April 8, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FREDDIE L. GRAHAM, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-03-0298.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 21, 2011
Before Judges Lisa and Ostrer.
Defendant, Freddie L. Graham, was charged in a seven-count indictment with crimes arising out of events that occurred at the same time and place on August 9, 2006 in Paterson. The first two counts pertained to one victim, Wylie Evans, who was killed. Counts three through six pertained to another victim, M.M., who was sexually assaulted, robbed and beaten. The seventh count did not pertain to any particular victim.
More particularly, the charges were as follows: (1) first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) or (2); (2) third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d; (3) first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; (4) third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d; (5) first-degree armed robbery, N.J.S.A. 2C:15-1; (6) first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) or (4); and (7) fourth-degree possession of a weapon (a knife) under circumstances not manifestly appropriate for such lawful uses as it may have, N.J.S.A. 2C:39-5d.
The jury found defendant not guilty of the first three counts, and guilty of the remaining counts. After merging count seven with count four, which, in turn, was merged with counts five and six, Judge Marmo imposed sentence as follows: On count six, aggravated sexual assault, defendant was sentenced to an extended term as a persistent offender of thirty-years imprisonment with an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count five, robbery, the judge imposed a concurrent term of twenty-years imprisonment subject to an 85% parole disqualifier pursuant to NERA.
In the appellate brief filed by his attorney, defendant argues:
THE COURT ERRED IN EXCUSING A DELIBERATING JUROR BECAUSE OF HIS VACATION PLANS, AND THEN, RECONSTITUTING THE JURY WHEN IT WAS IN AN ADVANCED STAGE OF DELIBERATIONS. (Partially Raised Below).
THE INSTRUCTIONS TO THE JURY AFTER IT WAS RECONSTITUTED WERE MISLEADING AND FAILED TO MAKE CLEAR THAT DELIBERATIONS MUST START ANEW. (Not Raised Below).
THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE EXTENDED TERM OF 30 YEARS AS A PERSISTENT OFFENDER.
In a pro se supplemental brief, defendant raises the following additional arguments:
THE TRIAL COURT COERCIVE ENFORCEMENT OF THE ALLEN CHARGE ABRIDGED DEFENDANT 6th AMENDMENT DUE PROCESS OF LAW RIGHT'S TO A FAIR TRIAL BY AN "IMPARTIAL JURY."
THE PROSECUTION PRESENTED FALSE AND PERJURED TESTIMONY, TO BOLSTER IT'S FABRICATED IDENTIFICATION EVIDENCE. FRAMING DEFENDANT FOR CRIMES HE DID NOT COMMIT. VIOLATING DEFENDANT 6th & 14th AMENDMENT DUE PROCESS RIGHTS TO A FAIR [TRIAL] OF THE U.S. CONSTITUTION.
THE PROSECUTION PRESENTED FALSE EVIDENCE FRAMING DEFENDANT FOR CRIME'S HE DID NOT COMMIT. VIOLATING DEFENDANT 6th AND 14th AMENDMENT DUE PROCESS RIGHT'S TO A FAIR TRAIL OF THE UNITED STATES CONSTITUTION. POINT III
DEFENDANT PHOTOGRAPHIC IDENTIFICATION WAS IMPERMISSIBLY SUGGESTIVE WITH THE PROCEDURE UTILIZED. WHICH IRREPARABLY TAINTED THE WITNESSES IDENTIFICATION. IN VIOLATION OF DEFENDANT 6th, & 14th AMENDMENT RIGHT'S TO A FAIR TRIAL, OF THE DUE PROCESS CLAUSES OF THE UNITED STATES CONSTITUTIONAL AMENDMENT'S
We reject these arguments and affirm.
The trial spanned ten days between December 3 and 22, 2008. These are the pertinent facts developed at trial.
On the evening of August 9, 2006, M.M. went to the apartment in which her boyfriend, Evans, lived with his mother, who was not home at the time. M.M. and Evans watched television together in Evans' bedroom for about twenty minutes. Evans then left the room. A short time later, defendant, who was not known to M.M., entered the room and struck up a conversation with her.
She noticed that defendant had red splatters on his white shirt, which she believed were juice stains.
Defendant then brandished a knife, threatened M.M., and told her to undress. She complied. Defendant proceeded to lead her into the other bedroom, and showed her Evans' body lying in a pool of blood and appearing lifeless. Defendant then forced M.M. to fellate him. He stole her purse and its contents and tied her hands behind her back. Although M.M. later had no recollection of being beaten, she was knocked unconscious and later woke up in the hospital with multiple severe injuries, including a fractured skull and bruising of the brain.
Later that night, Evans' mother came home and saw M.M. in an unresponsive state in her son's bedroom, which was covered with blood. She immediately went to another apartment and called the police. When the police responded, they found M.M. unresponsive but alive and arranged for her transport to the hospital. The police also found Evans' body in the other bedroom. He was dead. Medical testimony established that Evans had been stabbed twenty-three times in the area of his chest. The wounds pierced his lungs, heart, and aorta. He also had lacerations on his head and hands. The medical examiner testified that Evans might have been unable to scream during the attack because blood blocked his airway.
The investigation led to defendant. He gave a statement to the police on August 21, 2006. He admitted that he had been at Evans' apartment that afternoon. He said he and Evans smoked crack cocaine together. He said he left at about 6:00 p.m., and Evans was alive and well.
M.M. had given a general description of her attacker. Defendant fit that description. When shown a photo array that included defendant's picture, she positively identified defendant as her attacker. She also identified him in court at trial.
Many witnesses testified in this lengthy trial, including some called by defendant. Defendant did not testify. In light of the issues on appeal, we find it unnecessary to recount any further factual details.
During the jury selection process, a prospective juror revealed that he had a vacation planned, with his departing flight scheduled for Monday, December 22, 2008. Both parties and the court anticipated the trial taking less time than it actually did, and therefore did not foresee the juror's travel plans becoming an issue. That individual was empanelled as juror number two.
The case was ready to be submitted to the jury on Thursday, December 18, 2008, and deliberations began just before noon on that day. Neither party had suggested that juror number two be designated an alternate because of his travel plans. After deliberating for a short time, the jurors were excused for lunch. They resumed deliberations at about 1:47 p.m. That afternoon, they requested and received a replay of a videotaped statement M.M. had given and a read-back of defendant's statement to the police.
The jury resumed deliberations on Friday, December 19, at about 9:35 a.m. At noon, the jurors were discharged because the courthouse was closing at 1:00 p.m. due to a snowstorm. As they were leaving, the jurors passed a note to the judge asking for a repeat of the definition of reckless manslaughter. Juror number two remained behind and reminded the judge of his travel plans for the following Monday.
When defendant's attorney was asked what his thoughts were about excusing the juror, he said, "I'm not happy with that, Judge." However, he did not object. The judge then urged counsel to discuss the matter with his client, and to review the advantages and disadvantages of continuing the trial with an alternate juror as opposed to requesting a mistrial. After that consultation, defendant told the judge he wanted to continue and did not wish to seek a mistrial. Again, defendant's counsel posed no objection and did not move for a mistrial.
By that time, the initially constituted jury had deliberated for about four hours and forty-five minutes. Without objection, the judge selected one of the alternates to replace the excused juror. Deliberations resumed with the newly constituted jury on Monday, December 22, 2008 at about 10:15 a.m. While instructing the new jurors about their obligations as a reconstituted jury (which we will discuss later), the judge said that he would not respond to the note requesting reinstruction on reckless manslaughter that had been given to him the previous Friday. He explained that the note was no longer operative because the previously constituted jury no longer existed.
At about 11:45 a.m., the jury requested reinstruction on circumstantial and direct evidence, and on the definition of reckless manslaughter. The judge responded to the request appropriately.
At about 12:25 p.m., the jurors issued a note stating: "[T]he Jury is at a deadlock. We cannot agree." The jurors were sent to lunch, and returned at about 1:45. At 2:00 p.m., without objection, and without a request by either party for a mistrial, the judge instructed the jury to continue with its deliberations, correctly explaining the applicable principles as prescribed by the Supreme Court in State v. Czachor, 82 N.J. 392 (1980).
At about 3:40 p.m., juror number eleven advised the court that a family friend had died and she wished to attend the funeral the next morning at 11:00 a.m. The judge assured her that she would be accommodated. He said: "Don't worry about it, we'll take care of it. We're going to let you deliberate a little bit more. I don't know where the Jury stands, but we'll [be] bringing the Jury out shortly." The juror thanked the judge and returned to deliberations. Defense counsel then urged the court to deny the juror's request to attend the funeral, which the judge rejected.
At about 4:00 p.m., the jury reached its verdict. The newly constituted jury had deliberated for about four hours and thirty minutes, almost exactly the amount of time the first jury had deliberated.
Defendant argues that it was plain error for the court to excuse juror number two because of his vacation plans, rather than sua sponte declaring a mistrial. Defendant is critical of the court for (1) not designating juror number two as an alternate at the commencement of deliberations, (2) failing to consider alternatives to excusing juror number two, such as bringing the jury back over the weekend, before juror number two's scheduled trip, and (3) substituting a new juror rather than declaring a mistrial when the deliberations had reached an advanced stage. We find these arguments unpersuasive.
As we have stated, defendant did not raise these objections during trial. We are thus guided by the plain error standard and will not reverse unless it is established that any error was clearly capable of producing an unjust result. R. 2:10-2. Not any possibility of an unjust result will suffice; the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Further, to the extent that defendant affirmatively endorsed the actions taken by Judge Marmo, the invited error doctrine applies. A defendant cannot urge a certain course of action at trial, and after that action is taken, but the outcome of the trial is deemed unfavorable, "'then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.'" State v. Kemp, 195 N.J. 136, 155 (2008) (quoting State v. Lykes, 192 N.J. 519, 539 n.7 (2007)); see also State v. Jenkins, 178 N.J. 347, 358 (2004).
We find no error, let alone plain error, in Judge Marmo's rulings. It was patently clear that requiring juror number two to remain on the jury in light of his travel plans would have constituted a significant hardship. Trial courts are authorized to excuse jurors "because of illness or other inability to continue" and replace them with an alternate if deemed appropriate. R. 1:8-2(d)(1); State v. Valenzuela, 136 N.J. 458, 476 (1994). Substitution of a juror does not impair a defendant's right to a fair and impartial jury if the reason for excusing the juror "'relate[s] exclusively to the personal situation of the juror himself and not to his interaction with the other jurors or with the case itself, [because] they are ordinarily not circumstances having the capacity to affect the substance or the course of the deliberations.'" Valenzuela, supra, 136 N.J. at 468 (quoting State v. Trent, 157 N.J. Super. 231, 239 (App. Div. 1978), rev'd, 79 N.J. 251 (1979)).
The reasons for juror number two's excusal was clearly personal to him. Further, financial hardship can satisfy the "inability to continue" standard. State v. Williams, 171 N.J. 151, 167 (2002).
We next consider defendant's argument that the deliberations of the initial jury had reached an advanced stage, thus precluding reconstitution of the jury. Substitution of a new juror is improper if the jury is so far along in its deliberations that it would be unable to impartially begin deliberations anew. State v. Corsaro, 107 N.J. 339, 349-51 (1987). If the extent of prior deliberations has made recommencement "unreasonable," a mistrial may be a more appropriate exercise of the trial judge's discretionary authority. Macon, supra, 57 N.J. at 338.
Defendant argues that because the first jury requested reinstruction on reckless manslaughter, it must have already made important decisions as to defendant's guilt or innocence on the homicide charge. This hypothesis is unsubstantiated by anything in the record. Indeed, the newly constituted jury again requested the same instruction, and also requested instruction on direct and circumstantial evidence, which the first jury had not requested. The first jury had never reported or indicated through any of its questions to the court that it had reached a partial verdict, nor did it report a deadlock. The length of the first jury's deliberations is also not indicative of having reached an advanced stage. Defendant's argument in this regard is based on pure speculation, and we reject it.
We also find no impropriety in the manner in which the judge dealt with juror number eleven's request to attend a funeral the next day. Contrary to defendant's assertion of jury coercion, the record satisfies us that Judge Marmo allayed any concerns of the juror by assuring her that he would accommodate her. Indeed, the defense urged the court to disallow the juror from attending the funeral. It is obvious that the defense wanted this jury to complete its deliberations. Defendant cannot now assert error in this regard.
In his second point, defendant argues that the court committed plain error by failing to sufficiently instruct the jury to begin deliberations anew after replacing juror number two with an alternate. A finding of plain error in jury instructions "requires demonstration of '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).
Replacement of a juror after deliberations have begun requires an instruction that the jury begin its deliberations anew. State v. Trent, 79 N.J. 251, 257 (1979). In Trent, the trial court seated an alternate juror and instructed her to "continue with deliberations with the jury." Id. at 254. The Supreme Court found that "[t]he absence of any instruction at all on the necessity to recommence deliberations constitutes plain error of such magnitude as to call for the reversal of defendant's convictions." Id. at 257.
As defendant correctly points out, Judge Marmo did not follow the model jury instruction. See Model Jury Charge (Civil), 1.16, "Alternate Juror Empaneled After Deliberations Have Begun; R. 1:8-2(d)" (2007).*fn1 In particular, defendant is critical of the court's omission of this statement from the model charge: "You are to give no weight to any opinion which Juror #___ may have previously expressed in the jury room before he/she was excused."
But the judge made clear to the jurors the essential requirements that they begin deliberations anew as a newly constituted body, and that any conclusions reached in the prior deliberations must be disregarded. He instructed as follows:
Okay. All right, ladies and gentlemen, now it's important for you to understand how things need to work, now that you are a different unit than you have been up to this point. Because with the addition of the Alternate that's now part of the 12 deliberating Jurors you have been reconstituted. You are not the same group you were up until this point. So what's required of you by law is that you disregard whatever conclusions or deliberations you have conducted up to this point and you begin deliberations anew.
And the way that you can best do that is each of you, the best one to understand what was said, is the person who said it.
So what each of you need to do, when you go back into the jury room and perhaps the Forelady can arrange for this, is that you -- you summarize for the new Juror things --have been said. And the best way to do that is for each person to try to recall the observations that they made, so that you can make them again, and the new Juror can have some input into each of that.
Unlike in Trent, the judge gave a thorough and adequate instruction, advising the jurors of their duty to disregard any previously reached conclusions and begin deliberations anew as a newly constituted body. Defendant mistakenly argues that the judge erred in suggesting that each of the initial jurors share his or her observations with the new juror. Contrary to defendant's argument, this suggestion did not undermine the jury's duty to begin deliberations anew. The suggested procedure provided a sensible method of doing just that. Further, although the judge did not tell the jurors, as prescribed by the model jury charge, that they should disregard whatever had been said during earlier deliberations by the departing juror, the totality of the instruction conveyed that meaning. We find no error, let alone plain error, in the instruction.
Defendant argues that his sentence was excessive. He concedes that he was eligible for extended term sentencing as a persistent offender. See N.J.S.A. 2C:44-3a. The extended range for a first-degree crime is ten years to life imprisonment. See N.J.S.A. 2C:43-6a(1); 2C:43-7a(2); State v. Pierce, 188 N.J. 155, 169 (2006) ("[T]he permissible range . . . reaches from the bottom of the original-term range to the top of the extended term range."). The sentence imposed was below the midrange. We are satisfied that the judge's findings regarding aggravating and mitigating factors are well supported by the record, that the sentence imposed is in accordance with the sentencing guidelines set forth in the Code of Criminal Justice, and that the sentence 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).
Finally, the arguments raised in defendant's pro se supplemental brief lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).