Opinion
DOCKET NO. A-1047-10T2
07-26-2013
STATE OF NEW JERSEY, Plaintiff-Respondent v. VICTOR R. SIMPSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Public Defender, of counsel and on the brief). Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (John McNamara, Jr., Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Nugent and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 09-03-0341.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Public Defender, of counsel and on the brief).
Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (John McNamara, Jr., Assistant Prosecutor, on the brief). PER CURIAM
Tried to a jury on a nine-count indictment, defendant Victor R. Simpson was convicted of one count of second-degree robbery, two counts of third-degree aggravated assault on law enforcement officers, and one count of disorderly conduct. The court sentenced defendant to a twelve-year custodial term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In this appeal, defendant argues that he is entitled to a new trial because the court erroneously admitted into evidence the victim's identification of him at an impermissibly suggestive showup, the details of which were not documented by the police who conducted it; and because a juror was replaced during deliberations. Having considered defendant's arguments in light of the record and controlling law, we affirm.
I.
On November 6, 2008, at approximately five o'clock in the afternoon, Christina Bieg left the Morristown office where she worked and walked toward the train station where she intended to take a train to her second job. Along the way, a man assaulted her and stole her cellular telephone. Bieg identified defendant as the assailant. When she first saw defendant he was approximately fifteen feet away, just standing near a sign. The sun was just starting to set, but "[i]t was still fairly light out." She was able to see defendant's face. As Bieg continued to walk, defendant approached her "from the front and right" and asked her for a cigarette. At that point, he was "right next to [her]." He was approximately "an arm's length" away, and she could see his face.
Bieg explained that defendant "continued to get my attention, I assume, to ask for a cigarette. He asked again and I told him I didn't have one and continued my [telephone] conversation with Maureen." Defendant attempted to get Bieg's attention by saying "[e]xcuse me, hey, hey."
After defendant crossed Morris and Lafayette Streets, and began to walk down a path toward the train station, defendant continued to try to get her attention. While on the path, she heard heavy footsteps and out of the corner of her eye saw defendant coming over her left shoulder. He was a couple of feet away. Defendant grabbed her neck with both hands and began to choke her, at one point lifting her off the ground. She began to scream and flail her arms, trying to attract attention. He grabbed her cellular telephone out of her hands and ran.
After defendant fled, Bieg used a bystander's cellular phone to call the police. The police arrived ten or fifteen minutes later. Meanwhile, a man who was not a police officer approached her and said "they had found the guy . . . that had done it and that somebody had tackled him and that there were police up there . . . ." The man brought her to a police officer and she explained to the officer, patrolman Brian McDonnell, what had happened. She described her assailant as a black male, six feet three inches tall, with shaved or very short hair, a goatee, and weighing approximately 230 pounds. The officer asked her to get into his car and come with him to see if she could pick out the perpetrator.
Bieg and McDonnell drove "[j]ust a couple of minutes" to a location where he pointed out three individuals with whom other officers were speaking in front of a house. She said she did not see the person who attacked her. McDonnell told Bieg "he had other people he wanted [her] to take a look at." They drove approximately one or two minutes back to the Morristown train station where she observed two other individuals, neither of whom was her assailant.
McDonnell next returned to the house where Bieg had observed the three individuals she said were not her assailants. While she waited in the car, several officers brought out defendant, who was in handcuffs. After Bieg explained that she could not see defendant's face, the officers lifted his head and McDonnell shined a spotlight from one of the patrol cars on his face. Bieg identified defendant as her attacker. McDonnell then drove Bieg to the police station where she gave a statement. According to Officer McDonnell, approximately twenty minutes elapsed between the time he first met Bieg and the time she positively identified defendant.
Joshua Moore was standing in front of the Morristown train station with two other people, a man named Brad and a woman named Rosie, when Bieg was assaulted. Brad heard a lady scream, saw a man running, and began to chase the man. Moore followed. When the man Brad was chasing got to Olyphant Drive, he ran into a house. When the man entered the house, Moore looked toward Brad and saw the Morristown Police coming down the street.
As Moore walked back to the train station, the police picked him up, brought him around to the front of the building, and asked a lady if he "had anything to do with it[.]" She said that "it was not [him]." The police then drove him to Olyphant Drive where he saw defendant fighting with police officers in front of the house. He identified defendant as the man that he and Brad and chased.
Defendant, who fit Bieg's description of her attacker, had run into the Olyphant Drive house, where he lived with his parents and his brother. The police found him there hiding in a closet. As officers led defendant out of the house for the showup, he head-butted one of the officers and fought with others before he was subdued.
On March 25, 2009, a Morris County grand jury charged defendant in a nine-count indictment with two counts of second-degree robbery, N.J.S.A. 2C:15-1(a)(1) and (2) (counts one and two); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count three); five counts of third-degree aggravated assault upon a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a) (counts four, five, six, seven and eight); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3) (count nine).
Prior to trial, the State dismissed counts two, three, six and nine.
Defendant did not file a motion to suppress Bieg's out-of-court identification of him. Following five days of trial in April 2010, a jury convicted him of second-degree robbery, N.J.S.A. 2C:15-1(a)(1) (count one); two counts of third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a) (counts five and eight); and disorderly conduct, N.J.S.A. 2C:33-2, a lesser-included offense of third-degree aggravated assault (count four).
The State points out that the judgment of conviction erroneously states defendant was convicted on count four of N.J.S.A. 2C:12-1(b)(5) (third-degree aggravated assault upon a law enforcement officer), instead of N.J.S.A. 2C:33-2 (disorderly conduct).
On June 18, 2010, the trial court denied defendant's motion for a new trial and granted the State's motion for an extended term sentence pursuant to N.J.S.A. 2C:44-3(a). The court sentenced defendant to a twelve-year custodial term on count one, subject to NERA; and to concurrent five-year terms on counts five and eight. The court imposed a fine on count four and also imposed appropriate fines and penalties on all counts. Defendant appealed.
Defendant presents the following arguments:
POINT I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING INTO EVIDENCE THE IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT "SHOWUP" IDENTIFICATION OF DEFENDANT WITHOUT FIRST DETERMINING THE RELIABILITY OF THAT IDENTIFICATION. (NOT RAISED BELOW).
POINT II
THE FAILURE OF POLICE TO RECORD THE DETAILS OF THE SHOWUP IDENTIFICATION WAS A VIOLATION OF OUR SUPREME COURT'S REQUIREMENT, ANNOUNCED IN STATE V. DELGADO, THAT THE DETAILS OF AN IDENTIFICATION PROCEDURE BE RECORDED AND PRESERVED. THIS VIOLATION RENDERS THE OUT-OF-COURT IDENTIFICATION OF DEFENDANT PER SE INADMISSABLE REQUIRING A NEW TRIAL (NOT RAISED BELOW).
POINT III
DEFENDANT HAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO CONDUCT A WADE MOTION PRIOR TO TRIAL. (NOT RAISED BELOW).
POINT IV
BECAUSE THE JUROR EXCUSED DURING DELIBERATIONS WAS NOT ABLE TO CONTINUE DELIBERATING, AND BECAUSE THE JURY HAD ALREADY REACHED AN ADVANCED STAGE OF DELIBERATIONS, HER REMOVAL AND REPLACEMENT WITH AN ALTERNATE JUROR VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL BY AN IMPARTIAL JURY. U.S.CONST. AMENDS.
V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 1
II.
In his first three points, defendant challenges the admission at trial of Bieg's identification of him at the showup after she was assaulted and robbed. Defendant did not present to the trial court the arguments he now makes in the first and second points. Because he did not bring those issues to the attention of the trial court, we review them under a plain error standard. R. 2:10-2. When we review an issue under a plain error standard, we will not reverse a conviction unless an error committed at trial was "clearly capable of producing an unjust result[.]" Ibid. The error must have been "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]'" State v. McGuire, 419 N.J. Super. 88, 106-07 (App. Div.) (quoting State v. Taffaro, 195 N.J. 442, 454 (2008)), certif. denied, 208 N.J. 335 (2011). Here, the record discloses no error, let alone plain error.
In his first point, defendant argues that the showup was impermissibly suggestive because Bieg was aware that her assailant had fled into the Olyphant Drive home where she was brought to identify him, the police escorted him out of the house in handcuffs, and the police illuminated his face with a spotlight. Defendant further argues that even though his attorney did not request a hearing to contest the reliability of Bieg's out-of-court identification, the court had an independent obligation to do so. We reject both arguments.
An out-of-court identification is admissible unless it is the product of suggestive procedures creating a "'very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 225 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). When a defendant challenges a pre-trial identification a court must apply a two-step analysis to determine its admissibility. The court must "ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." State v. Herrera, 187 N.J. 493, 503-04 (2006). When undertaking the analysis, a court must consider the totality of circumstances "in weighing the suggestive nature of the identification against the reliability of the identification." Id. at 504.
In State v. Henderson, 208 N.J. 208, 288 (2011), the Court revised the framework for evaluating the reliability of identification evidence. The Court applied the revised framework "to future cases only, except for defendant Henderson . . . ." Id. at 302.
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Although the showup in this case was inherently suggestive, as most are, ibid., there was more than ample evidence that Bieg's identification of defendant was "nevertheless sufficiently reliable to warrant the admissibility of the identification by the victim." Id. at 506. Bieg had ample opportunity to view defendant at the time of the crime. The crime occurred during daylight hours, as the sun was just starting to set. Bieg first observed defendant when he was only approximately fifteen feet from her, standing near a sign. She was able to see his face. He then approached her from the "front and right" when he asked her for a cigarette. Bieg had a second opportunity to observe him as he stood next to her, approximately an arm's length away. Once again, she could see his face. Significantly, defendant continued to draw Bieg's attention to him by harassing her and saying "[e]xcuse me, hey, hey," even after she said she had no cigarette. Bieg saw defendant yet again, albeit out of the corner of her eye, immediately before he choked her.
Additionally, before identifying defendant, Bieg readily eliminated other suspects as her assailant. She was as confident defendant had assaulted her as she was that the other suspects had not. And she identified defendant less than one hour after the crime had been committed. See Henderson, supra, 208 N.J. at 259, 290 (recognizing "'the risk of misidentification is not heightened if a showup is conducted immediately after the witnessed event, ideally within two hours' because 'the benefits of a fresh memory seem to balance the risks of undue suggestion'") (citing the report of the Special Master).
In addition to the evidence indicating that Bieg's identification of defendant was reliable, the State proved that he was chased from the crime scene to his parents' home. The police apprehended him there as he attempted to hide from them in an upstairs closet.
Applying the plain error standard, considering the unlikelihood that defendant would have prevailed on a motion to suppress Bieg's identification of him at the showup, and further considering the strength of the State's evidence, we conclude that no error occurred that was sufficient to raise a reasonable doubt as to whether the jury reached a result it otherwise might not have reached. McGuire, supra, 419 N.J. Super. at 106-07.
Defendant also argues that the trial court had an independent obligation, even in the absence of a motion, to conduct a hearing to determine the reliability of Bieg's identification of him at the showup. The court had no such duty. See Henderson, supra, 208 N.J. at 288-289, 293 (explaining that, to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of suggestiveness, and that the ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable misidentification).
Defendant argues in his second point that the police failed to comply with the "condition to the admissibility of out-of-court identifications . . . [that] the police record, to the extent feasible, the dialogue between witnesses and police during an identification procedure." State v. Delgado, 188 N.J. 48, 51 (2006). He bases his argument on part of his cross-examination of Bieg at trial, when he questioned her about the recorded statement she gave to the police. Specifically, he asserts that "[t]he trial record discloses that a written record of the showup procedure, detailing the dialogue between the witnesses, and between the witnesses and police, was never made."
Bieg's testimony about her statement demonstrates no such thing. And the trial record would not necessarily demonstrate whether the police recorded, or did not record, to the extent feasible, conversations between witnesses and the police during identification procedures, particularly if defendant did not raise the issue.
In response to defendant's arguments, the State has produced part of a police report made by McDonnell, marked for identification but not admitted into evidence at trial. The State asserts that the report satisfies the Delgado requirements. Defendant has not addressed the police report proffered by the State as complying with Delgado. For those reasons, we cannot properly evaluate defendant's claim that the State did not comply with Delgado, let alone find plain error.
Defendant argues in his third point that his trial attorney was ineffective for not challenging Bieg's out-of-court identification of him as her assailant. We decline to address defendant's argument at this juncture; this allegation should abide a petition for post-conviction relief if defendant wishes to pursue it in the future. "Contentions of ineffective assistance of counsel are more effectively addressed through petitions for post-conviction relief, at which point an appropriate record may be developed." State v. Rambo, 401 N.J. Super. 506, 525 (App. Div.) (citing State v. Preciose, 129 N.J. 451, 460 (1992)), certif. denied, 197 N.J. 258 (2008).
III.
In his final point, defendant argues that he was denied due process of law and a fair trial when the court replaced a deliberating juror. We disagree.
On April 27, 2010, the judge charged the jury shortly after they returned from lunch at 2:15 p.m. The court anticipated that its instructions would take approximately one hour to an hour and fifteen minutes to deliver. Although the record does not disclose when the court completed its charge, the jury began deliberating that afternoon.
The next morning, after the jury had resumed its deliberations, Juror number 10 sent the judge a note, which stated: "Juror #10 wants to be excused." The judge questioned the juror outside of the presence of the other jurors:
[The Court:] Okay. [Juror No. 10], I received a note that you [are asking] to be excused . . . . And I can see you're emotional and appear to be very upset. Just take a deep breath. No one is going to be upset with you. But as part of the process we do need to question you as to why you are seeking to be excused?
[Juror No. 10:] Uh-huh.
. . . .
[The Court]: All right. [Juror No. 10], why is it that you would like to be excused?
[Juror No. 10:] I'm too emotional. I can see everybody's side of it. To me nobody is lying. I've lived a long time. I have a certain feeling about human nature. And I just -- and I'm too compassionate. And I'm too maternal. And . . . as right, . . . we're going by the facts, just the facts, and what they heard, and I can't do that. I didn't know it would be this way. I should have.
[The Court:] Let me just stop you for a moment. Do you remember . . . when we were going through the selection process one of the questions, that's asked . . . . "Would your verdict in this case be influenced in any way by any factors other than the evidence in the courtroom, such as friendships or family relationships, or the type of work that you do?"
[Juror No. 10:] I honestly thought the answer was one thing. I should have known what I'm like. But - -
. . . .
[The Court:] [Y]ou originally answered that question "no" when we were selecting a jury. . . . How would you answer it now?
[Juror No. 10:] I'd answer it "yes."
[The Court:] [T]his is Question No. 29 by the way. Is there anything whether or not covered by the previous questions which would affect your ability to be a fair and impartial juror, or in any way be a problem for you in serving on this jury?
[Juror No. 10:] Well, the answer was no. I could see it's not.
[The Court:] So today you would answer that yes?
[Juror No. 10:] Yes.
[The Court:] All right. And another question is, "is there anything else that you feel is important for the parties in this case to know about you?" Is that what you just told us when I asked you the first question that you feel very emotional?
[Juror No. 10:] No. It isn't. I really thought I could disassociate . . . myself. And . . . I really should have known, but . . . I just didn't. I didn't think I'd be so emotional. To me everybody is telling the truth . . . as they perceive it. But . . . I just seem incapable of going by the facts.
. . . .
[The Court:] I'm going to read an instruction to you again . . . that I read to all the jurors before deliberations began . . . and then I will ask you a question when I'm done.
. . . .
[The Court:] There is nothing different in the way a jury is considered [sic] the proof in a criminal case from that in which all reasonable persons treat any questions depending upon evidence presented to them. You are expected to use your own good common sense, consider the evidence for only those purposes for which it has been admitted, and give a reasonable and fair construction in the light of your knowledge of how people behave. It is the quality of the evidence, not simply the number of witnesses that control.
. . . .
You are to apply the law as I have instructed you to the facts as you find them to be for the purpose of arriving at a fair and correct verdict.
. . . .
Now let me ask you the following question. Would you be able to follow what I have just read to you in your deliberations?
[Juror No. 10:] I thought I could. I thought I would. I had no idea.
[The Court:] I'm talking about the present. You've sat for a day or so as a deliberating juror. I've read to again what the instructions are. Do you feel today that you will be able to deliberate in accord with what I just read to you?
[Juror No. 10:] No.
Based on Juror number 10's answers, defense counsel objected to her being dismissed, but the prosecutor thought she should be dismissed. The court dismissed her, finding that she would no longer be able to follow the court's instructions, particularly as they pertained to jury deliberations.
After excusing Juror number 10, the court replaced her with an alternate, who was randomly selected. The court then instructed the jury to begin their deliberations anew. They returned to the jury room at 12:01 p.m. to resume deliberations, then went to lunch from 12:33 to 1:45 p.m. The jurors reached their verdict that afternoon.
Defendant contends the trial court erred by excusing the juror rather than retaining the juror or declaring a mistrial. Defendant argues that the court failed to establish the juror was unable to continue, and maintains that the record establishes the juror's discomfort was related only to the deliberative process and the decisions she faced as a juror. Lastly, defendant asserts that replacing the juror was improper because the jury had reached an advanced stage in its deliberations.
The State counters that the juror should have been excused because, as she explained to the judge, she could not base her verdict solely on the facts and would not be able to reach a verdict solely by applying the principles of law to the evidence.
The circumstances under which a court may replace a deliberating jury are narrowly circumscribed. Rule 1:8-2(d)(1), which authorizes the substitution of jurors, provides 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 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 . . . discharged. When such a substitution of an alternate juror is made, the court shall instruct the jury to recommence deliberations and shall give the jury such other supplemental instructions as may be appropriate.
Our Supreme Court has "forbid[en] juror substitution when a deliberating juror's removal is in any way related to the deliberative process." State v. Jenkins, 182 N.J. 112, 124 (2004) (citing State v. Williams, 171 N.J. 151, 163 (2002)). Deliberating jurors may not be discharged and replaced with alternates "unless the record 'adequately establish[es] that the juror suffers from an inability to function that is personal and unrelated to the juror's interaction with the other jury members.'" Id. at 125 (quoting State v. Hightower, 146 N.J. 239, 254 (1996)). A court may excuse a juror, however, when, for personal reasons, the juror is "unable to follow the law charged by the court[.]" State v. Williams, 377 N.J. Super. 130, 146 (App. Div.), certif. denied, 185 N.J. 297 (2005).
In Jenkins, a "distraught juror advised the trial court during a break in deliberations that she could not follow the court's instructions on the law and render a verdict based on the evidence free of 'passion, prejudice, bias, or sympathy.'" Supra, 182 N.J. at 115-16. The Court upheld the trial court's substitution of an alternate for the "distraught" juror. The Court explained that "[n]o juror has right to disregard a court's instructions, that is, to engage in nullification." Id. at 128.
In the case before us, the juror excused by the trial court was emotionally distraught, stated unequivocally that she could not reach a verdict based on the law and the facts, and should have realized during voir dire of prospective jurors that she would be unable for personal reasons to reach a verdict based on the evidence presented during trial. The court's decision to excuse the juror was discretionary, State v. Valenzuela, 136 N.J. 458, 472 (1994), and the court acted well within its discretion.
Defendant next argues that the trial court's decision to replace the juror requires reversal of his conviction "because the jury had reached an advanced stage in its deliberations." The record does not support defendant's assertion that the court excused a juror after the jury had been deliberating for one and one-half days. The jury had deliberated during part of the afternoon of April 28, 2010, after the court had completed its charge. The juror that asked to be excused did so the following morning. The jurors had not even deliberated for a full day when the court excused the juror.
Undoubtedly, "there are times when jury deliberations have proceeded too far to permit replacement of a deliberating juror with an alternate." Jenkins, supra, 182 N.J. at 131. Generally, the longer a jury deliberates, the greater the possibility that a defendant will be prejudiced by the substation of a juror. Id. at 132. But the length of time that jury has deliberated is not the only concern; a court must also consider "the effect that the progress and deliberations will have on the reconstructed jury's ability truly to begin deliberations anew." Valenzuela, supra, 136 N.J. at 474-75.
Nothing in the record here suggests that jury deliberations had proceeded too far to permit replacement of a juror with an alternate. The jury had deliberated less than a day when the substitution occurred. The court properly instructed the reconstituted jury of the need to begin deliberations anew. Shortly after the jury resumed their deliberations, they requested a written copy of the court's charge on robbery, the offense charged in the first count of the indictment and addressed as the first question on the jury verdict sheet. There is no evidence that the substituted juror failed to fully participate in the jury's deliberations on all counts of the indictment, and defendant's assertions to the contrary are purely speculative.
We affirm defendant's conviction and sentence. We remand solely for correction of the judgment of conviction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION