Opinion
DOCKET NO. A-4559-11T2
05-28-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANIL NAYEE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the briefs). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, 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NOT FOR PUBLICATION WITHOUT THE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 Alvarez and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-01-0032.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the briefs).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from the trial court's January 23, 2012, order denying his petition for post-conviction relief (PCR). A jury found defendant guilty of first-degree murder, and the court sentenced him to a fifty-year term. Defendant's principal contention in support of his petition is that his trial counsel was ineffective by failing to ask the trial judge to voir dire the already-sworn jury, after the court received evidence of misconduct by one of the selected jurors. PCR counsel did not request an evidentiary hearing, and none was conducted. Having reviewed defendant's arguments in light of the record and governing principles of law, we affirm.
I.
Before addressing the facts surrounding the juror's misconduct, we briefly review the underlying facts, which we reviewed in detail in our opinion affirming the conviction on direct appeal. State v. Nayee, No. A-5060-04 (App. Div. July 5, 2007) (Nayee I), rev'd & remanded, 192 N.J. 475 (2007).
The Supreme Court remanded solely as to whether the trial court appropriately considered defendant's mental illness as a mitigating factor under N.J.S.A. 2C:44-1(b)(4). On remand, the trial court reconsidered, but did not alter defendant's fifty-year sentence. We subsequently affirmed the sentence. State v. Nayee, No. A-5755-07 (App. Div. Oct. 19, 2009) (Nayee II), certif. denied, 201 N.J. 156 (2010).
Defendant killed his ex-girlfriend, Ann Mendez, by stabbing her to death on October 11, 2001. At his trial in 2004, defendant presented expert testimony in support of an insanity defense, N.J.S.A. 2C:4-1, and a claim of diminished capacity, N.J.S.A. 2C:4-2. Counsel did not contest that defendant caused the victim's death.
Defendant and the victim had been in a dating relationship for about six months. They met while attending Rutgers University in Newark. Eventually, the relationship faltered. The jury heard evidence from which they could surmise that defendant had once assaulted Mendez while they were seeing each other, and he obsessed over her.
Mendez began a relationship with another man, whom she met in Spring 2001. Nonetheless, two or three months before the homicide, defendant told Mendez's mother that he wanted to marry Mendez, although Mendez told him they could only be friends. Defendant was observed following Mendez on a shopping trip with her mother.
Defendant was seen engaging in arguments with Mendez before and after a class on October 11, 2001. During the class, he stood outside, peering in. Mendez's new boyfriend tried to reach her that evening by phone and ultimately spoke to a person on Mendez's cellphone who identified himself as Mendez's ex-boyfriend and informed him that Mendez was dead.
The next day, with the assistance of an attorney, defendant surrendered to police in a parking lot. Defendant had dried blood on his body and clothes. Mendez's body was in defendant's car. She died as a result of a stab wound to the neck. Her hands and left arm were also sliced. On the day of the homicide, defendant had purchased the utility knife he used to stab Mendez.
On October 16, 2001, defendant was hospitalized in a psychiatric facility with claims of delusions. He was diagnosed as suffering from depression with psychotic features. One doctor opined that defendant was suffering from severe mental illness the day of the homicide, and was probably psychotic. The jury heard testimony from treating physicians at Ann Klein Forensic Center, where defendant was involuntarily committed, and received various psychotropic medications. A defense psychiatric expert opined that defendant was delusional at the time of the homicide, responded to command hallucinations, and could not form the purpose to kill. Defendant did not testify. The State presented experts who countered that defendant was malingering after his arrest, and that he acted purposefully when he killed Mendez. The State also argued in closing that defendant's prior assault of Mendez, and his advance purchase of the knife reflected purposefulness.
The jury found defendant guilty. We affirmed the conviction, rejecting defendant's various challenges to the jury instructions, and his argument that he was denied a fair trial and effective assistance of counsel because he appeared at trial in prison garb. Nayee I, supra, slip op. at 8-24.
On August 19, 2011, defendant, through counsel, filed the PCR petition that is the subject of this appeal. Defendant incorporated a pro se petition that he filed in 2008. The court had dismissed the 2008 petition without prejudice in March 2009, because defendant's sentencing appeal was then pending. Defendant raised numerous issues in his pro se petition. However, the principal issue raised before the PCR court and now presented to us on appeal, pertains to the juror issue.
Defendant filed a second petition in December 2009, which was held without action while the petition for certification was pending in Nayee II. After counsel was assigned, the amended petition was filed in August 2011. The State does not contest the timeliness of defendant's petition.
Defendant's other points in his pro se PCR petition were:
A. The Cumulative Egregious Shortcomings Of Trial Counsel Deprived Defendant Of His Sixth And Fourteenth Amendment Constitutional Rights To Due Process Of Law And A Fair Trial.
B. Defendant is Entitled To Postconviction Relief Because He Was Denied Effective Assistance Of Counsel On His Direct Appeal By Virtue Of His Appellate Counsel's Failure To Mount And Argue The Issues Raised Herein, Before The Appellate Division On Direct Appeal.
C. Defendant Is Entitled To Postconviction relief Because The trial court's failure to instruct the jury on Specific Intent, deprived defendant of his constitutional right to due process of law and a fair trial.
D. Defendant is Entitled To Postconviction Relief Because The trial court's failure to adequately voir dire the entire panel concerning injected bias against defendant by one of the empanelled jurors, deprived defendant of his constitutional right to trial by jury.
E. The Defendant Is Entitled To Postconviction relief Because, The Trial court's failure to adequately instruct the jury concerning false in one false in all deprived defendant of his constitutional right to due process of law and a fundamentally fair trial.
F. Defendant is entitled to post-conviction relief because over his objection, the State was allowed to introduce inadmissible hearsay statements concerning the dece[]dent's state of mind about her fear of defendant.
G. Defendant is entitled to post-conviction relief because in violation of Rule 404(b) other alleged bad acts [were] introduced into evidence against defendant.
In defendant's pro se brief on appeal, he asserts his trial attorney failed to advise him of a plea offer. Before the PCR court, PCR counsel argued that trial counsel failed to advise defendant of the consequences of rejecting a plea offer, although that issue was not presented in defendant's pro se or supplemental petitions that are included in our record. We address the plea offer issue below.
Jury selection was conducted on Wednesday, September 15, 2004. The court explained to prospective jurors that defendant was charged with murder. The court questioned all prospective jurors regarding their opinions about the insanity defense, mental health, and psychiatry. Multiple times during jury selection, the judge advised prospective jurors not to discuss the case among themselves or with others.
Jury selection continued until the late afternoon. Defense counsel had exercised twelve peremptory challenges. The last juror seated was E.R. He provided brief biographical information, and stated he had no positive answers to the multiple questions designed to detect bias, an inability to be fair and impartial, or strong attitudes about mental illness and the insanity defense. Both sides declared the jury was satisfactory. Following a brief recess, the jury was sworn and the judge delivered the standard instructions. The jury was then released until the following Tuesday afternoon.
We use initials to protect the jurors' privacy.
Sometime before the resumption of trial, the trial judge received a telephone call from a member of the full array, Ms. G., who was not selected as a juror. Ms. G. reportedly told the judge that she overheard E.R. speaking on his cellphone on the previous Wednesday. According to Ms. G., as the judge restated on the record, E.R. said "to the effect of if the prosecution does what it's supposed to do, then it's a slam-dunk case." The court did not speak to Ms. G. on the record or in the presence of counsel. So, Ms. G.'s precise statement and when it was received was not preserved. The judge apparently informed counsel of her conversation with Ms. G., although she apparently did so off the record as well. The judge then interviewed E.R., again without counsel present, but on the record.
Although not raised by defendant, we note the court's failure to conduct all interviews on the record, and in the presence of counsel, was error. See State v. R.D., 169 N.J. 551, 558 (2001) ("The court is obliged to interrogate the juror, in the presence of counsel, to determine if there is a taint . . . . " (emphasis added)); State v. Lomax, 311 N.J. Super. 48, 52 (App. Div. 1998). Defendant's right to be present was also implicated. Ibid.; R. 1:8-6(g) (stating that jury selection shall generally be conducted in open court). In State v. W.A., 184 N.J. 45, 60 (2005), decided a year after defendant's trial, the Court recognized a defendant's right to be present at sidebar conferences with prospective jurors. However, this case involved an interview not with a prospective juror, but a sworn juror. If anything, counsel's and defendant's right to be present was even more substantial. Cf. State v. Allah, 170 N.J. 269, 279-80 (2002) (stating once the jury is impanelled and sworn, jeopardy attaches).
E.R. admitted that he discussed the case with another person on the previous Wednesday, but denied he made the statement as Ms. G. described. He claimed he said, "[I]f the prosecution proofs [sic] its case then . . . you know, he'll be found guilty. I said it's up to the prosecution to prove it and the defense to disprove it. That's what a jury trial is." E.R. claimed he made the call outside the courthouse during the middle part of the afternoon — which would have been before the jury was sworn. E.R. insisted that he had not reached any conclusions about the case. The judge did not ask E.R. if he spoke to the other jurors about his views. Nor did the judge inquire whether he observed other prospective jurors nearby when he had the overheard conversation. The judge segregated him from the other jurors and directed him not to speak to them in the future.
The judge then brought the attorneys into chambers. Defense counsel requested that E.R. be excused (defense counsel apparently was previously informed, off-the-record, of Ms. G.'s allegations). The prosecutor asked for a summary of what E.R. said in his interview with the judge. The court then asked the reporter to read back E.R.'s statement. We quote the colloquy in full:
THE COURT: [E.R.], please have a seat.
I needed to bring you in here because I got a report last week. We adjourned last Wednesday and apparently an individual who is not on the panel selected as the jury in this case but was in the general audience had occasion to overhear a conversation that you had on a cell phone downstairs I guess before — either before you came up and got sworn in or before you left for the day, and I don't know if you recall the contents of that phone call —
JUROR [E.R.]: No.
THE COURT: — or making a phone call, but I will tell you that she claims she overheard you indicate something to the effect of if the prosecution does what it's supposed to do, then it's a slam-dunk case.
Is that possibly something that you could have said?
JUROR [E.R.]: No. What I would have said and what I believe I said, if the prosecution proves its case —
THE COURT: If the prosecution —
JUROR [E.R.]: Yeah. If the prosecution proofs [sic] its case then —
THE COURT: Okay.
JUROR [E.R.]: — you know, he'll be found guilty. I said it's up to the prosecution to prove it and the defense to disprove it. That's what a jury trial is.
THE COURT: Do you recall where you were specifically within the jury assembly area when you made the phone call?
JUROR [E.R.]: I wasn't in the building. It was outside of the building.
THE COURT: Okay. It was outside of the building?
JUROR [E.R.]: It was outside of the building.
THE COURT: And was it after we had recessed for the day, you were on your way home, or was it during the recess after you went downstairs?
JUROR [E.R.]: I do not remember. I don't believe it was — if it was the end of the day. What time was the recess? That will —
THE COURT: Late afternoon, but I don't recall.
JUROR [E.R.]: After three?
THE COURT: It was probably around three.
JUROR [E.R.]: No. Then it wasn't the latter part. It was during the middle part.
THE COURT: Okay. Have you in your own mind reached any conclusions, come to any judgments with respect to this case whatsoever one way or the other?
JUROR [E.R.]: No. It's strictly a matter — as a matter of fact, I had a discussion about serving on the jury with my family and I explained to them inasmuch as I might have a personal reason where I don't want to because of a job that's irrelevant. There are people overseas who are being killed to protect our way of life. The least I could do is do this which is part of what I'm supposed to do as a citizen.
Any comment that I made was either misinterpreted, might have been. I understand your feelings, you have to — the law is the law as you had stated, but, as far as I'm concerned, I find the whole process fascinating. It's something that I always wanted to do, never quite had the ability in terms of financial or any otherwise to be able to do this. It's very simple.
THE COURT: All right. I'm going to ask you, number one, not to speak about this in-chambers conference with anyone at this point —
JUROR [E.R.]: Absolutely not.
THE COURT: — and I'm going to ask you — I'm going to have you put in another room because I have to discuss the matter with the attorneys, but I'm going to ask you to just stay in that room and we'll be back to you shortly.
Okay. Thank you.
JUROR [E.R.]: Which room?
THE COURT: The sheriff's officer will direct you.
Thanks [E.R.].
JUROR [E.R.]: You're very welcome.
The judge declined to find whether or not E.R.'s version of his telephone conversation was credible. Over the State's objection, the court decided to excuse E.R. "[I]n the interest of making sure that we do have a panel that has not come to any conclusions, drawn any inferences under the circumstances, I am going to dismiss the juror for cause . . . ." Defense counsel did not request a voir dire of the remaining jurors.
The judge and counsel returned to the courtroom, and the judge advised the panel that "[w]e will be proceeding with a jury panel of 13, ladies and gentlemen." Counsel then gave opening statements, and the trial proceeded.
Before the PCR court, counsel argued that trial counsel was ineffective by failing to request that the judge question the remaining members of the jury to determine whether they also overheard E.R., or if E.R. had shared his views at some other time. Counsel also argued that appellate counsel was ineffective by failing to raise the issue on appeal. PCR counsel conceded that an evidentiary hearing was not necessary to decide the petition — apparently viewing the record as sufficient to establish ineffective assistance of trial and appellate counsel.
The PCR court denied the petition. The judge applied the well-settled, two-prong test for determining ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).
The court held that plaintiff had failed to satisfy the first Strickland prong. In any event, the court held no prejudice was demonstrated since there was no showing that other jurors were aware of E.R.'s comments. The PCR judge found, "[T]he individual that alerted the [c]ourt of this issue, did not assert that [E.R.] had revealed any prejudice against the defendant nor did the individual assert that [E.R.] had spoken to other jurors about his thoughts . . . ." The PCR court also concluded that E.R. made his comments before the jury heard openings or evidence, implying that E.R.'s comments could not be construed as premature deliberations on the evidence. The PCR court held that E.R. "merely asserted the legal standard for convicting the defendant as he knew it" and "at no point did [E.R.] assert any bias for either side." The judge concluded that "[E.R.] . . . had not stated anything that could cause actual harm to the defendant's case," and "the juror had not exposed his views to any of the other members of the jury." Distinguishing State v. Loftin, 191 N.J. 172 (2007), the court noted that E.R. was promptly removed from the jury, and did not express racial bias.
On appeal, defendant through counsel presents the following point for our consideration:
POINT ONE
DEFENDANT SHOULD BE GRANTED AN EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST THAT THE COURT VOIR DIRE THE ENTIRE JURY PANEL TO DETERMINE IF THEY HAD BEEN INFLUENCED BY JUROR [E.R.]'S COMMENTS REGARDING DEFENDANT'S CASE.
In a separate pro se submission, defendant argues the following:
POINT I
THE RULE OF STATE V. PRECIOSE[ ,] 129 N.J. 451 (1992) REMAINS AND SHOULD REMAIN THE LAW
ON THE NEED FOR EVIDENTIARY HEARINGS WHEN A
DEFENDANT CREATE[S] A PRIMA FACIE CASE OF
INEFFECTIVE ASSISTANCE OF COUNSEL INVOLVING PLEA ISSUE TO RESOLVE PCR COUNSEL'S CONFLICTING ACCOUNTS OF WHETHER A PLEA OFFER WAS MADE PRIOR TO DEFENDANT GOING TO TRIAL, SUCH A HEARING IS REQUIRED IN THIS CASE.
POINT II
POST-CONVICTION RELIEF COUNSEL FAILED TO ADVANCE LEGITIMATE ARGUMENTS AND ALL ISSUES RAISED BY THE DEFENDANT IN HIS PRO SE BRIEF IN VIOLATION OF N.J. COURT RULE 3:22-6(d) DEPRIVING DEFENDANT OF A FULL AND FAIR HEARING.
II.
Defendant renews his argument that trial counsel was ineffective by failing to ask the trial judge to question the sworn jurors to determine whether they were tainted by E.R.'s remarks.
We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id. at 421. The trial court's credibility determinations, to which we normally defer, are not implicated. See ibid.
We are guided by fundamental principles regarding juror misconduct. "A defendant's right to be tried before an impartial jury is one of the most basic guarantees of a fair trial." Loftin, supra, 191 N.J. at 187. "The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants 'the right to . . . trial by an impartial jury.'" R.D., supra, 169 N.J. at 557 (quoting U.S. Const. amends VI, XIV; N.J. Const. art. I, ¶ 10). "That constitutional privilege includes the right to have the jury decide the case based solely on the evidence presented at trial, free from the taint of outside influences and extraneous matters." Ibid.
The court has an independent duty to determine whether a juror or jurors have been tainted, to remove tainted jurors, and then determine whether the trial may proceed with the remaining jurors, or a mistrial is warranted. Id. at 558-61. R.D. addressed taint resulting from extraneous information, calling into question a defendant's right to be judged based on evidence received in open court and not from outside sources. Id. at 557 (citing State v. Bey, 112 N.J. 45, 75 (1988)). The juror in that case was a nurse who had treated the alleged victim's grandmother, had "overheard things," and formed an opinion about the case. Id. at 555-56. Bey, supra, involved detailed and prejudicial newspaper articles about the defendant, and his prior convictions. 112 N.J. at 56, 79-81.
In State v. Wormley, 305 N.J. Super. 57, 68 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998), a juror disclosed in the middle of the first day of trial that she was familiar with witnesses and had gained knowledge of facts relevant to the trial. The juror denied she shared her knowledge with others, and the court excused her. Id. at 69. Nonetheless, we found plain error because the court did not voir dire the remaining jurors. Ibid. Under those circumstances, we concluded "there was a strong likelihood that, even indirectly or unintentionally," the juror may have conveyed her knowledge to other jurors. Id. at 70.
However, taint may result, as alleged here, from a juror's biases or preconceptions that deny a defendant his right to an impartial jury. "So important is the quality of impartiality in the trial of criminal prosecutions that jurors who have formed an opinion as to the guilt or innocence of the defendant must be excused." State v. Williams, 93 N.J. 39, 61 (1983). Racial prejudice is particularly troublesome. "[A]n allegation that a juror is racially biased strikes at the very heart of the defendant's right to a trial by an impartial jury." State v. Phillips, 322 N.J. Super. 429, 442 (App. Div. 1999). If a biased juror conveys his or her views to fellow jurors, that extraneous information may undermine the other jurors' impartiality. See State v. Tyler, 176 N.J. 171, 176-77, 183 (2003) (allowing juror who expressed racial bias to remain on the jury for a day as a sanction before being excused created a presumption of prejudice).
Upon receiving evidence that a juror may be tainted — by extraneous information or intrinsic bias — the court is obliged to inquire, initially of the allegedly tainted juror, to determine if that juror or other jurors have been tainted. R.D., supra, 169 N.J. at 558. Whether the trial court's inquiry requires questioning of the entire jury panel is left to the trial court's sound discretion. The Court expressly rejected a per se rule that required inquiry of all remaining jurors. Id. at 561. "Although the court should not simply accept the juror's word that no extraneous information was imparted to the others, the court's own thorough inquiry of the juror should answer the question whether additional voir dire is necessary to assure that impermissible tainting of the other jurors did not occur." Ibid.
A court may decide that inquiring of other jurors could cause harm, by conveying inappropriate information. Ibid. The broader inquiry also depends on a finding that "there is a realistic possibility that information with the capacity to prejudice defendant's right to a fair trial may have reached members of [the] jury." Bey, supra, 112 N.J. at 86. Generally, any questioning of the jury panel should be conducted individually, and in camera, to assure frank and uninhibited responses, and to avoid spreading taint from one juror to the others. Id. at 86-89.
Whether a new trial is compelled is also a discretionary decision.
A new trial, however, is not necessary in every instance where it appears an individual juror has been exposed to outside influence. See Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 946, 71 L. Ed. 2d 78, 86 (1982) ("[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation . . . . [I]t is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote."). Ultimately, the trial court is in the best position to determine whether the jury has been tainted. That determination requires the trial court to consider the gravity of the extraneous information in relation to the case, the demeanor and credibility of the juror or jurors who were exposed to the extraneous information, and the overall impact of the matter on the fairness of the proceedings.The new trial decision requires a showing not of actual prejudice, but the capacity of the irregular matter to influence the result of the trial. Id. at 558 (citing Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)).
[R.D., supra, 169 N.J. at 559.]
With these principles in mind, we turn to the PCR court's review of the trial court's inquiry. We part company with the PCR court's characterization of E.R.'s comments. Particularly given the sparseness of the record (resulting from the trial judge's limited questioning), and the trial judge's failure to make credibility findings, the PCR court had no basis to credit E.R.'s version of what he said, as opposed to what Ms. G. claimed. In our view, E.R.'s reference, as reported by Ms. G., to what the prosecution "is supposed to do," displayed a potential bias in favor of the prosecution. E.R.'s view that the case could be a "slam-dunk," reflected a pre-conception about the likely nature and complexity of the case, if not about defendant's guilt.
Even if E.R.'s statement were as he claimed, he expressed a serious misunderstanding of the law. Stating "it's up to the prosecution to prove it and the defense to disprove it," he erroneously attributed a burden to defendant. Moreover, by discussing the case with another person in the midst of jury selection, E.R. clearly violated the trial judge's repeated admonition not to do so.
"[A]ll doubts about a juror's integrity or ability to be fair should be resolved in favor of removing the juror from the panel." See Loftin, supra, 191 N.J. at 187. The trial court did not affirmatively find that E.R. was telling the truth about what he said. The court also did not correct the juror regarding the burden, and find that the juror was capable of following the law on that point. Given the state of the record, it was appropriate to excuse E.R.
The PCR court emphasized that there was no evidence that E.R. shared his opinions with any of the sworn jurors. However, there also was no evidence that E.R. did not. The record is unclear because the trial judge did not ask E.R. whether he had done so. There is no evidence the judge asked Ms. G. if other members of the jury array were nearby; and the judge did not ask the impanelled jurors themselves whether E.R. spoke to them, or if they overheard him.
Although the trial judge's inquiry should have been more probing, and a voir dire of the whole panel would have been preferred, we are not satisfied that voir dire of the entire panel was required, nor that a new trial would have been warranted in the absence of such an inquiry. We reach that conclusion based on the nature of E.R.'s remarks, and the court's swift action in removing E.R.
Even assuming E.R.'s remarks were as Ms. G. reported, they did not have the toxicity of racially biased comments, as in Loftin, Tyler, or Phillips. In Loftin, supra, a juror expressed bias against African-Americans in a case involving an African-American defendant, and expressed a premature conclusion, after four days of trial, that defendant was guilty. 191 N.J. at 183-84. The juror was quoted as saying he was going to buy a rope with which to hang the defendant. Id. at 184. Nor did E.R.'s remarks reflect knowledge of extraneous information or facts, such as those imparted by newspaper reports or other outside sources, as in Bey, or by the personal knowledge of a juror, as in R.D. We recognize that it may be difficult for jurors to ignore such information, once imparted.
The risks of taint were also reduced by the trial judge's swift decision to remove E.R. and direct him to have no further contact with other jurors. That fact also distinguishes this case from those in which a biased juror remains on the panel, presenting a greater risk of infecting the jury. Cf. Loftin, supra, 191 N.J. at 185 (juror remained on the panel for duration of the trial before being designated an alternate); Tyler, supra, 176 N.J. at 179 (juror made to remain on the panel for a day as punishment); Wormley, supra, 305 N.J. Super. at 68 (juror remained on the panel through openings and the testimony of the first witness).
We recognize that E.R. expressed a potential bias in favor of the prosecution — referring to what the prosecutor was "supposed to do" — and a premature assessment of how simple and easy the case would be — a possible "slam-dunk." However, even if overheard, we do not view these remarks as bearing the potential to taint the impanelled jurors. Those jurors had already been thoroughly questioned. Counsel and the court were satisfied they were capable of being fair and impartial.
In many respects, E.R.'s comments were not unlike those expressed during voir dire by other jurors who were excused for cause. Not every remark in open court, which may prompt an individual juror to be excused, presumptively taints the remaining jurors who overhear it, requiring questioning and other remedial measures. R.D., supra, 169 N.J. at 559. A prospective juror may say in open court that he is likely to believe police officers more than others; or a juror may express the view that a defendant is likely to have done something illegal because he was indicted. Moreover, just because a judge may call a juror to sidebar to continue a discussion of the juror's experiences or view, does not preclude the possibility that the juror shared those views or experiences with a fellow member of the array. Our case law does not require immediate questioning to determine if the mere mention of those views has tainted the others. We presume, based upon the jurors' own responses to questioning, and the court's general instructions, that the remaining jurors are unaffected.
In this case, among the comments made in open court before being excused, one juror stated he could not be fair, and another stated that "nobody is guilty of anything". One juror opined that mental health professionals overmedicate their patients and it was an ongoing concern for her and her family. Another stated that her oldest daughter had been battling mental illness most of her life. Other jurors in the array expressed at sidebar a variety of strongly held biases, including views critical of the insanity defense and the criminal justice system.
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In this case, the jury received the model instruction after the jury was sworn, which occurred at the end of the day Wednesday, after E.R.'s overheard remarks. The court repeatedly instructed the jurors to make their determination of the facts "based solely upon the evidence submitted during the course of the trial." The judge also admonished the jury not to discuss the case with others, and instructed that it would be improper "for any outside influence to intrude upon your thinking." The court directed the jurors to keep an open mind until the end of the trial, to refrain from deliberating until then, and to exercise their duties "calmly and without bias, passion, prejudice or sympathy." These instructions were sufficient to overcome any reasonable possibility of taint from E.R.'s remarks, even if as Ms. G. described, and even if overheard by one or more impanelled jurors. We presume the jury followed the trial court's instructions. State v. Burris, 145 N.J. 509, 531 (1996).
As we conclude that the court was not obliged under the circumstances to voir dire the jury, we reject defendant's argument that defense counsel was ineffective in failing to request it. See State v. O'Neal, 190 N.J. 601, 619 (2007) (stating that "[i]t is not ineffective assistance of counsel . . . not to file a meritless motion"); State v. Chew, 179 N.J. 186, 215 (2004) (rejecting ineffective assistance claim where evidence did not support unrequested jury instruction).
We turn briefly to address an argument presented in defendant's pro se brief. Defendant apparently contends that his trial attorney was ineffective because he did not inform him of a plea offer under which, in return for a plea of guilty to murder, he would have received a thirty-year sentence, with a thirty-year period of parole ineligibility. We need not decide this claim as it was not raised in defendant's petition before the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (noting generally that appellate courts will decline to hear issues "not properly presented to the trial court" unless the questions on appeal address the trial court's jurisdiction, or concern matters of great public interest).
In any event, defendant does not clearly assert that he would have accepted such a plea offer had he known about it before trial. Therefore, we discern no showing of prejudice from any alleged ineffectiveness in conveying the offer. Moreover, acceptance of a plea offer would have required defendant to waive the insanity defense, and acknowledge that he had the state of mind to commit murder. However, in his sworn statements in support of PCR, defendant asserted he did not "fully understand what happened on the evening Ann Mendez died, although I did understand that I was the person who killed her." A defendant may not secure PCR based on a claim he would have accepted a plea offer, where the defendant's factual basis would entail perjury. State v. Taccetta, 200 N.J. 183, 194-96 (2009).
The remainder of defendant's arguments lack 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