Opinion
DOCKET NO. A-5197-13T2
01-19-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KORY S. MCCLARY, a/k/a MERLIN MCCLARY, KORY MCLARY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Derrick Diaz, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-08-1852. Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Derrick Diaz, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. The opinion of the court was delivered by ROTHSTADT, J.A.D.
Defendant, Kory S. McClary, appeals from a judgment of conviction entered by the Law Division after a jury convicted him of committing, among other crimes, two counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2), two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and numerous weapons offenses, N.J.S.A. 2C:39-4(a), -5(b), and 7, for which the court sentenced him to 130 years imprisonment with 112 years of parole ineligibility. Defendant alleged that one of his victims robbed him and his accomplice on an earlier occasion. His convictions arose from his role in shooting at his two victims' families' homes one day and the fatal shooting of the two the following day. On appeal, he contends that the trial court should have declared a mistrial after it learned that a deliberating juror expressed an opinion to other jurors about finding a testifying police officer to be credible. In addition, he contends that the court failed to properly instruct the jury as to lesser-included offenses or provide a Cromedy charge about cross-racial identification, and failed to properly sanitize the video of his statement to police that was played to the jury. Finally, he challenges his sentences as excessive. We reject these contentions and affirm.
Defendant waived his right to a jury trial as to N.J.S.A. 2C:39-7, certain persons not to possess weapons, and was convicted by the court of committing that crime.
State v. Cromedy, 158 N.J. 112 (1999).
The following facts are gleaned from the record developed before the trial court. On June 21, 2008, defendant and his friend, Philip Melton, were held up at gunpoint by Michael Nelson and David Hood, Jr. — both fifteen years old — who together stole several thousand dollars in cash and jewelry. Defendant recognized Hood as his assailant.
After the robbery, defendant and Melton went to see Hood's father at the barbershop where he worked to ask "where [his] son was." After Hood's father left the barbershop to go home at approximately 7:00 p.m., he received a phone call from his wife informing him that someone had shot at their home.
Shortly after the shooting at the Hood home, a similar event took place at Nelson's home. At approximately 7:30 p.m., Cathleen Cruz and Nelson's sister, Shermina Nelson, were with their children on the front porch of the Nelson home when they were approached by a man identified by Cruz to be defendant, who "asked for Michael." Cruz responded that Nelson was not there, and defendant left. He returned a few minutes later with another man in a black car — which Cruz and Shermina believed to be a Lexus — "slowed down" in front of the Nelson home, and "fired off five or six shots" from an automatic firearm while seated in the vehicle's passenger seat.
We use Shermina Nelson's first name to avoid any confusion created by her sharing a common last name with her brother. No disrespect is intended.
Police officers arrived at the scene and spoke to the two women. Cruz initially told the police that the shooter was "red-headed Phil," but clarified at trial that she "thought [defendant's] name was[] red-headed Phil" because such "was the word [o]n the street" and she "didn't know [defendant's name] exactly." Shermina believed that Cruz "appeared to know" the shooter's identity. Two days later, the police showed Cruz a photo array of six individuals, and she identified defendant as the gunman. The array did not include any individuals with red hair.
Melton was nicknamed "Red" and "Redhead" because he had red hair.
Cruz testified that a man, whose name she could not recall, was present on the day of the shooting and told her the gunman's name was "red-headed Phil."
Just prior to 6:00 p.m. on June 22, 2008, the day after the house shootings, a man was trying to sell a used car to Nelson, who was accompanied by his nineteen-year-old friend Philip Fano. Nelson was "sitting behind the wheel" of the car and Fano was outside the car on the sidewalk. Hood was also present on the street. While the car's owner had his head under the car's hood, he heard several gunshots. When he looked up, he saw a "gun firing shots from the back window" of a passing vehicle, and took cover. Nelson and Fano were found with gunshot wounds to their heads and died as a result of their injuries.
After learning he had been charged with homicide, defendant fled New Jersey, first going to Virginia and then to Alabama. On December 1, 2008, defendant was arrested on unrelated charges in Chilton County, Alabama. While incarcerated in that state, defendant admitted the shootings to two other inmates who offered to cooperate with law enforcement in exchange for reduced exposure for their offenses. Specifically, an investigator with the Chilton County Sheriff's Department testified that he was approached by Richard Lucas, who asked whether "he could do [anything] to make his sentence lighter." Lucas eventually provided three taped statements to law enforcement officers concerning defendant. Another taped statement regarding defendant was given by David Stoudimire, who shared a cell with Lucas and defendant for "[a]bout three months" in the same Alabama jail.
Lucas stated that he met defendant and Melton in fall 2008 at a bar in Alabama before having been jailed with defendant. On another occasion preceding their confinement together, Lucas was with defendant at a another person's house, when defendant, appearing "angry," stated that he was "[r]eady to kill somebody . . . like he did up north" to "[t]he two boys."
According to Lucas, while the two were in jail and communicating daily "on friendly terms," defendant said that he and Melton had been at an Atlantic City casino when they were robbed of "around $10,000" in cash and jewelry at gunpoint by two teenage boys. Defendant told Lucas that he had identified the juvenile assailants and ultimately "sho[t] up [a] house." Defendant detailed to Lucas that on "a later day," he, Melton, and another individual were "riding around" when they saw the boys "by a car" with its hood up as someone was working on it, "circled back around the block," and defendant "[s]hot one of [the boys] in the head" as Melton shot "the other one." Lucas recalled defendant saying that Melton "shot the wrong guy," that a .45 caliber firearm was used, and that he was concerned a black Lexus used in one of the shootings had been impounded with shell casings inside. Finally, Lucas testified defendant informed him that a woman named Keisha had witnessed the house shooting and that Melton "would take care of her" because her testimony would "link him to the boys."
Lucas was not certain whether the Lexus was used to carry out the house shooting or the slayings, but "believed it was [used] for the boys."
Stoudimire stated that defendant said a "young punk" robbed him of a few thousand dollars, that he procured a firearm and looked for the boy, and that he then "shot up a house" where a woman saw who "c[ould] identify him," but would "be murdered" if she "hit the witness stand." Also, Stoudimire recalled defendant saying that, about "48 hours" after the house shooting, he killed "the young punk [who] robbed him" by "sho[oting] him in the head."
Defendant also gave a three-hour videotaped statement to police officers at the Alabama jail in December 2008. Defendant, who was in prison garb when he gave the statement, stated that Hood and another boy who he did not know had robbed him and Melton of "a couple thousand" dollars in cash and jewelry. Later that day, defendant and Melton went to the barbershop where Hood's father worked and defendant told him he "need[ed his] money back." Defendant repeatedly insisted that he never shot anyone and tried to retrieve his money amicably, and that he was used to losing money at the casino. Furthermore, although defendant recalled telling his cellmates that he was facing two murder charges back home, he denied committing the offenses and threatening a potential witness.
Defendant did not challenge the admission of his recorded statement, which was sanitized in accordance with N.J.R.E. 404(b). The transcript of the sanitized statement was distributed to the jury when the recording was played.
Defendant was later arrested for the fatal shootings of Nelson and Fano and the shootings that took place at the Hood and Nelson homes. A grand jury later returned an indictment charging him with multiple offenses.
After the presentation of the evidence at defendant's ensuing trial, the jury deliberated for slightly over an hour before sending a note asking for a read back of Cruz's trial testimony, which occurred the next day. After the read back, the judge received another note in which the jury's foreperson asked to see the judge in private. Counsel consented to a meeting in chambers.
During the meeting, the foreperson told the judge that the jurors were "stuck on count number 1," there were 11 of them in agreement, but the remaining juror "w[ould] not budge." She described that juror as being "extremely stubborn" and stated he would not "put[] his own thoughts aside [and] listen[] to . . . what the other 11 [jurors] are saying." In response, the judge stated he would discuss their conversation with counsel and then speak to the jury, telling them that if they needed further instruction as to the law "to clarify or explain," he would provide that and he would also tell them that "[they] do not have to take the counts in order." The foreperson found that being able to consider the counts out of order might prove to be helpful. The judge then spoke with counsel, brought the jury into court, reinstructed them as to their deliberations, and directed that they resume their consideration of the case.
The judge received another note that stated a juror "believes that one of the people on the jury came in with a decision made that all non-police witnesses are not credible, only [the] police department is credible." The judge reasoned that the note "appears to be one juror relating that another juror is saying that, or he or she surmises[,] this juror believes that." He observed that "[i]t's not a question" from the jury, nor was it advice "that someone is refusing to deliberate." Defense counsel agreed with the judge's assessment and stated "I think . . . that they're not willing to believe any of the non-police officer witnesses which I would imagine . . . is good for the defense." Further, defense counsel stated "it doesn't seem like it's overt back there, I don't believe. I defer once again to the wisdom of the [c]ourt." After considering counsel's comments, the judge explained his inclination to "just . . . leave things as they are until they come out with either a definitive statement regarding their position and deliberations, yes, no or hung, or if they have another question." The parties did not object and the jury continued deliberations.
After the jury had resumed deliberations, the court received another note "from forewoman number 1, [stating J]uror [No.] 4 is not impartial to the witness and refuses to accept circumstantial evidence, [indicating] that he believed the police due to their position and not the witnesses. We cannot move on at this point with 11-to-1." The judge stated to counsel that he found "[t]he note . . . expresse[d] some contention in the jury room, but there is ambiguity in it to know what exactly it is that they are expressing." He gleaned "that one juror apparently is refusing to accept circumstantial evidence and non-police evidence."
The judge advised counsel that the jury would be called out to discuss the matter, and if an impasse was apparent, an Allen charge would be given. Additionally, he stated that if further voir dire was required, it would be conducted one-by-one. Defense counsel "agree[d] with that procedure at th[at] juncture."
Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). See also State v. Gleaton, 446 N.J. Super. 478, 522 (App. Div. 2016) ("Thirty-six years ago, our Supreme Court decided in [State v. Czachor, 82 N.J. 392 (1980)] to abandon the then prevailing Allen charge in favor of the model charge suggested by the American Bar Association.").
The judge brought the jury back into the courtroom and inquired if they were allowed "a moment to cool off" whether they could continue deliberations. The foreperson responded "[n]o," and, as the judge determined, the issue was a disagreement with Juror No. 4. The judge made further inquiry about the jurors' ability to deliberate and consider the evidence, satisfied himself they could do so, reinstructed the jury as to deliberative process, and directed they continue their deliberations. In response, one of the jurors raised an issue about Juror No. 4 stating "that the only credible witnesses were the police and the detectives[.]"
Accordingly, the judge proceeded to conduct a voir dire of each juror. In response to the judge's questions, they all stated they believed that Juror No. 4 was stubborn in his views and having difficulty being open-minded in the deliberative process. During the foreperson's voir dire, she stated that Juror No. 4 "really did say that he believes the police are credible witnesses and others aren't."
When the judge spoke to Juror No. 4, he explained that he was impartial and was not making credibility determinations based on a witness's status as a police officer, but, rather, because they were able to refresh their memory of events from contemporaneous reports. The following exchange then occurred:
THE COURT: Let me ask you this: Are you going to choose to believe somebody just because of his or her status or disbelieve somebody just because of --
JUROR: No, those words were taken completely out of context, completely out of context, and even, I mean, I don't know.
THE COURT: Go ahead.
JUROR: I just don't know how else I could say it without saying --
THE COURT: No, all right, but the point is you remember those questions we talked about during voir dire, are you more than likely to believe a police officer or less likely to believe a police officer?
JUROR: Oh, yes.
THE COURT: So you remember that question.
JUROR: Yes.
THE COURT: And the question gets to the issue of status. If somebody comes in claiming to be a police officer, you automatically say I believe him instead of somebody else[?]
JUROR: No, no, no. Where they took, I guess we were talking about it and they said like based on this charge, blah, blah, blah, how do you feel and I said how I felt and they said why, and then these are the reasons why.
THE COURT: So you're making -- are you making credibility determinations?
JUROR: Yes, that's what I'm saying. So then when they said why, they challenged it, and said, well, do you believe as far as law enforcement? I said I challenge these people's credibility versus and they said law enforcement, do you challenge theirs. I said they're reading off a report so I assume everything they have to say is true, so that's why I would give them credibility also on it, but I'm not biased. The one lady said I was partial or impartial because I had -- I guess, I believe everything that a police officer would say would be true.
THE COURT: Let me stop you with this. I don't want to really know how you view the evidence as such. You are entitled to make your own credibility determinations. It's up to you to believe what happened or what didn't happen, and then if the 12 of you can agree then you tell me what did or didn't happen in your verdict. But in order to be a fair and impartial juror, if you should perceive you have any biases or prejudices, you have to set them aside.
JUROR: Yes.
. . . .
THE COURT: And you think you can do that?
JUROR: I think I can, but I don't [have to] believe that they're like the same beliefs that I have, I guess --
THE COURT: May not be. You may not share with others.
JUROR: I think we're at the point where they're locked to where I said like I don't believe it and these are the reasons why, and then it's basically, like, why don't you believe that? Why don't you, you know?
THE COURT: I don't want to get into your deliberative process, so I understand. . . . [T]hank you, don't discuss it . . . .
[(emphasis added).]
Afterward, the judge stated to counsel that he found the juror to be "frank and open[,] . . . operating to the top of his abilities[,]" and not "trying to pull one over on the [c]ourt or the parties." After a recess, the court told counsel that he would allow Juror No. 4 to continue deliberating. The judge stated:
[B]ased on my view of him, however, he has indicated he's willing to deliberate, he's indicated he's willing to consider the evidence. He may, however, be limited by his life experiences, he may be limited by his individual abilities, but that does not diminish him in his sworn role as a juror in this case. He is one of the defendant's peers and he is attributed by me in the good faith that he's willing to attempt to deliberate, as I believe the other 11 are. . . . I think what is dispositive is whether or not [Juror No. 4] credibly can assert to the Court that he's willing to deliberate. In his own mind, he may be thinking he's deliberating and the others thinking he's stonewalling them, and if it were 11-to-1 in that regard, I would still believe him based on what he said to me here
in open court that he's willing to deliberate.
Counsel made no request for the removal of the juror, a mistrial, or made any suggestions regarding re-instructing the jurors. The judge re-instructed the jurors with general charges — consistent with the model jury charges — regarding their role, the nature of evidence, and their deliberations. The jurors continued to deliberate, reached their verdict, and were discharged by the court.
The jury convicted defendant of the following: second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1(b)(1); two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); two counts of third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); two counts of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); two counts of second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7; first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1) and (2); and two counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2).
This appeal followed.
On appeal defendant through counsel specifically argues:
POINT IIn his pro se supplemental brief, defendant also contends:
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY WAS VIOLATED WHEN THE COURT FAILED TO DISMISS A DELIBERATING JUROR WHO TOLD HIS FELLOW JURORS AND THE JUDGE THAT HE ONLY BELIEVED POLICE WITNESSES.
POINT II
THE MURDER CONVICTIONS MUST BE REVERSED BECAUSE THE OMISSION OF AN INSTRUCTION ON AGGRAVATED MANSLAUGHTER AS A LESSER OFFENSE VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT III
THE SENTENCE OF 130 YEARS, 112 YEARS WITHOUT PAROLE, IS GROSSLY EXCESSIVE FOR THIS 22-YEAR-OLD DEFENDANT.
POINT 1
THE TRIAL COURT ERRED WHEN IT FAILED TO GIVE THE CROMEDY CROSS[-]RACIAL IDENTIFICATION INSTRUCTION AND WHEN IT FAILED TO ADMINISTER THE [MICHAEL/MILLER] INSTRUCTION GIVEN AFTER A DELIBERATING JURY REQUESTS AND IS GRANTED A READBACK OF A PARTICULAR WITNESSES TESTIMONY. DEFENDANT'S RIGHT TO DUE PROCESS AND EQUAL PROTECTION WERE VIOLATED.
POINT 2
THE ADMISSION INTO EVIDENCE OF THE VIDEO RECORDED STATEMENT OF DEFENDANT IN PRISON GARB, AND THE TRIAL COURT'S ERRONEOUS CURATIVE INSTRUCTION DID LITTLE TO CURE THE PREJUDICE THE DEFENDANT SUFFERED. CONSEQUENTLY, DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED, REQUIRING A REVERSAL OF HIS CONVICTIONS.
POINT 3
TRIAL COURT'S DISPOSITION IN ALLOWING THE EVIDENCE OF OTHER NON-RELATED CRIMES VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS PURSUANT TO THE STATE AND FEDERAL CONSTITUTIONS. MOREOVER, THE TRIAL COURT'S DISPOSITION VIOLATED THE N.J.R.E. 404(b), FURTHER VIOLATING DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL[,] REQUIRING REVERSAL OF HIS CONVICTIONS.
POINT 4
THE DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT ENGAGED A DELIBERATING JUROR IN AN EX PARTE COMMUNICATION, A PROCEDURE THAT CAST A PALL ON THE FAIRNESS OF DEFENDANT'S TRIAL AND DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
POINT 5
THE TRIAL CLAIMS RAISED HEREIN CUMMULATIVELY [SIC] CREATED A TRIAL SETTING THAT FUNDAMENTALLY DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
State v. Miller, 206 N.J. 109, 123 (2011); State v. Michaels, 264 N.J. Super. 579, 644-45 (App. Div. 1993), aff'd, 136 N.J. 299 (1994).
We have considered defendant's arguments in light of the record and applicable legal principles. We affirm his conviction and sentence.
I.
We begin our review by considering defendant's contentions about the court's handling of the issues relating to Juror No. 4 and its decision not to remove the juror or declare a mistrial. Defendant contends that he was denied his constitutional right to a fair trial as a result of the court's failure "to remove a juror who admitted that he was unable to be impartial." Quoting State v. Williams, 93 N.J. 39, 63 (1983), he argues that, "[w]hile the parties did not object to the judge's failure to remove Juror No. 4, the judge ha[d] an 'independent duty to act swiftly and decisively to overcome the potential bias of [the] jury from outside influences.'" Juror No. 4's "disabling biases," defendant asserts, required the juror's dismissal based on him having "lacked the basic requirement for jury service because he could not evaluate the evidence impartially." We find no merit to these contentions.
"We traditionally have accorded trial courts deference in exercising control over matters pertaining to the jury." State v. R.D., 169 N.J. 551, 560 (2001). For that reason, a trial court's decision to retain or excuse a juror is reviewed for an abuse of discretion. See State v. Williams, 171 N.J. 151, 156 (2002).
Declaring a mistrial based upon the removal of a juror is appropriate if a court determines that juror conduct has "poisoned" the deliberative process, State v. Jenkins, 182 N.J. 112, 130-31 (2004), and a reconstituted jury will not be able to continue "open minded" and "fair deliberations." State v. Ross, 218 N.J. 130, 147 (2014). "The decision to grant a mistrial rests within the sound discretion of the trial judge." Gleaton, supra, 446 N.J. Super. at 524 (citing R.D., supra, 169 N.J. at 558). The refusal to grant a mistrial sua sponte constitutes reversible error only if there is a "clear showing" the court abused its discretion or caused defendant "actual harm." State v. L.P., 352 N.J. Super. 369, 379 (App. Div.) (quoting State v. LaBrutto, 114 N.J. 187, 207 (1989)), certif. denied, 174 N.J. 546 (2002). "Although granting a mistrial in a criminal case is an extraordinary remedy[,] the trial judge is bound to grant this relief when it is necessary to prevent an obvious failure of justice." Gleaton, supra, 446 N.J. Super. at 514 (alteration in original) (internal quotation marks and citations omitted) (quoting State v. Dorsainvil, 435 N.J. Super. 449, 480-81 (App. Div. 2014)).
Whether the court failed to properly exercise it discretion in handling juror issues depends upon whether the court's actions impaired defendant's right to a fair trial. "A defendant's right to be tried before an impartial jury is one of the most basic guarantees of a fair trial." State v. Brown, 442 N.J. Super. 154, 179 (App. Div. 2015) (quoting State v. Loftin, 191 N.J. 172, 187 (2007)). In order to ensure that an impartial jury is maintained throughout the proceedings, Rule 1:8-2(d) provides for the discharge and substitution of jurors under limited circumstances. The Rule states in pertinent part:
If the alternate jurors are not discharged and if at any time after submission of the case to the jury, a juror dies or is discharged by the court because of illness or other inability to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged.
[R. 1:8-2(d) (emphasis added).]
The Rule's procedure is to be used sparingly, within its strict letter, and only as a last resort to avoid the waste of time that would otherwise ensue, see State v. Hightower, 146 N.J. 239, 274 (1996) (Handler, J., concurring in part, dissenting in part); State v. Valenzuela, 136 N.J. 458, 468-69 (1994); see also State v. Banks, 395 N.J. Super. 205, 215 (App. Div.), certif. denied, 192 N.J. 598 (2007), and, more significantly, "[b]ecause juror substitution poses a clear potential for prejudicing the integrity of the jury's deliberative process," Hightower, supra, 146 N.J. at 254. Inasmuch as the essence of jury deliberations is a collective sharing of views, reconstituting a jury in the midst of deliberations "can destroy the mutuality of those deliberations." Williams, supra, 171 N.J. at 163. "[T]he removal of a juror because he is disputatious and does not share the views of other jurors would undermine the very essence of the free and open debate that is expected of jury deliberations." Gleaton, supra, 446 N.J. Super. at 521 (quoting State v. Musa, 222 N.J. 554, 566 (2015)).
A juror should be removed, however, if the court is satisfied that a juror's "inability to continue" has been sufficiently demonstrated. Jenkins, supra, 182 N.J. at 124-30. An "inability to continue" refers to a problem personal to the juror and unrelated to the content or dynamics of the deliberations or the excused juror's relationship with the other jurors. Ibid.; see also Ross, supra, 218 N.J. at 147 (2014). The term "inability to continue" is interpreted restrictively, in order "to protect a defendant's right to a fair jury trial[.]" Jenkins, supra, 182 N.J. at 124. Thus, a juror may not be removed for reasons related to the "deliberative process" but must be removed when the juror has declared an inability to follow the law due to bias, prejudice, or sympathy. See id. at 129-30.
When a trial judge is confronted with a claim "that may affect the integrity of the jury's deliberations[,] . . . [i]t is the trial judge's duty to investigate . . . [by] interview[ing] each juror individually." Gleaton, supra, 446 N.J. Super. at 518. "This approach . . . permit[s] the judge to gauge the extent of the problem in a private setting conducive to promote candor and honesty and less vulnerable to any intimidation or unintended pressures associated with group-thinking." Id. at 518-19.
We conclude from our review that the trial judge properly investigated the foreperson's claim of bias as to Juror No. 4, compare id. at 519 (rejecting a trial judge's reliance on one juror's description of an issue about another juror), and correctly determined that the juror did not demonstrate bias or any other "inability to continue" as argued by defendant or contemplated by the Rule. The record does not demonstrate the juror expressed any bias based upon a belief that law enforcement officers are generally more believable than lay witnesses due to their status as police officers. In response to the issue raised about his alleged bias, Juror No. 4 denied any partiality or biases by stating his "words [during deliberations] were taken completely out of context," rejecting the perception that he would "automatically" believe a police officer, and clarifying that he was merely "making credibility determinations." Importantly, in determining that the juror's removal was unnecessary, the judge found the juror to be sincere and credible. Defense counsel did not disagree with the court's assessment and in response to the procedure followed by the court and its decision to allow the jury to continue to deliberate as constituted, counsel stated that continuing deliberations benefitted the defense and "defer[red] once again to the wisdom of the [c]ourt," without objection.
Under these circumstances, we discern no abuse of the court's discretion in not declaring a mistrial or removing Juror No. 4, no harm to defendant in allowing the jury to deliberate to a verdict, and, therefore, no reason to disturb defendant's conviction.
II.
Defendant next contends that the trial court erred and violated his constitutional rights by not instructing the jury on the lesser-included offense of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), even though the charge was not requested by defendant. We disagree, but even if we believed the court should have charged the offense, we conclude the error was invited by defendant and did not constitute plain error.
An offense is a lesser-included offense when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.
[N. J.S.A. 2C:1-8(d).]
Ordinarily, absent an objection at trial, we evaluate a challenge to jury instructions under the plain error standard. State v. Savage, 172 N.J. 374, 387 (2002) (citing R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997)).
[P]lain error in the context of a jury charge is '[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.'"However, because correct jury charges are especially critical in guiding deliberations in criminal matters, improper instructions on material issues are presumed to constitute reversible error." State v. Jenkins, 178 N.J. 347, 361 (2004).
[State v. Adams, 194 N.J. 186, 207 (2008) (alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997))].
When a defendant "invites" the error, however, a more stringent standard applies, and "relief will not be forthcoming on a claim of error by that defendant." Id. at 358. "[A] 'defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.'" Ibid. (quoting State v. Pontery, 19 N.J. 457, 471 (1955)). The invited-error doctrine "is designed to prevent defendants from manipulating the system" and "is implicated only when a defendant in some way has led the court into error." Id. at 359. "In other words, if a party has 'invited' the error, he is barred from raising an objection for the first time on appeal." State v. A.R., 213 N.J. 542, 561 (2013).
Here, to the extent the failure to charge the lesser-included offense was error, it was clearly invited error. The trial court asked counsel about whether lesser-included offenses should be charged. Neither party requested that any be charged and defense counsel specifically asked that the charge not be given as he acknowledged that it was not warranted under the circumstances. When asked if he wanted the offense charged, he specifically responded: "No, your Honor, and again that's based on the fact that we don't think this is a compromise case. We believe it's an all[-]or[-]nothing case and we'd like to not give the jury the opportunity to compromise." The court agreed that the charge was not warranted because "from [his] view of the facts and evidence in the case, . . . it [was] a case of knowing or purposeful murder" and not "aggravated manslaughter given the nature and circumstances of the case, . . . [or] reckless homicide . . . based on the evidence."
Regardless of the error being invited, we agree with the judge's assessment based on the evidence. As a lesser-included offense of murder, manslaughter must be charged, even absent a request, where it is "clearly indicate[d]" by the proofs. Jenkins, supra, 178 N.J. at 360-61; see also State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1168, 157 L. Ed. 2d 1204 (2004). A conviction must be vacated if a trial court failed to charge a lesser-included offense where the failure "was clearly capable of producing an unjust result such that a reasonable doubt is raised as to whether the error led the jury to a result it otherwise might not have reached." Jenkins, supra, 178 N.J. at 361 (quoting State v. Brims, 168 N.J. 297, 306 (2001)).
In determining whether the court has an independent obligation to instruct the jury on lesser-included offenses, the facts before the court and the elements of the charged and uncharged offenses are significant considerations. In order to establish a defendant is guilty of murder, the State must prove a defendant purposely or knowingly caused the death of the victim. N.J.S.A. 2C:11-3(a)(1)-(2). A charge of manslaughter, however, is warranted where the State proves the defendant was only reckless in causing the death of another. N.J.S.A. 2C:11-4(a)(1).
Shooting from a car at an intended victim from close range is not reckless conduct, nor does it demonstrate a conscious disregard of a substantial risk of death. Without any other explanation, and in the absence of a request for a charge on the lesser-included offenses, a trial judge has no obligation to charge aggravated manslaughter or manslaughter. See State v. Ramsey, 415 N.J. Super. 257, 271 (App. Div. 2010), certif. denied, 205 N.J. 77 (2011).
As defense counsel acknowledged and the court observed, in this case there was no evidence in the record to support the lesser-included charges. The evidence before the jury overwhelmingly demonstrated that defendant's conduct was purposeful and knowing, and not the result of any recklessness. Considering the events leading up to his victims' fatal shooting — including his visits to Hood's father's barbershop, the shooting of at least one of the victims' homes, and the execution of the two victims as they were involved in the harmless activity of looking at a car — the trial court correctly determined there was no evidence in the record to sustain charging the jury with lesser-included offenses.
III.
Next, we address defendant's argument that, despite his acknowledgment that his statement to police was relevant to establish his "motive and consciousness of guilt[,]" the three-hour video recording of his statement to law enforcement was "highly prejudicial" and its admission warrants reversal because he was shown wearing prison garb and discussed his Alabama offense and others, which allowed the jury to consider other prior bad acts in contravention of N.J.R.E. 404(b). We find no merit to his argument.
At trial, the judge specifically charged the jury about how jurors should consider defendant's appearance on the tape and his arrest in Alabama. Prior to showing the tape to the jury, the court stated:
[Y]ou have heard and will hear evidence that the defendant was in custody in Alabama prior to returning to New Jersey to face these charges. You may also see evidence
that the defendant was in custody and wearing institutional clothing indicating his status. You may also hear the defendant's discussion of and knowledge about drugs and weapons. The fact that the defendant may have been charged with offenses in Alabama is entirely irrelevant as to whether or not he's guilty of the charges in this case. An arrest is not a conviction. You may not conclude that the defendant is a bad person or he's guilty in this case because he may have been under arrest in Alabama. I instruct you that you may not consider these matters as evidence of anything in this case except for any limited purpose that I will give you shortly. You shall not consider such factors for any other purpose relating to the charges in this indictment. You may not speculate about the reasons, if any, for the defendant's custodial status. I instruct you that people are in custody because of the simple fact that they have not been able to afford bail or for strictly financial reasons cannot secure their release. Such factors have no bearing on any defendant's guilt. You may not conclude that the defendant is guilty of the offenses in this case because he was in custody, or if he had knowledge of or involvement with drugs or weapons. Such factors may not enter into your discussions at any time or for any reason. The defendant is presumed innocent of the offenses in this case. The State has the burden to prove him guilty beyond a reasonable doubt. His custodial status has no relevance to this case and must be entirely disregarded by you during your deliberations. Any evidence of the defendant's custodial status or his knowledge about drugs or weapons is being admitted for the limited purpose to show the defendant's reasons for leaving New Jersey and to explain his whereabouts in Alabama.
As part of the jury's final instructions, the court stated:
[Y]ou'll remember the limiting instructions I gave you, and I have an additional one for you, and these are quite important, you should pay particular attention to them and, again, there'll be copies of these provided to you as well. You've heard evidence that the defendant was in custody in Alabama prior to returning to New Jersey to face these charges. You have also seen evidence that defendant was in custody and wearing institutional clothing indicating his status. You have heard evidence of the defendant's discussion of or knowledge about drugs and weapons. The fact that the defendant may have been charged with any offenses in Alabama is entirely irrelevant to whether or not [he] is guilty of the charges in this case. An arrest is not a conviction and is not evidence of anything in this case. You may not conclude that the defendant is a bad person or must be guilty of the charges in this case because he was under arrest in Alabama. I instruct you that you may not consider these matters as evidence of anything in this case, except for any limited purpose that I will give you shortly. You shall not consider such factors for any other purpose relating to the charges in the indictment. You may not speculate about the reasons, if any, for the defendant's custodial status. I instruct you that people are in custody because of the simple fact that they have not been able to afford bail or for the strictly financial reasons they cannot secure their release. Such factors have no bearing on any defendant's guilt. You may not conclude that the defendant is guilty of the offenses in this case because he was in custody, or that he had knowledge of or involvement with drugs or weapons. Such factors may not enter into your discussions at any time or for any reason. The defendant is presumed innocent of the offenses in this case, and the State has the burden of proving him guilty beyond a reasonable doubt. This
custodial status has no relevance to the case and must be entirely disregarded by you during your deliberations. Any evidence of the defendant's custodial status or his knowledge about drugs or weapons is being admitted to show the defendant's reasons for leaving New Jersey and to explain his whereabouts in Alabama.
The State has introduced evidence that the defendant made statements to [Lucas] and [Stoudimire] concerning intimidation, threats, intended harm or death to a woman who may have been a witness to the shooting at Drexel Avenue because any such witness may be likely to link the defendant with the shootings that resulted in the deaths in this case. The defendant is not, however, charged with any other offenses related to the statements he allegedly made to Lucas and Stoudimire concerning these matters. Normally, such evidence is not permitted under our rules. Our rules specifically exclude evidence that a defendant has committed other crimes, wrongs or acts when it is offered only to show that he has a disposition or tendency to do wrong and therefore must be guilty of the charged offenses. Before you can give any weight to this evidence, you must be satisfied that the defendant committed the other wrongs, namely, intended harm to the female witness. If you are not satisfied, you may not consider it for any purpose. However, our rules do permit evidence of other wrongs or acts when the evidence is used for certain specific narrow purposes. In this case, this evidence was allowed as relevant to genuine disputed facts in issue in the case. Specifically, it was admitted to show the defendant's alleged plan in carrying out the shootings and his plan to go to the places where he might find [Hood]. This evidence was also allowed to show the defendant's alleged motive in going to the residences of [Nelson] and [Hood] for the purpose of
revenge for their earlier robbery of the defendant. It was allowed to show the identity of the shooter as the defendant since he apparently had knowledge of a witness to the shooting at Drexel Avenue and the possible connection to the shootings at Ohio and Marmora avenues. The State maintains that this is particular knowledge that only the assailant would have. It was also allowed to show the defendant's consciousness of guilt in connection with the three shootings in Atlantic City on June 21st and 22nd, 2008. As such, the evidence has been offered to attempt to convince you that the alleged post-crime conduct concerning contemplated harm to the female witness is evidence of a consciousness of guilt on the defendant's part regarding the shootings and the murders. You may not draw this inference unless you conclude that the acts alleged were an attempt by the defendant to cover up the crimes being alleged. Whether this evidence does in fact demonstrate the stated specific purposes for which the State offers it to you for is for you to decide. You may decide that the evidence does not demonstrate the stated purpose or is not helpful to you at all, and in that case, you must disregard the evidence entirely. On the other hand, you may decide that the evidence does demonstrate the stated purposes and use it for those specific purposes only. However, again, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that he's a bad person, that is, you may not decide just because the defendant has committed other wrongs or acts, he must be guilty of the present crimes. I have admitted the evidence only to help you decide the specific questions of the defendant's plan and purpose in the shootings, his identity as the shooter, and his consciousness of his guilt. You may not consider it for any other purposes and you may not find the defendant guilty now simply
because the State has offered evidence that he committed other wrongs or acts as I have outlined them for you.
In light of these instructions, we find defendant's argument to be without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). Suffice it to say the court's instruction correctly addressed any potential prejudice to defendant, see State v. Vallejo, 198 N.J. 122, 134-37 (2009); see also State v. Winder, 200 N.J. 231, 255 (2009), and there was nothing in the record to support a contention that the jury did not follow the court's charge. We assume the jury followed the court's instructions. See State v. Little, 296 N.J. Super. 573, 580 (App. Div.), certif. denied, 150 N.J. 25 (1997).
IV.
We also find defendant's next argument regarding the court's failure to deliver a Cromedy charge to be similarly without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We only note that because defendant did not request the charge nor object to the court's jury charge, he waived his right to contest the charge on appeal, see State v. Torres, 183 N.J. 554, 564 (2005), and, in any event, we discern no plain error in the charge not being given, see State v. King, 372 N.J. Super. 227, 238 (App. Div. 2004), certif. denied, 185 N.J. 266 (2005), especially because the cross-racial identification of defendant was not a "key issue" in the case and the evidence of defendant's guilt other than any alleged cross-racial identification was overwhelming. See State v. Cotto, 182 N.J. 316, 325 (2005).
"A cross-racial identification occurs when an eyewitness is asked to identify a person of another race." Cromedy, supra, 158 N.J. at 120. Juries should only receive a Cromedy charge when "identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." Id. at 132.
V.
Finally, we turn to defendant's challenge to his sentence. He claims on appeal that his sentence, which included consecutive prison terms aggregating to 130 years with a 112-year parole disqualifier, is "disproportionate and excessive," thereby rendering it improper and warranting this court's intervention. Arguing "the Yarbough factors overwhelmingly favor concurrent" rather than consecutive terms, he stresses that "[a]ll of the offenses were committed within 24 hours of the robbery" and targeted "the same two" victims, that the murders were carried out "simultaneously" and involved "at least two" shooters, and that the offenses constituted "a single episode" resulting in "numerous convictions." Defendant asserts that because a sentence of fifty years with forty-two and one- half years of parole ineligibility "satisfies any conceivable need for punishment and public protection," the consecutive sentences imposed "should be amended to run concurrently[.]" We disagree.
State v Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
At sentencing, the State asked the court to impose consecutive sentences, noting that there were "two different victims of the murder[s] and two different victims of the aggravated assault[s]." In his consideration of the State's request the judge stated:
[T]he [c]ourt is guided by the princip[le] that there can be no free crimes in a system for which the punishment shall fit the crime. The remaining unmerged offenses and their objectives were predominantly independent of each other. The murders and assaults were separate criminal acts independent of each other, which were begun and ended by the defendant. He perpetrated each crime not in some singular aberrant continuum, but as separate and distinct episodes containing escalating acts [that] were progressively implemented by him.
The [c]ourt has considered the crimes involved with separate acts of violence against separate victims. The defendant murdered 15-year-old Michael Nelson and 19-year-old Phillip Fano. The defendant was specifically targeting Nelson and another teenager involved in the street crime against him earlier. Phillip Fano was an innocent bystander. When I say earlier, the defendant opened fire on the house at 733 Drexel Avenue and assaulted Shermi[n]a Nelson and [C]athy Cruz in his quest for revenge.
These clearly are separate crimes against separate victims representing separate evils that need to be punished. The [c]ourt has considered that the crimes were committed at different times against different victims in different locations in Atlantic City, albeit in the defendant's [forty-eight]-hour spree of violence.
The offenses for which consecutive sentences will be imposed were not committed so closely in time and place to indicate a single act of aberrant behavior. The [c]ourt has also considered that there were also offenses against society in good order, namely possession of a firearm by a convicted person on two occasions. These separate and distinct evils require separate punishment and were committed the moment the defendant armed himself and [occurred] independently of his use of the weapons. Inasmuch as the defendant's unlawful purpose in possessing these firearms — it seems to have been the homicides and assaults — the [c]ourt will run [the] sentence[s] on those counts concurrently.
Finally, I have considered the number of convictions for which the sentences are to be imposed. They are not so numerous as to be unfair, unduly punitive[,] or unnecessarily harsh. In this case, the defendant's crimes and objectives were predominantly independent of each other and the crimes involved separate acts of violence on separate victims with separate offenses against society.
After merging various counts, the judge sentenced defendant to: two ten-year periods of imprisonment on two of the aggravated assault charges, with an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; consecutive terms of five years, with a three-year parole disqualifier and five years with no parole on the weapons offenses, pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), (g); two consecutive terms of fifty years on the murder charges subject to NERA; and another term of five years with three years without parole and five years with no parole on additional Graves Act weapons offenses.
Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 363-65 (1984). Appellate review of criminal sentences is governed by the "clear abuse of discretion" standard. Id. at 363; see also State v. Bolvito, 217 N.J. 221, 228 (2014). We will "not substitute [our] judgment for the judgment of the sentencing court[,]" State v. Lawless, 214 N.J. 594, 606 (2013), nor will we disturb a sentence that is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220 (1989). We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." Id. at 215. We may disturb a sentence if: "(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors . . . were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'" State v. Fuentes, 217 N.J. 57, 70 (2014) (quoting Roth, supra, 95 N.J. at 364-65).
Applying these standards, we discern no abuse of the court's discretion in sentencing defendant to consecutive sentences, despite the extreme length of the aggregate term imposed by the court, essentially for the reasons expressed by the trial judge. We add only the following comments.
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." Although there are no statutorily set rules for imposing consecutive sentences, the Court in Yarbough set forth a number of guidelines concerning same. A sentencing court applies these factors qualitatively, not quantitatively. State v. Carey, 168 N.J. 413, 427 (2001). Thus, a court may impose consecutive sentences "even though a majority of the Yarbough factors support concurrent sentences." Id. at 427-28; see e.g., State v. Molina, 168 N.J. 436, 442 (2001) (finding consecutive sentences were warranted despite the presence of only one Yarbough factor). Concurrent sentences are not mandated even where the crimes are connected by a "unity of specific purpose, . . . were somewhat interdependent of one another, and were committed within a short period of time of one another." State v. Swint, 328 N.J. Super. 236, 264 (App. Div.), certif. denied, 165 N.J. 492 (2000). Once it considers the Yarbough factors, the court is obligated to expressly state the reasons for imposing consecutive sentences or risk remand for resentencing. State v. Miller, 108 N.J. 112, 122 (1987).
The factors that must be considered are as follows:
(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.
[Yarbough, supra, 100 N.J. at 643-44 (footnote omitted).]
"Crimes involving multiple deaths or victims who have sustained serious bodily injuries represent especially suitable circumstances for the imposition of consecutive sentences." Carey, supra, 168 N.J. at 428. Indeed, "that principle resonates most clearly in cases in which a perpetrator intentionally targets multiple victims (e.g., a double murder or robbery)." Id. at 429. The multiple-victims factor under Yarbough "is entitled to great weight and should ordinarily result in the imposition of at least two consecutive sentences." Molina, supra, 168 N.J. at 443.
Here, the judge cogently and meticulously applied the Yarbough criteria in assessing the appropriateness of imposing consecutive sentences. We discern no abuse of the judge's discretion that requires our intervention and, under the circumstances, although extremely lengthy, the aggregate sentence does not shock our judicial conscience. See Roth, supra, 95 N.J. at 365.
VI.
To the extent we have not specifically addressed any of defendant's other contentions, we find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION