Opinion
DOCKET NO. A-5464-13T4
02-08-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARTIN E. HRONCICH, Defendant-Appellant.
Michael Confusione argued the cause for appellant (Hegge & Confusione, L.L.C., attorneys; Mr. Confusione, of counsel and on the brief). Ian C. Kennedy, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Mr. Kennedy, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-05-0821. Michael Confusione argued the cause for appellant (Hegge & Confusione, L.L.C., attorneys; Mr. Confusione, of counsel and on the brief). Ian C. Kennedy, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Mr. Kennedy, of counsel and on the brief). PER CURIAM
Hon. Carol E. Higbee participated in the panel before whom this case was argued. The opinion was not approved for filing prior to Judge Higbee's death on January 3, 2017. Pursuant to R. 2:13-2(b), "Appeals shall be decided by panels of 2 judges designated by the presiding judge of the part except when the presiding judge determines that an appeal should be determined by a panel of 3 judges." The presiding judge has determined that this appeal shall be decided by two judges.
Defendant appeals from his convictions for two counts of second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1); disorderly persons harassment, N.J.S.A. 2C:33-4; three counts of third-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1); and two counts of fourth-degree stalking, N.J.S.A. 2C:12-10(b). We affirm.
An individual worked as a clerk (the clerk) at a convenience store (the store) for four months. Her boyfriend (the boyfriend), who had been employed at a Chevrolet dealer, drove her to and from the store in his pick-up truck. They each lived separately with their parents.
Defendant was a regular customer at the store, and he had been romantically interested in the clerk. They interacted when he frequented the store, and began sending text messages to each other. The clerk knew that defendant had been interested in her, and she flirted with him, but the clerk considered the relationship to be no more than friends. She played upon his romantic interest in her, however, because he supplied Percocet and Suboxone to her.
The clerk confided in defendant and told him she and the boyfriend were "having problems." Although the clerk initially had made plans to go out with defendant, she decided not to date him. Thereafter, the tragic events leading up to the charges occurred.
A grand jury indicted and charged defendant with eight counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; two counts of second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1); three counts of third-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1); and four counts of fourth-degree stalking, N.J.S.A. 2C:12-10(b). --------
Defendant went into the store at about 9:30 p.m. and said to the clerk "Your boyfriend is waiting outside for you." An outside surveillance camera showed the boyfriend pulled into the parking lot at 9:12 p.m. and remained in his pickup truck. Seven minutes later defendant is shown parking his Cadillac Escalade "in close proximity" to where the pick-up truck was parked. Defendant entered the store, was inside for about two minutes, then left and drove out of the lot.
The clerk finished work at 10:00 p.m. that night, the boyfriend drove her to her house so she could change, and then they went to see the boyfriend's friend. The two drove to the boyfriend's parents' home at about 1:30 a.m. and went to sleep in the front bedroom. The boyfriend's parents slept in the back bedroom.
The store surveillance video showed that defendant had returned to the store at about 11:28 p.m. where he filled a container of gas from a gasoline pump. After he closed his gas cap and paid the attendant, defendant could be seen "in the back," where he was apparently "picking something up off the ground." What he was picking up could not be determined.
The boyfriend's mother awoke at about 5:00 a.m., smelled smoke in the house, and saw smoke in the family room. She yelled "fire" to rouse her husband, who investigated and observed the back of the house engulfed in flames. He extinguished the fire without calling the fire department. The parents thought that the fire may have been caused by a cigarette being accidentally thrown, but at that point they had no reason to think the fire had been intentionally set.
The next day, the boyfriend visited the clerk at her parents' house. Between 9:30 p.m. and 10:00 p.m., the boyfriend saw a "black tinted truck" parked across the street in front of a "public workstation," an area where parking was not permitted. He drove by the vehicle and saw that it was a black Cadillac Escalade. The boyfriend headed home when he noticed that he was being followed by a vehicle with a specific type of headlight that he knew, from working at a Chevy dealer, was used on the type of Cadillac he had seen. The Escalade followed him for ten or fifteen minutes. The boyfriend saw the Escalade still following when he turned onto his street, but it then "took off."
The boyfriend called the clerk and told her what had occurred. He then returned to her parents' house and slept there that night. Before going to bed, he saw the Escalade go by the house a couple of times. The clerk also saw it and heard the Escalade drive by the house a couple of times.
From 9:00 p.m. to midnight, defendant and the clerk exchanged a number of text messages. At 9:10 p.m. defendant texted, "Why did you play me like that?" There was no response, and five minutes later, he texted, "I [don't] give a shit if you're with him right now or not. I want answers." About a minute later, he added, "You haven't been fair to me at all." The texting continued that night, and at about 10:21 p.m., defendant wrote, "I've been getting fucked over by girls left and right for the past . . . for the past five years." At 11:53 p.m., he wrote, "You selfish ungrateful bitch." Just after midnight, defendant sent two final texts in rapid succession. First, he wrote, "I want my money back, every penny I sent you, all $300, and I want it all tomorrow." Ten seconds later, he wrote, "And if I don't get it tomorrow, by 8 p.m., your gross loser boyfriend is going to be in a world of shit, and no, this is not a request."
Four witnesses who were in houses close to the clerk's parents' house testified during the trial as to their observations between midnight and 3:30 a.m. They saw and heard the Escalade parked near the house with its lights on, and heard someone running outside. At about 3:30 a.m., the clerk's mother woke up and saw flames coming from outside the kitchen window, and she could also see that the front of the boyfriend's pick-up truck was on fire. The clerk's father successfully put out the fire before a fire truck arrived.
Ernest Zih, a Fire Official, testified as an expert in the area of arson investigation. He determined that the house fire had been deliberately set because there was a smell of gasoline with "no apparent reason" such as an open gas can; the flames spread quickly; and the burns on the outside rather than the inside of the garbage can were indicative the fire did not start from something smoldering in the garbage can. Zih determined that the fire on the pick-up truck was from "a second point of origin" and also was deliberately set. He based that determination on the smell of gasoline in the area of the truck and the observed burn pattern.
The police located a red container without a cap down the block, on the south side of the house. The container was leaning against the fence and was half-full of gasoline. They also detected drops of gasoline that had spilled near the container.
As a result of the fires at the clerk's parents' house, the police investigated the fire that had occurred at the boyfriend's parents' house on the previous day. John Ruzicki, a Deputy Fire Official for the Bureau of Fire Prevention, and Sergeant Robert Maclosky, inspected the boyfriend's parents' house. Ruzicki did not find any cigarette butts or matches in the area of the fire. He smelled "a whiff of an accelerant," which he thought was gasoline, when he used a hand trowel to move mulch around in the area where the fire had started, and he took a sample of the mulch and soil around it as evidence. Maclosky also smelled gasoline when the mulch and soil were disturbed to collect samples. In the front yard of the house, the investigators found a matchbook from the store that "seemed to be burnt."
Ruzicki was qualified as an expert in the field of arson investigation. He opined that "an accelerant was being used as an incendiary device or helped cause or start the fire to be more intense." James Meehan, who was qualified at trial as an expert in the area of fire debris analysis, testified that he received the soil sample, "some wooden debris," and the burned matchbook to examine for traces of accelerant. The soil sample smelled of gasoline, and his tests detected the presence of gasoline.
The police learned defendant's identity and began surveilling his home. Unbeknownst to the officers investigating the fires, defendant had been in the hospital, beginning about an hour after the fires were set at the clerk's parents' house. Police also discovered that at about 4:40 a.m., a 911 call was placed from defendant's cell phone.
Officer Karl White testified that he found defendant inside the Escalade in the mall parking lot. Defendant requested medical assistance and was transported to CentraState Hospital. White locked the Escalade, left it in the parking lot, and gave the keys to defendant, as he was about to be taken to the hospital.
The police obtained warrants to search the Escalade and to obtain defendant's personal belongings at the hospital. A search of defendant's cell phone revealed the series of text messages between defendant and the clerk. A search of the Escalade revealed a lighter and post-it pad, which contained a notation of a license plate number that turned out to be on the boyfriend's pick-up truck.
The police determined from Verizon Wireless records that defendant's calls and texts coincided with the incidents under investigation. These records showed that defendant's cell phone utilized cell towers (1) near the boyfriend's parents' house about an hour after the fire was set there; (2) near both houses during the period in the evening when the boyfriend said he was followed home; and (3) near defendant's own home at 2:16 a.m., near the clerk's parents' house at 2:51 a.m., and near the mall at 4:41 a.m.
While defendant was in the hospital, he voluntarily spoke to a security guard (the guard). The guard testified at the trial that defendant made certain statements while he was guarding him. The guard stated that defendant told him he "likes to light cars on fire" when he gets angry, and that defendant admitted to "lighting the house of his girlfriend on fire." Defendant told the guard it was his "girlfriend's parents' house," and that he also set fire to a car that belonged to "her boyfriend at the time."
The guard said defendant's demeanor at the time was "alert and conscious" and he did not appear to be under the influence of any medication. He also testified defendant told him in a second conversation that he was afraid the police would "find clothing that he used during the acts, that had evidence of gasoline," and he mentioned to the guard that he had a gas container in his vehicle. Defendant stated to the guard that the police found him in his vehicle unconscious and that he tried to kill himself by overdosing.
After a lengthy trial, the jury found defendant guilty of two counts of second-degree aggravated arson, disorderly persons harassment, three counts of third-degree criminal mischief, and two counts of fourth-degree stalking. The judge imposed consecutive seven-year prison terms on the arson convictions, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge sentenced defendant to three years in prison on the criminal mischief convictions, fifteen months in prison on the stalking convictions, and thirty days in jail on the harassment conviction, all concurrent to each other and the sentence on the arson convictions.
On appeal, defendant raises the following points:
POINT [I]
The trial court erred in denying defendant's motion to exclude alleged statements made by defendant to a security officer inside the mental health ward where defendant was confined and being treated.
POINT [II]
Improper other wrongs and crimes evidence permitted before the jury unfairly prejudiced defendant and caused an unfair trial on the arson and other charges in question below (plain error).
POINT [III]
The trial court erred in denying defendant's motion for a mistrial after evidence already ruled excluded was put before the jury by a state witness on direct examination.
POINT [IV]
The trial court erred and infringed defendant's right to confront the witnesses against him at trial below by ruling that defendant could impeach the state witness[, defendant's friend,] with only criminal convictions and could not raise before the jury "open charges" that the witness was facing at the time he provided his statement to police.
POINT [V]
The trial court erred and deprived defendant of trial by a fair and impartial jury by failing to voir dire the jury panel after it was revealed that juror number seven had improperly discussed the facts of the trial with a friend.
POINT [VI]
The trial court erred in denying defendant's motion for acquittal on the aggravated arson and stalking crimes.
POINT [VII]
The cumulative errors warrant reversal.
POINT [VIII]
Defendant's sentence is improper and excessive.
I.
We begin by addressing defendant's argument that the guard should not have been permitted to testify regarding defendant's statements to him at the hospital. Defendant asserts that the State failed to demonstrate defendant was not under the influence of drugs at the time. Defendant also contends for the first time that the statements fell within the psychologist-patient privilege because the guard was acting on behalf of the psychologists who treated defendant.
A.
The trial judge denied defendant's motion to exclude defendant's statement to the guard concluding that there was nothing in the hospital records indicating that defendant was hallucinating or delusional when he spoke to the guard. The judge was satisfied that, by the time defendant spoke to the guard, defendant was not under the influence of any drug that would affect his ability to give a voluntary statement.
In general, where the voluntariness of a statement or confession is challenged, the State must establish beyond a reasonable doubt that the statement was voluntarily made. State v. Hreha, 217 N.J. 368, 383 (2014) (citing State v. Galloway, 133 N.J. 631, 654 (1993)). See also State v. Marczak, 344 N.J. Super. 388, 398 (App. Div. 2001) (stating that "[i]f the State fails to establish beyond a reasonable doubt that the statements in issue were voluntary, the conviction shall be vacated and a new trial held in which the statements shall be excluded"), certif. denied, 171 N.J. 44 (2002).
"Determining whether the State has met that burden requires a court to assess 'the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation.'" Hreha, supra, 217 N.J. at 383 (quoting Galloway, supra, 133 N.J. at 654). See also State v. Nyhammer, 197 N.J. 383, 402 (reaffirming "adherence to the totality-of-the-circumstances approach"), cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). Where custodial interrogation is at issue, courts look to several factors to assess whether a statement was voluntary under the totality of the circumstances, including the defendant's age, education and intelligence, the length of detention, the length and timing of questioning, the nature and timing of constitutional warnings, and whether the defendant was experiencing physical pain or mental exhaustion. Hreha, supra, 217 N.J. at 383 (quoting Galloway, supra, 133 N.J. at 654).
As our Supreme Court has explained:
The state of mind which renders such a statement involuntary and hence inadmissible is that induced by mistreatment, threats, promises, physical or mental abuse which deprives an otherwise rational mind of the exercise of its free will and powers of decision and discernment.
[State v. Cooper, 10 N.J. 532, 552 (1952).]
Where a defendant contends that his statement was not voluntary because he was under the influence of alcohol or narcotics, courts similarly look to ascertain whether the evidence shows that the defendant was deprived of the ability to be rational and to understand the nature of the situation and the statement made. State v. Wise, 19 N.J. 59, 89-91 (1955). Our Supreme Court has noted that "[s]o long as the accused is capable of making a narrative of past events or of stating his own participation in the crime, his statements are admissible against him," even if he is under the influence of narcotics or alcohol. Id. at 91. See also State v. Bindhammer, 44 N.J. 372, 383-84 (1965) (holding that, even though the defendant had been drinking and was physically injured at the time of the incident in question, "[t]he trial court's finding of voluntariness was properly grounded" where the defendant had not consumed any alcohol for over seven hours before giving his statement, his injuries "did not appear to be serious or of such nature as to impair his ability to understand, determine and express," and "[h]is narrations were entirely coherent and the doctor who examined him immediately after he concluded his statement found him well oriented as to time, place and situation"). The State must show that a defendant's statement was voluntary "regardless of the fact that the inculpatory statements at issue were elicited from [the defendant] by a private individual . . . rather than a governmental officer." Marczak, supra, 344 N.J. Super. at 397 (citing State v. Kelly, 61 N.J. 283, 291 (1972)).
When reviewing a trial court's determination regarding the voluntariness of a statement, this court "should engage in a 'searching and critical' review of the record to ensure protection of a defendant's constitutional rights." Hreha, supra, 217 N.J. at 381-82 (quoting State v. Pickles, 46 N.J. 542, 577 (1966)). However, the reviewing court "should typically defer to the trial court's credibility and factual findings, recognizing that the trial court's findings are often 'substantially influenced by [its] opportunity to hear and see the witnesses and to have the "feel" of the case.'" Id. at 382. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
Our review of the trial court's findings "is limited to confirming only that 'those findings are supported by sufficient credible evidence in the record.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). If sufficient evidence exists, the reviewing court should not disturb the result, even though it might have reached a different conclusion were it making the determination in the first instance. Ibid. An appellate court should only make its own findings and conclusions on those rare occasions where a trial court's findings are so clearly mistaken that the interests of justice demand intervention and correction. Ibid. Legal conclusions are subject to de novo review. Ibid.
There exists sufficient credible evidence in the record to support the trial court's determination that defendant was not hallucinating, delusional, or under the influence of any drug that affected his ability to give a voluntary statement at the time when he made statements to the guard. The judge conducted a N.J.R.E. 104 hearing and concluded there was no evidence to suggest defendant's mental abilities and judgment were impaired when he made the statements to the guard.
Dr. Tusharkumar N. Mistry, a doctor of internal medicine, testified that he treated defendant for an overdose of the prescription drug Seroquel, which is "a second generation antipsychotic medication," when defendant was brought to the hospital. Dr. Mistry noted that "after 30 hours, the [overdose] medicine should not be in the system to cause any problem." Defendant was medically cleared to be transferred to the psychiatric unit, and there was no indication in the records that he was still impaired in any way at that time. Dr. Carlos Figarola, the psychiatrist who evaluated defendant after his transfer to the psychiatric unit, testified that defendant was not having hallucinations at any point while he was in that unit.
Thus, there was no evidence that could support the conclusion that defendant was impaired or still under the influence of Seroquel at the time he was in the psychiatric unit and made the statements to the guard. Moreover, the guard testified that defendant was alert and coherent and voluntarily made the statements to him without being questioned or pressed, so there is no indication from the circumstances or manner of the communication that defendant did not have the ability to make a voluntary statement.
B.
For the first time on appeal, defendant argues the guard was an "agent" of the "treating professional" so his statements to the guard should have been deemed privileged and excluded, just as his statements "to licensed psychologists inside the mental health ward." We reject this proposition and note defendant's conversation with the guard waived any privilege attached to the statements. See N.J.R.E. 530 (stating that "[a] person waives his right . . . to prevent another from disclosing a specified matter if he . . . has . . . consented to such a disclosure made by anyone"); State v. Ospina, 239 N.J. Super. 645, 654 (App. Div.) (holding, in the context of the spousal privilege, that Evid. R. 37, now N.J.R.E. 530, "does not purport to be exclusive or to list every way in which a privilege can be waived," and "[i]f a defendant does not object to spousal testimony at trial at all, the defendant has surely waived the objection"), certif. denied, 127 N.J. 321 (1990); State v. Baluch, 341 N.J. Super. 141, 172 (App. Div.) (noting that the spousal privilege is not self-executing and can be waived through the absence of timely assertion by the privilege-holder's counsel), certif. denied, 170 N.J. 89 (2001). Even if he had not waived this argument, we reject such a contention.
Generally, testimonial privileges are narrowly construed because they (1) contravene the principle that the public has a right to every person's evidence, and (2) impede the objective of obtaining the truth at trial. Baluch, supra, 341 N.J. Super. at 170-71. See also State v. Snell, 314 N.J. Super. 331, 338 (App. Div. 1998) (noting that "privileges must be strictly construed, because they may come in conflict with the promotion and preservation of justice, truth, and fair dealing"). Privileges are given effect only where they "serv[e] a more important public interest than the need for full disclosure." State v. Szemple, 135 N.J. 406, 414 (1994) (quoting State v. Briley, 53 N.J. 498, 506 (1969)).
The physician-patient privilege under N.J.R.E. 506(b), which expressly incorporates N.J.S.A. 2A:84A-22.2, allows a defendant in a criminal action to prevent a witness from disclosing a communication where the defendant claims the privilege and the judge finds:
(a) the communication was a confidential communication between patient and physician, and (b) the patient or the physician reasonably believed the communication to be necessary or helpful to enable the physician to make a diagnosis of the condition of the patient or to prescribe or render treatment therefor, and (c) the witness (i) is the holder of the privilege or (ii) at the time of the communication was the physician or a person to whom disclosure was made reasonably necessary for the transmission of the communication or for the accomplishment of the purpose for which it was transmitted or (iii) is any other person who obtained knowledge or possession of the communication as the result of an intentional breach of the physician's duty of nondisclosure by the physician or his agent or servant and (d) the claimant is the
holder of the privilege or a person authorized to claim the privilege for him.
Under N.J.R.E. 505, the psychologist-patient privilege, which expressly incorporates N.J.S.A. 45:14B-28, provides, in pertinent part:
The confidential relations and communications between and among a licensed practicing psychologist and individuals, couples, families or groups in the course of the practice of psychology are placed on the same basis as those provided between attorney and client, and nothing in this act shall be construed to require any such privileged communications to be disclosed by any such person.
The public policy goal of both privileges is to promote the open and truthful communication needed for the patient to receive appropriate care. As this court has stated, "Whether viewed in the context of the physician-patient privilege or the psychologist-patient privilege, we fully acknowledge that public policy requires protection of the confidentiality of communications made to a therapist in the course of treatment." State v. Smith, 307 N.J. Super. 1, 12 (App. Div. 1997), certif. denied, 153 N.J. 216 (1998). The court explained:
The nature of psychiatric treatment "is such that full disclosure to the therapist of the patient's most intimate emotions, fears and fantasies is required." [Arena v. Saphier, 201 N.J. Super. 79, 86 (App. Div. 1985)]. While "[m]any physical ailments might be treated with some degree of effectiveness by
a doctor whom the patient [does] not trust," a psychiatrist "must have his patient's confidence or he cannot help him." Taylor v. United States, 222 F. 2d 398, 401 (D.C. Cir. 1955).
[Ibid. (alterations in original).]
Under both privileges, persons shown to be agents of the psychiatrist or psychologist could fall within the scope of the privilege. See N.J.R.E. 506(b) (including as privileged those communications that are known by non-physicians "to whom the disclosure was made reasonably necessary for the transmission of the communication or for the accomplishment of the purpose for which it was transmitted"); State v. Phillips, 213 N.J. Super. 534, 543 n.5 (App. Div. 1986) (noting that the physician-patient privilege "should also protect confidential statements made to a treating nurse, acting either as an agent under the supervision of a doctor or in her professional capacity"). But see State v. Risden, 106 N.J. Super. 226, 237 (App. Div. 1969) (noting in dicta that an emergency room employee who "asked defendant for her name and 'How did this happen?' . . . did not stand in the relation of physician to defendant as patient"), aff'd as modified on other grounds, 56 N.J. 27 (1970).
N.J.R.E. 505 expressly places communications between psychologists and patients "on the same basis as those provided between attorney and client." See also Kinsella v. Kinsella, 150 N.J. 276, 297-302 (1997) (noting that "the principles developed in the context of the attorney-client privilege" should be equally applicable to the psychologist-patient privilege, absent express contrary authority). The attorney-client privilege "extends to the necessary intermediaries and agents [through] whom the communications are made." Rivard v. Am. Home Prods., Inc., 391 N.J. Super. 129, 154 (App. Div. 2007) (quoting State v. Davis, 116 N.J. 341, 361 (1989)); see also State v. DeMarco, 275 N.J. Super. 311, 318 (App. Div. 1994) (noting that the privilege "extends to necessary communications made by the client to an agent of the attorney, such as a scientific expert retained to aid in the preparation and presentation of the defense"). Whether in the context of the physician-patient privilege or the attorney-client privilege that is analogous to the psychologist-patient privilege, communications known to agents have only been held privileged where that agent either (1) actually transmitted a communication between the privilege holder and the professional at issue, or (2) has knowledge of the communication for the specific purpose of assisting or enabling the professional to provide the relevant professional services to the privilege holder.
There is no evidence that the guard was part of the psychologist's team treating defendant. For example, the guard was not guarding defendant during a therapy session when the statements were made. Instead, the guard performed what was entitled a one-to-one supervision, which was essentially a security measure rather than a component of treatment. Dr. Figarola testified that a one-to-one is "a [d]octor's order" that the patient have a staff member "very close to him" at all times, and it is typically ordered due to risk of suicide, risk of harming others, or potential escape from the psychiatric unit. The guard said that one-to-one watches were where a doctor would assign a security guard "to almost baby-sit the individual" patient, and the guard would "follow them around" or, if necessary, "make sure they stay in the patient room."
There was no evidence that (1) communication between patients and guards was required, or even encouraged, during one-to-one supervision; (2) guards were expected to report or facilitate communications with the treatment team; or (3) one-to-one supervision aided or advanced any medical, psychiatric, or therapeutic treatment. According to the guard's description, defendant made spontaneous remarks to him when they happened to be together in the hallway of the hospital.
In Smith, the police received an anonymous telephone call from woman saying she was a hospital employee and had overheard the defendant, a psychiatric patient, admit to a member of the hospital medical staff that he had assaulted a woman. Supra, 307 N.J. Super. at 4. It was "unclear whether the anonymous tipster who apprised the police of defendant's possible involvement in the crime was a member of the treatment team or merely an interloper who overheard the incriminating statements." Id. at 13. We held that "[b]ecause it was not established below that the anonymous caller was a member of the treatment team," neither the physician-patient or psychologist-patient privilege should be applied. Id. at 14. Here, too, the evidence does not support a conclusion that the guard was a member of the treatment team or that the communication to him was in any way related to defendant's treatment.
II.
Next, we consider defendant's contention, raised for the first time on appeal, that his conviction must be reversed because the guard testified "I believe [defendant] assaulted a [n]urse." Assuming that such a statement was improper, we conclude that the guard's single fleeting reference to his belief that defendant may have assaulted a nurse did not constitute plain error, and at best, it was harmless.
As our Supreme Court has noted, even where evidence of prior bad acts was improperly admitted, where there is "overwhelming proof" of guilt submitted by the State that is "independent of the other-crimes evidence," the error is harmless. State v. Gillispie, 208 N.J. 59, 93 (2011). Here, the proofs establishing defendant's guilt were overwhelming and wholly unrelated to the guard's comment regarding defendant's purported conduct at the hospital.
Furthermore, the guard's statement resulted from defense counsel's repeated challenges to the guard's characterization of defendant's demeanor. The question of defendant's aggressive behavior in the hospital was not raised by the State on direct examination, and the guard described the nature of a one-to-one watch without elaborating as to why it was ordered in defendant's case. On cross-examination, defense counsel used the absence of the guard's initials on any hospital sheets on the relevant dates to suggest that the guard had never been in a one-to-one situation with defendant. On redirect, the prosecutor asked the guard to explain the absence of his initials, to say whether he specifically recalled being present for a one-to-one with defendant, and to describe defendant's demeanor at that time. The guard stated defendant's demeanor was "alert and conscious" and that he did not appear to be under the influence of any medication. He added that "at times he was a little aggressive, but when he was telling me these things, he was pretty much calm." Defense counsel then pursued the "aggressive demeanor" issue on re-cross, and the following exchange occurred:
Q. So you said that he was aggressive when you were watching him. Right?Defense counsel then confirmed that none of the "behavior codes" on the hospital sheets reflected that defendant was aggressive on that day, asking, "So maybe he was just aggressive because he knew it was you?" The prosecutor's objection to this remark was sustained.
A. Not when I was watching him, when he was at the hospital, when he first came, he was aggressive.
Q. When you were watching him, he was calm?
A. Yes, that's what I recall.
Q. So if he was calmly confessing to you—
A. He was—I wouldn't say he was extremely calm, but he was normal, [how] a reasonable person would be.
The prosecutor used re-re-direct solely to clarify that the guard had not indicated that defendant was aggressive at the time he made the statements, but was "just like a normal person." On re-re-cross, defense counsel attempted to impeach the guard's "calm and normal" characterization with the statement he had given to the police, in which he said that "the whole time" defendant was at the hospital "he was always uptight and aggressive, very hostile, and he was always just mad at everybody." The guard testified that he had been referring to defendant's demeanor "for the most part" and added, "I'm just going from what I heard from my co-workers." The prosecutor asked if the guard knew why defendant had been assigned one-to-one supervision, and the guard answered, "Yes. I believe he assaulted a [n]urse."
In the final questions to the guard, defense counsel established that he had not seen the assault, that it was a single incident, and that defendant was not charged with assaulting a nurse. Defense counsel did not ask for a curative instruction.
As our Supreme Court has noted, it is a "truism that every single thing that happens at a trial cannot be completely controlled." State v. Vallejo, 198 N.J. 122, 132 (2009). Rather:
The plain fact of the matter is that inadmissible evidence frequently, often unavoidably, comes to the attention of the jury, and the record cannot be purged of all extraneous influence. Hence, it is axiomatic that "[n]ot every admission of inadmissible hearsay or other evidence can be considered to be reversible error . . .; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently."Such is the case here.
[State v. Winter, 96 N.J. 640, 646 (1984) (quoting Bruton v. United States, 391 U.S. 123, 135, 88 S. Ct. 1620, 1627, 20 L. Ed. 2d 476, 484 (1968)).]
III.
Defendant next contends that the judge erred by denying his motion for a mistrial. Defense counsel made that motion because the guard testified that defendant told him he had tried to kill himself, despite a pretrial ruling that evidence of defendant's attempted suicide was inadmissible.
At trial, when asked by the prosecutor about his conversations with defendant, the guard blurted out that defendant "also told me that the [p]olice found him in his car unconscious. He tried to kill himself by overdosing." The prosecutor herself objected, and the judge heard counsel at sidebar. Defense counsel moved for a mistrial, which was denied. Instead, the judge gave an immediate curative instruction. The judge told the jury that "[t]he witness indicated something about attempted suicide. This case has nothing to do with attempted suicide, nor is there any proof that there was any attempted suicide. That has nothing to do with this case." The judge expressly instructed the jurors not to consider or discuss the issue, adding, "The gentleman was taken to a hospital and [this witness is] a Security Officer at that hospital and had interaction with [defendant], and that's the purpose of this witness' testimony, but there is no indication that this was an attempted suicide."
"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court" and is subject to deferential review. State v. Harvey, 151 N.J. 117, 205 (1997). "It is an extraordinary remedy and not employed where there is 'an appropriate alternative course of action.'" State v. Rivera, 437 N.J. Super. 434, 461 n.5 (App. Div. 2014) (quoting State v. Allah, 170 N.J. 269, 281 (2002)). The trial court "should grant a mistrial only to prevent an obvious failure of justice." Harvey, supra, 151 N.J. at 205. "An appellate court should defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence." Ibid.
The judge gave a prompt and expansive limiting instruction advising the jury that there was no evidence of suicide, that suicide was wholly unrelated to the case, and that the jurors could not consider the guard's reference to it for any purpose. There is no reason to suppose that the jurors would have disregarded this admonition. The guard's reference to suicide was inappropriate but, like his fleeting reference to defendant assaulting a nurse, it constitutes an example of inadmissible evidence being mentioned before the jury, not through any fault of the parties, but because not everything that happens at a trial can be completely controlled. Vallejo, supra, 198 N.J. at 132; Winter, supra, 96 N.J. at 646. "A defendant is entitled to a fair trial but not a perfect one." State v. R.B., 183 N.J. 308, 334 (2005) (quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 97 L. Ed. 593 (1953)). Thus, we see no abuse of discretion by denying the mistrial motion.
IV.
We reject defendant's contention that defense counsel was prevented from impeaching defendant's friend (the friend). Defense counsel argues that he was precluded from questioning the friend about pending drug-related charges (the open charges) at the time the friend gave a statement to the police. The judge had held defense counsel could not impeach using the friend's open municipal court charges, but was limited to inquiries regarding his prior conviction.
The substance of the friend's testimony was defendant told him that he liked the clerk and gave her Suboxone to prevent the boyfriend from driving the clerk to a methadone clinic. The friend never saw defendant and the clerk together, but understood that "[t]hey were supposed to hang out, like, a couple of times, but I believe it didn't happen." Defendant also told the friend that he had followed the girl home from work just to see where she lived. The friend's testimony was essentially cumulative. Thus, the credibility of the friend's testimony was not particularly significant to establishing defendant's guilt.
Even if the friend's credibility had been critical, there is little to suggest that questioning him about the open charges would have significantly impacted his credibility. All that was known about the open charges was that, the month after he gave his statement, the friend was sentenced in an unidentified municipal court on "what appears to be a drug charge." There is no information to suggest that the friend obtained favorable treatment by giving his statement to the police. Moreover, defense counsel effectively attacked the credibility of the friend's statement to the police by showing the friend was reluctant to cooperate and allowed the police to put words in his mouth.
On cross-examination, the friend testified he gave the statement shortly after he was released from probation, the police "put a lot of pressure" on him to give a statement, and the police "told [him that] if [he] didn't come down and talk to them, they were going to come and get [him]." In addition, he acknowledged that, while the word "stalking" appeared in his statement, that word was first used by the police. The friend said that "it's almost like [the police] led me to every answer, basically." Any subjective expectation of favorable treatment by the police was tenuous at best.
V.
Next, defendant argues the judge erred by not questioning the jurors after having dismissed juror number seven for discussing the case with a friend.
Shortly before the State rested, the judge learned that juror number seven had talked to a friend about the case. The juror acknowledged that she had been talking about the case but was not "saying direct facts" or "asking for an opinion." She said the other person had not responded with any thoughts about the case. Defense counsel requested that she be excused and that the judge question the juror further about whether she had discussed the case with the other jurors. The judge questioned her in open court and the juror confirmed that the jury had not talked about the facts of the case. The judge was satisfied that the jurors "didn't discuss any of the facts," and because juror number seven's conversation with her companion had nothing to do with the other jurors, he did not see the need to question the remaining jurors. The judge noted, "[i]f I thought that the conversation was with her and other [j]urors to begin with, then maybe that would be what I would do."
When the remaining jurors returned to the courtroom, the judge told them "[a]s you can see, Juror Number Seven is no longer with us, and the reason she's no longer with us is because she violated the oath." He explained that she had been observed "at a restaurant outside of this town and discussing the case with someone she's having dinner with," and added, "[y]ou don't start deliberating until I tell you to."
"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). This impartiality requires "that the jury's verdict be based on evidence received in open court, not from outside sources." State v. R.D., 169 N.J. 551, 557 (2001) (quoting State v. Bey, 112 N.J. 45, 75 (1988)). The trial court protects jurors and their deliberations from illegitimate influences that may taint the verdict. State v. Williams, 93 N.J. 39, 60 (1983).
When allegations of jury misconduct are made, the trial court has discretion in investigating the allegations and implementing a response. See R.D., supra, 169 N.J. at 559 (noting that "the trial court is in the best position to determine whether the jury has been tainted" and the abuse of discretion standard of review "respects the trial court's unique perspective"); State v. McLaughlin, 310 N.J. Super. 242, 256 (App. Div.) ("The determination of the appropriate course of action upon a showing of premature deliberations is a matter left to the trial court's broad discretion"), certif. denied, 156 N.J. 381 (1998). See also State v. Scherzer, 301 N.J. Super. 363, 488 (App. Div.) (noting that "[a]lthough the trial judge has discretion in the way to investigate allegations of jury misconduct, an adequate inquiry on the record is necessary for the purposes of appellate review"), certif. denied, 151 N.J. 466 (1997).
Where "it becomes apparent that a juror may have been exposed to extraneous information" during the course of a trial, the trial court "must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." R.D., supra, 169 N.J. at 557-58. "The court is obliged to interrogate the juror, in the presence of counsel, to determine if there is a taint; if so, the inquiry must expand to determine whether any other jurors have been tainted thereby." Id. at 558 (citing Pressler, Current N.J. Court Rules, comment 2 on R. 1:16-1 (2000)). Then, the trial court must determine if a mistrial is necessary or if the trial can proceed. Ibid. The trial court's investigation must be "a probing inquiry into the possible prejudice caused by any jury irregularity," and the judge must "rely[] on his or her own objective evaluation of the potential for prejudice rather than on the jurors' subjective evaluation of their own impartiality." Scherzer, supra, 301 N.J. Super. at 488.
Depending on the [offending] juror's answers to searching questions by the court, the court must then determine whether it is necessary to voir dire individually other jurors to ensure the impartiality of the jury. That determination should be explained on the record to facilitate appellate review under the abuse of discretion standard. But the decision to voir dire individually the other members of the jury best remains a matter for the sound discretion of the trial court. No per se rule should obtain. The court may learn through its questioning of the excused juror that circumstances made it impossible for that juror to impart impermissible information to
the other jurors even unintentionally. Although the court should not simply accept the juror's word that no extraneous information was imparted to the others, the court's own thorough inquiry of the juror should answer the question whether additional voir dire is necessary to assure that impermissible tainting of the other jurors did not occur. In some instances, the court may find that it would be more harmful to voir dire the remaining jurors because, in asking questions, inappropriate information could be imparted.
[R.D., supra, 169 N.J. at 560-61.]
In this case, the judge followed these mandated procedures. He and counsel questioned juror number seven and learned that, while inappropriate, her restaurant conversation had been general and did not provide her with extraneous information in the form of either facts or opinions. Moreover, there was no suggestion that any impropriety occurred in the presence of other jurors or could have tainted their view of the case. Juror number seven had no opportunity to discuss her excusal with the other jurors when she was removed from the building. And the judge had learned that the jury had not begun deliberations, formed opinions, or discussed the facts of the case or "words that were said in the [c]ourtroom." Rather, the jurors had simply made general comments like, "Oh, I wonder what's going to happen tomorrow?"
VI.
We reject defendant's argument that the judge erred by denying his motion for acquittal. The basis for the motion pertained to the attempted murder charges. The jury acquitted defendant of those charges. For the first time, defendant now argues he was entitled to an acquittal on the aggravated arson and stalking charges. We therefore apply the plain error standard. See R. 2:10-1.
N.J.S.A. 2C:17-1(a) defines the elements of aggravated arson and provides, in pertinent part:
A person is guilty of aggravated arson, a crime of the second degree, if he starts a fire or causes an explosion, whether on his own property or another's:
(1) Thereby purposely or knowingly placing another person in danger of death or bodily injury; or
(2) With the purpose of destroying a building or structure of another . . . .
The State presented overwhelming evidence from which the jury could have concluded that defendant was the arsonist, including (1) the fires were set using an accelerant and were not accidents; (2) defendant had a heated text exchange with the clerk in which he made a number of admissions, expressed anger, and made threats; (3) eyewitnesses noticed a vehicle like defendant's in the area immediately before the clerk's parents' house fire was set; (4) defendant's cell phone records were entirely consistent with all of the movements alleged by police when the fires were set; and (5) defendant admitted to the guard that he had set fire to his girlfriend's parents' house and her boyfriend's car. This evidence was more than sufficient for the jury to conclude that the fires were intentionally set by defendant. Moreover, using gasoline to intentionally set fire to another person's home would, alone, satisfy the statutory elements.
N.J.S.A. 2C:12-10(b), setting out the elements of stalking, provides:
A person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress.
N.J.S.A. 2C:12-10(a) defines the terms:
a. As used in this act:
(1) "Course of conduct" means repeatedly maintaining a visual or physical proximity to a person; directly, indirectly, or through third parties, by any action, method, device, or means, following, monitoring, observing, surveilling, threatening, or communicating to or about, a person, or interfering with a person's property; repeatedly committing harassment against a person; or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct or a combination thereof directed at or toward a person.
(2) "Repeatedly" means on two or more occasions.
(3) "Emotional distress" means significant mental suffering or distress.Here, there was more than sufficient evidence to support the stalking convictions. The record reflects numerous instances of following, surveilling, and intimidation through text messages that were clearly non-consensual and that adequately formed the basis of the stalking conviction.
(4) "Cause a reasonable person to fear" means to cause fear which a reasonable victim, similarly situated, would have under the circumstances.
VII.
Finally, defendant contends that the judge erred by imposing consecutive sentences on the arson convictions and by failing to properly weigh the aggravating and mitigating factors.
N.J.S.A. 2C:44-5(a) provides that "multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence," but it does not specify when consecutive sentences, rather than concurrent sentences, should be imposed. In State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), our Supreme Court established the following criteria to assist courts in making that determination when sentencing a defendant "who has engaged in a pattern of behavior constituting a series of separate offenses or committed multiple offenses in separate, unrelated episodes":
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.
These Yarbough guidelines "were intended to promote uniformity in sentencing while retaining a fair degree of discretion in the sentencing courts," and the court's analysis of the "facts relating to the crimes" under the third guideline "should be applied qualitatively, not quantitatively." State v. Carey, 168 N.J. 413, 427 (2001). Thus, the court "may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences." Id. at 427-28.
The Court has affirmed a sentence where "the only factor that support[ed] consecutive sentences [was] the presence of multiple victims[,]" noting that "the multiple-victims factor under the Yarbough sentencing guidelines is entitled to great weight and should ordinarily result in the imposition of at least two consecutive sentences." State v. Molina, 168 N.J. 436, 442-43 (2001).
This court has noted that "[c]onsecutive sentences are not an abuse of discretion when the crimes involve multiple victims and separate acts of violence." State v. Roach, 146 N.J. 208, 230-31 (affirming consecutive sentences where "the deaths of the two victims were separate acts of violence caused by distinct types of conduct," even though "the murders occurred in close sequence"), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).
In explaining the imposition of consecutive sentences for the arson convictions, the judge found that "the crimes and their objectives were predominantly independent of each other" and "involve[d] separate acts of violence or [] threats of violence." Also, "the crimes were committed at different times in different places" and involved "multiple victims." We see no error in running the sentences consecutively.
The judge found aggravating factors under N.J.S.A. 2C:44-1(a)(3) and (9), specifically the risk that defendant will commit another offense and the need for deterrence. The judge found mitigating factors under N.J.S.A. 2C:44-1(b)(6) and (12), specifically restitution and cooperation with law-enforcement authorities. Defendant was given credit for cooperating with law enforcement because he had voluntarily provided information on a pending homicide case unrelated to his own prosecution.
The two aggravating factors found by the judge, the risk that defendant will commit another offense and the need for deterrence, were supported by defendant's prior criminal history. Specifically, defendant had a 2006 municipal court conviction for loitering and a 2007 Superior Court conviction for stalking and contempt, and he was awaiting sentencing in another arson case arising from a 2010 incident in which he set fire to the car of a woman who rejected him. The judge noted that defendant's problems with the law were "always as a result of getting too attached to girls." Defendant was arrested on five other occasions that did not result in convictions, and the judge expressly noted that he was not taking these incidents into account in setting the sentence. Defendant's argument that the judge was obliged to find additional mitigating factors is without merit.
Defendant also argues that his "long history of mental health problems and associated suicide attempts" required the judge to find "mitigating factors three (defendant acted under a strong provocation) and four (substantial grounds tending to excuse conduct)," but this argument is without merit. As to factor three, this court has noted that the "strong provocation" referred to in the statute "relates to the conduct of the victim toward the actor" rather than the actor's internal motivation or mental state, so defendant's mental health history is irrelevant. State v. Teat, 233 N.J. Super. 368, 372 (App. Div. 1989) (quoting State v. Jasuilewicz, 205 N.J. Super. 558, 576 (App. Div. 1985), certif. denied, 103 N.J. 467 (1986)). Moreover, the "conduct of the victim toward the actor" does not support this mitigating factor because, while there was evidence that the clerk capitalized on defendant's romantic interest in her and accepted gifts even though she knew she did not want him to be her boyfriend, these facts cannot be deemed "strong provocation" to set repeated arson fires.
There is no reason to second-guess the trial court's application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).
Affirm. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION