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State v. Ross

Supreme Court of New Jersey

June 26, 2017

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
MICHAEL ROSS II, Defendant-Appellant.

          Argued March 27, 2017

         On appeal from the Superior Court, Appellate Division.

          Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).

          Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney).

          Emily R. Anderson, Deputy Attorney General, argued the cause for amicus curiae (Christopher S. Porrino, Attorney General, attorney).

          FERNANDEZ-VINA, J., writing for the Court.

         In this appeal as of right, the Court considers whether the trial court's active questioning in a first-degree murder trial constituted plain error.

         Alesky Bautin and Sergey Barbashov were shot and killed on the evening of October 30, 2003. The men were sitting in Barbashov's red Volkswagen Passat outside the Forest View apartment complex in Avenel when the shooting occurred. Nearly one month earlier, defendant was stopped at a traffic signal when a car pulled up and blocked his vehicle. A passenger defendant knew only as "Mitch" got out of the car and pointed a gun at him.

         On October 30, defendant was with Jamil McKnight, Sherrill Williams, and Ronald Huff. The group drove in McKnight's car to visit a friend. McKnight did not drive because of a condition that impaired his vision. Upon seeing a red car parked outside, defendant told the group that he spotted the individuals who had threatened him weeks earlier. Defendant said he wanted to go get his gun, which he had left at McKnight's house.

         Before reaching McKnight's house, Huff asked to get out of the car. Williams stayed at McKnight's house while defendant and McKnight drove back to Forest View with the gun. As they passed Barbashov's car, defendant fired multiple shots into the car from approximately three to four feet away. McKnight claimed he and defendant discarded the gun before visiting a mutual friend, Greg Wakefield. McKnight admitted retrieving the gun before dawn on October 31, and that he and Williams gave the gun to a man in Queens whom he knew only as Dante.

         The police received information leading to Sharhi Roberts, defendant's ex-girlfriend. Roberts was arrested on municipal court charges and agreed to give a statement in exchange for dropping the charges against her. She told police that defendant had admitted to her on two separate occasions that he committed the murders. Wakefield, who was also facing charges in an unrelated case, reluctantly gave a statement to the police in which he said that defendant had admitted to committing the murders. In September 2006, police arrested defendant.

         An eight-day jury trial was held in 2008. The State presented seventeen witnesses and defendant presented three witnesses, including himself. The trial court questioned many of the witnesses. Defendant did not object at any point during trial to the court's questioning of witnesses. During the final jury charge, the judge instructed the jury that it should not be influenced by his questioning.

         In its fifth day of deliberations, the jury indicated it was unable to reach a verdict, and the court delivered a Czachor charge. A juror became ill, and the judge substituted an alternate juror and instructed the jury to begin deliberations anew. The jury deliberated four additional days before convicting defendant of the first-degree murders of Bautin and Barbashov, second-degree possession of a weapon for an unlawful purpose, third-degree unlawful possession of a weapon, and third-degree hindering apprehension. Defendant moved for a new trial, but defense counsel did not challenge the trial court's questioning. The court denied defendant's motion.

         The Appellate Division subsequently reversed defendant's convictions, holding that the trial court erred in substituting a juror after the jury announced it was deadlocked. The Court reversed and remanded for the Appellate Division to consider defendant's other points on appeal. 218 N.J. 130 (2014).

         On remand, an Appellate Division panel rejected defendant's remaining contentions in a split decision. The majority and dissent disagreed as to whether the trial court's questioning constituted plain error. Defendant filed a notice of appeal as of right by virtue of the dissent in the Appellate Division.

         HELD: Although some of the trial court's inquiries were unnecessary and over-reaching, the trial judge's conduct did not rise to the level of plain error. Upon review of the record, the Court is satisfied that the trial court's questions did not deprive defendant of a fair trial.

         1. When a defendant fails to object to an error or raise an issue before the trial court, courts review for plain error and reverse only if the error was "clearly capable of producing an unjust result." R 2:10-2. (pp 21-22)

         2. Defendant suggests that his failure to object at trial is excusable because of the "awkwardness" of objecting to the trial court's conduct in front of the jury. Defendant, however, could have done so at sidebar. Defendant also contends that his failure to object at trial was justifiable because the impact of the court's questioning may not have seemed prejudicial until viewed cumulatively. In light of defendant's failure to object to the nature or scope of the trial court's questioning in his motion for a new trial, the Court is unpersuaded by this contention, (pp. 22-23)

         3. Judges are authorized to question witnesses "in accordance with law and subject to the right of a party to make timely objection." N.J.R.E. 614. A trial judge may intervene to expedite the proceedings and clarify testimony. State v. O'Brien, 200 N.J. 520, 534 (2009). A trial judge may also pose questions to help elicit facts from a witness who is in severe distress. State v. Taffaro, 195 N.J. 442, 451 (2008). Although a trial judge has wide latitude to question witnesses, a judge must exercise this authority with "great restraint, " especially during a jury trial. Ibid. A fine line separates proper and improper judicial questioning. A trial court crosses this line when its inquiries give the jury an impression that it takes one party's side or that it believes one version of an event and not another. In determining whether a trial judge crossed over this line, courts must examine the record as a whole, (pp 23-25)

         4. The Court reviews in detail the trial court interventions challenged by defendant and finds that none constitute plain error. In contrast to Taffaro and O'Brien, the trial court in this case did not question defendant or his alibi witnesses. Rather, the trial judge interjected only during the testimony of some of the State's seventeen witnesses. And even then, the court posed few questions to the four witnesses whose testimony mattered most in resolving the primary contested issue in this case-the identity of the shooter. Although the judge was at times harsh with Roberts, defense counsel was fully able to impeach her credibility regarding defendant's alleged incriminating admissions. Moreover, the judge actually helped facilitate cross-examination of Roberts, (pp 25-32)

         5. It is unlikely that the trial court's putative error led the jury to a result it otherwise might not have reached. Notably, defendant's credibility was severely impaired on cross-examination. The trial court's jury instructions also indicate that the court's intervention did not lead the jury to a result it otherwise might not have reached. On this record, where the court did not cast doubt on the credibility of defendant or underscore weaknesses in his defense, one can fairly conclude that the jury followed the judge's instructions, (pp. 32-33)

         6. By intervening during defendant's trial, the trial judge in this case skirted perilously close to the fine line that distinguishes proper and improper judicial conduct. The court, however, did not cross that line. Judges must remain ever vigilant not to cross that line by asking questions that suggest a favorable impression of a party or signal doubt about a witness's credibility, or overly intervene in counsel's questioning. It bears repeating that defendant did not object at trial to the court's questioning and review is confined to the plain error standard. The Court views counsel's failure to object as an indication that counsel perceived no prejudice in the court's questioning, (p. 33)

         The judgment of the Appellate Division is AFFIRMED.

         JUSTICE TIMPONE, DISSENTING, expresses the view that the trial judge's extensive cross-examination of fourteen of the State's seventeen witnesses, through colloquies extending for well beyond thirty pages of transcripts, crossed that fine line that separates advocacy from impartiality. The judge sowed doubts as to defendant's theory of the case by buttressing the State's witnesses, casting doubt with his tone and manner on a critical defense-leaning witness, and testifying himself while adroitly avoiding examining defendant, according to Justice Timpone. Where the majority finds that the judge came perilously close to the line, Justice Timpone finds that he clearly crossed it, denying the defendant his due process right to a fair trial.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and SOLOMON join in JUSTICE FERN ANDEZR VINA's opinion. JUSTICE TIMPONE filed a separate, dissenting opinion.

          OPINION

          FERNANDEZ-VINA JUSTICE.

         In this appeal as of right, we consider whether the trial court's active questioning in a first-degree murder trial constituted plain error.

         A jury convicted defendant Michael Ross of committing a double murder and related offenses. The State's theory of the case was that defendant shot and killed the two victims because he mistook one of them for an individual who had previously threatened him with a firearm. At trial, defendant testified and denied involvement in the shooting.

         The State presented seventeen witnesses and defendant presented three witnesses, including himself. The trial court questioned many of the witnesses. Defendant did not object at any point during trial to the court's questioning of witnesses. On appeal, however, defendant argued that the judge's questioning of a number of the State's witnesses constituted plain error.

         A divided Appellate Division panel affirmed defendant's convictions. A majority of the panel acknowledged that the trial judge's conduct was a mistaken exercise of discretion, but concluded that the judge's participation did not constitute plain error. Conversely, the dissenting judge maintained that the trial court's conduct warranted reversal of defendant's convictions.

         Although some of the trial court's inquiries were unnecessary and over-reaching, we conclude that the trial judge's conduct did not rise to the level of plain error. Upon review of the record, we are satisfied that the trial court's questions did not deprive defendant of a fair trial. Accordingly, we affirm the judgment of the Appellate Division and uphold defendant's convictions.

         I.

         A.

         Alesky Bautin and Sergey Barbashov were shot and killed on the evening of October 30, 2003. The men were sitting in Barbashov's red 1999 Volkswagen Passat outside the Forest View apartment complex ("Forest View") in Avenel when the shooting occurred. Nearly one month earlier, on October 1, defendant was stopped at a traffic signal in the Woodbridge area when a car pulled up and blocked his vehicle. A passenger defendant knew only as "Mitch" got out of the car and pointed a gun at him. In an attempt to avoid the confrontation, defendant drove away, hitting two other cars in the process. On October 2, defendant traveled to police headquarters and gave a statement regarding the incident. Defendant told police that the gun-waving individual drove a burgundy or maroon Ford Taurus or Mercury Sable that he had previously seen in the neighborhood.

         On October 30, defendant was with Jamil McKnight, Sherrill Williams, and Ronald Huff. The group drove to Forest View in McKnight's car to visit a friend. McKnight did not drive because of a condition that impaired his vision. Upon seeing a red car parked outside one of the apartment buildings, defendant told the group that he spotted the individuals who had threatened him weeks earlier. Defendant said he wanted to get his gun, which he had left at McKnight's house. Defendant also described the individuals in the car, including Mitch, as black males.

         Before reaching McKnight's house, Huff asked to get out of the car. Williams stayed at McKnight's house while defendant and McKnight drove back to Forest View with the gun. As they passed Barbashov's car, defendant fired multiple shots into the car from approximately three to four feet away. McKnight claimed he and defendant discarded the gun before visiting a mutual friend, Greg Wakefield. McKnight admitted retrieving the gun before dawn on October 31, and that he and Williams gave the gun to a man in Queens whom he knew only as Dante.

         Huff, who was walking around the neighborhood at the time of the shooting, heard multiple shots. Walking in the direction of the shooting, Huff approached Barbashov's car and saw Bautin, who appeared to be dead, and Barbashov, who was still alive. Huff heard sirens and told Barbashov that help was on the way. Officer Christopher Lyons of the Woodbridge Police Department responded to the shooting. When he arrived at the scene, he found Bautin dead with a bullet hole at the base of his skull behind his ear lobe. Lyons found Barbashov alive in the driver's seat and called for an ambulance. Responders transported Barbashov to the hospital for emergency surgery, but doctors there were unable to save him.

         Several spent shell casings and bullets were found in and around Barbashov's vehicle. Gary Mayer, a forensics ballistics investigator, determined that the spent shells, bullets, and fragments recovered from the scene had all been fired from the same nine-millimeter firearm. Mayer examined a nine-millimeter Glock handgun belonging to Barbashov's business partner and concluded that the rounds at the scene were not fired from that gun.

         With no further leads, the investigation stalled. Eventually, the police received information leading to Sharhi Roberts, defendant's ex-girlfriend. Roberts was arrested on municipal court charges and agreed to give a statement to police in exchange for dropping the charges against her. Roberts told police that defendant had admitted to her on two separate occasions that he committed the murders.

         Wakefield, who was also facing charges in an unrelated case, reluctantly gave a statement to the police in which he said that defendant had admitted to committing the murders. Wakefield did not have an attorney present when he gave his first statement to the police, and averred at trial that authorities pressured him to implicate defendant. Sergeant Mark Clements, who investigated the crime on behalf of the Middlesex County Prosecutor's Office, stated that Wakefield was with authorities for approximately seven and one-half hours on the date he gave his first statement and took a polygraph exam.

         In September 2006, nearly three years after the October 30 shooting, police arrested defendant. McKnight was arrested in New York for disposing of the firearm that had been used in the shootings, and defendant was arrested three days later for the murders. Police never recovered the murder weapon.

         B.

         In October 2006, a Middlesex County grand jury issued an indictment charging defendant with two counts of first-degree murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (a)(2); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b); and third-degree hindering apprehension, contrary to N.J.S.A. 2C:29-3(b)(3).

         An eight-day jury trial was held in 2008. On April 1, the State called the first of its seventeen witnesses. Officer Vincent Totka, who investigated the October 1 gun-waving incident, was the first witness to testify. The trial judge asked Officer Totka, who took defendant's statement the day after the incident, a brief series of questions to establish defendant's age at the time of questioning and to clarify why defendant's father was not in the room when the officer took defendant's statement regarding the gun-waving episode. Totka responded that defendant was twenty-one years old at the time and that parental consent was not needed.

         Detective Michael Ng, who investigated the motor vehicle accident resulting from defendant's driving away from Mitch, was the second witness to testify. The trial court posed several questions to Ng, whose responses established that the police asked defendant's father to have defendant contact them about the accident and that defendant came to the station the following day. Following Ng's testimony, a Verizon employee and a New Jersey State Police lieutenant testified regarding the 911 call made on the night of the murders. The trial court asked those two witnesses limited questions. Bautin's brother and Barbashov's girlfriend were the next witnesses to testify, and the court posed only a few questions.

         On the second day of trial, the State called Huff, who had been in the car with defendant, McKnight, and Williams on the evening of the murders. Huff described what he witnessed that night and testified as to what he told the police in response to their questioning during the investigation. During his direct testimony, Huff referred to defendant and McKnight by their nicknames and denied knowledge of their real names. During cross-examination, defendant responded to questions using defendant and McKnight's real names. After cross-examination, the court had Huff clarify that he knew their real names only at the time of trial and not previously:

[Court]: So, in other words, you know who the real name of Sagacious is now?
[Huff]: I do not, no.
[Court]: Now?
[Huff]: Now.
[Court]: That is what I'm saying.
[Huff]: Jamil, whatever his name is.
[Court]: Do you know his last name now?
[Huff]: If they say it again I'll know.
[Court]: Did the attorney just ask you about McKnight?
[Huff]: Jamil McKnight. Yes.
[Court]: Jamil McKnight?
[Huff]: Jamil McKnight. Like I said, I don't know his real name.
[Court]: But you think that's his real name now?
[Huff]: Yes.

         The judge also asked Huff some questions regarding the details of the night of the murders, including the weather conditions and the lighting.

         Next, the State called Roberts, defendant's former girlfriend who previously informed police that defendant had confessed to her. In her testimony, Roberts stated for the first time that defendant told her that he "made up" his story about committing the shootings. Roberts also testified that the police pressured her into implicating defendant, and the court directed her to answer defense counsel, who had asked her to recount specific instances of harassment:

[Defense Counsel]: Can you describe for the jury the manner in which they harassed you with as much specificity as you can.
[Roberts]: Okay. They came to my house. I've been evicted from places.
[Court]: I'm sorry. Came to your house and what?
[Roberts]: They came to my house. Harassed me numerous times.
[Court]: In other words, the question is we need specifics. What did they do? Specifically, what did they do? What did they say? What did they do?
[Roberts]: Well --
[Court]: Okay.
[Roberts]: They -
[Court]: They came to your house. What else?

         At that point, Roberts gave a more detailed answer. Shortly thereafter, defense counsel asked Roberts a question that prompted an objection from the State and a sidebar discussion. After concluding the discussion at sidebar and before defense counsel resumed cross-examination, the following colloquy took place:

[Court]: All right. Now, Miss Roberts, you have to listen to the questions of [defense counsel] very carefully. All right?
[Roberts]: Okay.
[Court]: You listen to the question and you think and you only answer his question.
[Roberts]: Okay.
[Court]: Try to focus on his question and then try to give a specific answer to that question. Right? Could you do that?
[Roberts]: Yes.
[Court]: I appreciate it. Thank you very much. Yes, [defense counsel].
[Defense Counsel]: All right. Sharhi, describe how you were harassed. I don't just mean the cops showed up. How many times did they come, what did they say to you and so forth, things like that.
[Roberts]: They came numerous times.
[Court]: Came where, ma'am?
[Roberts]: To my house, to my job. They waited in the parking lot of my job. They came into my job, gave false statements about me.
[Defense Counsel]: What statements did they make about you?
[Prosecutor]: Judge, that's hearsay. It's hearsay.
[Court]: Overruled.

         The defense then attempted to draw out Roberts's assertions about police harassing her into making a statement, and Roberts answered defense counsel's question regarding the timing of the alleged harassment:

[Defense Counsel]: Okay. So when's the first time that you can remember the police coming to ...

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