Opinion
DOCKET NO. A-5713-12T2
11-04-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN T. CHECCHIO, a/k/a JOHN CHECCHIO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor and Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-06-0614. Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor and Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Tried to a jury, defendant John T. Checchio was convicted of third-degree terroristic threats, N.J.S.A. 2C:12-3(a), N.J.S.A. 2C:12-3(b), resisting arrest, N.J.S.A. 2C:29-2(a), and fourth-degree throwing bodily fluid, N.J.S.A. 2C:12-13.
Defendant was sentenced to a five-year probationary term on counts one and three, and a $100 fine on count two. Defendant now appeals his convictions and raises the following points:
POINT I
BECAUSE THE JUDGE FAILED TO INSTRUCT THE JURY THAT, FOR A PARTICULAR COUNT, A GUILTY VERDICT REQUIRED UNANIMITY AS TO THE VICTIM, AND THE VERDICT SHEET DID NOT REQUIRE THE JURY TO SPECIFY WHETHER IT WAS UNANIMOUS AS TO ANY ONE ALLEGED VICTIM, THE DANGER OF A PATCHWORK VERDICT REQUIRES REVERSAL. (NOT RAISED BELOW)
POINT II
IN THIS TERRORISTIC-THREATS CASE BASED ENTIRELY ON WHAT DEFENDANT ALLEGEDLY SAID MORE THAN TWO YEARS BEFORE TRIAL, IT WAS PLAIN ERROR NOT TO INSTRUCT THE JURY ABOUT HOW TO EVALUATE TESTIMONY ABOUT THE ALLEGED STATEMENTS. (NOT RAISED BELOW)
POINT III
DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE AFOREMENTIONED INSTRUCTIONAL ISSUES.
Having reviewed the record, we conclude that these arguments are without merit and we affirm defendant's convictions.
We derive the following facts from the record. At approximately 6:00 p.m. on December 25, 2010, Sergeant Jeffrey Briel and Officer Dominick Luciano of the Scotch Plains Police Department responded to a call requesting assistance at the home of defendant's parents, Mauro and Portia Checchio. Mr. Checchio had reported that his son was acting irrationally and needed to go to the hospital.
By the time of trial, Sergeant Briel had been promoted to Lieutenant. --------
Briel and Luciano were in uniform and driving separate marked police cars. As they entered the Checchio driveway, Luciano, who was in the front car, noticed an SUV coming at him "head-on" at a high rate of speed. Both officers testified that the driver, later identified as defendant, was screaming, "Get the fuck off my property. I have a gun. I'm going to kill you." Defendant then put his vehicle in reverse and began to back up the driveway.
As defendant was backing up, Briel ran toward the vehicle and approached the driver's side window. Briel yelled at defendant to stop. When defendant told both officers he had a gun and would shoot them, they drew their weapons. Defendant continued to back up the driveway until he reached his parent's home.
Defendant got out of his vehicle and went to the house. He tried the door, but it was locked. As the officers approached, defendant repeated his threat that he would shoot them. Briel came up from behind defendant and grabbed him. Both officers struggled to subdue defendant who resisted their efforts. Finally, after using pepper spray on defendant, they were able to place handcuffs on him.
After he was subdued, defendant continued to yell at the officers, telling Luciano, "I know where you live. I'm going to kill your wife, kill your kids." Defendant then spit on Luciano's leg and told him he had Hepatitis B, and now Luciano had it too. Defendant also directed threats and obscene comments toward his parents who were nearby, including threatening to rape his mother anally and vaginally. The officers called an ambulance and defendant was taken to a hospital where he remained overnight. At trial, Lieutenant Briel and Officer Luciano were the only witnesses.
The first count of the indictment charged defendant with terroristic threats in that he "did threaten to commit a crime of violence to Police Officer Dominick Luciano and/or Sergeant Jeffrey Briel and/or Mauro Checchio and/or Portia Checchio[.]" Count two charged resisting arrest in that defendant "did purposely prevent or attempt to prevent a law enforcement officer, to wit: Police Officer Dominick Luciano and/or Sergeant Jeffrey Briel . . . from effecting an arrest[.]" Defendant now claims that the trial court failed to properly instruct the jury that their verdict required unanimity as to each victim.
The court provided the jury with an extensive (fifty-three page) charge concluding with the instruction that its "verdict must represent the considered judgment of each juror and must be unanimous as to each charge. This means all of you must agree if the defendant is guilty or not guilty on each charge." After a sidebar conference, which was not transcribed, defendant's counsel had no objection to the charge.
Because there was no objection to the trial court's charge as given, we review the argument utilizing the plain error standard. See R. 2:10-2 (permitting an appellate court "in the interests of justice" to "notice plain error not brought to the attention of the trial . . . court" if "it is of such a nature as to have been clearly capable of producing an unjust result . . . .").
"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The alleged error must be considered in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006) (citation omitted).
Generally, an erroneous jury charge is a "poor candidate for rehabilitation under the plain error theory," Jordan, supra, 147 N.J. at 422, in part because a failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised . . . was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).
The principle of unanimity in criminal trials is deeply ingrained in our jurisprudence. State v. Frisby, 174 N.J. 583, 596 (2002) (citing State v. Parker, 124 N.J. 628, 633 (1991), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992)). Our court rules require that the verdict shall be unanimous in all criminal actions. R. 1:8-9.
Courts should provide "specific unanimity" instructions, which impose a requirement that the jury unanimously agree on the facts underlying the guilty verdict, when there is a specific request for those instructions and there exists a danger of a fragmented verdict. Parker, supra, 124 N.J. at 637.
In Parker, the Court held that, under certain circumstances, the unanimity requirement can be satisfied despite the possibility that jurors may not be unanimous in the facts on which the verdict is based. Id. at 633. Quoting United States v. Ryan, 828 F.2d 1010, 1020 (3d Cir. 1987), the Court held that the rule requiring a general unanimity charge will not apply
where the facts are exceptionally complex, or where the allegations in a single count are either contradictory or only marginally related to one another, or where there is a variance between the indictment and the proof at trial, or where there is a tangible indication of jury confusion.The Court further held that, even when one of the above circumstances exists, "[a]lthough such a charge should be granted on request, in the absence of a specific request, the failure so to charge does not necessarily constitute reversible error." Id. at 637. The Court has endorsed an approach that narrows the focus to whether there was "any tangible indication of jury confusion" and whether the charges against a defendant "formed a core of conceptually-similar acts[.]" Id. at 639.
[Parker, supra, 124 N.J. at 636]
Applying these principles to the facts of this case, we are satisfied that the jury charge did not amount to plain error. While the use of "and/or" in an indictment presents the opportunity for non-unanimous verdicts, the essential inquiry is whether considering the proofs at trial, the instructions as a whole posed a genuine risk that the jury would be confused, and return a less than unanimous verdict. State v. Gandhi, 201 N.J. 161, 193 (2010).
During deliberations, the jury sent out one note with two questions, both relating to count two: "At what point was [defendant] considered under arrest?" and "when does resisting arrest start?" The court instructed the jury that, as to both questions, "these are factual determinations that are within the province of the Jury and you need to get to those answers based on the testimony in making your determination. Those are for you to decide."
As the Parker Court noted, not all questions by the jury demonstrate confusion as to unanimity. Parker, supra, 124 N.J. at 639-40. The jury's inquiry regarding the exact moment when defendant was considered under arrest does not indicate confusion about their responsibility to come to a unanimous verdict. Rather, the requested clarification is more akin to the question asked in Parker, showing a "conscientious and sophisticated jury." Id. at 640.
In addition, the evidence presented by the State demonstrated a continuous course of conduct directed against the two officers and his parents, beginning when the officers arrived and ending when defendant was taken to the hospital. Officer Briel estimated that, once defendant was handcuffed, he continued "ranting and raving" for approximately forty-five minutes until he was removed. We see no indication, or even a risk, of jury confusion as a result of the judge's failure to specifically require unanimity as to each victim in its instruction.
Moreover, Briel and Luciano were the only witnesses to testify at trial and their unrebutted rendition of the events provided compelling support for the jury's verdict. Given the absence of any objection, we are satisfied that the omission of an unanimity charge as to each victim "did not have the clear capacity to produce an unjust result and that it had a minimal effect on the outcome of trial." State v. Stefanelli, 78 N.J. 418, 437 (1979).
Defendant next claims that the judge's failure to instruct the jury to cautiously evaluate defendant's oral statements in accordance with State v. Hampton, 61 N.J. 250 (1972), and State v. Kociolek, 23 N.J. 400 (1957), was plain error. We disagree.
In Hampton, the Court required juries to be instructed to disregard a defendant's oral statements unless they are found to be credible. The holding has been codified in N.J.R.E. 104(c). In Kociolek, the Court held that when a defendant's oral statements have been introduced against him, the trial court must instruct the jury that it should "receive, weigh and consider such evidence with caution, in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." 23 N.J. at 421.
Although the Kociolek charge should be given whether or not specifically requested by a defendant, the failure to give this charge is not plain error per se. Jordan, supra, 147 N.J. at 428 (holding it would be "a rare case where failure to give a Kociolek charge alone is sufficient to constitute reversible error[.]").
In State v. Harris, the Court found that a failure to give a Hampton and Kociolek instruction was not plain error because the cross examination of the testifying witness was sufficient to test his credibility before the jury. 156 N.J. 122, 183 (1998), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001). The Court explained that "the principal value of the Kociolek charge is to cast a skeptical eye on the sources of inculpatory statements attributed to a defendant," and opposing counsel's "devastating cross-examination . . . accomplished that end." Ibid.
A similar conclusion was reached in State v. Feaster, with the Court finding that "[t]he very purpose of a Hampton charge is to call the jury's attention to the possible unreliability of the alleged statements made by a criminal defendant." 156 N.J. 1, 72 (1998). Because the witness was "under a sustained attack during which his credibility was thoroughly challenged" on cross examination, the failure to give a Hampton instruction was not plain error. Ibid.
Although defendant here made no request for a Hampton or Kociolek instruction, the court gave a general instruction to the jury regarding witness credibility at the outset, as well as at the close of trial. Specifically, the judge told the jurors that they are permitted to consider a witness's "ability to reason, observe, recollect and relate," and that they may choose to "accept all of [the testimony], a portion of it, or none of it."
In addition, defendant's counsel cross-examined Briel and Luciano extensively and argued in summation that there were "important inconsistencies" in their testimony. We are satisfied that the failure to sua sponte give the jury Hampton and Kociolek instructions was not plain error capable of producing an unjust result because there was a significant opportunity to test the credibility of the witnesses' statements and the court provided a general instruction as to witness credibility.
Finally, defendant argues that counsel's failure to raise the unanimity and Hampton/Kociolek issues at trial deprived him of his right to the effective assistance of counsel. Generally, ineffective assistance claims are not entertained on direct appeal as they involve allegations and evidence that lie outside the trial record. State v. Preciose, 129 N.J. 451, 460 (1992).
We have determined, however, that the record is sufficient to resolve defendant's claim of ineffective assistance of counsel. Defendant's claim fails because he has not satisfied the test set forth by Stickland v. Washington, 466 U.S. 668, 105 S. Ct. 2052, 80 L. Ed. 2d 672 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
As we have determined, the jury instructions given were sufficient to advise the jurors of their responsibility regarding both unanimity and credibility of witness statements. Trial counsel's failure to request additional instructions did not render her representation deficient. Even if defendant satisfied the first prong, he has not established the second, far more difficult prong by showing "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Defendant argues that trial counsel's failure to identify both jury instruction issues resulted in the jury returning "a verdict that may not have been unanimous, and was without the guidance it needed to assess the multiple, and often very inflammatory oral statements allegedly made by defendant." This is precisely the type of "bare assertion" that is insufficient to support a prima facie case of ineffectiveness. State v. Cummings, 321 N.J. Super. 154, 171 (App. Div. 1999).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION