Opinion
DOCKET NO. A-0063-14T3
08-30-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTONIO JONES, Defendant-Appellant.
Peter Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief). Nicholas Norcia, Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Chief Appellate Attorney, of counsel; Mr. Norcia, on the brief). Appellant filed a pro se supplemental 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Espinosa and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 12-05-1001. Peter Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief). Nicholas Norcia, Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Chief Appellate Attorney, of counsel; Mr. Norcia, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
This matter returns to us after a remand to the trial court for a review of defendant's speedy trial motion, considering the factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), and to set forth its findings on the record. At the time we ordered the remand, we determined the arguments raised in defendant's supplemental pro se brief lacked sufficient merit to warrant discussion, R. 2:11-3(e)(2), and deferred any decision on the argument raised in Point I of defendant's appeal concerning the trial court's refusal to include a question regarding possible racial bias in the voir dire of the jury. We now address those issues.
I.
In Barker, the United States Supreme Court established a balancing test that continues to govern the evaluation of claims of speedy trial violations in all criminal and quasi-criminal matters. 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117; State v. Cahill, 213 N.J. 253, 258 (2013). Under this test, the trial court must assess four non-exclusive factors: "[l]ength of delay, the reason for the delay, the defendant's assertion of [the right to speedy trial] and prejudice to the defendant." Barker, supra, 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. Our Supreme Court has instructed that a delay of more than one year is sufficient to warrant consideration of the remaining Barker factors. Cahill, supra, 213 N.J. at 266.
Defendant's trial was conducted two years after his arrest in February 2012, appreciably longer than the sixteen-month "unexplained delay" the Court found to be "inordinate and unreasonable" in Cahill. Id at 258. Following the remand and the trial court's careful review of the case, the reasons for the delay have been explored and identified. Of paramount importance, the trial court found no evidence the State took any action to deliberately delay the trial, and defendant does not argue to the contrary. The trial court found the factors that contributed to the delay included a crowded court calendar, changes in the judge and defense counsel assigned to the case, requests for additional discovery, the time taken by the New Jersey State Police Laboratory to process evidence requests, and the trial court's own mistaken belief that defense counsel was seeking a date certain for trial rather than the dismissal of the indictment as relief in the speedy motion that was filed.
The trial court identified the periods of delay, the reasons for delay and its assessment of responsibility for delay as follows:
February 2012 to May 2012
Defendant was arrested and charged with armed robbery and obstruction of justice on February 8, 2012 and indicted ninety-eight days later. No reason was given for this delay. The trial court observed the period was slightly longer than the ninety days set forth in the current rules. See R. 3:25-4(b)(1). He found this period "weighs slightly in the defendant's favor and against the State."
May 2012 to August 2013
Defendant's first speedy trial motion was withdrawn, and the second motion was carried by the court to August 2013, a period of sixteen months. During that time, there was a transfer from another judge to the trial court and a change in defense counsel. During this period, defense counsel requested more detailed discovery and a six-week adjournment to review the discovery. There was also a three-week delay due to Hurricane Sandy.
On October 24, 2012, defense counsel made another request for additional discovery: additional MVR videos from a second patrol car, a booking video and criminal investigation pictures taken by the Sheriff's Department. The trial court issued an order requiring that the additional discovery be provided by January 14, 2013. It was ultimately determined that the booking video and the MVR did not exist and the court entered an order on January 15, 2013 to permit defense counsel to inspect the subject police car and to require the Sheriff's Department to provide pictures to defense counsel in electronic form so she could make her own prints without charge.
In January 2013, defense counsel filed a suppression motion that, due to the court's calendar, was not heard until May 2013. The trial court noted the Administrative Office of the Courts (AOC) report for the 2013-14 fiscal year, which stated Ocean County had the second highest post-indictment filings and the highest number of dispositions per judge in the state for that year. The court further noted that, during this time period, there was a significant increase in the number of post-indictment filings in Ocean County.
Among the items recovered from the crime scene following defendant's arrest was a "novelty handgun" wrapped in a black sock. At the suppression hearing in May 2013, it was learned that the sock had not been sent for DNA analysis despite defense counsel's request for such testing. The sock was sent to the lab in June 2013. The trial court found "this lapse of time [was] due to the inattentiveness of the State" regarding the items sent for DNA testing. The period was weighed against the State but, because there was no evidence the delay was "intentional or . . . strategical," only slightly.
The court found the delays due to Hurricane Sandy and defense counsel's request for time to review discovery should not weigh against the State. The delay attributable to the State's response to discovery requests "was partly the result of the State's failure to promptly respond." The trial court found this a "more neutral" cause for the delay and gave it "slight weight favoring the defendant."
The court concluded that, of the sixteen-month delay between arrest and the speedy trial motion, the State was responsible for approximately eleven months of the delay and that this delay was "a result of negligence." The court noted further that there were "high stakes" in this case because it was a "three strike case." As a result, the DNA results were "important" because the results could prove either inculpatory or exculpatory. Recognizing that the process of obtaining this evidence "takes more time than just collecting the report," the court concluded that the lapse of time should be weighted against the State but given "slight weight."
August 2013 to February 2014
This six-month period lasted from the time of defendant's speedy trial motion to the trial date.
The trial court observed that, at the August 2 hearing, defense counsel stated she would like to try the matter sooner than the scheduled February trial date but "never sought the dismissal of the matter during the hearing." Rather, she wanted assurance the trial would proceed in February as she was aware other trials were being listed for that date.
The prosecutor expressed a preference for not proceeding until DNA results on the sock, expected within a few weeks, were received. The court agreed it would not be prudent until those results were received as they could be either inculpatory or exculpatory.
The court stated the "primary cause" for the delay from August 2012 to February 2013 was the delay in receiving the DNA test. Of the six months, the court found approximately one month was attributable to the court's calendar, holidays and vacation, and the remaining five months was attributable to the State.
In sum, the trial court found that approximately fifteen to sixteen months of the delay was "primarily due to the State's actions," although those actions "were not deliberate." As a result, the court concluded the delay "should only be weighed against the State slightly."
Turning to the defendant's assertion of his right to a speedy trial, the trial court noted that "[a]lthough defendant asserted his right early, he initially withdrew his application when he received discovery and then did not assert the right . . . until well after plea cut-off, and never sought dismissal on the record." The trial court stated defense counsel initially filed the motion because "she viewed discovery as not being forthcoming." At the motion hearing in August 2013, defense counsel "never sought dismissal but only assurances that the February date would not be adjourned" and a request that the trial be moved up. The trial court stated, "As a result, this Court was under the mistaken belief that the defendant was . . . seeking only to advance [his] rights under R. 3:25-2[] to ensure that [his] trial date was secure." The trial court set the trial date accordingly.
The trial court found this third Barker factor weighs against the State but did not merit "heavy weight."
Finally, addressing prejudice to defendant, the trial court acknowledged that three interests are assessed: prevention of oppressive pretrial incarceration, minimization of defendant's anxiety concerns and whether the defense has been impaired by the delay. See Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118; Cahill, supra, 213 N.J. at 266. The trial court acknowledged the presence of the first two factors. Turning to the issue of actual prejudice to the defense, the trial court noted defendant "ha[d] not identified any specific prejudice arising from the delay. And there has been no indication that witnesses were lost and memories not as good or effective at trial."
Balancing the Barker factors, the trial court found that, although the delay was significant, it was "not inordinate," given the changes in judges, lawyers, the court calendar and delay in DNA testing. The court concluded the Barker factors did not weigh in favor of granting the defendant's request for the dismissal of the indictment.
In our review, we apply the same framework and standard as the trial court in evaluating undue delay. State v. Misurella, 421 N.J. Super. 538, 544 (App. Div. 2011). The picture that emerges from the trial court's findings, which have ample support in the record, is that, first and foremost, there was no intentional delay by the State. Although some delays were attributable to negligence or inattention by the State, there was no evidence of gross negligence in the handling of discovery requests or the prosecution of the case. As the trial court noted, this was a serious offense and a conviction carried dire consequences for defendant as he would be subject to a sentence of life imprisonment with no parole under the "three strikes" law, N.J.S.A. 2C:43-7.1. These circumstances merited the diligent pursuit of discovery beyond that initially provided for, as the trial court observed, the evidence had the potential to exculpate defendant as well as be probative of his guilt. Defense counsel did diligently pursue these avenues and prodded the State into greater responsiveness by filing a speedy trial motion. We also note that some of the delay was caused by the court's congested calendar and that, rather than simply offer an explanation that might seem hackneyed, the trial court backed that observation with support from the AOC report. Thus, despite delays due to the State's negligence and the court's scheduling issues, this is not a situation where the prosecution, defense or adjudication lay fallow while defendant was incarcerated pending trial.
While defendant suffered the hardship of waiting for trial, that alone "is insufficient to constitute meaningful prejudice." Misurella, supra, 421 N.J. Super. at 546 (quoting State v. Le Furge, 222 N.J. Super. 92, 99-100 (App. Div. 1988)). As the trial court observed, the defense was not impaired by the delay here. There were no witnesses or evidence lost. Therefore, our balancing of the Barker factors leads us to conclude defendant's constitutional rights were not violated by the delay before his trial.
II.
In Point I of his appeal, defendant argued:
A NEW TRIAL SHOULD OCCUR BECAUSE THE TRIAL COURT IMPROPERLY REFUSED TO QUESTION THE PROSPECTIVE JURORS ABOUT POSSIBLE RACIAL BIAS, EVEN THOUGH JONES WAS AN AFRICAN-AMERICAN MAN AND THE ROBBERY COMPLAINANT WAS A WHITE ORTHODOX JEWISH MAN. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, PARA. 1, 10.
Although we conclude it was an abuse of discretion for the trial court to decline to ask any questions regarding possible racial bias during the voir dire, we are not persuaded that reversal of defendant's conviction is required in this case.
The evidence at trial can be summarized as follows:
The victim, C.L., left his apartment at approximately 9:00 p.m. on February 7, 2012, to attend a night session class. He was accosted by a person who brandished a small black gun and demanded his money. The person also demanded that C.L. not look at him. C.L. handed over some cash and his wallet, which contained an Israeli shekel coin and a 200 shekel note. After ascertaining that C.L. did not have any car keys on him, the assailant instructed him to run ahead, but not to turn around.
C.L., a yeshiva student, proceeded to his school, where his friend called 9-1-1. C.L. described his assailant to the dispatcher as "a short stocky, black fellow" wearing a bomber jacket, dark in color, black or brown.
Officer Steven Kowaleski responded on behalf of the Lakewood Police Department. C.L. told him the assailant "was possibly a black male that was approximately the height of [his] shoulder and that he was wearing a dark-colored leather jacket."
Officer Kowaleski also spoke to a neighbor of C.L.'s, Z.K., who observed the interaction between C.L. and his assailant and, initially, "didn't think anything of it." Once Z.K. was told by a police officer that a mugging had occurred, he told them he had just seen someone ride off on a bike. The man was approximately five to ten feet away when he drove past Z.K. and "muttered . . . to get out of the way." Z.K. stated the man on the bike "was colored and maybe had a little beard," but he "wasn't sure if he was black." He told police the man could be Hispanic. Z.K. further described the person to the officers as wearing a black jacket, ski hat, and gloves.
Another resident of the apartment complex, C.K., also observed the man on the bike in the parking lot. He described the man as "a black male. He had a beard and he was wearing a black coat, shiny, fluffy black coat."
Officer Kowaleski related Z.K.'s description of the suspect as a heavyset black male wearing a dark leather jacket and possibly on a bicycle to other patrol units in the area.
Roughly one block east and between six and seven blocks south of where the incident occurred, Officer Eric Miick encountered defendant, who was of the appropriate height and build, wearing a black leather jacket and riding a bicycle. Officer Miick stopped his patrol vehicle and defendant stopped his bike, positioning it toward him, approximately eight feet away. Officer Miick asked defendant "where he was going and what he was up to." Defendant responded "what's the matter? What's the matter?" in a very nervous and jittery manner. Defendant began moving toward the patrol vehicle, so Officer Miick instructed him to keep his hands out and to back up for safety reasons. When Officer Miick stepped out of the patrol car, defendant fled on his bike.
Officer Miick returned to the patrol car and followed defendant down the street. He told defendant to stop several times. Defendant ditched his bike, continued running away and dropped several items as Officer Miick pursued him on foot. Eventually, defendant stopped, got on the ground per Officer Miick's command and was arrested.
Items recovered from the crime scene and defendant's path were a black wool hat, a leather jacket, a brown glove and a "novelty handgun" wrapped in a black sock. When defendant was arrested, he had a shekel coin in his possession. C.L. was brought to the scene but was unable to identify defendant, stating defendant could be his assailant but he was not certain.
The shekel coin was returned to C.L. He did not, however, get back his wallet, American money, his credit cards, social security card, or the 200 shekel note.
Defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1, and was sentenced to an extended term of life without parole and a concurrent sentence for obstruction.
III.
Defendant argues the trial judge erred in failing to include a question about possible racial bias in voir dire. The argument pertains to the following request made by defense counsel:
Defendant is African-American and C.L. is Caucasian.
We requested that, "Do you believe the crime rate is higher in the black community than in other racial groups?" And the reason we asked for this question is that specifically Directive 21-06 specifically states in the last paragraph on Standard No. 3, Supplemental Questions, that "Racial issues
are relevant when there is a difference in the race of the victim from the race of the defendant." Thus, we ask for this question to be read.
If Your Honor were to reject that question, we would then ask as a supplement that . . . you ask "Tell me about the crime in your neighborhood."
If you were to reject that one, we would then settle for the proposed question, No. 8, which is about gun control.
The State did not explicitly object to any of these requests and stated only that it asked the court to read the open-ended questions set forth in Directive 4-07. The trial court responded to the defense request as follows:
I'm not going to ask any question with regard to or instruct with regard to any relevant crime rates or question with regard to crime rates, as a difference may apply culturally or -- or neighborhood-wise. I don't think that's appropriate. I don't think that would be relevant. I don't want to inject race into this case.
The judge went on to assure counsel he would be "vigilant and remind counsel" that peremptory challenges could not be exercised for reasons of race and that he would "consider" the cross-racial identification charge if there was an identification in the case. He ended the discussion by stating, "Other than that, I don't think it's appropriate to inject race or - - or comparative crime rates. So I'm not going to ask any questions with regard to that."
"Questions asked during voir dire are a matter of judicial discretion, the exercise of which 'will ordinarily not be disturbed on appeal.'" State v. Kelly, 302 N.J. Super. 145, 151 (App. Div. 1997) (citations omitted). Nonetheless, "our courts encourage inquiry into racial bias if requested during voir dire, recognizing 'that jurors may be racially or ethnically biased against the defendant, even in the absence of an explicitly racially divisive factual situation.'" Ibid. (quoting State v. McDougald, 120 N.J. 523, 553 (1990)). "Whenever there is a racial or ethnic difference between victim and accused, at defendant's request the trial judge should inquire of the prospective jurors as to whether the disparity will affect their ability to be impartial." State v. Horcey, 266 N.J. Super. 415, 418 (App. Div. 1993).
In this case, there was a racial difference between the victim and the defendant and a request for an instruction that touched on racial prejudice. Moreover, defendant was charged with first-degree robbery, a crime of violence. In Rosales-Lopez v. United States, 451 U.S. 182, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981), the United States Supreme Court noted, "federal trial courts must make such an inquiry when requested by a defendant accused of a violent crime and where the defendant and victim are members of different racial or ethnic groups." Id. at 192, 101 S. Ct. at 1636, 68 L. Ed. 2d at 31 (emphasis added).
Defendant urges us to reverse, citing our conclusion in Horcey that it was "reversible error for the trial judge to refuse a request to ask at least a threshold question about bias where there is racial disparity and defendant is charged with a crime of violence." 266 N.J. Super. at 419-20. In a later decision, we did not find reversal required under similar circumstances. See State v. Kelly, 302 N.J. Super. 145 (App. Div. 1997), certif. denied, 156 N.J. 409 (1998) (affirming defendant's murder and robbery convictions despite trial court's refusal to question jurors about racial prejudice). We agree that the circumstances here required the trial judge to ask at least a threshold question about potential bias, but do not agree that a bright line rule applies to require reversal.
By way of example, Appendix 3 to the New Jersey Judiciary Bench Manual, which was adopted after the trial of this matter, provides the following sample question for use in criminal cases:
9. It is alleged that the victim and the defendant in this matter are not of the same race. Would that affect your ability to be fair and impartial?
New Jersey Judiciary Bench Manual on Jury Selection, Appendix 3 (Dec. 4, 2014).
A refusal to inquire about potential prejudice is an error of constitutional magnitude
where racial issues are 'inextricably bound up with the conduct of the trial,' Ristaino v. Ross, 424 U.S. 589, 597, 96 S. Ct. 1017, 1021, 47 L. Ed. 2d 258, 264 (1976), or where there exists 'substantial indications of the likelihood of racial or ethnic prejudice affecting the jurors in a particular case.' Rosales-Lopez, supra, 451 U.S. at 190, 101 S. Ct. at 1635, 68 L. Ed. 2d at 29.
[Kelly, supra, 302 N.J. Super. at 151.]
Even if the refusal to make such inquiry does not rise to the level of constitutional error, it constitutes "an abuse of discretion requiring reversal 'where the circumstances of the case indicate that there is a reasonable possibility that racial or ethnic prejudice might have influenced the jury.'" Id. at 152 (quoting Rosales-Lopez, supra, 451 U.S. at 191, 101 S. Ct. at 1636, 68 L. Ed. 2d at 30).
Defendant does not contend that any of the jurors were tainted by racial prejudice. According to the trial judge, three jurors appeared to be African-American. The witnesses' descriptions of the suspect referred to the race of the suspect but did not include any racially charged words in their descriptions. Indeed, one witness was equivocal about the race of the robber and the victim was unable to make a positive identification. The evidence presented was that of a straightforward street robbery. Neither the crime itself nor the reactions of the victim and other witnesses suggested a racial motive for the robbery or the allegations against defendant. Compare State v. Harris, 156 N.J. 122, 237 (1998) (finding race was a central feature of the case "given the multiple racially motivated statements attributed to defendant," such as referring to the victim as a "white bitch" and that he had "knocked off some white girl," and the crime itself, which "appeared to have been racially motivated"), with Rosales-Lopez, supra, 451 U.S. at 191, 101 S. Ct. at 1636, 68 L. Ed. 2d at 30 (finding no reversible error where neither the government's case nor the defendant's defense involved any allegations of racial or ethnic prejudice), and Ristaino, supra, 424 U.S. at 597-98, 96 S. Ct. at 1022, 47 L. Ed. 2d at 265 (finding no constitutional issue where the circumstances did not "suggest a significant likelihood that racial prejudice might infect [defendant's] trial," simply due to the "mere fact that the victim of the crimes alleged was a white man and the defendants were Negroes"); see also State v. Morton, 155 N.J. 383, 459-60 (1998) (rejecting the argument that failure to conduct voir dire into the venire persons' racial attitudes was reversible error where no evidence indicated that any juror was racially biased).
Although the evidence was not overwhelming, there was persuasive evidence of defendant's guilt. The one-shekel coin stolen from the victim can fairly be described as an item that is not commonly possessed by the public at large. The fact that defendant possessed a one-shekel coin soon after and in close proximity to the robbery is therefore highly incriminating. In addition, his flight from the investigating officer may fairly be considered evidence of a consciousness of guilt.
We reiterate that where a defendant accused of a crime of violence against a victim of a different race asks the trial judge to ask potential jurors about possible racial bias, the judge should make at least a threshold inquiry and that the failure to do so constitutes an abuse of discretion. However, our examination of the record here, which includes no evidence the jurors or the trial were tainted by racial bias, leads us to conclude defendant was not prejudiced by the trial judge's refusal.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
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