Opinion
DOCKET NO. A-0941-11T4
01-25-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RAMEL WALKER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, 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NOT FOR PUBLICATION WITHOUT THE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 Parrillo and Sabatino.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-12-3860.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Tried by a jury in 2004, defendant Ramel Walker was convicted of passion/provocation manslaughter, aggravated assault of three other victims, conspiracy to commit murder, and a pair of weapons offenses. The State's proofs showed that defendant shot and killed Antoine Gurley, a purported gang member, on a Newark street on July 14, 2003. At the same time, defendant also took part in the non-fatal shootings of three of Gurley's associates. One of those surviving victims, William Peyton, testified at trial, and he identified defendant as the person who had shot him and who also had shot and killed Gurley.
The trial judge, Hon. Dennis F. Carey, III, J.S.C., sentenced defendant to an aggregate custodial term of seventeen years, with a parole disqualifier of fourteen years, five months, and sixteen days. We upheld defendant's convictions on direct appeal, only remanding for resentencing on the manslaughter count in accordance with State v. Natale, 184 N.J. 458, 495-96 (2005). State v. Walker, No. A-4589-04 (App. Div. Dec. 8, 2006), certif. denied, 189 N.J. 648 (2007). On remand, Judge Carey reimposed the same sentence. That sentence was sustained by this court in February 2009 on the Excessive Sentence Oral Argument calendar, with a slight modification to correct the judgment of conviction regarding the specification of an aggravating factor. Certification was again denied. State v. Walker, 199 N.J. 543 (2009).
Defendant filed a petition for post-conviction relief ("PCR") with the trial court in July 2008. In his petition, defendant alleged various forms of ineffective assistance of trial counsel, prosecutorial misconduct, and judicial errors. After hearing oral argument on March 29, 2011, Judge Carey dismissed defendant's petition as procedurally flawed and also lacking in merit. Among other things, the judge rejected defendant's claim that his trial counsel had been deficient in failing to raise objections to the court's handling of certain issues that arose during deliberations respectively concerning Jurors Six and Seven.
I.
In his present appeal, defendant raises the following points:
POINT I
THE COURT MISAPPLIED POST-CONVICTION RELIEF PROCEDURAL BARS IN FINDING THAT THE DEFENDANT'S CLAIMS INVOLVING THE STATE'S FAILURE TO DISCLOSE THE FINGERPRINT ANALYSIS REPORT IN PRETRIAL DISCOVERY; INVOLVING THE TRIAL COURT'S FAILURE TO CONDUCT A JURY TAINT EXAMINATION AFTER ITS DISCHARGE OF JUROR NUMBER SIX; AND INVOLVING THE TRIAL COURT'S FAILURE TO EXCUSE JUROR NUMBER SEVEN; WERE EITHER "INAPPROPRIATE" OR HAD "ALREADY BEEN RAISED"
POINT II
SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL UNDER THE STANDARDS ARTICULATED BY THE COURTS IN STRICKLAND V. WASHINGTON, STATE V. PRECIOSE, AND STATE V. CUMMINGS, UNDER R. 3:22 CRITERIA THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING
POINT III
DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSITANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
Having considered these points in light of the record as a whole and the applicable law, we affirm the dismissal of defendant's PCR petition, substantially for the reasons set forth by Judge Carey in his bench opinion. We choose to comment only about the juror-related issues.
A.
During the jury voir dire, R.J., who became Juror Six, stated that he did not know any of the witnesses in this case, nor did he have a close friend who was a victim of a crime. R.J. did acknowledge that both of his sons served as law enforcement officers, and that he had doubts about his ability to serve because his formal education stopped at the ninth grade. Subsequently, the following exchange occurred at side bar:
[Trial Court]: My inclination is to let him serve. Does anybody have any objection?
[Defense Counsel]: No, I think he should serve.
[Prosecutor]: I don't have an objection.
[Emphasis added.]
Later on, during jury deliberations, it was reported that Juror Six had been observed speaking to family members of the deceased victim, Gurley. Juror Six consequently was questioned by Judge Carey outside of the presence of the other jurors. He admitted to the court that he knew members of the Gurley family "[f]or a long while. They go to church with me and everything." Juror Six explained that when he was originally asked if he knew the family of any of the victims, he answered no because "[he] didn't realize those were the Gurleys until later."
Juror Six stated that, upon recognizing that he knew members of the Gurley family, he realized he was no longer able to be fair and impartial. He contended that "[he] was going to come to [the trial judge] tomorrow . . . to tell [him] what was what, to tell [him] [he] did know [the Gurleys] and everything."
Notably, Juror Six specifically denied discussing his acquaintance with the Gurley family with any of the other jurors. The transcript makes this clear:
[Defense Counsel]: Okay. To your knowledge, do any of the other jurors know that you knew [the Gurleys] in any way?
[Juror Six]: No, because I didn't tell them.
[Emphasis added.]
The trial judge then excused Juror Six without objection from the prosecutor or defendant's trial counsel. After announcing that he was not "moving for a mistrial" because there was no evidence "that there was a tainted jury," defendant's trial counsel stated:
I guess I could ask your Honor to question the jurors as to whether they had any communications with [Juror Six] about knowing the Gurley family. I don't know if your Honor thinks that's appropriate in light of the circumstances, might just be calling attention to the pink elephant in the corner. I don't know if that's what we want to do or not. I'll leave that to your Honor's discretion.
[Emphasis added.]
After hearing Juror Six's sworn assurance that he had not made his relationship with the Gurley family known to the other jurors, and the parties' positions on the subject, the judge decided not to conduct any further questioning. A replacement juror was added, and the judge instructed the jurors to begin to deliberate anew.
On direct appeal, we rejected defendant's contention that this instruction was inadequate. Walker, supra, slip op. at 14-16.
Defendant argues that his trial counsel was ineffective with respect to Juror Six in several respects. First, he criticizes the attorney for not challenging the juror for cause once R.J. had divulged that he had two sons who were law enforcement officers. Second, even if cause was not found to be present, defendant contends that the attorney at least should have used an available peremptory challenge to prevent R.J. from being impanelled. Third, he contends that the attorney should have insisted that the court interview the other jurors to confirm that they were not tainted by Juror Six's contact with the Gurley family members. The PCR court did not adopt any of these assertions of constitutional ineffectiveness, and neither do we.
Under the Sixth Amendment of the United States Constitution, a person accused of a crime is guaranteed the effective assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
"[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy[.]" Fritz, supra, 105 N.J. at 42, 54 (1987) (quoting State v. Williams, 39 N.J. 471, 489 ( 1963), cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled on other grounds, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991). Further, a defendant must demonstrate the right to relief by a preponderance of the credible evidence. State v. Gaitan, 209 N.J. 339, 350 (2012). Both showings detailed under the Strickland test must be made, or "it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
We apply these principles here, first, in the context of jury selection, and, second, in the later context of a problem with a juror that emerged during deliberations. In both contexts, a substantial amount of discretion is reposed in trial counsel in reacting, extemporaneously, to information about that juror as it unfolds.
Counsel must make a strategic decision whether to object to the impanelling of a potentially adverse juror in the first place, either for cause or through the selective use of peremptory challenges. There is always the prospect that the juror might be replaced with a venire panel member who is even less likely to acquit. Moreover, the mere fact that a potential juror has relatives in law enforcement does not automatically compel the removal of that juror for cause. See, e.g., State v. Hunt, 115 N.J. 330, 349-50 (1989) (rejecting defendant's argument that he was deprived of an impartial jury because the trial court did not remove for cause a juror who had a brother who was employed as a patrolman for the Delaware River Port Authority and an uncle who worked as a detective in the county prosecutor's office).
When a problem with an impanelled juror later unfolds during deliberations, counsel likewise must make strategic decisions about what, if any, relief to seek. Specifically, counsel must assess whether it is more advantageous to have that juror discharged without fanfare than it is to have the court probe individually into the other jurors, thereby drawing their attention to a situation they may well know nothing about and causing them possible alarm.
Given these considerations, it is manifest from this record that the manner in which defendant's trial counsel dealt with the concerns about Juror Six fell squarely within the zone of "trial strategy" protected from second-guessing under Strickland. Even if counsel had moved to strike Juror Six at the outset, there is no assurance that the next seated juror would have been preferable.
In addition, it was not patently unreasonable for trial counsel to leave it to the judge's discretion to decide whether or not to interview the other jurors about Juror Six's interactions with the Gurley family. Such interviews could have alarmed the jurors or caused them to speculate about the situation in a manner prejudicial to defendant. As counsel aptly put it, there might have been no advantage in forcing the jurors to ponder a "pink elephant in the corner."
Moreover, it is speculative to assume that Juror Six had lied to the court about not speaking with the other jurors regarding his relationship with the Gurley family. The judge had the discretion to rely on the juror's representation that he had not conversed with his fellow jurors about the subject. See, e.g., State v. R.D., 169 N.J. 551, 560-62 (2001) (holding that the trial court did not abuse its discretion in not questioning the remaining jurors after an excused juror denied having communicated his disqualifying knowledge to the other jurors).
In sum, defendant failed to make a prima facie showing of counsel's deficient performance and actual prejudice concerning Juror Six, which he was obligated to do in order to obtain an evidentiary hearing on his PCR application. See State v. Preciose, 129 N.J. 451, 462-63 (1992).
B.
A similar analysis applies to trial counsel's handling of issues that arose concerning Juror Seven. During voir dire, T.W., who became Juror Seven, unequivocally asserted to the court that she could be a completely fair and impartial juror. Later, however, during deliberations, the trial court received a note from the jury stating, "juror number [seven] wants to be excused."
The judge then questioned Juror Seven outside the presence of the other jurors. Juror Seven explained, "[I]t's stressful. It's too emotional for me, and I just can't take it no more . . . There's certain things I agree with, certain things I don't agree with, and I got to go." Defense counsel stated on the record that the juror appeared to be crying.
The court decided that the situation did not rise to a level that required Juror Seven's removal or other relief. In explaining to Juror Seven that stress alone was not a basis to excuse a deliberating juror, the court stated:
[T]here's a lot [at] stake . . . if we had to try this case over again it would be a lot of money, and we'd have to bring everybody back and start from scratch, and that would be a strong possibility if I excused you.Defendant's attorney did not object to the trial court's ruling or its explanation. The following morning, the jurors issued their unanimous final verdict. Notably, the jurors rejected the State's theory of the case in several respects, finding defendant guilty of manslaughter of Gurley as a lesser-included offense of the charged crime of murder, and also finding him guilty only of aggravated assault, rather than the charged crime of attempted murder, as to the other three victims.
Defendant argues that his trial attorney should have pressed for a mistrial once Juror Seven's feelings had been expressed to the trial judge. Defendant speculates that Juror Seven was "pressured" into voting for his conviction. Here again, defendant has not established a Strickland violation.
Rule 1:8-2(d) governs the impanelling of additional jurors and the discharge and substitution of jurors. Concerning dismissal of a juror after deliberations have commenced, the Rule provides:
If the alternate jurors are not discharged and if at any time after submission of the case to the jury, a juror dies or is discharged by the court because of illness or other inability to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged. 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.
[R. 1:8-2(d)(emphasis added).]
As the Supreme Court has instructed, this procedure is to be used sparingly, only within its strict letter, and as a last resort to avoid the waste of time that would otherwise ensue. See State v. Valenzuela, 136 N.J. 458, 468-69 (1994); see also State v. Banks, 395 N.J. Super. 205, 215 (App. Div.), certif. denied, 192 N.J. 598 (2007). A trial court's decision regarding whether or not to dismiss a juror generally is reviewed only for abuse of discretion. See R.D., supra, 169 N.J. at 560-61.
With respect to the rule's "inability to continue" requirement, the Court has made clear that a problem warranting a juror's excuse must be personal to the juror and unrelated to the content or dynamics of the deliberations or the excused juror's relationship with the other jurors. State v. Jenkins, 182 N.J. 112, 125-30 (2004). The term "inability" is interpreted restrictively, in order to protect a "defendant's right to a fair jury trial." Id. at 124. Thus, a juror may not be removed for reasons related to the "deliberative process" but must be removed when the juror has declared an inability to follow the law due to bias, prejudice, or sympathy. See id. at 129-30.
The Supreme Court has cautioned trial judges that after deliberations have begun, juror substitution "should be invoked only as a last resort." Hightower, supra, 146 N.J. at 274; see also Valenzuela, supra, 136 N.J. at 468. The Court has offered this admonition because "juror substitution poses a clear potential for prejudicing the integrity of the jury's deliberative process[.]" Hightower, supra, 146 N.J. at 254. Inasmuch as the essence of jury deliberations is a collective sharing of views, reconstituting a jury in the midst of deliberations "can destroy the mutuality of those deliberations." Williams, supra, 171 N.J. at 163.
Here, the record does not explicitly reflect defendant's trial attorney's reasons for not objecting to the court's decision to retain Juror Seven and to permit deliberations to continue. Given the context, however, counsel's ad hoc choice not to object clearly is imbued with strategic considerations. It is easily conceivable that Juror Seven was upset because she had misgivings about finding defendant guilty of the counts charged in the indictment. If so, she might have been a holdout vote for defendant, thereby precipitating a possible hung jury. Or, she might have persuaded other jurors to vote for lesser-included offenses rather than more severe crimes. It might have been foolhardy for defense counsel to have sought for her removal. As it is, the jury returned a mixed verdict, containing four acquittals of more serious charges, with convictions of four lesser-included offenses. In any event, counsel's lack of stated opposition to having Juror Seven remain impanelled was likely a strategic choice, as to which the attorney is entitled considerable deference.
Furthermore, even if defendant's trial counsel had objected and demanded a mistrial, the judge might have rejected that request and instead kept the juror or replaced her with the remaining alternate. Such an exercise of judicial discretion would have been hard to overcome on a direct appeal. See, e.g., R.D., supra, 169 N.J. at 558.
On the whole, it is sheer speculation to assume that defendant would have been better off if he had resisted Juror Seven's continued participation. Defendant's "bald assertions" of prejudice simply do not suffice to obtain PCR. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999), certif. denied, 162 N.J. 199 (1999).
We therefore sustain the denial of PCR on this juror issue as well.
C.
The remainder of defendant's arguments lack sufficient merit to warrant discussion. 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