On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 03-08-0408.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2012
Before Judges Sapp-Peterson and Haas.
Defendant William Burden appeals from an October 22, 2010 order denying his petition for post-conviction relief (PCR). Because we conclude that defense counsel's admitted error in failing to strike an obviously biased juror from the jury prevented defendant from receiving a fair trial, we reverse and remand to the trial court for further proceedings.
Following a jury trial, defendant was convicted of third-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2; second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5f; and fourth-degree obstruction of justice, N.J.S.A. 2C:29-1. After merging the unlawful possession of an assault firearm conviction into the second-degree possession of a weapon for an unlawful purpose conviction, the trial court sentenced defendant to an aggregate extended-term sentence of twenty years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On direct appeal, we affirmed the convictions, but reversed the merger of the weapons convictions and remanded for reconsideration of the sentence. State v. Burden, No. A-1773-04 (App. Div. May 18, 2007).
On June 19, 2007, pursuant to our mandate, the trial court sentenced defendant to extended terms of twenty years in prison for conspiracy to commit robbery; fifteen years in prison for possession of a weapon for an unlawful purpose; seven years in prison for attempted burglary; seven years in prison for unlawful possession of an assault firearm; and four years in prison for obstruction of justice. All of the sentences were to run concurrent with each other.
On August 13, 2009, defendant filed a timely petition for PCR. After conducting an evidentiary hearing, the PCR judge issued a written opinion denying PCR, concluding that, although defendant demonstrated that his trial counsel was ineffective, defendant failed to prove that there was a reasonable probability that the result would have been different absent his attorney's errors. This appeal followed.
We set forth the underlying facts in our opinion on direct appeal. At approximately 11:30 p.m. on November 21, 2001, the victim Tameka Clayton heard noises outside her apartment. (Slip op. at 2-3). She looked out the window and saw four or five men in the yard. Id. at 3. One of the men asked "'could he come in,' and another responded '[s]he know me, come on' as if to urge the original speaker to leave." Ibid. Although Clayton was "'not able to identify any of the individuals by sight,'" she "'testified the second voice she heard outside (urging the others to 'come on') was'" defendant's. Ibid. She knew defendant because he had come to her house in the past. Ibid.
Right after Clayton observed the men, the police arrived in response to a "'prowler complaint.'" Id. at 4. The men began to run away. Ibid. Four suspects, including defendant, were apprehended. Id. at 5. The police found that the screen had been taken off a window at Clayton's apartment. Id. at 4. In a dumpster near where the men had run, police also found "'a Mack 11 automatic weapon and a loaded magazine.'" Id. at 5. One of the suspects gave a statement to police in which he claimed defendant solicited the others "to commit a home invasion in Salem" and that defendant brought the gun that night. Id. at 7.
While he was incarcerated, defendant had another individual call Clayton to offer her money if she did not testify against him. Id. at 6. The phone call was recorded at the jail and the tape was played for the jury. Ibid.
Defendant testified he and his friends had driven to Salem from Philadelphia that night "'to see some girls.'" Id. at 12. He claimed the group stopped at Clayton's house "'to urinate' after their long ride from Philadelphia." Ibid. He stated he did not know Clayton, although he had played basketball in the past with her brother. Ibid. Defendant asserted that, while the men were outside, Clayton came to the window and said she was going to call the police after one of the other men made a comment to her. Id. at 13. Defendant stated that none of the men entered her home or touched her window. Ibid.
As for the telephone call that was made to Clayton, defendant claimed that, although "he 'never committed a crime that night,'" he was tired of having to come to court so often. Id. at 14. Therefore, he had his friend call Clayton to see if "'I could resolve it, you know, through her and give her, you know a couple hundred dollars and just be done with it.'" Ibid.
In his petition for PCR, defendant argued his trial counsel was ineffective because he did not move to excuse a potential juror, Brian Beal, who stated during voir dire he could not be fair and unbiased in his review of the case. On September 8, 2010, the PCR judge conducted an evidentiary hearing to review defendant's petition.
The transcript of the May 25, 2004 juror voir dire was presented to the PCR judge during the hearing. The transcript shows that, after Beal introduced himself to the trial judge and counsel and stated he worked at an auto body shop, he asked to come to sidebar to discuss his answers to the standard jury selection questions. The following colloquy ensued in connection with Beal's response to a question asking whether he or his immediate family had ever been the victim of a crime:
MR. BEAL: The immediate family, victim of crime. Last - - about November my brother's house got broke into, they tore the house up and all that stuff. And never got anything out of it.
THE COURT: Did they ever apprehend anybody who may ...