On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-08-0889.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Nugent and Kestin.
On Thanksgiving day, November 24, 2005, seventeen-year-old Shaffona Morgan shot Juan Carlos Martinez (Juan Carlos), the son of grocery store owner Juan Battista Martinez (Juan Battista)*fn1 , following an argument over a used Boost Mobile phone card defendant had purchased at the store earlier in the day. As a result, defendant was indicted by a Mercer County Grand Jury and charged with first degree attempted murder, N.J.S.A. 2C:11-3 and 2C:5-1; first degree robbery, N.J.S.A. 2C:15-1; second degree aggravated assault against Juan Carlos, N.J.S.A. 2C:12-1(b)(1); fourth degree aggravated assault against Juan Carlos, N.J.S.A. 2C:12-1(b)(4); fourth degree aggravated assault against Juan Battista, N.J.S.A. 2C:12-1(b)(4); and second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a).*fn2
Defendant was tried before a jury and convicted of second and fourth degree aggravated assault of Juan Carlos, and second degree possession of a handgun for an unlawful purpose. The jury acquitted defendant of first degree attempted murder, and was unable to reach a unanimous verdict with respect to first degree robbery and fourth degree aggravated assault of Juan Battista.
After merging the second degree aggravated assault against Juan Carlos with the second degree possession of a handgun for an unlawful purpose, the court sentenced defendant to a term of six and one-half years with an eighty-five percent period of parole ineligibility and a three-year term of parole supervision, both pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.*fn3
One of the issues raised by defendant in this appeal requires us to determine whether a series of communications between the trial judge and the jury, conducted without the knowledge and outside the presence of both the prosecutor and defense counsel, warrants reversal of defendant's conviction. Based on the record before us, which includes a verbatim account of the ex parte interactions between the judge and the jury, we discern no legal basis to reverse on this ground. Although counsel should have been present whenever the judge addressed or interacted with the jury in any manner, we are satisfied that the integrity of the jury deliberations was never compromised. The matters discussed by the judge with the jury concerned, for the most part, innocuous details unrelated to the charges against defendant.
Independent of, but related to, the propriety of these ex parte communications, defendant also argues that the judge's decision to permit the deliberating jurors to take home copies of sections of the court's instructions on the law over a weekend undermined the integrity of the deliberative process to such an extent as to require reversal of her conviction. The judge made this decision in the course of one of the ex parte communications with the jury.
This issue has not been addressed in a published opinion by any court in this State. Courts in other jurisdictions that have examined this issue have not found this practice improper. We now hold that, under the circumstances of this case, the court did not violate defendant's right to a fair trial or impugn the integrity of the jury's deliberative process by permitting the jurors to take copies of sections of the charge with them over a weekend. We nevertheless caution trial courts against engaging in such a practice without expressed authority and guidance from the Supreme Court.
At the time of the incident that gave rise to the charges against her, defendant resided with her disabled grandmother. Her mother had died approximately seven years earlier. At this point in her life, defendant appeared to have a promising future. She had recently graduated from the Emily Fisher Charter School and was in negotiations for a recording contract with Jive Records as a gospel music singer.
Juan Battista owned the grocery store known as Pollo Deli, located a short distance from defendant's grandmother's residence. His son Juan Carlos appears as the owner of the business on official documents. Juan Battista's nephew Miguel Moran worked in the kitchen of the store. Juan Battista is from the Dominican Republic, and his ability to speak English is limited.
Defendant patronized Juan Battista's store almost every day from the time it opened in 2001, and was familiar with the people who worked there. She called Juan Battista "Mr. Martinez," and referred to Juan Carlos as "Carlos." She testified that Juan Battista always spoke to her in English and did not have difficulty communicating with her. She never had any problems with any of the men who worked there and never saw any weapons in the store.
At around 2:20 p.m. on November 24, 2005, defendant purchased a Boost phone calling card at Pollo Deli. Approximately thirty minutes later, defendant returned to the store to demand a full refund because the phone card was not working. Juan Battista testified that he told defendant the card was not refundable, and that any problems she had with the card had to be handled through the provider's customer service. Juan Carlos testified that defendant was arguing with his father in a "loud manner." Because he was on his cell phone at the time, Juan Carlos moved just outside the door of the store in order to continue talking.
Undeterred, defendant continued to demand that Juan Battista fully refund her money or "she was going to take 20 bucks worth" of merchandise from the store. When Juan Battista refused, defendant took five DVDs from the counter and attempted to leave the store. Juan Battista immediately yelled to his son to stop her. When he heard his father say defendant was stealing, Juan Carlos saw defendant emerge from the store with about five DVDs in her hands. Juan Carlos then put his phone back in its holster and grabbed defendant. He told her that he would not let her go unless she returned the DVDs.
At this point, Juan Battista came outside and took the DVDs from defendant's hands. Moran, who by this time had walked toward the entrance of the store to see what was happening, testified that he saw his uncle take the DVDs from defendant, and Juan Carlos turn his back to her. According to Juan Carlos, defendant then pulled out a silver .22 automatic handgun.*fn4 Juan Battista described the gun as a "revolver." Moran described it as a nickel-colored pistol, possibly a .22.
According to Juan Carlos, he then turned away from defendant to push his father out of the way. Defendant fired the weapon, shooting Juan Carlos in the back. Believing defendant had run away, Juan Carlos went inside the store to call the police on the landline and tell Moran he had been shot. He took the phone from Moran, took off his coat, laid facedown on the floor, and asked Moran to apply pressure to the wound so he could talk.
Juan Battista testified that defendant turned the gun on him after shooting his son. He hid behind a nearby vehicle until she left. He then went back in the store to call 911, but saw that Juan Carlos was already calling the police. Juan Battista saw Moran apply pressure to Juan Carlos's wound until the paramedics arrived approximately two minutes later. Juan Carlos lost consciousness and woke up the next day in the hospital.
Defendant testified in her own defense. According to defendant, she went to Juan Battista's store that day to buy a phone card to call her family in the South. She had purchased phone cards before at Pollo Deli without incident. On the day in question, she purchased a 100-minute card for twenty dollars. When she attempted to use the card, she discovered that the number on the back of the card had already been scratched off. Defendant assumed the card was used, and, about thirty minutes after purchasing the card, walked back to the store to return it.
Defendant testified she first asked Juan Battista if she could have another card. When he refused, she requested her money back. She explained that the label on the back of the card had been removed and she believed the card was used. Juan Battista was not sympathetic; he told her that once she left the store with the card, it was no longer his problem. She again asked for a full refund of the purchase price to no avail. As a measure of crude justice, she grabbed some DVDs off the counter and said: "[W]ell, I'm going to take these DVDs if you don't give me my money back." When Juan Battista did not respond, she repeated her threat to take the DVDs two more times in a "high-pitched voice." Defendant testified, however, that she was not angry and did not lose her temper.
After she tucked the DVDs in her jacket, Juan Battista "reached under the counter," and took out a "small, silver gun," and pointed it at her. She then returned the DVDs to the counter and ran from the store. She heard Juan Battista yell something in Spanish to Juan Carlos, who chased after her and grabbed her when she was about five feet from the door. As Juan Carlos searched her pockets, she yelled: "Carlos, get off of me, get off of me, get off of me." At this point, Juan Battista came out of the store and pointed the gun at her. Then "the guy in the back" (presumably Moran), came out and said something to Juan Carlos in Spanish, prompting the latter to let go of defendant and walk back to the store.
At this point in the trial, defendant stepped out of the witness box to physically demonstrate for the jury what occurred next between her and Juan Battista. According to defendant, Juan Battista then "[took] the gun and start[ed] like [he was] going to jam it into me. And then I grabbed . . . the gun and push[ed]" it away because "I was afraid he was going to shoot me." When defendant pushed the gun, Juan Battista had his finger on the trigger. Defendant testified that when she pushed the gun away, "[a] shot went off." Feeling scared, defendant ran away to her home. On cross-examination, defendant testified she had never seen a gun before, even on television or in the movies, and was therefore unable to distinguish between a semi-automatic and a revolver.
When Trenton Police Officer Michael Schiaretti arrived at the scene, paramedics were already working on Juan Carlos. Schiaretti searched outside the store and did not find a weapon or shell casing. Trenton crime scene Detective Thomas Ertel searched for physical evidence inside and outside the store. He did not find a weapon or shell casings, and no fingerprints were found on the DVDs or counter.
Trenton homicide Detective Edgar Rios arrived on the scene about fifteen minutes after Schiaretti. He remembered seeing a machete in the kitchen area of the store and a couple of bats behind the counter, but did not recall seeing a vehicle parked in front of the store. This seemingly unrelated detail is relevant because Juan Battista testified that he hid behind a vehicle to shield himself from defendant.
Raja Salem, a surgeon at Helene Fuld Hospital, was the physician who first treated Juan Carlos. He testified that Juan Carlos "did not have a detectable blood pressure," was "essentially gasping" for air, and was "very, very critically
ill." Dr. Salem found a gunshot wound to the right ventricle of Juan Carlos's heart in line with the entry wound in his back. Blood was leaking around the heart, preventing it from pumping properly; his right lung also was injured. After surgery, Juan Carlos remained critical for twenty-four hours, after which time he stabilized and was released on December 1, 2005.
Frank Thompson delivered soda to Juan Battista's store the day after the shooting. As he exited his truck, he noticed a bullet casing on the ground near the store. He testified that he used a stick to pick up the casing, brought it inside, and gave it to Apolinar Jaquez, who was running ...