Opinion
DOCKET NO. A-0892-10T3
09-03-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE R. PALACIOS-RODRIGUEZ Defendant-Appellant.
Peter Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief). Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Fasciale, and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-04-0711.
Peter Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief).
Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, of counsel and on the brief). PER CURIAM
Defendant Jose R. Palacios-Rodriguez appeals his conviction and sentence for first-degree attempted murder, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(2) (count three); and third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count four); and fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (count five). Defendant was acquitted of hindering prosecution, contrary to N.J.S.A. 2C:29-3(b) (count six). After appropriate mergers, the trial court imposed an aggregate sentence of fourteen years in prison with an eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for counts one though four, and a concurrent eighteen-month term on count five. We affirm the conviction and the sentence.
I.
The trial evidence established that on the afternoon of June 28, 2008, defendant, the victim (defendant's cousin) and two others were sitting in the living room of their home drinking beers when the victim grabbed defendant and threw him down on the sofa. One witness believed the men were "just playing around" and left them alone in the room. The victim pushed defendant down and told him that he was not a man. After a struggle, the victim let defendant up, but then defendant pursued the victim through the house stabbing the victim in the back and the chest.
Defendant left the house and walked to work. Later that evening, the police apprehended defendant outside of his workplace. When arrested, defendant provided the police with a false name. Officers transported defendant to the Ramsey Police Headquarters, where he was placed in a holding cell and subsequently fell asleep. Defendant later participated in a videotaped interview with Detectives James Brazofsky, Brian Huth and Luis Alvarez.
Prior to trial, defendant moved to suppress his confession, and the judge conducted a Miranda hearing. Brazofsky, Huth and Alvarez testified regarding the interrogation. Brazofsky testified that he and Huth brought defendant into an interview room at the Bergen County prosecutor's office. The interview was conducted in Spanish initially by Brazofsky, then later by Alvarez. Before questioning defendant, Brazofsky advised him that his consent was necessary and it was his option to discuss the incident. Brazofsky noticed that defendant's eyes appeared bloodshot and his speech was slurred, but stated that he took into account that defendant had recently been asleep. Brazofsky testified that he smelled an odor of alcohol on defendant's breath.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant admitted to the detectives that he was illiterate, but Brazofsky testified that defendant understood their conversation, and defendant informed him that he understood Spanish, but not English. Brazofsky presented defendant with a Miranda waiver form translated into Spanish. Brazofsky read each of the warnings aloud in Spanish and questioned whether defendant understood. Defendant initialed each paragraph and signed a written waiver. Huth later testified that although defendant appeared to have been drinking, he did understand Brazofsky's questions.
Brazofsky testified that he then began to question defendant about the incident, but called in Alvarez, a native Spanish speaker, to continue the interrogation. Alvarez testified that defendant was "calm, cooperative, attentive" and responded coherently during questioning. Defendant repeatedly informed Alvarez that as a result of his drinking, he could not remember what had occurred. However, defendant stated that the victim pushed him down and claimed that he was not a man. Defendant admitted to stabbing the victim two or three times with a knife. Alvarez testified that defendant detailed his placement of the knife during the altercation, its color, as well as the points of impact on the victim's body. Defendant also stood up from his chair in order to physically demonstrate how he stabbed the victim. Defendant informed the detective that after the stabbing, he left the house, threw the knife away and went to work.
The three-and-one-half-hour interrogation was videotaped. A transcript of defendant's interview and a portion of the videotape were provided to the court during the motion hearing and to the jury during the trial. The video shows defendant waiving his Miranda rights and confessing to the stabbing.
At the conclusion of the Miranda hearing, the judge denied defendant's motion. Defendant thereafter asserted intoxication as a defense to the attempted murder and aggravated assault charges. Nevertheless, the jury found defendant guilty of attempted murder, aggravated assault and the two related charges.
On appeal, defendant presents the following points for our consideration:
I. [DEFENDANT] WAS DEPRIVED OF HIS RIGHT TO A COLLECTIVE AND MUTUAL DELIBERATION OF THE JURORS, AND A NEW TRIAL SHOULD BE ORDERED. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS. 9, 10. (Not Raised Below).
A. Deliberations Did Not Realistically Begin Anew Where the Original Jury Had Deliberated for One and One-Half Days --
Requesting Play-Backs, Legal Instructions, and Information About the Result of a Deadlock -- and, with an Alternate, the Reconstituted Jury Returned a Verdict in Less Than Two Hours.II. [DEFENDANT'S] STATEMENT SHOULD BE SUPPRESSED BECAUSE IT WAS TAKEN IN VIOLATION OF MIRANDA, AND A NEW TRIAL SHOULD BE ORDERED. U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. I, PAR. 1.
B. The Mandatory Instruction That a Reconstituted Jury Must Deliberate Anew Was Negated When the Trial Court Immediately Questioned the Original Eleven Jurors About a Prior Play-Back Request and Invited the Foreperson's Response that Prior Deliberations Had Resolved the Issue.
A. [Defendant's] Miranda Waiver Was Not Knowing and Intelligent Where He was Misleadingly Told That He Could Remain Silent, But Then "Won't Have the Opportunity to Explain."
B. [Defendant's] Miranda Waiver Was Not Knowing and Intelligent Where He Was a Drunk, Exhausted and Illiterate Immigrant, Who Gave Confusing Responses to the Miranda Warnings.
C. [Defendant's] Miranda Waiver Was Not Knowing, Intelligent, or Voluntary Where, When Asked If He Understood His Right to Silence, His Last Answer Was "No," and He Seemed to be Trying to Remain Silent by Repeatedly Asserting, "I Don't Remember."
D. [Defendant's] Waiver Was Not Knowing, Intelligent, or Voluntary Due to the Collective Effects of the Misleading Miranda Warnings, [Defendant's] Inability to Understand the Warnings, and the Failure to Clarify His Ambiguous Responses.III. [DEFENDANT] WAS DEPRIVED OF A FAIR TRIAL WHERE HIS DEFENSE WAS INTOXICATION, AND THE PROSECUTOR ARGUED IN SUMMATION, WITHOUT SUPPORT IN THE RECORD AND OVER REPEATED OBJECTIONS, THAT [DEFENDANT] DRANK "OFTEN," AND THAT HABITUAL DRINKERS HAVE A HIGH TOLERANCE FOR ALCOHOL. U.S. CONST. AMEND XIV; N.J. CONST. ART I, PAR. 1.
E. The Admission of [Defendant's] Statement at Trial Was Not Harmless Beyond a Reasonable Doubt Where the Prosecutor Relied on It to Rebut the Intoxication Defense.
IV. [DEFENDANT] SHOULD BE RESENTENCED BECAUSE THE COURT FAILED TO ACKNOWLEDGE THAT THE CIRCUMSTANCES LEADING TO THE STABBING WERE UNLIKELY TO RECUR WHERE [DEFENDANT] HAD NO PRIOR RECORD AND HIS DEPORTATION WILL PREVENT HIM FROM REENTERING THE SAME PRESSURE-COOKER ENVIRONMENT. (Not Raised Below).
II.
We begin by addressing the Miranda issues raised in Point II. Defendant contends that his confession should have been suppressed on several theories, namely that he was illiterate and non-English speaking and therefore did not understand his Miranda rights; he was so intoxicated that he was incapable of knowingly and voluntarily waiving his Miranda rights during the police interview; and he was provided misleading and pressure-laden "speak-now-or-hold-your-peace" advice from the detectives. The State asserts that neither the language barrier nor defendant's intoxication prevented him from voluntarily and intelligently waiving his Miranda rights.
It is axiomatic that prior to any custodial interrogation, the police must advise the suspect of his or her Miranda rights. State v. Brown, 352 N.J. Super. 338, 351 (App. Div.) (citing Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706), certif. denied, 174 N.J. 544 (2002). A waiver of these rights must be voluntary, knowing, and intelligent. Ibid. "The State must prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne." State v. Knight, 183 N.J. 449, 462 (2005), certif. denied, 189 N.J. 426 (2007). A reviewing court must look at the totality of the circumstances, including such factors as "the characteristics of the defendant[,] the nature of the interrogation[,] . . . suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved." State v. Galloway, 133 N.J. 631, 654 (1993).
A.
We turn our attention to the dialogue on which defendant relies to assert that the detectives gave him misleading advice. In the opening minutes of the interview, Brazofsky informed defendant that his consent was needed for the interview:
Q: You need your response, if you want to talk to us, yes. Okay. And if it's possible, you can write "yes" and your initials? Do you know what are the initials of your name? The letters of your name, so that's Jose Rodriguez, J-R.
A: R?
Q: And the word, yes. If you don't want to talk and don't want to explain, say no and the interview is terminated, but you won't have the opportunity to explain what happened, okay. . . .
Number [one] says, "you have the right to remain silent and refuse to answer any questions." Do you understand? Yes or no?
A: Um-hmm.
[(Emphasis added).]
Defendant argues that this warning was false because if defendant had declined to explain the incident to the detectives at that time, he would have had many other opportunities in other settings, but that was not explained to him. Defendant contends that as in State v. Hartley, 103 N.J. 252 (1986), his rights were violated by these menacing words that conflicted with his right to remain silent.
The State distinguished Hartley, wherein the defendant asserted his right to remain silent, but the police failed to scrupulously honor it. Id. at 270-71. In that situation where the federal authorities were facing a time deadline, the police told the defendant "now is the time if you are going to make a statement," notwithstanding the defendant's earlier assertion of his right to remain silent. Id. at 306. Our Supreme Court deemed the defendant's subsequent statements inadmissible under the "totality of the circumstances" test. Id. at 268.
The conversation continued as follows:
Q: Yes or no? Yes? You have to say yes.
A: Yes.
Q: Out loud. Do you understand this?
A: Well, yes.
Q: Yes or no?
A: It says that what ever question – IA --
Q: Yes, do you understand this? Yes or no?
A: Well, yes.
Q: Yes?
A: Uh-huh.
Q: Okay, you need to say the words yes or no. And if you say no, I'll explain more. This says that you have the right to remain
silent and refuse to answer any question, do you understand?
A: Well, yes, because since I don't remember so well --
Q: Okay, but you understand this right? Yes or no?
A: Well, no, because since I don't know -- IA -- and we were all there together drinking and --
Q: Okay, yes, I understand that, before this, I need to explain to you your rights, this only says that you know your rights. If you understand this part, number one, that you have the right to remain silent, I need your response, yes, that you understand this or no and I'll explain more. Do you understand this part, that you have the right to remain silent, do you understand this?
A: No, well, no because I don't understand but I can tell you but I don't know.
Q: No, no. Sir, at this moment each person that I speak to, I need to explain their [c]onstitutional [r]ights, okay, every person has the option to speak to the police or no.
A: -- IA --
Q: In this moment, I want to speak with you.
A: Yes.
Q: But before I speak with you or speak to you, I need to explain your rights and this says that you don't need to talk to the police, it's your decision. Okay.
A: Well, no, put down yes.
Q: Okay, at this moment, do you want to talk to me? Yes?
A: Well, yes.
Q: Okay, so this says that you have the right to not talk to me.
A: Yes.
Q: That is a right that you have. If you want, at this moment, to talk to me and him, me and him, you have the right to change your mind and say no, okay. It's your decision. In this moment, do you want to talk to us? Yes or no? Say yes or no.
A: No, well, yes. -- IA --
Q: You want to talk to us?
A: Well, yes, I'll talk.
IA denotes "inaudible" in the transcript.
As noted, the motion judge viewed the videotape, and with regard to this portion of the interview, the judge stated:
I was very impressed with . . . the amount of time that was spent with this defendant by [Brazofsky] in terms of his going over the form with this defendant, the Miranda form, even to the point of explaining what a yes and no meant, even to the point of explaining to him the checklist, even to the point of explaining to him the ramifications of each question, which was explained in Spanish to this defendant. And I must say from looking at the video . . ., it appeared to me that no[t] only was the language communicated to [defendant] in a very correct manner -- there's nothing to indicate that [defendant] didn't understand the terminology that [was] being explained to him through the interpretation . . . .
In light of the judge's ruling, defendant's reliance on Hartley is misplaced. The situation in Hartley, supra, 103 N.J. 252, was much more coercive. There, the defendant had already invoked his right to remain silent and the federal agents pressured the defendant into speaking in violation of that invocation. Id. at 269. Here, Brazofsky's statement was not coercive and did not imply that defendant was required to respond. Defendant's characterization of this statement as "speak now or forever hold your peace" is exaggerated. Brazofsky fully explained the right to remain silent and did not pressure defendant into speaking. See State v. Johnson, 120 N.J. 263, 285 (1990) ("[P]olice officers must be accorded reasonable latitude to conduct an interrogation in a manner that permits a reluctant suspect to overcome the natural disinclination to confess to wrongdoing."); see also State v. Diaz-Bridges, 208 N.J. 544, 571 (2011) (finding that the statements "you gotta talk to us" and "talk to me . . . just tell me" did not imply that the defendant was required to respond as they were part of "an entirely permissible effort to persuade defendant" to get the "guilty knowledge of the crime off of his conscience").
There was no indication to defendant that this would be his final opportunity to speak. No such invocation was made by defendant as Brazofsky was merely explaining defendant's rights. Viewed in the context of the entire three-hour interview, this singular question is de minimus. Even if we were to consider the question to be demanding, defendant's claim fails to consider that police are not prohibited from attempting to persuade defendants to speak. Diaz-Bridges, supra, 208 N.J. at 571. In sum, we reject defendant's contention that the officer's question was misleading or threatening such that it violated his constitutional rights.
We have viewed the videotape of the police interview, and it substantiates the trial court's overall assessment.
--------
B.
Next, defendant contends that because he was intoxicated, he could not knowingly or voluntarily waive his rights. In assessing the voluntariness of an individual's waiver, a court must inquire as to "whether the suspect's will was overborne and whether the confession was the product of a rational intellect and a free will." State v. Burris, 145 N.J. 509, 534 (1996), rev'd, 298 N.J. Super. 505 (App. Div.), certif. denied, 152 N.J. 187 (1997). When inquiring as to whether a defendant waived his rights knowingly and intelligently, a court must examine whether a defendant waived his right "with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." State v. Reed, 133 N.J. 237, 270-71 (1993) (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410, 421 (1986)). "Only if the totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." Moran, supra, 475 U.S. at 421, 106 S. Ct. at 1141, 89 L. Ed. 2d at 421 (internal quotation marks omitted). Factors relevant to this determination include defendant's age, education, and prior encounters with law enforcement. Knight, supra, 183 N.J. at 462-63. A confession given when an individual is under the influence is not per se involuntary. See State v. Wade, 40 N.J. 27, 35, cert. denied, 375 U.S. 846, 84 S. Ct. 100, 11 L. Ed. 2d 73 (1963); see also State v. Warmbrun, 277 N.J. Super. 51, 64 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).
The voluntariness of a statement "is a legal question requiring an independent appellate determination." State v. Pillar, 359 N.J. Super. 249, 268 (App. Div.), certif. denied, 177 N.J. 572 (2003). However, "[w]e are obliged to defer to the trial judge's credibility determination to the extent that it was grounded in the court's opportunity to observe the character and demeanor of the witnesses, an opportunity that we appellate judges are not afforded." State v. Sheika, 337 N.J. Super. 228, 238-39 (App. Div.), certif. denied, 169 N.J. 609 (2001). Affirmation is proper when the findings are supported by substantial credible evidence in the record. State v. Locurto, 157 N.J. 463, 473 (1999).
In Warmbrun, supra, 277 N.J. Super. at 64, we considered whether a defendant was too intoxicated to make a knowing and intelligent waiver of his Miranda rights. In that case, a law enforcement officer observed that the defendant had difficulty standing, his breath smelled like alcohol, his eyes were bloodshot, and he was moving slowly. Id. at 56. The defendant failed several balance tests and an alphabet test. Id. at 55. An officer who observed the defendant's Miranda waiver noted that the defendant looked coherent but that his speech was slurred. Id. at 56. Lastly, defendant's blood sample revealed his blood alcohol content (BAC) was between .23 and .25. Ibid.
Although we acknowledged that testimony indicated that the defendant was very intoxicated, we emphasized that the record demonstrated that the defendant was "capable of communicating[,] . . . responsive in answering questions[,] and . . . [correctly] answer[ed] . . . questions such as his name, age, etc." Id. at 64. We, therefore, found that substantial credible evidence in the record supported a finding that the defendant knowingly and intelligently waived his Miranda rights. Ibid.
Likewise, in the case at bar, the trial court recognized that defendant exhibited some degree of intoxication, however, the court determined that defendant knowingly waived his rights. As evidenced by the Miranda hearing proceeding and the court's observation of the interview tape, defendant appeared to be under the continuing influence of alcohol yet was capable of communicating with the detectives and was responsive in answering questions. In addition, he signed the buccal-sample form and the foreign national documentation. Defendant volunteered particular details of the incident between him and the victim and demonstrated how the stabbing occurred. After the stabbing, defendant discarded the knife and walked to his workplace.
C.
We turn now to defendant's claim that because he was illiterate and non-English speaking his waiver was not knowingly made. Intelligence and literacy are factors in the waiver inquiry but are not dispositive. State v. Carpenter, 268 N.J. Super. 378, 385-86 (1993) (finding defendant knowingly and intelligently waived his privilege against self-incrimination under a totality of the circumstances even though defendant was illiterate and had a below average I.Q.), certif. denied, 135 N.J. 467 (1994). Defendant may be illiterate but Brazofsky orally reviewed each right with him, in Spanish, and ensured he understood those rights. There is no evidence in the record to support any claim that defendant's asserted lack of intelligence impaired his ability to comprehend and appreciate the Miranda warnings, or to knowingly and intelligently waive them. The judge observed that there were a number of times during the interview when defendant used the words "uh," "uh-huh," and "yeah" as he spoke. The judge concluded from his viewing of the videotape and voir dire with defendant that these hesitations in speech were indicative of defendant's manner of communicating and his demeanor, and not a lack of understanding.
In sum, although defendant was a native Spanish speaker and may have been intoxicated during the incident, the record does not reflect that his waiver, several hours later, was unintelligent or involuntary. Rather, the record before us indicates that defendant was aware of the consequences of his waiver and subsequent statements, and that defendant voluntarily made such statements. We therefore affirm the trial court's decision to admit defendant's custodial statements because substantial credible evidence supports the trial court's finding that defendant validly waived his Miranda rights.
III.
Defendant contends that the prosecutor improperly referred to his drinking issues in summation, implying that defendant was a habitual drinker who had a high tolerance for alcohol and could function normally when drunk. The prosecutor's summation provided, in part:
[PROSECUTOR]: So it's the degree of intoxication that we're talking about here. That is what you must consider. It's common sense, members of the jury, that every person's tolerance level for alcohol is different. People that drink a little or no alcohol have a very low threshold for alcohol so, hence, they get drunk easily. But people like the defendant who drink often have a higher threshold for alcohol and therefore require more and more and more --
[DEFENSE COUNSEL]: Objection Your Honor.
THE COURT: Sustained.
[PROSECUTOR]: -- to get -- here you know that the defendant has a higher tolerance level. I'll you why.
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
[PROSECUTOR]: The testimony -- defendant tells you that he drinks three beers -- it's his custom because it says it in his confession, three beers, after working a full day[,] comes home[] and . . . drinks three beers to go to sleep. Not only that, defendant, in his confession, says that he was going to work drunk that day. . . .
Q[:] "But you didn't know . . . that you did something bad?
A[:] Well, how could I not? Yes, I was drunk, I was drinking, I was very drunk of the mind."
Q[:] "But you were going to work, no?
A[:] Uh-huh."
Q[:] "You were going to work drinking?
A[:] Yes. Uh-huh."
Q[:] "Drunk?
A[:] Yes."
[PROSECUTOR]: Now, that tells you that the defendant was able to drink, go to work drunk and function fully, normally --
[DEFENSE COUNSEL]: Objection Your Honor.
[PROSECUTOR]: [A]nd complete --
THE COURT: Sustained.
[PROSECUTOR]: -- his everyday tasks.
THE COURT: It's not in the case.
Defendant notes that the court properly sustained four objections from defense counsel regarding these statements. Despite these objections, defendant claims that the court never ordered the jurors to disregard the comments. He argues that these remarks could not have failed to impact the jurors, thus depriving him of a fair trial. The State argues that there is ample evidence showing defendant drank frequently, and defense counsel opened the door for the prosecutor to discuss alcohol tolerance and the court's instructions ameliorated any harm.
"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). Before reversing a conviction on the basis of prosecutorial misconduct in summation, we must find that the conduct was so egregious that it deprived defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 457 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). "In determining whether prosecutorial misconduct is prejudicial and denied defendant a fair trial, [the courts] consider whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Ramseur, 106 N.J. 123, 322-23 (1987) (citing State v Bogen, 13 N.J. 137, 141-42, cert. denied, 346 U.S. 825, 74 S. Ct. 44, 98 L. Ed. 350 (1953)). A reviewing court must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 ( 1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Accordingly, "prompt and effective" instructions have the ability to neutralize prejudice engendered by an inappropriate comment or piece of testimony. See Wakefield, supra, 190 N.J. at 440.
The State further contends that the prosecutor's statement, as well as defense counsel's summation, was inviting the jurors to utilize their life experiences in evaluating defendant's mental state after drinking, and defense counsel's remarks in his summation opened the door for the prosecutor's remarks. While addressing the jury, defense counsel stated:
[Defendant] will bring up another thing too. If he didn't mean to do that and he didn't know what he was doing[,] how did he get to work? Well, very easily. I'll tell you how. For some of us that drink - - or let's put it this way, used to drink. Let's say this. How many times has it been that you have been someplace, and even in your own house, you have had too many and whoa, you find yourself someplace and it's like[,] how did I get there? . . .
It appears from our review of the record that in each of their summations, counsel was attempting to illustrate to the jury that a person can be intoxicated and still function effectively. Immediately following the summations, the trial judge instructed the jury, among other things, that the attorneys' statements in the closing arguments were "not evidence" and that the "only evidence comes from what [the jury] decide[d] the facts [were] combined with the law."
We conclude that the prosecutor's remarks were not so egregious that it deprived defendant of a fair trial. There was sufficient evidence for the prosecutor to argue defendant was a habitual drinker. Defendant told the officers that he sometimes drank three beers after work to fall asleep and he also referred himself as a "drunk" several times during his confession. The victim testified that defendant had been drinking the afternoon of the incident and was drunk. While there was no evidence in the record to support the prosecutor's statement that defendant has a high tolerance level for alcohol and that he can function normally when drunk, those comments did not lead to a verdict the jury would not have otherwise reached based on the overwhelming incriminating evidence in the record.
We further conclude that the court's instructions were sufficient to remove any prejudice. See State v. Papasavvas, 163 N.J. 565, 614 (2000) (holding a judge's immediate curative instructions were sufficient to remedy improper remarks). Therefore, defendant was not deprived of a fair trial. Wakefield, supra, 190 N.J. at 467.
IV.
Defendant also contends that he was deprived of his right to a collective and mutual deliberation of the jurors after an alternate was substituted in for an excused juror after the original jurors had engaged in extensive and lengthy deliberations. He argues that this was "a certain indication that minds [were] closing and that substitution would be inappropriate." Conversely, the State argues that the jurors' minds were not closed and the judge properly instructed the jury to deliberate anew. We conclude that defendant's claim lacks merit.
On the third day of jury deliberations, one juror was unable to attend because of storm damage to his house, so the court replaced him with an alternate juror. The court informed the remaining jurors of the substitution and gave the following instruction:
[Y]ou have to begin your deliberations all over again. You have to start from square one. You cannot say okay, this is where we're at. You have to start from square one now involving [the substituted juror] as one of the [twelve] who is going to deliberate this case to a completion. . . . You're not bringing him up to snuff, you're not gonna basically say okay, this is where we're at or that is what we talked about. You can do that in terms of having your own feedback as if you're starting from the beginning because you are starting from the beginning. Okay? Each charge being analyzed separately, each charge being talked about separately and each element of each charge -- all the elements of each charge being spoken about. You're deliberating as if you're going in there now for the first time.
The reconstituted jury began deliberations at 9:50 a.m. The jury returned a verdict at 11:41 a.m. Before the jury returned its verdict, the court asked if they began their "deliberations anew once [the substituted juror] entered the fray," which the foreperson responded affirmatively.
Trial courts are authorized to excuse jurors "because of illness or other inability to continue" and replace them with an alternate if deemed appropriate. R. 1:8-2(d)(1); State v. Valenzuela, 136 N.J. 458, 476 (1994). The court must "instruct the jury to recommence deliberations and shall give the jury such other supplemental instructions as may be appropriate." R. 1:8-2(d)(1). A defendant has a right to a renewed deliberation that is "assured if the jury begins deliberations again from the beginning; and that each remaining original juror must set aside and disregard the earlier deliberations as if they had not been had." State v. Trent, 79 N.J. 251, 256 (1979) (citation omitted). A trial judge must explicitly instruct the reconstituted jury to renew deliberations. Id. at 257.
Substitution of a juror does not impair a defendant's right to a fair and impartial jury if the reason for excusing the juror "relate[s] exclusively to the personal situation of the juror himself and not to his interaction with the other jurors or with the case itself, [because] they are ordinarily not circumstances having the capacity to affect the substance or the course of the deliberations." Valenzuela, supra, 136 N.J. at 468 (citation omitted) (internal quotation marks omitted). Here, the juror was excused because his home was severely damaged in an unforeseen storm and there was no guarantee when he could return. The reason for the juror's excusal was personal to him, and the judge had a proper basis for excusing him.
We are satisfied that the jury instruction, when considered in its entirety, was not flawed given that the jurors were effectively told that their deliberations must be started anew because a new juror had been substituted in.
We next consider defendant's argument that the deliberations of the initial jury had reached an advanced stage, thus precluding reconstitution of the jury. The original jury had deliberated between seven and nine hours before the substitution occurred. Defendant states that before the new jury began to deliberate, the judge questioned the jury foreperson about a previous playback request. The foreperson declined the playback request, responding that prior deliberations had resolved the issue. Relying on State v. Richard A. Williams, 377 N.J. Super. 130 (App. Div.), certif. denied, 185 N.J. 297 (2005), defendant postulates that he was deprived of his right to have the new juror involved in collective and mutual deliberations and requests a new trial.
In Richard A. Williams, we applied the totality of the circumstances analysis in determining whether the trial court erred in substituting a juror after deliberations had begun. Id. at 150. We reasoned:
Given the totality of the circumstances here, it is highly doubtful that the jury could have been expected to begin its deliberations anew as opposed to the deliberating jurors simply informing the substituted juror of their respective positions based on their twelve hours of deliberations and then continuing deliberations from that point. The fact that the verdict was arrived at fifty-nine minutes later corroborates the unrealistic expectation that the jury was capable at that point in time to start deliberations anew. The decision had already been made at defendant's expense with little or no input from the alternate juror.
[Ibid.]
Here, we acknowledge that the length of the reconstituted jury's deliberations was approximately two hours -- considerably less than the original jury deliberations. However, the disparity in the length of deliberations in the present case is not nearly as disproportionate as in Richard A. Williams, where the initial jury spent hours deliberating and the reconstituted jury reached a verdict within minutes after an alternate juror joined the "new" deliberations. There is "[n]o bright line rule in respect of the length of jury deliberations [that] triggers a finding that deliberations have progressed too far to permit the substitution of an alternate." State v. Joel Williams, 171 N.J. 151, 169 (2002). "The concern in determining whether substitution can take place at a given point in the deliberations is not merely the length of time that the jury has deliberated but the effect that the progress in deliberations will have on the reconstituted jury's ability truly to begin deliberations anew." Valenzuela, supra, 136 N.J. at 474-75.
In this matter, the initial jury never reported or indicated through any of its questions to the court that it had reached a partial verdict. Although the initial jury asked about the consequences "if one or more charges [were] undecided," there was no unequivocal declaration that it could not reach a decision. Finally, prior to the jury's verdict, the judge inquired whether the jurors had begun their deliberations anew once the new juror "entered the fray." The jury foreperson responded affirmatively. The jury then returned its verdict.
In analyzing the totality of the circumstances, we find no error in the trial judge's substitution of the juror and the reconstituted jury's ability to reach a proper verdict.
V.
Finally, we find no abuse of discretion or other error in the sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Ghertler, 114 N.J. 383, 384 (1989). We add only the following comment.
Defendant argues that the court failed to consider mitigating factor eight (circumstances unlikely to recur), N.J.S.A. 2C:44-1(b)(8). He contends that when he committed the offenses, he was an illegal immigrant who worked fourteen-hour nightshifts and lived in a crowded house. He claims that "[t]his pressure-cooker environment apparently contributed to the stabbing" and because he is subject to deportation, he will not be exposed to the same circumstances. We are not persuaded.
The standard applicable to our review of the sentence here is one of deference. Even if we would have reached a different result, we must affirm a sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989). "[W]e [should] not substitute our judgment for that of the trial court unless the sentence is so wide of the mark as to require our intervention." State v. Spivey, 179 N.J. 229, 245 (2004) (citing State v. Carey, 168 N.J. 413, 430-31 (2001). Here, the sentence of fourteen years is below the mid-range for first-degree attempted murder so the court's decision not to consider a mitigating factor, even if applicable, was not unreasonable. The sentence imposed complies with the statutory framework and does not constitute an abuse of discretion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION