He emphatically stated, however, that it was defendant, not he, who was the driver during the police pursuit. Ward testified that what he meant in the affidavit was that he had been driving the vehicle "earlier that day," but that "[a]t the time that we eluded the -- supposedly eluded, I was not the driver, and I will take the polygraph, if that's the case."
Notwithstanding defense counsel's contrary request, the court ordered that the affidavit would not be given to the jurors during their deliberations. The court also withheld several other items that were entered in evidence, including the video recordings from the police cars. The judge made clear to the jurors that if they wanted to see any of these items during their deliberations, the items were available for inspection upon request. Indeed, the jurors did request a second viewing of one of the police car videos.
We first address defendant's second point of argument. He argues that preventing the jury from taking Ward's affidavit into its deliberation room deprived him of a fair trial. We do not agree. "Generally, once an exhibit has been admitted into evidence, the jury may access it during deliberations, subject to the court's instructions on its proper use." State v. Burr, 195 N.J. 119, 133-34 (2008). However, trial courts retain discretion to decide whether to allow evidence into the jury room itself. State v. Pemberthy, 224 N.J. Super. 280, 302-03 (App. Div.), certif. denied, 111 N.J. 633 (1988).
We are satisfied that the jury was not deprived of this evidence and that the court did not mistakenly exercise its discretion in the manner in which the exhibit was dealt with in conjunction with jury deliberations. The jurors physically saw the document and read along with it during the trial. They knew they could request to see it again during deliberations if they wished.
In his first point, defendant argues that, after a mid-trial incident involving contact by a third party with a juror, defendant's motion for a mistrial should have been granted. Here is what happened. On the second day of trial, juror number twelve was approached in the courthouse hallway by a man who said, "Don't find him guilty." She reported the incident to a sheriff's officer and also told other jurors about it. The sheriff's officer informed the judge, who, in turn, informed counsel of the incident and that the man had been arrested. It was ascertained that he had no connection to defendant or the case.
The judge suggested that he interview juror number twelve in open court and interview the other jurors to determine whether any jurors had been tainted by the incident or whether they would be able to remain impartial. Neither attorney objected to that proposed procedure.
Juror number twelve told the judge what the man told her and that she had told other jurors about it. The judge informed her that the man had no connection to the case, the State, or defendant. Juror number twelve said she was initially frightened by the remark, but then thought the man was simply joking. In light of the judge's explanation and assurance that the man had no connection to defendant or the case, she did not think the incident would affect her ability to remain impartial.
The judge then interviewed each juror separately. Some knew of the incident as reported to them by juror number twelve. Some did not know of the incident. The judge explained to each juror that the man had no connection to defendant, the State or the case. Each juror assured the judge that he or she would not be affected by the incident and would be able to remain impartial.
Defendant moved for a mistrial, or, alternatively, to remove juror number twelve. The State agreed with the alternative proposal, and juror number twelve was removed and replaced with an alternate. However, the judge denied the mistrial motion, finding that there was no "manifest necessity" for a mistrial. The judge said that the man who made the comment to juror number twelve was, as several of the jurors characterized it, just some smart aleck . . . who thought he was being wise . . . . But I don't think that this jury . . . was affected in any way whatsoever that it could not render a fair and impartial verdict . . . based upon the evidence alone.
Defendant argues that the court mistakenly exercised its discretion because: (1) the court employed an incorrect standard in deciding whether to grant the mistrial; (2) the court never acknowledged the nature of the influence on the jurors; and (3) the court's questioning of the jurors was not sufficiently probing. We reject this argument.
Criminal defendants are guaranteed the right to a trial by an impartial jury. See U.S. Const. amends. VI; N.J. Const. art. 1, ¶10. See also Sheppard v. Maxwell, 384 U.S. 333, 362-- 63, 86 S. Ct. 1507, 1522, 16 L. Ed. 2d 600, 620 (1966) (noting that a jury must be impartial and free from external information and to comply with due process requirements); State v. R.D., 169 N.J. 551, 557 (2001) (same). "That constitutional privilege includes the right to have the jury decide the case based solely on the evidence presented at trial, free from the taint of outside influences and extraneous matters." R.D., supra, 169 N.J. at 557 (quoting State v. Bey, 112 N.J. 45, 75 (1988) (Bey I)).
If the jury is exposed to information that could create an improper influence, "the court has an independent duty to act swiftly and decisively to overcome the potential bias." State v. Williams, 93 N.J. 39, 62--63 (1983). The court must use its discretion to determine if extraneous information has, on its face, the capacity to influence the trial outcome. R.D., supra, 169 N.J. at 559. If so, a mistrial must be granted. Ibid. However, a new trial "is not necessary in every instance where it appears an individual juror has been exposed to outside influence." Ibid. If the court finds that the capacity for influence is lacking on its face, the judge must exercise sound discretion in determining whether the jurors are capable of disregarding any extraneous information and impartially judging the facts of the case based solely upon the evidence presented at trial. Id. at 558 (citing Bey I, supra, 112 N.J. at 87).
Once apprised of a possible taint to the jury, the court is obliged to interrogate the juror in the presence of counsel to determine if there is a taint. If so, the court is then obliged to interview the other jurors to determine if they or any of them have been infected by the taint. . . . The court is then obliged to determine, assuming a sufficient number of jurors remain, whether the trial may proceed upon excusing the tainted juror or jurors or whether a mistrial must be declared. [Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 1:16-1 (2011).]
Trial courts should consider three things when determining whether the jury has been tainted and a new trial is required: "the gravity of the extraneous information in relation to the case, the demeanor and credibility of the juror or jurors who were exposed to the extraneous information, and the overall impact of the matter on the fairness of the proceedings." R.D., supra, 169 N.J. at 559. The trial court's decision whether or not there has been a taint, and whether a new trial is warranted are reviewed under the abuse of discretion standard. Ibid.
Our review of the record satisfies us that the judge did precisely what the law requires. It is clear that the judge recognized the nature and seriousness of the contact with juror number twelve and the comment made to her. Perhaps most importantly, we defer to the judge's credibility assessment of each juror when, after being assured that the third party had no connection to anyone in the case, each juror said he or she would not be affected by the incident and would remain fair and impartial in deciding the case based on the evidence. The judge was able to observe the demeanor of each juror in the colloquy and assess each juror's truthfulness, sincerity, and resolve. Finally, the judge made a reasoned evaluation in concluding that the impact of this incident would not interfere with the fairness of the trial.
Finally, defendant argues that his sentence is excessive. Defendant had an extensive prior criminal record, and the offense circumstances were particularly egregious. We are satisfied that the judge's findings regarding aggravating and mitigating factors were based on competent and credible evidence in the record, that the judge correctly applied the sentencing guidelines set forth in the Code of Criminal Justice, and that the sentence imposed is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).