August 7, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ESTERLIN M. TORRES and JONATHAN TORRES, Defendants-Appellants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued(A-4500-09T4)/Submitted(A-4509-09T1) October 26, 2011 — Decided February 14, 2012.
Remanded by Supreme Court July 18, 2012.
Re submitted July 19, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-09-3185.
Stephen P. Kernan, attorney for appellant Esterlin M. Torres.
John P. Morris, attorney for appellant Jonathan Torres.
John J. Hoffman, Acting Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).
Before Judges Axelrad, Sapp-Peterson and Ostrer.
This matter is before us on remand from the Supreme Court. We affirmed the convictions of defendants Jonathan and Esterlin Torres. State v. Esterlin M. Torres and Jonathan Torres, No. A-4500-09 and A-4509-09 (App. Div. Feb. 14, 2012). After allowing defendants to expand the record on appeal, we decline to reconsider our February 14, 2012 opinion.
Pending filing of his petition for certification, Jonathan moved before the Supreme Court for permission to expand the record on appeal, to include:
(a) the 17 notes from the jury, during its deliberations, to the trial judge; (b) Exhibits S-27 and S-38 [recordings of prior statements of witnesses]; and (c) certified copies of the Clerk's 7 page log of the trial proceedings, the certified Exhibit List (2 pages) and the certified jury selection sheet (1 page) with separate submission of pre-sentence report[.]
Jonathan also sought permission "[t]o correct the Appendix documents submitted on behalf of Defendant/Appellant Jonathan Torres with substitution of the correct Camden County Indictment [09-09-3185] and certified copies of the trial judge's verdict sheet and the foreperson's marked up verdict sheet[.]" In the alternative, Jonathan asked the Court to remand the case to us for our "consideration in light of the corrected and augmented appellate record."
In support of the motion, Jonathan's new attorney asserted that former appellate counsel for both defendants omitted, on their appeal to us, transcripts of four days of trial — February 25 and 26, and March 1 and 2, 2010 — when the jury deliberated, asked questions, and received further instructions. Counsel asserted that the missing transcripts were needed to evaluate whether the trial court complied with the guidelines in State v. Burr, 195 N.J. 119 (2008) pertaining to jury access to recordings admitted into evidence.
Counsel also argued that the trial court committed error by using a dictionary definition of "substantial" in response to a jury question regarding the elements of kidnapping, during the proceedings of March 3, 2010, for which transcripts had been obtained before our decision. Counsel argued that defendants' former appellate attorneys were ineffective in failing to raise that issue.
Jonathan's counsel also stated that he discovered that the jury foreman's verdict sheet — which his predecessor did not possess and which was not marked as a court exhibit — reflected that the jury reached a verdict on a lesser included offense that it was not required to address. The jury found defendants guilty of three counts of second-degree kidnapping involving three victims. Consequently, the judge did not orally inquire regarding the lesser included offenses of criminal restraint and false imprisonment. However, the jury's verdict sheets reflect that the jury nonetheless reached the issue of criminal restraint and found defendants guilty. The verdict sheets reflect the jury also unanimously found defendants guilty of false imprisonment of Robert Agurs. The verdict sheets regarding the charge of false imprisonment of Fabian Muniz and Lorena Grimaldo are unclear as only the foreman's initials are inserted on the "Guilty" line.
Finally, counsel noted that fourteen minutes of the court's jury instructions, when the court apparently discussed suggested unlawful purposes of defendants' possession of a firearm, were not recorded because of a malfunction in the recording system. Counsel argued, "Appellate issues are implicated as to the propriety of the [c]ourt's instructions as well as whether merger is mandated[.]" Esterlin joined in Jonathan's application.
By order entered July 18, 2012, the Supreme Court partly granted defendants' motion for a remand "to permit the Superior Court, Appellate Division, to consider and decide movant's motion to expand the record and, thereafter, to decide whether to reconsider its opinion." The Court recognized our authority "to order a further remand to the trial court to settle the record." The Supreme Court dismissed defendants' notice of appeal and petition for certification, and dismissed as moot their motion to the Supreme Court to expand the record.
After we received the Court's order, we advised defendants, by letter dated September 13, 2012, that in view of the passage of time, they could supplement their motions. We presumed defendants, during the intervening time period, may have acquired some of the documents they were seeking when they filed their motion with the Supreme Court.
Jonathan's counsel responded on September 27, 2012, by providing us with the 146-page appendix it submitted to the Supreme Court in support of its motion to the Court; and the four days of omitted transcripts. In addition to asking us to grant his request to expand the appellate record, Jonathan requested permission to present additional issues "which unfortunately were not presented on the direct appeal[.]"
The State urged us to remand to the trial court to review the documents included in defendants' appendix to confirm "what it is . . . if it is part of the record . . . and if it is relevant to the appeal." The State essentially objected to defendants' raising new issues in their petition for certification that were not raised before us, and asserted that the inadequacy of trial or appellate counsel is "best raised in a petition for post-conviction relief."
By order entered October 18, 2012, we "remand[ed] to the trial court for review of additional documents and to expand the record, if warranted, and to otherwise settle the record." Our order described the disposition of the "motion to expand the record and reconsider opinion" as "granted and other." Although defendants apparently interpret that order to grant the motion to reconsider, the sole relief granted was the order to remand to the trial court to settle the record.
By letter dated December 14, 2012, the trial judge responded to our October 17 order. The judge stated that he was able to determine that a fifteen-minute gap in the recording of the jury instructions omitted his charge regarding possession of a firearm for an unlawful purpose, the escape charge, and the first sentence of the justification-self-defense charge. The judge stated he was able to locate his notes; and he had adhered to the model charges, but tailored them to the particular facts of the case. He stated, "A copy of those pages that were read (with modifications to tailor the charge to this particular case) are attached hereto." However, the judge initially neglected to include them.
The judge also provided documents pertaining to the voir dire; the jury's verdict sheets (which were previously provided to the Court and us); defendants' presentence reports; the court clerk's log sheets and court's minutes sheets; and seventeen pages of juror questions to the court during deliberations (which were previously provided to the Court and us). Also included was a letter from the assistant prosecutor stating that there was no superseding indictment.
The trial judge also conducted a conference with counsel on January 15, 2013. Referring to certain notes from the jury foreperson, counsel inquired whether the trial judge communicated ex parte with a juror. The judge stated he did not. Defense counsel also inquired as to the type of equipment the jury used to view a DVD of Calero's prior statement, to review a recording of Townsend's statement, and to view a surveillance video of the music shop. The assistant prosecutor confirmed that the laptop computer used for audio and DVD was a State-provided computer that did not have internet capability and had no other resources loaded on to it. The equipment for viewing the videotape was provided by the court.
Jonathan's counsel also sought notes that had been prepared by the foreperson. The court had prohibited jurors from taking notes during the course of the trial. During deliberations, while jurors were in court for a readback, the judge noticed that the foreperson had been taking notes — apparently during deliberations and readbacks. The judge advised the juror that notetaking in court was not permitted and seized the juror's notes. Requests by the foreperson for the return of his notes were apparently not granted. The judge thereafter provided to us the foreperson's notes, which were retained in the judge's personal file.
Defense counsel filed a "notice of second supplemental motion on remand" on January 17, 2013 seeking the confiscated notes; the originals of the jury notes (notwithstanding the provision of certified copies); and permission to review the balance of the judge's private file from the case.
In a second letter to the Appellate Division clerk on January 23, 2013, the trial judge provided the two pages of notes confiscated from the foreperson. The parties then obtained those from the clerk. The judge also declined to hear the supplemental motion, advising counsel that additional relief should first be sought from us.
We subsequently obtained and provided to counsel what the judge stated were his notes of the unrecorded portion of the jury instructions. The document consists of a four-page printout of the Model Jury Charges (Criminal), Possession of a Firearm With a Purpose to Use It Unlawfully Against the Person or Property of Another (N.J.S.A. 2C:39-4a) (June 2003); and a six-page printout of Model Jury Charges (Criminal), Escape N.J.S.A. 2C:29-5a (June 2006). The weapons charge did not include any annotations memorializing the judge's tailoring.Although we do not have any formal findings by the judge as to what was said, the judge did assert in his letter that he tailored the charge to the facts of the case. See R. 2:5-3(f) (stating that trial judge shall supervise reconstruction of the record where a transcript is lost or destroyed).
The record before us also does not include the recordings that were admitted into evidence and available for the jury's review in the jury room.
We invited briefs from defendants, setting forth the relief they seek, in light of the trial court proceedings, and a reply from the State. As we received the judge's copy of the charge on possession of a weapon for an unlawful purpose after the briefs were submitted, we gave counsel an additional opportunity to respond.
Jonathan presents the following points for our consideration:
THIS DELIBERATING JURY WAS ALLOWED TO UTILIZE IN THE DELIBERATION ROOM, WITH NO LIMITING INSTRUCTION, A TELEVISION, A COMPUTER [LAPTOP] AND AN AUDIOTAPE PLAYER FOR ITS UNRESTRICTED REVIEW OF THE PRETRIAL DVD INTERVIEW OF JOSHUA CALERO, THE AUDIOTAPE INTERVIEW OF QURON TOWNSEND AND THE SURVEILLANCE VIDEO FROM RITMO RECORDS. THAT FAILURE TO SUPERVISE BY THE TRIAL JUDGE WAS A CLEAR VIOLATION OF THE GUIDELINES OF STATE VS. BURR, 195 N.J. 119 (2008) AND PREJUDICED THIS DEFENDANT. LIKEWISE, THE FAILURE TO LIMIT REVIEW OF THOSE EVIDENTIARY ITEMS TO OPEN COURT ALSO RESULTED IN STRUCTURAL ERROR IN VIOLATION OF THIS DEFENDANT'S RIGHT TO A FAIR TRIAL. [THESE ARGUMENTS WERE NOT RAISED BELOW NOR RAISED BY PREVIOUS APPELLATE COUNSEL].
THE TRIAL JUDGE'S INJECTION OF ONE DICTIONARY DEFINITION OF "SUBSTANTIAL" ON THE SIXTH DAY OF DELIBERATIONS ADVERSELY IMPACTED DELIBERATIONS ON THE SECOND DEGREE KIDNAPPING CHARGES. THE JURY HAD ACQUITTED THE DEFENDANT OF FIRST DEGREE KIDNAPPING AND APPARENTLY CONVICTED THIS DEFENDANT OF CRIMINAL RESTRAINT AND FALSE IMPRISONMENT. ADDITIONALLY, THE COURT'S FAILURE TO TAILOR THE JURY INSTRUCTION AND THE VERDICT SHEET SO AS TO ASSURE UNANIMITY OF THE JURY'S VERDICT AS TO EITHER THE ASPORTATION OR CONFINEMENT PRONG OF A KIDNAPPING OFFENSE PREJUDICED THIS DEFENDANT. [THIS ARGUMENT WAS NOT RAISED AT THE TRIAL BELOW NOR BY PREVIOUS APPELLATE COUNSEL].
THE FOURTEEN MINUTE GAP WHICH INCLUDED INSTRUCTION ON POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE, ALONG WITH THE FAILURE OF THE TRIAL JUDGE TO SUPPLY THIS COURT OR COUNSEL WITH THE NOTES APPARENTLY UTILIZED IN RECONSTRUCTING THOSE INSTRUCTIONS, REQUIRES THAT THE WEAPON POSSESSION CHARGES BE REVERSED [TRIAL COUNSEL WAS UNAWARE OF THIS RECORDING MALFUNCTION AND THE ISSUE WAS NOT RAISED BY PREVIOUS APPELLATE COUNSEL].
THE TRIAL JUDGE'S MISTAKEN CONFISCATION OF THE FOREPERSON'S DELIBERATION NOTES FROM THE FOREPERSON AS WELL AS THE TRIAL COURT'S FAILURE TO ADDRESS ISSUES RAISED IN THE FOREPERSON'S NOTES ARE PRESUMPTIVELY PREJUDICIAL AND REQUIRE REVERSAL OF THIS DEFENDANT'S CONVICTIONS. ALTERNATIVELY, REMAND TO THE TRIAL COURT IS NECESSARY TO RESOLVE THESE ISSUES. [THIS ISSUE WAS NOT RAISED BY TRIAL COUNSEL OR BY PREVIOUS APPELLATE COUNSEL].
THE ERRORS RECITED ABOVE, ALONG WITH THE FAILURE TO MAKE A PRECISE RECORD OF WHAT WAS ACTUALLY PLAYED BEFORE THE JURY DURING ITS SIX DAYS OF DELIBERATIONS, STATE VS. WILSON, 165 N.J. 657 (2000), RESULTED IN THE CUMULATIVE PREJUDICIAL IMPACT ON THIS DEFENDANT'S RIGHT TO A FAIR TRIAL. DEFENDANT'S CONVICTIONS MUST BE REVERSED. [THIS ISSUE WAS NOT RAISED BY TRIAL COUNSEL OR BY PREVIOUS APPELLATE COUNSEL].
Esterlin presented the following points:
POINT I (Not Raised Below)
DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE COURT TWICE GAVE THE DICTIONARY DEFINITION OF SUBSTANTIAL.
POINT II (Not Raised Below)
DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE COURT FAILED TO GIVE A SPECIFIC UNANIMITY INSTRUCTION SUA SPONTE ON THE KIDNAP[P]ING CHARGE.
POINT III (Not Raised Below)
ALLOWING THE VIDEOTAPED STATEMENT OF JOSHUA CALERO IN THE JURY ROOM DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND DENIED HIM A FAIR TRIAL.
POINT IV (Not Raised Below)
DEFENDANT'S SENTENCE WAS EXCESSIVE, UNDULY PUNITIVE AND AN ABUSE OF THE COURT'S DISCRETION.
POINT V (Not Raised Below)
DEFENDANT INCORPORATES THE ADDITIONAL LEGAL ARGUMENTS RAISED BY CO-DEFENDANT'S COUNSEL.
Upon receiving the judge's personal copy of the charge on possession of a firearm for an unlawful purpose, defendants submitted a supplemental brief arguing:
THE MODEL JURY CHARGES SUBMITTED BY THE TRIAL JUDGE DO NOT CURE THE DEFICIENCIES OF THESE JURY INSTRUCTIONS AS TO THE OFFENSE OF POSSESSION OF A FIREARM WITH PURPOSE TO USE IT UNLAWFULLY.
Defendants ask that we reconsider our decision affirming their convictions. Although they have demonstrated that the original record on appeal was incomplete — and in some measure is still incomplete — the principal grounds presented were available to defendants based on the original record. They both assert: (1) the trial court violated the guidelines set forth in Burr by allowing the jury to playback recorded statements in the jury room; (2) the court erred when it supplemented the model jury charge on kidnapping by using a dictionary definition of "substantial" to clarify the notions of "substantial" distance and time in connection with the asportation and confinement elements; (3) the trial court should have given a specific unanimity charge to assure that all jurors agreed as to the asportation or confinement element of the kidnapping charge.
Beginning with Burr, and affirmed in State v. Miller, 205 N.J. 109 (2011), and State v. A.R., 213 N.J. 542, 554 (2013), the Court has expressed its disapproval of "allowing a jury unfettered access to videotaped witness statements" in the jury room during deliberations. Burr, supra, 195 N.J. at 134. We enunciated the same rule many years earlier in State v. Michaels, 264 N.J.Super. 579, 643 (App. Div. 1993), aff'd on other grounds, 136 N.J. 299 (1994). However, as to the Burr issue, the judge's decision to allow the jury to utilize playback equipment in the deliberation room was addressed on the record and recorded in transcripts obtained by prior counsel. The issue therefore was available to initial appellate counsel.
Likewise, the discussion of "substantial" was discussed during a previously transcribed session. The unanimity issue simply was not raised, notwithstanding that the verdict sheet expressly asked the jury to determine whether the kidnapping victims were transported or confined. Those issues, as well, could have been raised before.
A party may seek reconsideration of an appellate decision. R. 2:11-6. Unlike Rule 4:49-2, which governs reconsideration motions in the trial court, Rule 2:11-6 does not expressly require the movant to provide "a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred[.]" Nonetheless, Rule 2:11-6 is not designed to give an appellant the proverbial "second bite at the apple, " to bring forward issues that were available to it upon initial review.
A motion for reconsideration is appropriate where the court has based its decision "'upon a palpably incorrect or irrational basis, '" the court "'did not consider, or failed to appreciate the significance of probative, competent evidence, '" or the party "'wishes to bring new or additional information to the [c]ourt's attention which it could not have provided on the first application[.]'" Cummings v. Bahr, 295 N.J.Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J.Super. 392, 401-02 (Ch. Div. 1990)); see also Fusco v. Bd. of Educ. of City of Newark, 349 N.J.Super. 455, 463 (App. Div.) (stating that a party may not present on reconsideration a matter that counsel overlooked or made a tactical decision to omit), certif. denied, 174 N.J. 544 (2002).
We did not err with respect to the Burr issue, the definition of "substantial" in the kidnapping instruction, or the need for a unanimity charge. Rather, defendants did not present those issues, although they had the opportunity to do so. Cf. Strauss v. Fost, 213 N.J.Super. 239, 240-41 (App. Div. 1986) (granting reconsideration to allow parties to address an issue the court considered without briefing from parties). Nor is this a case where the parties have identified a significant change in the law that warrants our reconsideration. See, e.g., Batko v. Sayreville Democratic Org., 373 N.J.Super. 93 (App. Div. 2004). Also, although we do not minimize the impact of these issues on the individual defendants, reconsideration would not implicate issues of broader public importance.
We suspect that with the benefit of hindsight, creative appellate lawyers can devise additional arguments that they would have wished to present to us on appeal. However, were we to permit reconsideration on this ground, there would be no end to our review of issues on appeal. We therefore shall not address the merits of those issues that could have been presented to us in the initial appeal based on the original record.
Whether the failure to present such arguments would rise to ineffective assistance is not for us to determine at this stage. See Jones v. Barnes, 463 U.S. 745, 752, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987, 994 (1983) (noting that appellate counsel must exercise professional judgment in winnowing down potential issues on appeal to select "the most promising issues for review"); State v. Gaither, 396 N.J.Super. 508, 513 (App. Div. 2007) (stating that the standard for assessing ineffective assistance of appellate counsel is the standard set forth under Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698 (1984), and State v. Fritz, 105 N.J. 42, 58 (1987)), certif. denied, 194 N.J. 444 (2008). However, in order to establish prejudice, defendants would at a minimum need to show that they would have prevailed on the omitted issues. See Gaither, supra, 396 N.J.Super. at 513-14; State v. Morrison, 215 N.J.Super. 540, 551 (App. Div.), certif. denied, 107 N.J. 642 (1987).
We turn next to defendants' points that relate directly to the expanded record. Jonathan argues that the court erred in confiscating the foreperson's notes, which are now included in the expanded record. We discern no plain error. The court acted within its discretion to bar the jurors from taking notes. It appeared that the foreperson was taking notes in the courtroom during readbacks, essentially on the reheard testimony. Notwithstanding that the juror's notes may have included notes created while in deliberation, the judge was faced with a difficult choice. Had he permitted the foreperson to retain his notes, then that juror, and apparently only that juror, would have possessed notes of reheard testimony. That would create the risk that both the foreperson and other jurors would give undue weight to the foreperson's notes. The possibility was heightened by the absence of notetaking by other jurors, and the absence of the model instruction on notetaking when it is permitted, which expressly advises jurors not to place undue weight on another juror's notes. See Model Jury Charges (Criminal), Note-Taking by Jurors (Instructions: Post-Evidence) (September 1998).
We recognize that the foreperson's notes may have included notes related to the deliberations. However, we see no practical way the judge could have separated the notes of in-court activity from the notes of deliberations, without intruding into the juror's thought processes. In any event, we perceive no prejudice, and Jonathan has pointed to none, arising from the confiscation of the notes.
We turn next to the issue of the unrecorded instruction on possession of a weapon for an unlawful purpose. Jonathan argues that there is no indication of the specific language used regarding the firearm element and the element of possession, which is cross-referenced on page two of the model charge. However, the court separately instructed the elements of possession when it charged the separate offense of third-degree unlawful possession of a weapon.
Defendants also argue the judge's version of the charge does not reflect specification of the alleged unlawful purpose of defendants' possession nor whether the court addressed the issue of protective purpose. They argue the court was obliged to identify the unlawful purpose suggested by the evidence, citing State v. Williams, 168 N.J. 323, 339-40 (2001) and State v. Jenkins, 234 N.J.Super. 311, 316 (App. Div. 1989).
We recognize the court's obligation as set forth in Williams and Jenkins. Although we have no written annotations evincing that the court did so, the judge stated he tailored his charge. We have no evidence to the contrary in the form of certifications from trial counsel. As defendants point out, Esterlin's trial counsel advised the trial judge, before the charge, that the court was obliged to identify the unlawful purposes, and the trial judge agreed to do so. Esterlin's attorney's failure to object to the charge, as delivered, may be taken as evidence that the judge did identify the alleged unlawful purpose of the possession. See State v. White, 326 N.J.Super. 304, 315 (App. Div. 1999) (stating that counsel's failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised . . . was actually of no moment"), certif. denied, 163 N.J. 397 (2000).
In any event, even if we were to assume the court failed to adequately identify the unlawful purpose of the possession, we shall not reconsider our decision to address a claim of error in the instruction — which would be subject to a plain error analysis. R. 2:10-2. The issue was available to counsel. Although the transcript omitted the charge because of an equipment malfunction, defense counsel were present and could have raised the issue with appellate counsel.
Finally, we perceive no deprivation of defendants' rights as a result of the foreperson's written messages to the court expressing frustration with other jurors, and his apparent interest in speaking to the judge separately. The record reflects that the judge did not confer with the foreperson separately. Even if one of the notes, court exhibit 10, was not discussed with counsel in advance, we perceive no plain error.
Any other issues raised by counsel do not warrant further discussion in a written opinion. R. 2:11-3(e)(2).
We decline reconsideration and affirm.