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State v. Terrell

Supreme Court of New Jersey

November 29, 2017

STATE OF NEW JERSEY, Plaintiff-Respondent,
ROLANDO TERRELL, Defendant-Appellant.


          Argued September 25, 2017

         On appeal from the Superior Court, Appellate Division, whose opinion is reported at N.J.Super. (App. Div. 2016).

          Joseph E. Krakora, Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Joseph E. Krakora and Alison Perrone, of counsel and on the brief).

          Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Robert D. Laurino, Acting Essex County Prosecutor, attorney; Lucille M. Rosano, of counsel and on the brief).

          Sarah E. Ross, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Christopher S. Porrino, Attorney General, attorney; Sarah E. Ross, of counsel and on the brief).

         In this appeal as of right, defendant Rolando Terrell challenges the Appellate Division's affirmance of his convictions as to the three issues raised in the dissenting opinion: the exclusion of the defense expert's testimony, the admission of testimony by the State's gang expert, and the replacement of a deliberating juror.

         In April 2011, a jury convicted defendant of first-degree robbery and the second-degree offenses of conspiracy to commit robbery, unlawful possession of a handgun, possession of a handgun for an unlawful purpose, and conspiracy to commit arson for his role in the September 2008 arson, robbery, and murders of four people. The jury was unable to render a verdict on the murder charges, as well as possession of a defaced firearm. In a separate trial, the same jury convicted defendant of the separately charged persons not to possess weapons offense. Defendant filed an appeal from the convictions. Defendant was re-tried by a jury on the murder, felony murder, and firearm defilement charges; a second jury found defendant guilty of all eight homicide counts, but acquitted him on the weapon defilement count.

         Defendant appealed, raising several issues for review. In addition to claims beyond the scope of this appeal, defendant argued that his expert's testimony was improperly excluded, that the State's gang expert's evidence should not have been admitted, and that the trial court erred in excusing a juror during deliberation. The appellate panel majority affirmed. __ N.J.Super.__(2016) (slip op. at 3).

         Defendant sought to introduce expert testimony from Steven Penrod, a research psychologist and licensed attorney, identifying factors affecting the reliability of what he termed "earwitness" identification. Defendant proffered his expert would inform the jury of relevant social science studies and experiments conducted by others regarding the potential for misidentification, designed to aid evaluation of the reliability of the survivor's voice recognition testimony. The trial court concluded the expert's opinion was admissible in part to address the scientific evidence concerning factors affecting the accuracy of identifications. The judge determined the limits of admissibility, deeming certain subjects inadmissible for reasons including: the expert was found not qualified to address the area; the testimony risked misleading the jury; the concepts related matters of common sense; and the opinion tended to tread on the jury's credibility determinations.

         The majority was unpersuaded by defendant's argument that '"the limited nature of testimony permitted under the [c]ourt's ruling' neutralized the effectiveness of Dr. Penrod as an expert and amounted to reversible error." (slip op. at 20) (alteration in original). The majority concluded that the judge did not "abuse[] his discretion when limiting aspects of the proffered evidence, " but rather "satisfactorily detailed areas where the expert's reasoning and methodology on 'earwitness' identification testimony seemed self-validating or jumbled with eyewitness identifications, a topic the expert was admittedly more familiar with." (slip op. at 31). "As a result, the expert's proffered testimony not only risked juror confusion but also tended toward subjects where expert opinion would be unnecessary. Further, the judge did not preclude the totality of the expert's testimony, which defendant chose not to present to the jury." (slip op. at 31-32). Underscoring that "the identification at issue was the survivor's recollection it was defendant's voice she heard"-based on her familiarity with defendant and without prompting by police interrogation-the majority also observed that the identification "was one of several introduced by the State and [was] not the sole identification evidence placing defendant at the scene of the murders." (slip op. at 32).

         Defendant also contended that the trial judge abused his discretion by allowing, over defendant's objection, testimony by the State's expert on gang-related activity, because defendant's involvement in a gang had no relevance to motive, opportunity, or the co-defendant's involvement in the crimes. As a result, its admission was extremely prejudicial, warranting a new trial. The majority disagreed and discerned "no basis to interfere with the judge's exercised discretion in admitting [the expert's] circumscribed testimony, which provided a framework for the jury's understanding of key events, testimony by the lay witnesses and the relationship between defendant and co-defendants." (slip op. at 39). The majority noted that "the judge mitigated possible prejudice through the use of direct voir dire questions during jury selection." (slip op. at 40).

         After deliberations commenced in the retrial, two jurors-Number 2 and Number 6-asked to be excused. Defendant contended the court erred in handling the requests by not properly making necessary findings before excusing Juror Number 2. He maintained that the judge's inquiry and conclusory findings were flawed and that dismissal and replacement of the juror, over defendant's objection and rather than declaring a mistrial, was error.

         The majority rejected defendant's arguments. The majority noted that the judge conducted separate limited voir dire of the jurors and that, as a result of the jurors' responses, the judge excused Juror Two and retained Juror Six. The majority stressed that "when 'evaluating the cause of a juror's departure, our courts distinguish between reasons that are personal to the juror, which may permit a substitution under Rule 1:8-2(d)(1), and issues derived from the juror's interaction with the other jurors or with the case itself, which may not.'" (slip op. at 51) (quoting State v. Ross. 218 N.J. 130, 147 (2014) (internal quotation marks omitted)). The majority observed that "the trial judge sought the explanation for juror two's request to be excused, " "directed the juror not to reveal juror interactions and deliberations, " and then "explained the release of juror two: T think she was pretty unequivocal that emotionally she cannot continue. I even got that sense from her voice. Her voice was cracking ....'" (slip op. at 52). The panel stated that, "[r]egardless of whether we believe the inquiry could have been more probing to more firmly establish the juror's specific reasons confirming her request was personal to her, we respect the trial judge's ability to assess the juror's demeanor to discern whether the concern was evoked from interaction with fellow jurors or an individualistic reaction in reviewing the matter." (slip op. at 52-53). Noting that "[t]he trial judge was in the best position to make these determinations, " the panel concluded that "the trial judge properly carried out the delicate balancing function in exercising his reasoned judgment." (slip op. at 53). The majority further found that "the deliberations had not proceeded to such an extent that declaring a mistrial was required." (slip op. at 54).

         The Honorable Carol E. Higbee, J.S.C., dissented on the grounds that: excluding almost all of the defense expert's testimony precluded defendant from presenting evidence that undermined the testimony of a witness who identified defendant; the prejudice to defendant caused by the State's expert's opinions about street gangs substantially outweighed the probative value of those opinions; and the trial court erred by replacing a deliberating juror based on a limited and inadequate inquiry into the juror's reasons for wanting to be excused. Any one of those errors had the ...

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