STATE OF NEW JERSEY v. ROBERT TERC

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. ROBERT A. TERC, Defendant–Appellant.

DOCKET NO. A–2674–11T1

Decided: April 1, 2014

Before Judges Grall, Nugent and Accurso. Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.

Defendant Robert A. Terc appeals his convictions for crimes arising from the stabbing of his former girlfriend, Jill Zayas, and her friend, Jeremy Hubbard.   A jury found defendant guilty of two counts charging each of the following crimes:  attempted murder, N.J.S.A. 2C:5–1a(1) and N.J.S.A. 2C:11–3a(1);  second-degree aggravated assault, N.J.S.A. 2C:12–1b(1);  third-degree aggravated assault, N.J.S.A. 2C:12–1b(2);  third-degree aggravated assault, N.J.S.A. 2C:12–1b(7);  and second-degree burglary, N.J.S.A. 2C:18–2a(1), N.J.S.A. 2C:18–2b(1).   In addition, the jury found defendant guilty of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4d, third-degree unlawful possession of a weapon, N.J.S.A. 2C:39–5d, and fourth-degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39–4e.

The judge sentenced defendant to an aggregate twenty-five-year term of imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2. It is comprised of a fifteen-year term for the attempted murder of Zayas and a consecutive ten-year term for the attempted murder of Hubbard.   Defendant also received a seven-year concurrent sentence on his conviction for burglary, but all of his other convictions were merged.

I

The crimes were committed in Zayas' home during the early morning hours of July 8, 2009.   Although defendant did not testify at trial, the State admitted the videotape of defendant's post-arrest interview in its case in chief and a version redacted to conform with the judge's rulings was played for the jury.

By defendant's account, he and Zayas had an on-and-off relationship for about three years prior to July 8, 2009.   Their differing views about Zayas' seeing other men, and whether she was in fact seeing other men, was a major source of contention.

On Father's Day 2009, defendant was at Zayas' home, for which he had a key, and found a text message from another man on her cellphone.   They argued, and their argument escalated.   When it ended, defendant spit at Zayas and crushed her cellphone, and she threw his cellphone out the window.   Although Zayas called the police, she declined to file a complaint.   Two days later, however, she called defendant and told him their relationship was over.

Despite the Father's Day argument and breakup, defendant visited Zayas at her workplace, a local bar, on July 7, 2009.   By defendant's account, they parted company that day on “good terms,” even though Zayas had told him she was seeing someone else and that they had plans to go to a resort that weekend.   Defendant's work shift was from 3:00 p.m. until 10:00 p.m., and after work that night, he visited a friend.   On the way home, at about 1:00 a.m., he stopped for cigarettes and decided to see if Zayas was at home and alone.

Defendant saw only one car outside Zayas' home.   Accordingly, he went to and opened the door and entered.   He found Zayas and Hubbard asleep in her bed.   Defendant said he left the house, got into his car and started to drive away but “something just snapped.”   After driving a bit, he parked his car away from her house, went to the trunk of his car, took out a “fake gun” and a “fishing knife” and walked back to her house.   He was angry.   Defendant claimed to have little recollection of what happened after that.   He denied any memory of striking Zayas, recalled struggling with Hubbard but could not remember how that struggle started.   He did recall leaving the house and running when he heard sirens.

Zayas and Hubbard testified for the State.   Zayas' account of the events of July 7 was different than defendant's version, and both she and Hubbard recalled more about what occurred in Zayas' home than defendant did.

By Zayas' account, two days after the Father's Day argument she told defendant their relationship was over.   Nevertheless, on July 7, defendant called her at work and asked if he could come to see her there.   She told him she had no right to stop him from coming to the bar, and he did.   His visit and their conversation were short.   Defendant said he had come to say goodbye and would not see her anymore.

On July 7, Hubbard took Zayas' son fishing while Zayas was at work.   After that, he and she had dinner at home with her children, locked the doors and went to bed at about 12:30 a.m. Zayas was asleep and lying on her stomach when she felt something stab her in her back.   She looked up and, although it was dark and the attacker was dressed in black and appeared to have a mask on, he looked at Zayas.   She saw defendant's eyes and knew it was him.   By Zayas' account, she screamed and Hubbard got up.   Defendant had a gun in his hand, which she tried to grab but he used to strike her temple.   He also stabbed her in the head with the knife.   According to Zayas, Hubbard woke up and started fighting with defendant when she screamed.

By Hubbard's account, he woke up when he felt a lot of pressure on his lower back.   He too was on his stomach, and the first pain he felt was in the back of his head, which was slippery and wet.   Hubbard managed to turn onto his side to face up, and he saw a knife coming at his head toward the center of his nose.   He tried to block the blow and was stabbed at the center of his palm.   At that point, the masked attacker, who was dressed all in black, was sitting on Hubbard's lower abdomen.   Hubbard then looked around, saw Zayas and started to get his bearings.

Hubbard then saw the attacker reach over, take a couple of stabs at Zayas, and hit her across her head with a black object which he later realized was a gun.   Managing to get himself free, Hubbard put the attacker in a chokehold and struggled to restrain him from stabbing Zayas again.   Directing Zayas to get her kids outside and while defendant continued to stab him, Hubbard continued the struggle, ripped off the attacker's mask, saw defendant and got the gun from him.   Hubbard then held defendant's gun to defendant's temple.   Defendant told Hubbard to “go for it,” and Hubbard pulled the trigger, twice.   The gun failed to fire both times.   As defendant later explained to the police during his interview, the gun was a fake.   It did not have a hollow bar and could not discharge a projectile.

Hubbard dragged himself and the gun out of the house and onto the pavement.   Lying there, Hubbard saw defendant walk away.

Meanwhile, Zayas had taken the children out of the house and called 9–1–1.   A neighbor, who heard the screams and saw Hubbard lying at the foot of Zayas' driveway, had also placed a call.   Officers, who were dispatched just before 3:00 a.m., found Hubbard lying at the foot of the driveway.   Zayas was sitting on a stone wall with a neighbor and her children.

Hubbard and Zayas were transported to a hospital and treated by Dr. Brian Keith Siegel, a trauma surgeon.   The doctor testified that Hubbard had at least seventeen stab wounds on his shoulders, five lacerations on his scalp, lacerations on his right calf, and a puncture to his left hand that left him unable to move one of his fingers.   Zayas had one stab wound on her left flank, in the area of her kidneys, colon, spleen and small bowel, and another in the lumbar area of her back that raised concerns about injury to her nerves and bowel.   In addition, there was a laceration in the area of her temple.   In Dr. Siegel's opinion, neither of the patients had injuries that were life-threatening.

As previously noted, the State also played the videotape of the statement defendant gave to the police.   Defendant gave his statement after officers found him in the woods about one-quarter of a mile from Zayas' home in the late afternoon on July 8. Defendant's car, with his wallet and cellphone inside, had been found parked on a street about 200 yards away from the street's intersection with the street on which Zayas lived.

When the officers found defendant, he was behind a rock in the woods.   Defendant told them he had hurt his ankle but said he could walk.   He was placed under arrest, walked to a police car with some difficulty and was taken to headquarters.   Defendant was dressed in black sneakers, black pants and a black shirt, which appeared to be splattered with blood.   In addition, there was blood on the side of his face and in his ear.   At headquarters, the police gave defendant clean clothes and took his clothes for testing.

Despite his ankle injury, defendant was able to undress and dress without apparent difficulty.   An EMT was summoned to examine defendant's ankle and suggested he have his ankle x-rayed.   But defendant, who was told he was being charged with attempted murder of Zayas and Hubbard, agreed to wait for medical care until after he talked to the officers.   He hopped to the interview room.   Defendant mentioned his ankle during the interview, but he did not complain of pain or request anything other than water until his two and a half hour interview was coming to an end.   Even then, defendant agreed to take a ride with the officers before seeking medical care.   They wanted him to point out the route he took when he ran from Zayas' home and into the woods.   After that ride, defendant was treated and it was determined that he required surgery and installation of a metal plate to repair a torn tendon.

DNA testing later showed that Hubbard's blood was on defendant's clothes, a holster defendant was wearing in the house and discarded after leaving, and defendant's gun, which Hubbard had carried to the driveway.   Other blood was found on the gun, and Zayas could not be excluded as a contributor to that blood.

On appeal, defendant's counsel raises these issues:

I.  THE COURT FAILED IN ITS DUTY TO

ADEQUATELY INSTRUCT THE JURY ON THE RELEVANT LAW WHEN IT RESPONDED TO QUESTIONS FOR CLARIFICATION BY GIVING JURORS COPIES OF SECTIONS OF THE CHARGES.

II. THE COURT ERRED IN FAILING TO CHARGE

SELF–DEFENSE WHEN THE DEFENSE WAS CLEARLY INDICATED BY THE FACTS.  (Partially Raised Below).

III. THE DEFENDANT'S RIGHT TO A FAIR TRIAL

WAS VIOLATED WHEN THE JURY WAS WRONGLY ALLOWED TO PLAY THE DEFENDANT'S VIDEOTAPED STATEMENT OUTSIDE THE PRESENCE OF THE COURT, COUNSEL, AND THE DEFENDANT.  (Partially Raised Below).

IV. THE DEFENDANT'S AGGREGATE SENTENCE OF

25 YEARS, 85% BEFORE PAROLE, WAS

MANIFESTLY EXCESSIVE.

Defendant pro se argues:

I.  THE TRIAL COURT ERRED BY FAILING TO

VACATE DEFENDANT'S CONVICTION AND GRANT [A] NEW TRIAL ON ISSUE OF JUROR BIAS AND BECAUSE THE DEFENDANT WAS PREJUDICED THEREBY, IS ENTITLED TO REVERSAL OF HIS CONVICTION AND NEW TRIAL.  (Partially Raised Below).

A. The Jury Selection Process Showed That

Juror # 3 Was Biased And Trial Counsel[']s Failure To Request Removal For Cause Constitutes Plain Error Which Violated Defendant's Due Process Right To A Fair Trial.

II. THE TRIAL COURT IMPROPERLY APPLIED THE

STANDARD OF LAW REGARDING THE VOLUNTARINESS ISSUES OF DEFENDANT'S CUSTODIAL INTERROGATION AS POLICE OBTAINED DEFENDANT[']S STATEMENTS IN VIOLATION OF HIS CONSTITUTIONAL RIGHT AGAINST SELF[-]INCRIMINATION[,] POLICE GOT CONFESSION INVOLUNTARILY BY QUESTIONING DEFENDANT WITH APPARENT BROKEN ANKLE BY TELLING HIM HE WOULD RECEIVE MEDICAL TREATMENT AFTER HE GAVE STATEMENT AND BECAUSE DEFENDANT WAS PREJUDICED THEREBY, [HE] IS ENTITLED TO SUPPRESSION OF STATEMENTS [,] REVERSAL OF HIS CONVICTION AND NEW TRIAL.

A. The Trial Court Applied The Improper

Standard Of Law On Issue Of Voluntariness.

III. THE TRIAL COURT COMMITTED REVERSIBLE

ERROR OF LAW WHEN IT DENIED DEFENDANT'S REQUEST TO ALLOW DR. WITT A MEDICAL EXPERT TO TESTIFY ON DEFENDANT'S CASE IN CHIEF VIOLATED DUE PROCESS OF DEFENDANT UNDER FOURTEENTH AMENDMENT TO UNITED STATES CONSTITUTION.

IV. THE TRIAL COURT COMMITTED REVERSIBLE

ERROR OF LAW BY FAILING TO EXCLUDE HIGHLY PREJUDICIAL EVIDENCE FROM DEFENDANT'S TRIAL AND BECAUSE DEFENDANT WAS PREJUDICED THEREBY, IS ENTITLED TO REVERSAL OF HIS CONVICTION AND NEW TRIAL.

V. THE CUMULATIVE EFFECT OF ISSUES

COMPLAINED OF RENDERED THE DEFENDANT'S CRIMINAL TRIAL UNFAIR.

For the reasons that follow, we affirm defendant's convictions and his sentence.

II

We begin by identifying the issues that do not require extended discussion and explain why we reject those claims.   Those arguments are the ones raised by defendant in his pro se brief and the ones presented by appellate counsel in the first, second and fourth points of her brief.

A

Defendant claims he was deprived of a fair trial because juror number three was allowed to serve on the jury and that the judge erred in denying his motion for a new trial based on that juror's service.   The juror had recently retired from his employment as a painter in the courthouse.   We reject those claims.

During the voir dire, this prospective juror acknowledged what he indicated on his questionnaire.   He admitted he believed police officers were more likely than non-officers to tell the truth and would assign greater value to a police officer's testimony because of his status.   The judge directed the juror that he could not do that if he were selected to serve on the jury and asked if he would be able to comply with that direction.   The juror said he could.

The judge inquired further by explaining the presumption of innocence and the fact that defendant had no obligation to prove his innocence.   The juror acknowledged his agreement with and his ability to follow those principles.   In addition, the juror assured the judge that he had no preconceived notions of defendant's guilt based on the charges defendant faced and would keep an open mind.

The judge also asked the juror whether, because of his work in the courthouse, he had any preconceived notions about the justice system or the judge that would affect him in any way.   The juror said he did not.   After the juror indicated that there was nothing he had not mentioned that would be important for the parties to know, the prosecutor and defense counsel both told the judge that the panel was satisfactory.

In light of the judge's careful questioning of this juror, the juror's responses and the absence of any objection from either attorney, there is absolutely no basis for concluding that the judge erred in allowing this juror to serve.   There was no reason for the judge to doubt this juror's ability to put his opinions aside or suspect that the juror's presence on the panel would deprive defendant of an impartial jury.  State v. Williams, 113 N.J. 393, 429 (1988);  State v. Deatore, 70 N.J. 100, 106 (1976).

In connection with defendant's motion for a new trial defense counsel argued, for the first time, that defendant recalled seeing the same juror painting in the courthouse prior to his retirement.   Defendant claimed to have been wearing prison garb, handcuffed and possibly shackled when he saw the juror painting.   In his brief on appeal, defendant claims that he told his attorney about spotting this juror during jury selection and that his attorney was ineffective because he did not raise an objection at the time.

The judge delivered his finding and reasons for denying a new trial on defendant's claim about the juror's taint orally, just prior to sentencing defendant on November 18, 2011.   Substantially for the reasons stated by the judge, we reject defendant's claims that the judge erred.

We decline to consider defendant's objection to his counsel's performance, primarily because it involves matters outside the record.  State v. Preciose, 129 N.J. 451, 460–61 (1992).   Thus, resolution of that claim must abide a petition for post-conviction relief.

B

We reject defendant's claim that the judge erred in his application of the law requiring exclusion of involuntary confessions substantially for the reasons stated by the judge in his thorough oral opinion of May 17, 2011.   The judge's determination is based on factual findings that are well-supported by the record and a proper application of the law.   The judge fully considered defendant's physical condition, and defendant's claim that his statement was compelled by the officers' withholding of treatment is belied, as the trial judge found, by defendant's demeanor during the interview.   Finding ample support for the judge's findings and discerning no legal error, we have no basis to intervene.  State v. Godfrey, 131 N.J.Super. 168, 174 (App.Div.1974).

C

Defendant also contends that the judge erred in barring the testimony of an expert who would have opined that defendant was acting under adequate provocation when he re-entered Zayas' home and attacked her and Hubbard in bed.   The judge granted the State's motion to bar this testimony on May 16, 2001.   By stipulation, the State and defense counsel agreed that the testimony of the defense expert, Dr. Philip Witt, would be consistent with his report.   The judge carefully reviewed Dr. Witt's report and set forth his reasons for concluding that the testimony involved matters within the understanding of the jurors and, in effect, would intrude upon the court's responsibility for instructing the jurors on the law of provocation and the jurors' obligation to assess the evidence.   Substantially for the reasons stated by the judge in his oral opinion, we affirm.   Defendant has not included a copy of Dr. Witt's report in the record on appeal.   Based on the descriptions of its contents set forth during the argument on the motion, there is no basis for concluding that the judge erred.   Moreover, because we do not have the report, we are in no position to conclude otherwise.

D

Defendant pro se's final claim of error is that the judge erred by allowing the State to introduce unduly prejudicial photographs which depicted the blood on the victim's clothing.   Appellate courts affirm a judge's balancing of the probative and prejudicial value of evidence for abuse of discretion.  State v. Rose, 206 N.J. 141, 157, 177–78 (2011);  N.J.R.E. 403;  N.J.R.E. 404.   Because defendant has not provided us with the photographs he claims were improperly admitted, we have no basis for concluding that the judge abused his discretion.   Accordingly, we affirm the ruling on this point.

E

Turning to the issue raised in Point I of appellate counsel's brief, we find no error in the judge's response to questions asked by the deliberating jurors.

The first request for additional instruction on the law was as follows:  “We need clarification on the difference between significant or serious bodily injury.   Does this involve only the intent to inflict these injuries?”   The judge discussed the question with counsel before responding.   Defense counsel urged the judge to re-read the charge.   But the judge, quite properly, observed that the distinction had impact on several charges.   After discussing the ambiguity in the jurors' use of the word “intent,” the judge suggested that the best approach might be to give the jurors the definitions of the two types of injury and see if that resolved their question.   Defense counsel agreed.

As the jurors had also indicated that they were ready to go home for the night, the judge advised the attorneys that they would discuss the question and possible responses the next day, which they did.   The judge suggested that he begin by asking whether the jury would like to have the written charge concerning significant and serious bodily injury, and defense counsel indicated that he preferred that the court give the jurors all of the charges in writing.   The judge and the attorneys then discussed and agreed on the portions of the charge that would be given to the jurors.

The jurors returned to the court room and the following transpired.

I note that all jurors are present, including our two alternates.   I will again read into the record the communication from yesterday, C–13:  “We need clarification on the difference between significant or serious bodily injury.   Does this involve only the intent to inflict these injuries?”

Ladies and gentlemen, you have been instructed on the law by me as to these issues, however, from time to time it's not unusual to have jurors ask for clarification or further information.   Further information I cannot provide;  the charge is the charge.   Clarification coming from the bench orally is problematic because it may appear as though I'm attempting to influence or steer you in your deliberations.

However, after consultation with counsel, it is our joint belief that if we provide you with the written charges as to aggravated assault serious bodily injury and aggravated assault significant bodily injury, this might be in response to your inquiry and I see the jurors are nodding their head yes.

So with that, I'm going — we have marked this as an exhibit, C–14. We're going to send you back to the jury room.   The aide will deliver this document to you.

Thereafter, the prosecutor asked why the judge had not invited the jurors to ask for additional written instructions and expressed concern about highlighting particular charges.   The judge explained that it was obvious to him that the jurors were all nodding to indicate that he was giving them what they needed and that he made the decision not to go further.   He noted that a pattern for the jurors asking and the court answering questions had been established and that he had told them it was not unusual for jurors to ask questions.   On that ground, the judge concluded that the jurors would continue to deliberate and ask additional questions if they had them.

Less than two hours later, the jurors proved the judge right.   They asked for additional written instructions as follows:  “We need the four prongs for attempted possession provocation — excuse me, attempted passion provocation manslaughter.”   The judge advised the lawyers that he intended to give the jurors the complete instruction on that offense, and defense counsel objected, arguing that he would prefer it if the court would just read the four prongs.   The judge declined to take that approach, and he explained that the jurors should be given and should consider that charge as a whole.

The law governing responses to questions about the law from deliberating jurors is clear.   A “judge's obligation is to answer the question asked and, in so doing, to clear the confusion which generated the inquiry.”  State v. Carswell, 303 N.J.Super. 462, 480 (App.Div.1997).   In our view, that is exactly what the judge did in this case.   The initial question posed by the jurors was extremely ambiguous, and the approach the judge took was an appropriate means of determining the scope of their confusion without probing into their deliberations or burdening them with considerations outside the scope of their confusion.   We see no error here.

F

We find defendant's claim of error based on the omission of an instruction on self-defense wholly lacking in merit.   As defendant acknowledges, there was no request for an instruction on this defense.   In the absence of a request, an instruction on a defense or a lesser-included offense is required if clearly indicated by the evidence.  State v. Walker, 203 N.J. 73, 86–87 (2010) (holding that the “clearly indicated” standard applies to lesser-included offenses and the defenses to felony murder);  State v. Denofa, 187 N.J. 24, 41–44 (2006) (same with respect to the absence of territorial jurisdiction).

In this case, where defendant entered the bedroom of his former girlfriend armed with a fishing knife and a fake gun and stabbed her while she and her friend were sleeping, self-defense was not clearly indicated by the evidence.   See N.J.S.A. 2C:3–4. The use of force to defend oneself is not justifiable to resist force used by the occupier of property, N.J.S.A. 2C:3–4b(1)(b)(iii);  and the use of deadly force is not justifiable if the person claiming the justification, “with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter,” N.J.S.A. 2C:3–4b(2)(a).

G

Defendant's claim that the court imposed an excessive sentence also has insufficient merit to warrant extended discussion.   As noted at the outset of the opinion, defendant's twenty-five-year aggregate sentence subject to NERA is comprised of a fifteen-year term for the attempted murder of Zayas and a ten-year term for the attempted murder of Hubbard.   Attempted murder is a first-degree crime, N.J.S.A. 2C:5–4a, and one sentence is in the mid-range and the other at the bottom of the range of sentences for a crime of the first degree.  N.J.S.A. 2C:43–6a(1).

Defendant did not have a prior criminal history, and the judge found one mitigating factor based on defendant's otherwise law-abiding life, N.J.S.A. 2C:44–1b(7).   The judge found three aggravating factors — the nature and circumstances of the brutal and senseless offenses, N.J.S.A. 2C:44–1a(1);  the gravity and seriousness of the harm, which the judge based on the fact that the victims were sleeping when attacked and unequipped to resist, N.J.S.A. 2C:44–1a(2);  and the need to deter, N.J.S.A. 2C:44–1a(9).   Defendant argues the judge should have found another mitigating factor, one based on provocation not amounting to a defense.   Because the judge's findings are well-supported by the record, we accept them.

We have considered the arguments defendant has offered to establish that his sentence is excessive and determined that they lack sufficient merit to warrant discussion in a written opinion.  R. 2:11–3(e)(2).   The judge's findings on and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience.   See State v. Bieniek, 200 N.J. 601, 608 (2010);  State v. Cassady, 198 N.J. 165, 180–81 (2009);  State v. Yarbough, 195 N.J.Super. 135, 140–41 (App.Div.1984).

III

The most significant issue raised is the propriety of the response to the deliberating jurors' note that advised, “We would like to see the video of [defendant's] statement with transcripts.”   The judge understood the note to refer to defendant's videotaped pretrial interview and the recording of the statements defendant made while he was showing the police the route he took from Zayas' home to the woods.   After discussing the request with counsel, the judge arranged for the jurors themselves to replay one or both of the recordings in the courtroom but outside the presence of the judge, defendant and the attorneys.   Defense counsel did not object to that arrangement.1

It is now clear that the trial court may never give deliberating jurors unfettered access to a recorded statement admitted into evidence at trial or to recorded testimony given at trial.  State v. A.R., 213 N.J. 542, 560–61 (2013) (statements);  State v. Miller, 205 N.J. 109, 122–23 (2011) (testimony).   It is also clear that the foregoing rule applies whether the recording is audio or video and whether the statement or testimony was given by the defendant or a witness.  A.R., supra, 213 N.J. at 560–61.

Prior to A.R., the Supreme Court had not expressly stated that trial courts must refrain from giving the jury unfettered access to a recording of a defendant's pretrial interview.   True, that rule was suggested by the Court's reasoning in State v. Burr, 195 N.J. 119, 135 (2008).   In Burr, the Court directed that a playback of a victim's videotaped statement “must occur in open court,” as it had in that case.  Id. at 131–32, 135.   Because Burr involved a video recording of a pretrial interview of a child that was admitted pursuant to the tender years exception, N.J.R.E. 803(c)(27), prior to A.R. a judge arguably could have concluded that the Court's direction was limited to statements admitted pursuant to that rule.

In any event, it is clear that the procedure employed in this case did not comply with A.R. In A.R., the Court held that a deliberating jury's request for a replay of a defendant's video-recorded pretrial statement also requires “specific measures to avoid the dangers associated with video-recorded evidence and expressly disapprov[ed] permitting unfettered access by the jury to video-recorded statements of witnesses or a defendant during its deliberations.”  213 N.J. at 560.

Accordingly, the question here is whether the deviation warrants reversal of defendant's convictions.   As previously noted, defendant did not object to the course the judge adopted.   Accordingly, our review is for plain error.  R. 2:10–2;  A.R., supra, 213 N.J. at 547.   When considering whether an error is “plain,” the question is whether the error “led the jury to a verdict it otherwise might not have reached,” State v. R.B., 183 N.J. 308, 330 (2005) (internal citation omitted), and “[t]hat determination must be made in the context of the entire record,” State v. Sowell, 213 N.J. 89, 107–08 (2013).

Defendant argues that he need not show that the jurors' unfettered access to his videotaped statements had the capacity to produce an unfair verdict because the error implicated his right to be present at a critical stage of the prosecution.   But in A.R. the Supreme Court rejected that argument.  213 N.J. at 551, 557–59, 563–64 (approving this court's determination that the trial court erred by allowing the jury unfettered access to video-recorded statements of defendant and the victim during deliberations but rejecting our determination that the error was a structural error obviating the need for a showing of prejudice).   In A.R., the Court denied relief on the ground that counsel “actively encouraged” and “plainly invited” the error.  213 N.J. at 561.   In this case, defense counsel did not engage in any conduct that can be fairly characterized as inviting the error under our law — conduct such as inducing, encouraging, acquiescing in or consenting.  Ibid.;  State v. Corsaro, 107 N.J. 339, 345 (1987);  State v. Harper, 128 N.J.Super. 270, 277 (App.Div.), certif. denied, 65 N.J. 574 (1974).

Because this error is neither structural nor invited and there was no objection, our review must be for plain error.   The question of prejudice requires us to consider the purpose of the prohibition against jurors having unfettered access to recordings of pretrial statements.   As the Court explained in A.R., this rule and the other special procedures outlined in Burr and A.R. are designed “to further the ultimate goal of a fair trial.”  A.R., supra, 213 N.J. at 559.

The concern for fairness raised by replay of videotaped statements and testimony is that the jury will assign “undue weight” to or “unfairly emphasize” that evidence.  A.R., supra, 213 N.J. at 554–56;  Miller, supra, 205 N.J. at 123, 125;  Burr, supra, 195 N.J. at 134.   Thus, the trial judge must focus on fairness to the defendant flowing from a replay of the out-of-court statement — for example, by considering whether some or all of the declarant's trial testimony and cross-examination should be replayed as well to provide proper context and by requiring that the replay take place in open court so that a record of what the jury replayed can be made.   A.R., supra, 213 N.J.%DP1⌑In considering whether any deviation from the specified procedures had the clear capacity to deprive a defendant of a fair trial, it is appropriate for us to focus on the same considerations — the concerns for fairness that led to the adoption of special procedures necessitated by technological advances.

First, this case does not raise any concern about the jurors hearing defendant's pretrial statements out of context and without the benefit of testimony he gave at trial.   That is so because defendant did not testify.   In short, his pretrial statements were the only statements he gave that presented his side of the story.

The second concern, prejudice based on over-emphasis due to repetitive replays of the recordings, is most difficult to assess.   That is so because the erroneous grant of unfettered access to the jurors leaves us without any record of what the jurors replayed.   They may have listened to all of both recordings once or they may have listened to the most prejudicial portions many times.   We simply cannot know.

Focusing on fairness to the defendant in the absence of a record, we deem it appropriate to assume that the jurors replayed the portions of the recording most damaging to defendant multiple times.   The most damaging statements defendant made were those admitting to his entry of Zayas' home on the night of the stabbing, discussing his departure and return to Zayas' home after arming himself with the fishing knife and fake gun he kept in his car, and his description of his struggle with Hubbard and running to the woods when he heard sirens.

As the trial judge noted in denying defendant's motion for a new trial, there was independent and overwhelming evidence of those inculpatory facts.   The victims, who knew defendant, identified him as the intruder and also the gun he carried inside.   The clothing he was wearing when apprehended in the woods matched the clothing the witnesses described, and that clothing was stained with Hubbard's blood.   The gun Hubbard took from defendant and carried outside also bore Hubbard's blood.   Given the independent evidence establishing the most incriminating facts defendant admitted, we cannot conclude that the jurors would have reached a different verdict if they had not reheard the admissions multiple times or that hearing those admissions multiple times would make them more likely to convict.

In this case, it is also appropriate to focus on the fact that defendant's recorded statements provided the only evidence supporting his defense of provocation.   Much, if not most, of what defendant said to the officers was about his perceptions of Zayas' wrongs to him, her misleading him, his snapping upon seeing Hubbard in her bed that night, and his effort to leave, which he abandoned because something snapped.   Viewing defendant's demeanor multiple times may have had some impact on the jurors, but we fail to see how it had a clear capacity to lead the jurors to reject a claim of provocation that they would have accepted if they did not replay the video.

As the trial judge observed, “in many ways [this evidence] was helpful to defendant, even though not presented by the State for that purpose,” because it was “supportive of a finding that there was some passion provocation or that his passions had become so inflamed that he could not even recall what he had done.”   The judge further noted, quite aptly in our view, “There's nothing in the demeanor of his statement as indicated on that videotape that would cause one to feel that he was an evil person or a bad person.”   In addition, the judge noted that the principal issue was whether or not defendant acted under provoked passion and the video, helpful to defendant on that point, “certainly” was not critical to the State's side of the case on that point.   We agree with the judge's assessment of the insignificant capacity of this error to alter the outcome.   During the interview, defendant was making an effort to portray himself and the facts in a light most favorable to him.   Thus, this was not a case where a witness hostile to defendant effectively made multiple appearances before the jury.

In the end, we have no doubt that the procedural lapse in this case lacked the capacity to produce an unjust result.  A.R., supra, 213 N.J. at 557 (agreeing with the State's characterization of the judge's allowing the jurors unfettered access to the tapes as a procedural lapse).

Affirmed.

FOOTNOTES

1.  FN1. The judge noted that the deliberating jurors could not replay the recordings in the jury room because it lacked the necessary equipment.Defense counsel's only objection to the procedure the judge intended to follow was giving the jurors the transcripts.   As defense counsel correctly noted, those transcripts were not admitted into evidence.   The judge addressed and resolved that objection by explaining that he would repeat the instruction he had given when the recordings were played at trial — that is, advise the jurors that the transcripts were simply guides, not evidence, and that the jurors had to “go by” what they heard on the recording and not what they read in the transcript.   After the judge addressed the problem in that way, defense counsel did not object.Appellate counsel's argument is based on the access the jurors had to the recording, not the transcripts.   Undoubtedly the objection to the transcripts is not raised here because reviewing courts generally presume that jurors “faithfully follow” the trial court's directions.   See State v. Miller, 205 N.J. 109, 126 (2011) (stating that courts presume jurors “faithfully follow” the judge's directions).

PER CURIAM

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