October 9, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DASHAWN ROUSE, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted on June 4, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-10-1618.
Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Michelle E. Ditzhazy, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Reisner and Hayden.
Following a jury trial, defendant Dashawn Rouse appeals from his December 19, 2008 judgment of conviction and sentence. For the reasons that follow, we affirm his conviction and extended sentence, but remand for resentencing so that the period of parole eligibility can be determined in accordance with this opinion.
We discern the following facts from the record. On August 4, 2007, the Jersey City police, investigating a report of a woman taking drugs in a stairway of a public housing project, came upon defendant, who fled when he saw the police. Defendant discarded a plastic bag as he ran. The police pursued and arrested defendant for several drug-related charges in a school zone and around a public housing complex. Defendant's friend, Darryl Maxwell, claimed defendant was attending a barbeque when the police began chasing him.
On September 27, 2007, a grand jury indicted defendant for (count one) third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); (count two) third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); (count three) third-degree possession with intent to distribute cocaine within 1000 feet of a school zone, N.J.S.A. 2C:35-7; (count four) second-degree possession of cocaine with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1; (count five) third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); (count six) third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); (count seven) third-degree possession with intent to distribute heroin within 1000 feet of a school zone, N.J.S.A. 2C:35-7; and (count eight) second-degree possession of heroin with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1.
After a four-day trial, the jury found defendant guilty of all charges. The judge merged counts one, two, and three with count four and merged counts five, six, and seven with count eight. He granted the State's motion for a discretionary extended term under N.J.S.A. 2C:44-3(a) and sentenced defendant to an aggregate twelve years in prison, with a six-year period of parole ineligibility.
On appeal, defendant raises the following contentions for our consideration.
I.THE JUDGE FAILED TO PROPERLY INVESTIGATE SEXUAL ADVANCES MADE BY BOTH DEFENDANT'S FRIEND AND THE SOLE DEFENSE WITNESS TOWARD TWO JURORS, DENYING MR. ROUSE HIS RIGHT TO AN IMPARTIAL JURY AND A FAIR TRIAL.
II.THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT CREATED THE IMPRESSION THAT HE HAD AN OBLIGATION TO TESTIFY, VIOLATING HIS CONSTITUTIONAL RIGHT TO REMAIN SILENT. (Not Raised Below).
III.THE JUDGE ERRED IN IMPOSING AN EXTENDED TERM, DOUBLE-COUNTED AND IMPROPERLY WEIGHED AGGRAVATING FACTORS, IMPROPERLY IMPOSED A MANIFESTLY EXCESSIVE PAROLE-DISQUALIFIER, AND FAILED TO PROVIDE A STATEMENT OF REASONS FOR THE SENTENCE IMPOSED; MR. ROUSE IS ALSO ENTITLED TO RESENTENCING UNDER THE AMENDED SCHOOL-ZONE STATUTE.
A. The court erred in imposing an extended term.
B. The court erred in setting the base term of 12 years due to improper double-counting.
C. The court erred in its finding on aggravating factors.
D. The court failed to provide a statement of reasons for the sentence imposed.
E. The court erred in imposing a six-year parole disqualifier, which was twice as long as the then-required mandatory minimum.
F. Mr. Rouse is entitled to be resentenced under the amended school-zone statute, which eliminated the required mandatory minimum.
Defendant first contends that the trial judge failed to properly investigate inappropriate comments made to two jurors during court recesses by an unnamed friend of defendant and by Maxwell, his sole trial witness. Defendant argues that by failing to fully address this situation, the judge deprived him of his constitutional right to a fair and impartial jury.
It is well-established that "[a] defendant's right to be tried before an impartial jury is one of the most basic guarantees of a fair trial." State v. Loftin, 191 N.J. 172, 187 (2007) (citations omitted). "[I]f during the course of the trial it becomes apparent that a juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." State v. R.D., 169 N.J. 551, 557-58 (2001) (citation omitted).
However, a juror's exposure to outside influences does not necessarily mean that there must be a new trial, because it would be nearly impossible to guard against any and all outside influences that could potentially affect a juror's vote. Id. at 559. "Ultimately, the trial court is in the best position to determine whether the jury has been tainted." Ibid. Accordingly, the standard of review is abuse of discretion. Ibid.
"An appropriate voir dire of a juror allegedly in possession of extraneous information mid-trial should inquire into the specific nature of the extraneous information, and whether the juror intentionally or inadvertently has imparted any of that information to other jurors." Id. at 560. But, in such situations, the determination of whether to voir dire the other jurors is typically a matter for the trial courts, who are in a better position than an appellate court to determine whether questioning of other jurors would be more harmful than beneficial in each particular case. Id. at 561.
In the instant case, during deliberations the jurors sent the trial judge two notes: one stating they were deadlocked and a second stating that jurors six and ten wished to speak with the judge. The trial judge initially denied the jurors' request to speak with him. Subsequently, after the jury sent the judge another more specific note, he proceeded to voir dire the two jurors on the record.
The trial judge asked juror number six about contact with defendant's sole trial witnesses:
THE COURT: Since the beginning of this trial has -- have you had any contact with any of the witnesses that were -- other than being in the courtroom?
JUROR: It wasn't really contact. It was just he made some comments.
JUROR: [It was] Maxwell, yes. Just some comments about, you know, how I looked, and continued to make comments even leaving after he gave his testimony.
THE COURT: So you were outside in the hall?
THE COURT: And he, he walked past you and said something?
JUROR: I walked past.
THE COURT: And what did he say?
JUROR: You're too beautiful to be a juror. You just kept -- even after, he just kept telling me how pretty I was. But I, I mean, I didn't look at him or give him any eye contact, but he just continued to make comments.
THE COURT: Okay. And that was the extent of what happened?
JUROR: That was the extent. --
JUROR: -- But I just thought . . . it should come out and, you know, everyone should be aware of it.
THE COURT: Okay, which is very true. Now we have it on the record, which is good.
THE COURT: And did that affect you in any way as to your outcome of this case?
Next, the trial judge interviewed juror number ten, who reported an occurrence during a court recess prior to the end of trial:
THE COURT: Can you tell us what happened?
JUROR: Well it's nothing really, like I was on walking from the (indiscernible). And then I saw the defendant and then like who he was with. And one of the guys, he was with, like friends with.
JUROR: . . . I'm not offended or anything, but I think you should know . . . .
THE COURT: Did he say anything, did he say anything to you at all?
JUROR: No, just like, oh, what's up. (Indiscernible). It wasn't like this serious. You know what I mean?
After both jurors testified, the State made a motion to have two alternates substituted for the jurors. Defense counsel vigorously opposed this motion, contending that it was unwarranted because the out-of-court contact was not directed by defendant, it did not involve defendant's guilt or innocence, and both jurors maintained that there had been no effect on their ability to be fair and impartial in rendering a verdict. The court denied the State's motion because of the minimal nature of the contact.
Defendant contends that the prejudicial conduct of defendant's friends undermined the two jurors' ability to fairly deliberate and reach a verdict, relying on State v. Bisaccia, 319 N.J.Super. 1 (App. Div. 1999). Such reliance is misplaced. In Bisaccia, the trial judge completely ignored multiple assertions by jurors that they were being intimidated to the point of fearing physical injury. Id. at 15. Here, the judge questioned the two jurors immediately after receiving the second note, the out-of-court contacts were trivial, non-threatening and fleeting, and the jurors each stated that they did not believe the contacts had any effect on them.
Similarly, defendant's reliance on Loftin, supra, 191 N.J. 172 is unavailing. In Loftin, the Court held that a juror who told other jurors during the trial that he had made up his mind the defendant was guilty should have been replaced immediately. Id. at 191. Here, there is no evidence that the jurors had been affected at all by their brief encounters.
We are satisfied that the trial court did not abuse its discretion in permitting the jurors to stay on the jury. After the jurors raised the issue, the trial judge appropriately conducted an investigation, found no indication of taint or bias, and determined that the jurors should not be removed.
Moreover, to the extent that any error could be found here, defendant invited it when defense counsel adamantly resisted the State's motion to replace the two jurors. "The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error." Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996). The doctrine prohibits a defendant from "'request[ing] the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought[.]'" State v. Jenkins, 178 N.J. 347, 358 (2004) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)); see also State v. Corsaro, 107 N.J. 339, 345 (1987) ("Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal[.]").
Defendant also argues that the trial judge erred in his instruction to the jury regarding defendant's right not to testify, thereby creating the impression that defendant had an obligation to testify on his own behalf. We disagree.
The judge gave the model jury charge in effect at the time, stating:
As you know, Dashawn Rouse elected not to testify at trial. It is his constitutional right to remain silent. You must [not] consider for any purpose or in any manner in arriving at your verdict the fact that the defendant did not testify. That fact should not enter into your deliberations or discussions in any manner at any time.
The defendant, Dashawn Rouse, is entitled to have the jury consider all evidence presented at trial. He's presumed innocent even if he chooses not to testify.
A defendant's right to be tried before an impartial jury and to a fair trial can only exist where the jury has been properly charged. State v. Collier, 90 N.J. 117, 122-23 (1982). Because defendant did not object to this jury instruction at trial, the plain error standard of review applies. See State v. Nero, 195 N.J. 397, 407 (2008).
According to defendant, the use of the words "even if" at the end of the jury charge undermine the entirety of the instruction itself. Defendant bolsters this argument by pointing out that the most recent model jury charges on a defendant's election not to testify, amended in 2009, have changed the language of the instruction from "even if he chooses not to testify" to "whether or not he chooses not to testify." Criminal Model Charges, Defendant's Election Not to Testify (revised May 4, 2009).
In State v. Miller, 205 N.J. 109, 126-27 (2011), the defendant raised this precise argument, also as plain error. In explicitly rejecting the argument, the Court noted its agreement with our assessment:
"Nonetheless, we are persuaded that the charge given in this case, read as a whole, had no capacity to lead the jurors astray. The jurors were clearly directed that they could not consider defendant's decision to leave the State to its proofs in any manner and were not permitted to allow the fact that he did not testify to enter into their deliberations or decision-making at any time."
[Id. at 127 (quoting State v. Miller, 411 N.J.Super. 521, 533 (App. Div. 2010), aff'd, 205 N.J. 109 (2011)).]
These observations are equally applicable here. We are satisfied that, reading the charge as a whole, the words "even if" did not have the capacity to create an unjust result or cause the jury to believe defendant had an obligation to testify. Accordingly, we conclude that the trial judge did not commit error in giving the Model Criminal Charge as it existed at the time of trial.
Lastly, defendant argues that he must be resentenced because the trial judge improperly imposed an extended term, double-counted and improperly weighed the aggravating and mitigating factors, imposed a manifestly excessive parole disqualifier, and failed to provide an adequate statement of reasons for the sentence. Defendant also claims that this case should be remanded for resentencing in accordance with the amended school-zone statute.
In New Jersey, the Criminal Code provides for extended term sentences, longer than the ordinary term typically given for the same crime, where the defendant meets the statutory criteria. State v. Pierce, 188 N.J. 155, 161 (2006). Based upon defendant's prior record, the judge determined that he was eligible for a discretionary extended term as a persistent violator under N.J.S.A. 2C:44-3(a). The standard of review of a sentencing court's determination of whether to impose an extended term sentence is abuse of discretion. Pierce, supra, 188 N.J. at 166.
Here, defendant concedes that the statutory criteria for an extended term as a persistent violator have been met. Once a defendant qualifies for the extended term, the range of sentences the court may impose "starts at the minimum of the ordinary-term range and ends at the maximum of the extended–term range." Id. at 169.
Thus, in this case, the judge could have sentenced defendant, who was convicted of two second-degree crimes, to anywhere from five years to twenty years on each conviction. See N.J.S.A. 2C:43-7(a)(3). The choice rests with the sentencing court's sound judgment after weighing the aggravating and mitigating factors. N.J.S.A. 2C:44-1(a), (b). The judge's choice within that range is "a function of the court's assessment of the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public" and is "subject to reasonableness and the existence of credible evidence in the record to support the court's finding[s.]" Pierce, supra, 188 N.J. at 168-69. Thus, a defendant's prior criminal history only serves to expand the scope of the possible sentence prior to the judge considering aggravating and mitigating factors. See ibid. As such, defendant's argument that the sentencing judge "double-counted" his past criminal convictions is without merit.
Here, the judge determined that the statutory predicate had been met and highlighted defendant's extensive criminal record in his decision to impose an extended term. Next, the judge appropriately weighed the aggravating factors, finding factors three, six, and nine,  and found no mitigating factors. He then sentenced defendant to twelve years of incarceration, well below the maximum of twenty years for an extended sentence. We find no abuse of discretion here. We are satisfied that the sentence imposed is well-supported by the record.
Defendant also contends that the trial court erred in imposing an "excessive" six-year period of parole disqualification and failed to articulate his reasons for doing so. Pursuant to N.J.S.A. 2C:35-7(a), the sentencing court has the discretion to impose a parole disqualifier for defendant between "one-third and one-half of the sentence imposed, or one year, whichever is greater[.]" Here, the judge determined that parole eligibility was six years, or one-half the maximum term, without explaining his reasoning.
"[I]n all cases where [the court] finds parole ineligibility appropriate, the court should state the reasons for the sentence[.]" State v. Kruse, 105 N.J. 354, 362 (1987). In the absence of any explanation for the basis for the judge's determination, which hinders appellate review, remand to the trial court is the appropriate solution. State v. Bessix, 309 N.J.Super. 126, 130 (App. Div. 1998). Because the judge did not separately explain why he imposed the maximum amount of parole ineligibility, we must remand for resentencing solely as to the parole issue.
Lastly, defendant asserts that he is entitled to be resentenced under the amended school-zone statute, N.J.S.A. 2C:35-7, which eliminated the required mandatory minimum term of parole ineligibility in 2010. L. 2009, c. 192, eff. Jan. 12, 2010. In the context of the remand, the judge should certainly consider the current legislative policy reflected in the 2010 amendments.
Affirmed as to the conviction; remand for resentencing in accordance with this opinion. We do not retain jurisdiction.