March 5, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SAMUEL ALEXANDER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-08-2873.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2011 -
Before Judges Cuff, Lihotz and St. John.
Defendant Samuel Alexander appeals his April 3, 2009 conviction and sentence for aggravated manslaughter and unlawful possession of a weapon. We affirm in part, vacate in part and remand.
Defendant was charged with three counts: purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3a (1) or (2) (count one); fourth degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d (count two); and third degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d (count three). Following a jury trial, defendant was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4(a), a lesser-included offense of the murder charge, and unlawful possession of a weapon. The jury was deadlocked on the charge of possession of a weapon for an unlawful purpose. The court declared a mistrial as to that charge, and it was subsequently dismissed by the State.
Defendant is serving a custodial sentence of twenty-two years imprisonment, subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the aggravated manslaughter conviction and a concurrent custodial sentence of eighteen months for the unlawful possession of a weapon conviction.
This appeal ensued, and defendant raises the following points for our consideration:
THE TRIAL COURT ERRED BY SUBSTITUTING AN ALTERNATE JUROR DURING JURY DELIBERATIONS RATHER THAN DECLARING A MISTRIAL.
THE TRIAL COURT'S FAILURE TO ADEQUATELY RESPOND TO A JURY'S QUESTION DURING DELIBERATIONS DENIED TO THE DEFENDANT HIS RIGHT TO A FAIR TRIAL.
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT II CHARGING POSSESSION OF A WEAPON UNDER CIRCUMSTANCES NOT MANIFESTLY APPROPRIATE FOR SUCH LAWFUL USES AS IT MAY HAVE INTO THE AGGRAVATED MANSLAUGHTER CONVICTION ARISING OUT OF COUNT I.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
The following pertinent facts were developed at defendant's trial which spanned seven days.
Defendant and the victim, Monty Rollins, were neighbors in a housing complex located in East Orange. In September 2006, defendant gave the victim $100 as advance payment for an ounce of marijuana. The victim never gave defendant the marijuana, but only offered excuses as to why he could not repay the $100 or provide him with the marijuana.
On March 17, 2007, between 10:00 a.m. and 10:30 a.m., defendant was looking out of his housing complex window and saw the victim walking on North Grove Street. Defendant called the victim over to his front door and invited him into his house. Both men then went into the garage to talk. Defendant confronted the victim and a fistfight ensued between them. The fight escalated when defendant picked up a steering wheel locking device, commonly known as the "Club," and hit the victim repeatedly, mostly on his face and head. Defendant also hit the victim with his hands and started "stomping him a little bit."
As the victim laid motionless, defendant understood he was dead or unconscious. Defendant then changed his blood covered clothes, put them inside a garbage bag, and disposed of the bag in a dumpster behind the housing complex. Approximately three hours later, defendant told his older brother, Inaede, who had just returned home from running errands, that he had a "slight confession to make." Defendant proceeded to tell Inaede that he "killed a friend of ours in the basement of our house." Inaede then went into the garage and saw the victim covered with a bag. There was blood everywhere.
Defendant and Inaede called their older brother, Barry, who arrived approximately ten minutes later, and observed the victim laying face down in the garage with a bag over his head. Barry tried to move the victim's arm to see if he was alive, but the victim appeared lifeless. Barry then called the police.
East Orange Police Officer Marty Diaz arrived at the scene, and moved Inaede and Barry into a utility room of the housing complex to ask them questions about what transpired. Officer Diaz then went to the garage and observed the victim. He called for medical assistance, placed defendant under arrest, and read him Miranda warnings.*fn1 Defendant gave a full confession that same day.
Defendant contends that the trial judge erred during the trial in substituting an alternate juror instead of declaring a mistrial. For the reasons that follow, we disagree.
The jury began its deliberations on January 30, 2009, at 9:15 a.m. At approximately 12:45 p.m., the jury sent a note to the judge, which read: "We need the definition of extreme indifference. Can you give an example?" The trial judge repeated the model jury charge for aggravated manslaughter.
After a sidebar discussion, the jury took lunch and resumed deliberations at 2:35 p.m., and at 4:45 p.m., concluded for the day.
On February 2, the jury reconvened at 9:00 a.m. and deliberated until approximately 12:15 p.m., at which time the jury asked the court: "Are charges two and three mutually exclusive from charge one? Need clarity on these two charges." The judge then reread the jury charge for the unlawful possession of a weapon and possession of a weapon for unlawful purpose counts. The jury then took a one hour lunch break and resumed deliberations at approximately 1:45 p.m. At 4:45 p.m., the jury retired for the day. At that time, juror number thirteen informed the court that he would be unavailable to continue deliberations for one week, until February 9, 2009. Because the jury had not yet reached a verdict on any of the counts, the judge excused that juror, and noted that the court clerk would randomly select an alternate juror to continue deliberations the following day, February 3. Defense counsel affirmatively stated there was no objection.
The next day, the court clerk randomly selected juror number eight. The court gave the appropriate instructions to the reconstituted jury. They commenced deliberations at 9:50 a.m., and later took a one hour lunch recess. At 2:50 p.m., the jury informed the court that it reached a verdict on counts one and two, but indicated that it was deadlocked on count three. The court thereafter appropriately charged the jury to resume deliberations, and also recharged count three. The jury deliberated from 3:30 p.m. to 4:45 p.m., at which time they announced that they remained deadlocked on count three. The court accepted the verdicts for counts one and two, and declared a mistrial as to count three. The jury convicted defendant on count one, aggravated manslaughter, a lesser-included offense of murder, and on count two, unlawful possession of a weapon.
Because defense counsel affirmatively stated he had no objection to the juror substitution, we are guided by the plain error standard and will not reverse defendant's conviction unless it is established that any error was clearly capable of producing an unjust result. R. 2:10-2. Not simply 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).
We find no error, let alone plain error, in the trial judge's substitution of the juror. In his appellate brief, defendant notes that during jury selection, juror number thirteen advised the court that he would be out of state on business during the week in question. It was patently clear that requiring juror number thirteen 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 reason for juror number thirteen's excusal was personal to him.
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.
The initial jury had deliberated for approximately twelve hours prior to the substitution. During that time, they asked the court two separate questions: what is the definition of extreme indifference?; and whether counts two and three are mutually exclusive? Prior to the substitution, the trial judge asked the foreperson if the jury had reached a verdict on any count, to which the foreperson replied, "No." The reconstituted jury deliberated for approximately four hours when they indicated they had reached a verdict on counts one and two. After appropriate instructions, they again resumed deliberations for approximately two additional hours, when they announced the deadlock on count three.
There is "[n]o bright line rule in respect of the length of jury deliberations [that] triggers a finding that deliberations have progressed too far to permit the substitution of an alternate." Williams, supra, 171 N.J. at 169. As a general rule, however, "[t]he longer the period of time the jury deliberates, the greater is the possibility of prejudice should a juror be substituted or replaced." State v. Jenkins, 182 N.J. 112, 132 (2004) (quoting State v. Miller, 76 N.J. 392, 407 (1978)). "However, '[t]he concern in determining whether substitution can take place at a given point in the deliberations is not merely the length of time that the jury has deliberated but the effect that the progress in deliberations will have on the reconstituted jury's ability truly to begin deliberations anew.'" Ibid. (quoting Valenzuela, supra, 136 N.J. 474-75).
In State v. Williams, 377 N.J. Super. 130, 150 (App. Div.), certif. denied, 185 N.J. 297 (2005), we applied the totality of the circumstances analysis in determining whether the trial court erred in substituting a juror after deliberations had begun instead of declaring a mistrial. We reasoned:
Given the totality of the circumstances here, it is highly doubtful that the jury could have been expected to begin its deliberations anew as opposed to the deliberating jurors simply informing the substituted juror of their respective positions based on their twelve hours of deliberations and then continuing deliberations from that point. The fact that the verdict was arrived at fifty-nine minutes later corroborates the unrealistic expectation that the jury was capable at that point in time to start deliberations anew. The decision had already been made at defendant's expense with little or no input from the alternate juror. [Ibid. (emphasis added).]
Here, the length of the reconstituted jury's deliberations was one-third of the amount spent by the original jury. The disparity in the length of deliberations in the present case is not nearly as disproportionate as in Jenkins and Williams, where initial juries spent hours deliberating and reconstituted juries reached verdicts within minutes after the alternate juror joined the "new" deliberations. In this matter, the initial jury 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 initial 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.
In analyzing the totality of the circumstances, we determine the trial judge did not err in substituting a juror after deliberations had begun instead of declaring a mistrial.
Defendant contends that the court erred in failing to instruct the jury that if it found the death of the victim to be accidental, defendant had to be acquitted of murder and the lesser-included homicide offenses.
As a preliminary matter, "[a]ccurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial. The trial court has an absolute duty to instruct the jury on the law governing the facts of the case." State v. Concepcion, 111 N.J. 373, 379 (1988) (citing State v. Butler, 27 N.J. 560, 595 (1958)).
N.J.S.A. 2C:1-8(e) commands that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." The charge must provide a "comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v. Green, 86 N.J. 281, 287-88 (1981). Further, we note that "a trial court's obligation . . . to charge the jury in respect of theories that negate responsibility must be grounded in fact, and that duty does not arise unless, without scouring the record, it is clearly indicated or clearly warranted by the evidence adduced." State v. Rivera, 205 N.J. 472, 475 (2011).
In State v. Reyes, 50 N.J. 454, 464-65 (1967), the Supreme Court found no error when the trial court refused to charge the jury that the defendant could not be found guilty of murder because the shooting was accidental. In that case, the trial court had instructed the jury on the elements of murder, and told them that unless the State proved every element of the crime beyond a reasonable doubt, defendant could not be convicted. Ibid. ("It is evident to us that the jury could not fail to realize, without any specific instruction on the subject, that if it should believe defendant's tale of an accidental shooting, it was bound to return a not guilty verdict"). This principle has not changed by virtue of adoption of the Code of Criminal Justice. See, e.g., State v. Reed, 211 N.J. Super. 177, 181-83 (App. Div. 1986) (rejecting similar arguments regarding requests to charge "negligent" homicide), certif. denied, 110 N.J. 508 (1988); State v. Curtis, 195 N.J. Super. 354, 369-71, (App. Div.), certif. denied, 99 N.J. 212 (1984) (same).
Defendant argues that our decision in State v. Atwater, 400 N.J. Super. 319 (App. Div. 2008), supports the proposition that the trial judge should have charged the jury on the concept of negligence, and by failing to do so, committed error. We disagree.
In Atwater, a vehicular homicide case, the jury asked for clarification of the charges three times, requesting amplification of the definition of reckless manslaughter, and whether vehicular homicide can be intentional or unintentional. Id. at 328. The jurors' questions made it clear that they were confused on the mental state required for a finding of guilt on vehicular homicide. Id. at 332. The jurors also heard evidence presented by two medical examiners that the victims' deaths were accidental. Ibid. Further, the trial judge did not permit defense counsel to argue negligence in summation. Ibid.
Here, the question asked by the jury was, "We need the definition of extreme indifference, can you give us an example?" The trial judge responded:
Extreme indifference as it applies here . . . is in conjunction with the charge of aggravated manslaughter so I am going to give you the full charge. Although there's not a specific example in the charge, there are words in the charge if you listen carefully that will explain what extreme indifference to human life means.
The trial judge then reread the aggravated manslaughter charge to the jury. The recharge apparently clarified any confusion.
An additional differentiating fact from Atwater was the totality of the testimony of Dr. Lyla Perez, the medical examiner. She opined the victim suffered fatal injuries from "[b]lunt force trauma to the head," stemming from a total of fourteen lacerated wounds on the face, head, and neck, and four fractures of the skull.
Although defense counsel was permitted to advance the accidental death argument during his summation, the jury was presented with evidence it could reasonably rely upon which belied that theory. Additionally, the number and nature of the victims wounds contradicts defendant's claims of accidental death.
Given these facts, we see no reason for the trial judge to distinguish between recklessness and negligence, see Rivera, supra, 205 N.J. at 475, and find no error or abuse of discretion by the trial judge in declining to charge "negligence," as requested by defendant.
Defendant contends that the prosecutor's summation exceeded the bounds of propriety. Defendant's argument regarding the prosecutor's summation was not presented to the trial court and therefore is not properly before us for review. State v. Robinson, 200 N.J. 1, 20 (2009). We are satisfied, however, that this argument lacks any merit.
Defendant alleges as plain error that certain comments made by the prosecutor during summation deprived him of a fair trial. The comments complained of include references that defendant lured the victim into his house and then into the garage, where he used the "Club" to beat the victim to death "in a savage and heinous manner." There was support in the record for the characterization of defendant's conduct. Therefore, we conclude that the comments fell within the wide latitude accorded the prosecutor in summation, see State v Wakefield, 190 N.J. 397, 457 (2007), cert. denied, 552 U.S. 1146; 128 S. Ct. 1074; 169 L. Ed. 2d 817 (2008); State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969), and did not substantially prejudice defendant's fundamental right to have a jury fairly assess his case. State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
Defendant also contends that the prosecutor's summation amounted to prosecutorial misconduct when he asked the jury to see that "justice is done" because he was equating justice with the return of a guilty verdict. Although we do not condone the comments made by the prosecutor, we are satisfied that they did not jeopardize defendant's right to a fair trial. State v. DiFrisco, 137 N.J. 434, 476 (1994) (holding that prosecutor's statement, "only twelve of you can do justice" did not amount to reversible error), cert. denied, 516 U.S. 1129; 116 S. Ct. 949; 133 L. Ed. 2d 873 (1996). Further, we are satisfied that statement by itself, or in conjunction with the prosecutor's other statements, was not so egregious as to warrant reversal. Ibid. (internal citation omitted).
Defendant argues that the trial court erred by failing to merge the charge of possession of a weapon under circumstances not manifestly appropriate for such lawful uses as it may have into the aggravated manslaughter conviction. We agree.
Defendant's conviction for possession of the "Club" under manifestly inappropriate circumstances, N.J.S.A. 2C:39-5(d), is a lesser-included offense of possession of the same "Club" for an unlawful purpose, N.J.S.A. 2C:39-4(d), a charge which was the subject of a mistrial and ultimately, dismissed. State v. Purnell, 394 N.J. Super. 28, 33 (App. Div. 2007); State v. Jones, 213 N.J. Super. 562, 568 (App. Div. 1986), certif. denied, 107 N.J. 90 (1987). Defendant argues that, because merger is required "[w]hen the only unlawful purpose in possessing the ["Club"] is to use it to commit the substantive offense," State v. Diaz, 144 N.J. 628, 636 (1996), merger of the lesser included offense with the manslaughter count is required here.*fn2
Under the facts of this case, the beating of the victim "provides the factual underpinning for drawing an inference that" the "Club" was possessed under circumstances not manifestly appropriate for lawful uses. See State v. Romero, 191 N.J. 59, 79 (2007). We therefore agree that merger of the two counts was required here, and remand for the merger of defendant's conviction for possession of the "Club" under circumstances not manifestly appropriate for a lawful use (count two) into his conviction for manslaughter (count one).
Finally, defendant argues that the sentence imposed was manifestly excessive.
Defendant argues the trial judge erred by not sentencing him on a degree lower for his conviction of aggravated manslaughter. N.J.S.A. 2C:44-1f(2). Our Supreme Court cautioned that a downgrade decision should be limited to cases in which a defendant can provide "compelling reasons" for the downgrade. State v. Megargel, 143 N.J. 484, 501-02 (1996). Defendant did not provide any compelling reasons, and his arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Defendant also avers that the court double-counted aggravating factor one, N.J.S.A. 2C:44-1(a)(1), because the beating of the victim is a component of extreme indifference to human life, an element of aggravated manslaughter. To the contrary, the court analyzed that the offense was committed in an especially heinous, cruel, or depraved manner, and determined that aggravating factor one did apply. See State v. Pillot, 115 N.J. 558, 564 (1989) (preventing sentencing courts from utilizing only "criminal conduct" which has been "factored into the offense with which [the] defendant is charged" in finding aggravating factor one); State v. Briggs, 349 N.J. Super. 496, 504-05 (App. Div. 2002) (noting that death of victim cannot be used to support finding of aggravating factor one in manslaughter case); State v. Soto, 340 N.J. Super. 47, 71-72 (App. Div.) (supporting sentencing court's finding of factor one where killing was "brutal and  went on for a long time") (internal quotation omitted), certif. denied, 170 N.J. 209 (2001), overruled in part on other grounds, State v. Dalziel, 182 N.J. 494, 504 (2005).
Here, the trial judge reviewed the mitigating and aggravating factors in detail and determined that the aggravating factors strongly outweighed the mitigating factors, "so sentencing at the higher end is permissible." However, notwithstanding the finding, the trial judge imposed a lesser mid-range sentence of twenty-two years.
We are cognizant that a trial court exercises considerable discretion in sentencing. Dalziel, supra, 182 N.J. at 500. Its decision will not be disturbed on appeal so long as it follows the applicable statutory guidelines and its findings are supported by sufficient credible evidence in the record. State v. Natale, 184 N.J. 458, 489 (2005). We will only reverse a sentence if it "shocks the judicial conscience." State v. O'Donnell, 117 N.J. 210, 215-16 (1989). See also State v. Roth, 95 N.J. 334, 365 (1984).
We are satisfied that the aggravating and mitigating factors applied by the sentencing judge find considerable support in the record, and that the sentence does not shock the judicial conscience.
In conclusion, we instruct the trial court to merge defendant's conviction for possession of a weapon in violation of N.J.S.A. 2C:39-5d (count two), and vacate the sentence imposed thereon. In all other respects, the judgment of conviction and order of commitment under review are affirmed. On remand, the trial court should enter an amended judgment of conviction consistent with the views expressed herein that reflects the merger. We do not retain jurisdiction.
Affirmed in part, reversed in part, and remanded.