Opinion
DOCKET NO. A-1476-13T4
04-21-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KHALID MOHAMMED, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Glenn D. Kassman, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Ashrafi. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-02-0389. Joseph E. Krakora, Public Defender, attorney for appellant (Glenn D. Kassman, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Khalid Mohammed was indicted by a Monmouth County Grand Jury on one count of third degree aggravated assault upon a police officer, N.J.S.A. 2C:12-1(b)(5)(a), and one count of third degree resisting arrest, N.J.S.A. 2C:29-2a(3). Defendant was tried before a jury and convicted of the disorderly persons offense of simple assault under N.J.S.A. 2C:12-1a, as a lesser included offense of third degree aggravated assault, and third degree resisting arrest. The court sentenced defendant to pay a $500 fine and imposed the mandatory fees and penalties.
Defendant raises the following argument on appeal:
POINT I
THE FAILURE OF THE TRIAL COURT TO CONDUCT AN INQUIRY INTO THE [SIC] WHETHER JUROR NUMBER 14 WAS SLEEPING DURING THE COURT'S INSTRUCTION AS TO THE SUBSTANTIVE LAW REQUIRES A REVERSAL OF DEFENDANT'S CONVICTIONS OR, IN THE ALTERNATIVE, A REMAND FOR AN EVIDENTIARY HEARING.
Defendant claims that immediately after the trial judge completed his final charge to the jury, defense counsel brought to the judge's attention that juror fourteen, who ended up being one of the deliberating jurors, was visibly sleeping during the trial court's final charge to the jury. Defendant argues the trial judge committed reversible error by failing to ask juror fourteen whether he was in fact sleeping during this "critical point of the trial."
The State argues we should uphold the jury's verdict because the trial court promptly addressed defense counsel's allegations concerning juror fourteen and independently determined there was no basis to remove the juror. After conducting our own review of the record of this particular incident and mindful of our deferential standard of review of a trial judge's exercise of discretionary authority, we are satisfied the trial judge properly responded to defense counsel's concerns with respect to juror fourteen.
The discrete issue raised by defendant in this appeal does not require us to recite at length the evidence presented by the State to support the jury's verdict. Suffice it to say that at approximately two o'clock in the morning of August 22, 2010, the Asbury Park Police Department received a telephone call reporting a fight in a bar. The uniformed police officers who responded to the call saw approximately thirty people involved in a physical altercation on the corner of the street in front of the bar.
One of the police officers asked defendant's brother to leave the area. When he allegedly refused, the officer attempted to arrest him and place him in handcuffs. Defendant's brother allegedly pushed the officer's arm away in an attempt to evade being placed in handcuffs. Another police officer indicated he saw a woman, subsequently identified as defendant's brother's fiancée, place her hand on the arresting officer. She was allegedly told to leave the area. When she refused, she was also arrested.
Asbury Park Police Officer Fil James Lao testified that at this point, defendant grabbed the hand of the police officer who was arresting his brother's fiancée "and tried to prevent [him] from putting the handcuffs on." Officer Lao testified that he "advised [defendant] that, you know -- at first I warned him to step back at that time. He didn't listen, so I advised him . . . he was under arrest for obstruction." According to Officer Lao, defendant did not comply. Instead, "[h]e turned around, pushed me, punched me in the chest and at this time we were, I was trying to get his hand to place the handcuffs and he just grabbed me along the waist and slammed me into the ground."
The trial was conducted over four days and included the testimony of numerous other witnesses, including defense witnesses who disputed Officer Lao's testimony and offered the jury a different version of the events that led to defendant's arrest. However, assuming the jury accepted as credible this particular part of Officer Lao's testimony, this evidence is sufficient to support the jury's verdict. To be clear, we are not describing the evidence presented at trial in more detail because of the limited legal basis of defendant's appeal, to wit, the alleged conduct of a single juror immediately before the jury began deliberating.
We will now recite the facts related to defendant's appeal. The following colloquy occurred after the trial judge concluded his final legal instructions to the jury:
[DEFENSE COUNSEL]: Your Honor, I apologize. I do have one more issue. I promise this is it.
THE COURT: Sure.
. . . .
[DEFENSE COUNSEL]: I just wanted to make a record that I did notice juror number [fourteen] sleeping again during the substantive charge.
THE COURT: He's been having his eyes closed on and off throughout the trial. He's just -- sometimes people -- he goes in and out, but seems to be paying attention. He opens his eyes. It's not that he's been continuously asleep. Some people close their eyes to pay better attention, especially during my charge. So your observation is noted. It doesn't appear that he's unable to continue to serve.
[DEFENSE COUNSEL]: Okay. Thank you.
[PROSECUTOR]: Thank you.
Within ten days after the jury's verdict, defendant filed a motion pursuant to Rule 3:20-1 arguing a new trial was "required in the interest of justice" because the jury's verdict was internally inconsistent and juror fourteen was "sleeping" during the time the court gave its final charge to the jury. The trial court heard oral argument on the motion on the day scheduled for sentencing. At that time, defense counsel emphasized that she had brought the problem of juror fourteen "dozing off" to the court's attention
See Rule 3:20-2.
at an earlier portion in the trial, but the final charge is the most critical point of the trial and it was evident that the juror was not just listening with his eyes closed. I recall very audible snoring so clearly he was asleep and not paying attention to your Honor's charge and that's directly in line with the facts of State v. Reevey[,] [159 N.J. Super. 130 (App. Div.), certif. denied, 79 N.J. 471 (1978)] where the judge found that it was reversible error not to, at a minimum, question the juror about whether they were sleeping and if that was the case to excuse them prior to selecting the alternates.
[(Emphasis added).]
After addressing the part of defendant's motion predicated on an alleged inconsistency in the jury's verdict, defense counsel returned to the conduct of juror fourteen. Counsel argued "it would have been prudent to question that juror" as soon as the trial judge became aware of the possibility that a juror was "sleeping." (Emphasis added).
In response, the trial judge noted that at the time defense counsel raised the issue, she did not request the court to take the "prudent" course of action she was now advocating. The trial judge also noted defense counsel did not make an application at the time to remove juror fourteen and substitute him with one of the alternates. With respect to defense counsel's statement indicating she heard "audible snoring" coming from juror fourteen, the judge indicated "that certainly there was no at least audible snoring that I heard, and it's my responsibility." Finally, the judge noted the jurors had his "written instructions" with them during deliberations. "[W]hatever I told them orally, they had the written instructions in the jury room on the elements of the crime."
In this light, the trial judge asked defense counsel whether having the written instructions with them in the jury room during deliberations cured any problems associated with a "lack of attention" by any particular juror during the time the judge was giving the same instructions orally. Defense counsel argued that, in her judgment, having the written charge with them during deliberations did not "cure" the problem because "[the jury] sent out questions that had to do with the charge that they had in front of them."
Defendant does not argue that the trial judge failed to respond appropriately to the jury's questions.
--------
Under these circumstances, we review the trial judge's ruling and ultimate determination under an abuse of discretion standard. State v. R.D., 169 N.J. 551, 559 (2001). The Supreme Court has defined "abuse of discretion" as a decision that is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis[.]" State in Interest of A.B., 219 N.J. 542, 554-55 (2014) (citation omitted). Based on the circumstances we have described, we conclude the trial judge did not abuse his discretion in the manner in which he managed this issue.
However, we do agree with defense counsel in one respect. It would have been prudent for the judge to have questioned juror fourteen to determine definitively whether he had any problems concentrating and whether there was anything that interfered with his ability to understand and apply the legal principles the court had just read to the jury. Having said this, it also would have been prudent for defense counsel to have advocated such an approach at the time she raised this concern to the trial judge. Indeed, all involved in this trial, including the State, had a responsibility to take the steps necessary to ensure the trial was fair and the jurors had the mental and physical capabilities to assess the evidence and apply the legal principles as instructed by the court. See Panko v. Flintkote Co., 7 N.J. 55, 61 (1951).
Finally, defendant's reliance on our holding in Reevey is misplaced. As is the case here, before the jury began deliberating in Reevey, the defense counsel brought to the trial judge's attention at side bar the fact that "during my summation, during [the prosecutor]'s . . . and during your charge, juror number one was dozing, nodding and sleeping. I would suggest that she be one of the alternates." Reevey, supra, 159 N.J. Super. at 133 (emphasis added). Unlike the specific findings the trial judge made here, the judge in Reevey did not make any findings because he incorrectly believed "he could not dismiss that juror because he believed he did not have the authority to do so." Ibid.
Under these circumstances, we noted that at a minimum "the trial judge should have conducted a hearing and questioned this juror as to whether she was in fact dozing or sleeping, or whether she was listening to the summations and the charges but merely had her eyes closed." Id. at 134. We were thus compelled to remand the matter for the trial judge "to conduct a hearing concerning the allegation that [the] juror . . . was sleeping during all or part of the summations and charge." Ibid.
By contrast, here, the trial judge made specific findings about juror fourteen's demeanor throughout the trial that were supported by his personal observations. Most importantly, defense counsel accepted the trial judge's explanation for his ruling at the time she raised the issue to the court, and did not seek to have juror fourteen replaced. The action taken by the trial judge here is more akin to what occurred in State v. Scherzer, 301 N.J. Super. 363 (App. Div.), certif. denied, 151 N.J. 466 (1997). In Scherzer, we affirmed and commended the trial judge's response to the defense counsel's comment about a "sleeping juror." Id. at 491. We noted with approval that the judge "made several suggestions as to possible corrective action, but defense counsel requested that nothing be done." Ibid.
Rule 1:8-8(b)(2) requires the trial judge to submit "two or more copies of its final instructions to the jury for the jury's use in the jury room during deliberations[,]" unless the judge finds "that preparation of written instructions will cause undue delay in the trial." Here, the trial judge suggested that any potential problem resulting from juror fourteen's alleged inattention during the time the judge was reading the charge to the jury was cured or counteracted by the fact that the jurors had with them copies of these same legal instructions during deliberations. We disagree. Although Rule 1:8-8(b)(2) directs trial judges to strive to make these legal instructions available to the jury during deliberations, jurors are required and expected to pay close attention to all phases of a trial, including closely listening to the trial judge's instructions on the law when those instructions are given orally by the judge in open court.
Finally, we also draw a different inference than the one drawn by defense counsel from the jury's questions about the law during deliberations. Where counsel sees confusion caused by inattention, we infer a jury hard at work, carefully and thoughtfully striving to understand the legal principles they were asked to apply to the facts as they found them to be.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION