STATE OF NEW JERSEY v. RODNEY HARRIS (2010)

A grand jury indicted defendant Rodney Harris and other individuals on numerous drug-related charges.   Defendant and codefendant Rodney Coleman, defendant's father, Kelly Felder, defendant's step-mother, and Donald Scott, defendant's neighbor, were tried jointly.   A jury convicted defendant of second-degree conspiracy to possess a controlled dangerous substance (CDS) (cocaine) and/or possession of CDS with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5 (count one);  third-degree manufacturing, distributing or dispensing CDS, N.J.S.A. 2C:35-5a(1) (count four);  distribution of CDS on or within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count five);  and third-degree manufacturing, distributing or dispensing CDS, N.J.S.A. 2C:35-5a(1) (count seven).   The jury acquitted defendant of third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (count twelve), third-degree manufacturing, distributing or dispensing CDS, N.J.S.A. 2C:35-5a(1) (count thirteen);  and third-degree distributing, dispensing or possessing CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count fourteen), and the judge dismissed the disorderly persons offense of use or possession with intent to use drug paraphernalia, N.J.S.A. 2C:36-2.

At sentencing, the trial judge imposed a mandatory extended-term sentence of seven years on count one;  merged count four with count five;  imposed a concurrent five-year term of imprisonment with three years of parole ineligibility on count five;  and imposed a concurrent mandatory extended-term sentence of seven years with three years of parole ineligibility on count seven.   The judge also imposed the appropriate assessments, penalties and fees, and suspended defendant's driver's license for two years.

We incorporate herein the facts set forth in our unpublished opinion simultaneously filed with this opinion, State v. Coleman, A-5208-06T4, which was calendared back-to-back with this case.

Against these facts, defendant raises the following contentions:

POINT I-THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ARISING OUT OF THE JURY DELIBERATION PROCESS.

POINT II-THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING THE ISSUE OF IDENTIFICATION.  (NOT RAISED BELOW).

POINT III-THE DEFENDANT IS ENTITLED TO A REMAND FOR A DETERMINATION AS TO THE REASONS FOR THE STATE'S DECISION TO SEEK AN EXTENDED TERM AND WHETHER SUCH A DECISION WAS ARBITRARY AND CAPRICIOUS.  (NOT RAISED BELOW).

POINT IV-THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We affirm.

I.

Defendant contends in Point I that the judge erred in denying his motion for a mistrial based on juror misconduct.   We disagree.

In the afternoon of the second day of deliberations, the jury foreperson sent the judge a note indicating that Juror No. 10 was verbally attacking her and “[t]hreatening [her] with you better change your vote or else[.]”  In counsel's presence, the judge questioned both jurors.   Juror No. 10 denied threatening the foreperson.   Rather, she angrily called the foreperson “dumb” because the foreperson would not vote on three of the sixteen questions on the verdict sheet.   Juror No. 10 also stated that despite this, she could continue to deliberate.   Although initially reluctant to continue, the foreperson eventually agreed that she could continue to deliberate if the judge instructed Juror No. 10 not to engage in any further threatening conduct.   The following colloquy between the judge and the jurors then occurred:

[THE COURT]:  As you continue your debate, I don't want you to change your opinion about anything-unless you decide to change your opinion-because [of] what happened in the jury room.

․

Your opinion should only be changed by what happens in the jury room and not by what happens out here talking to me.   But I would say that while healthy debate is what we want, it can never get personal.   There can never be name calling and no one, obviously, can threaten anyone.

So knowing that we can't do that, I am confident that both of you can continue to function effectively as jurors with both of you in the same jury.   Do you both agree with that?

[JUROR NO. 10]:  Yes.

[FOREPERSON]:  (Nods her head in the affirmative).

Defense counsel moved for a mistrial based on the threats to the foreperson.   The judge denied the motion finding that the jurors could continue deliberating fairly.   The jury subsequently reached a verdict as to all charges.   After the verdict, the judge polled the jurors, each of whom stated that they agreed with the verdict.

A mistrial is an extraordinary remedy that should be granted only to prevent a manifest injustice.  State v. Winter 96 N.J. 640, 646-47 (App.Div.1984).   “Whether manifest necessity mandates the grant of a mistrial depends on the specific facts of the case and the sound discretion of the court.”  State v. Allah, 170 N.J. 269, 280 (2002) (citing State v. Loyal, 164 N.J. 418, 435 (2000)).   The court should exercise its discretion “with the greatest caution, under urgent circumstances, and for very plain and obvious causes.”  Loyal, supra, 164 N.J. at 436 (quotation omitted).   In addition to deciding whether a “manifest injustice” will result from continuing the trial, the court must decide “whether or not the prejudice resulting from the error is of a nature which can be effectively cured by a cautionary instruction or other curative steps.”   Pressler, Current N.J. Court Rules, comment 5.1 to R. 3:20-1 (2010);  see also State v. Ribalta, 277 N.J.Super. 277, 291 (App.Div.1994), certif. denied, 139 N.J. 442 (1995).   When “the court has an appropriate alternative course of action[,]” it should deny a request for a mistrial.  Allah, supra, 170 N.J. at 281 (citing Loyal, supra, 164 N.J. at 436-37).

When faced with possible juror misconduct, the court must first determine whether the problem has the capacity to prejudice the defendant.  State v. Scherzer, 301 N.J.Super. 363, 487 (App.Div.) (citing State v. Bey, 112 N.J. 45, 84-86 (1988)), certif. denied, 151 N.J. 466 (1997).   If so, the court must conduct a voir dire, preferably individually in camera, to determine whether the misconduct may affect the deliberation process.  Ibid. If the court finds that it may, it should then question each juror to determine the nature of the misconduct and whether the juror is capable of deciding the case impartially based solely on the evidence presented at trial.  Ibid. “[T]he trial judge must make a probing inquiry into the possible prejudice caused by any jury irregularity, relying on his or her own objective evaluation of the potential for prejudice rather than on the juror's subjective evaluation of their own impartiality.”  Id. at 487-88.   The grant of a mistrial for juror misconduct is not warranted where a juror's complaint “related to no more than the discomfort produced by the deliberative pressures[.]”  State v. Williams, 213 N.J.Super. 30, 35 (App.Div.1986), certif. denied, 107 N.J. 104 (1987).   Because the court is in the best position to gauge the effect of any alleged juror impropriety, we defer to its decision on a motion for a mistrial.  State v. Harvey, 151 N.J. 117, 205 (1997).   We will not disturb a trial court's ruling on such a motion unless there is an abuse of discretion.   Ibid.

We discern no abuse of discretion in the denial of a mistrial based on the friction between the foreperson and Juror No. 10.   The judge had the opportunity to observe the two jurors, and thus was in the best position to determine whether that friction had been sufficiently defused to permit them to continue deliberating fairly and impartially.   The judge properly addressed the issue under Scherzer, supra, and determined that the jurors could do so.

II.

Defendant contends for the first time on appeal in Point II that the judge erred in failing to instruct the jury on the issue of identification.   Defendant concedes that there was no substantial identification issue in the case, and thus it would have been inappropriate to specifically instruct the jury on any of the various Model Jury Charges on identification.¹  However, he argues that the judge should have instructed the jury in accordance with a shortened, generalized charge on identification because he denied any involvement in the drug activity attributed to him.   This argument lacks merit.

An identification instruction is not required unless that issue is an essential element of the case.  State v. Davis, 363 N.J.Super. 556, 561 (App.Div.2003).   Whether the failure to give an identification charge constitutes plain error “depends on the strength and quality of the State's corroborative evidence rather than on whether defendant's misidentification argument is convincing.”  State v. Cotto, 182 N.J. 316, 326 (2005).   When the defendant fails to request an identification charge, the trial court is not required to give an identification instruction sua sponte if the issue is not compelling, such as when (1) the eyewitness identification is persuasive, (2) the State presents substantial evidence corroborating the identification, and (3) defense counsel has had an opportunity to point out any inconsistencies in the identification during cross-examination and in summation.  State v. Salaam, 225 N.J.Super. 66, 70-72 (App.Div.), certif. denied, 111 N.J. 609 (1988).

Identification was not a genuine issue in this case.   Defendant's primary defense was that the police fabricated the evidence against him, and his strategy was to attack the credibility of the State's witnesses.   Defendant did not present a misidentification defense, there was no evidence of misidentification presented at trial, and there was overwhelming evidence of defendant's involvement in the drug activity for which he was convicted.   Accordingly, no identification charge, even an abbreviated one, was required.

III.

Defendant contends for the first time on appeal in Point III that this matter must be remanded for a statement of reasons for the prosecutor's decision to seek an extended-term sentence and a determination of whether such decision was arbitrary and capricious.   The State contends that the judge erred in failing to impose a mandatory extended-term sentence on count five, and in failing impose a five-year period of parole ineligibility on count seven pursuant to N.J.S.A. 2C:43-7c.

The prosecutor had filed a motion for a mandatory extended-term sentence based on defendant's previous conviction for third-degree manufacturing, distributing or dispensing CDS, N.J.S.A. 2C:35-5b(3), and third-degree possession of CDS within 500 feet of public housing facilities, parks or buildings, N.J.S.A. 2C:35-7.1a. The prosecutor's motion papers did not identify the offenses for which he sought a mandatory extended- term sentence.   However, at sentencing the prosecutor stated that he was only seeking an extended term “on one of the third degree drug convictions.”

Defense counsel agreed that defendant was subject to an extended term due to these prior convictions, and requested a seven-year extended-term sentence on count seven.   Prior to imposing the sentence, the judge found that

I'm very familiar with the facts of the case, as I presided over the trial.   I've also had an opportunity to review [defendant's presentence report].  [Defendant] is 25-years-old and he has had a lengthy involvement in the criminal justice system.   He does have a ․ history of some employment, but it's very shaky.

As an adult [defendant] has been arrested eleven times.   He has two prior indictable convictions, both of which are for CDS offenses.   He was once given the benefit of a [Pre-Trial Intervention] program in Morris County for a CDS offense and then a year later he was terminated from the program and is currently serving a three year term, with nine months of parole ineligibility on two indictments that were sentenced out of Morris County.

The judge found aggravating factors N.J.S.A. 2C:44-1a(3) (the risk that the defendant will commit another offense) based on defendant's prior record and the fact that he had committed three CDS offense while released on bail for this case;  N.J.S.A. 2C:44-1a(9) (the need for deterring the defendant and others from violating the law);  and N.J.S.A. 2C:44-1a(11) (the imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices) based on the extensive drug distribution activity in which defendant was involved.

The judge also found mitigating factor N.J.S.A. 2C:44-1b(13) (the conduct of a youthful defendant was substantially influenced by another person more mature than the defendant) based on Coleman's influence on defendant.   The judge declined to find mitigating factor N.J.S.A. 2C:44-1b(3) (the defendant acted under a strong provocation [his father] ).   The judge found that the aggravating factors outweighed the mitigating factors.   The judge imposed a mandatory extended term on count seven.

A person convicted of manufacturing, dispensing or possessing CDS under N.J.S.A. 2C:35-5 who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute CDS, “shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by [N.J.S.A. 2C:43-7c].”  N.J.S.A. 2C:43-6f.

The court shall not impose an extended term ․ unless the ground therefor has been established at a hearing.   At the hearing, which may occur at the time of sentencing, the prosecutor shall establish the ground therefor by a preponderance of the evidence.   In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information.

[Ibid. ]

“[P]rosecutors must state on the trial court record the reasons for seeking an extended sentence[ ]” in order to “provide for effective judicial review and will help to insure that prosecutors follow the guidelines in each case.”   State v. Lagares, 127 N.J. 20, 32 (1992).   The burden is on the defendant to prove by clear and convincing evidence that the prosecutor's decision to seek the extended term was arbitrary and capricious.  Id. at 33.

The purpose of the prosecutor placing a statement of reasons for pursuing the extended term sentence on the record is to facilitate judicial review.   Although the prosecutor in this case did not specifically state his reasons on the record, the record clearly indicates that defendant is subject a mandatory extended-term sentence due to his prior CDS convictions.   Defendant did not object to the State's application for the extended-term sentence and, in fact, agreed that he was subject to such a sentence on count seven.   More importantly, defendant has failed to show by clear and convincing evidence that the prosecutor's decision to seek an extended term was arbitrary and capricious.

We disagree with the State that the judge erred in failing to impose a mandatory extended-term sentence on count five.

Where multiple offenses are charged, the notice obviously should include an identification of the offense with respect to which the prosecutor is seeking an extended term in order to give the defendant a fair opportunity to meet that claim.   Because it is the prosecutor's choice whether to seek an extended term in the first instance, it follows that the trial judge should give weight to the prosecutor's determination regarding which offense is to be subject to an extended term, but that selection is not dispositive.   If the judge has reason to disagree, he should state, on the record, along with his reasons for the sentence, why he chose to apply the extended term to a different charge than that sought by the prosecutor.   That statement will, in turn, provide the Appellate Division with a foundation to determine whether the trial judge exercised his discretion based upon application of correct legal principles to the facts.

[State v. Thomas, 195 N.J. 431, 436 (2008) (citing State v. Roth, 95 N.J. 334, 363 (1984)).]

Here, the prosecutor only requested an extended term on one of the third-degree CDS convictions.   The judge complied with the prosecutor's request and imposed the extended term on count seven.   There is nothing in the record suggesting that the judge abused his discretion in not applying an extended term to count five, especially in light of the prosecutor's request to limit such term to only one third-degree CDS conviction.

Further, N.J.S.A. 2C:43-6f, not N.J.S.A. 2C:43-7(c), is the controlling statute with respect to the period of parole ineligibility.  N.J.S.A. 2C:43-6f requires that “[t]he minimum term [of parole ineligibility] shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater[.]”  Because a three-year period of parole ineligibility is greater in this case, the judge properly imposed it on count seven.

IV.

Defendant contends in Point IV that the judge abused his discretion by imposing a seven-year term of imprisonment on counts one and seven.   He argues that the record does not support the judge's findings of aggravating factors, and the judge should have found mitigating factors N.J.S.A. 2C:44-1b(8) (the defendant's conduct was the result of circumstances unlikely to recur), and N.J.S.A. 2C:44-1b(9) (the character and attitude of the defendant indicate that he is unlikely to commit another offense).

As previously stated, the judge found aggravating factors three, nine and eleven and mitigating factor thirteen, and declined to find mitigating factor three, the only other mitigating factor defendant requested at sentencing.   Although we agree with defendant that aggravating factor eleven does not apply because the judge was not balancing a non-custodial term against a period of incarceration, State v. Dalziel, 182 N.J. 494, 502 (2005), the finding of this aggravating factor constitutes harmless error.   The judge's findings of aggravating factors three and nine are amply supported by the record, while mitigating factors eight and nine are not.   Defendant was involved in an extensive and highly lucrative drug distribution ring, had a lengthy criminal history by the age of twenty-five involving offenses other than those in this case, was terminated from the Pre-Trial Intervention program for non-compliance, committed other CDS offenses while released on bail in this case, and had a scant employment history.   The aggravating factors clearly outweigh the mitigating factor, warranting the seven-year sentences imposed on counts one and seven.

Affirmed.

FOOTNOTES

FN1. See Model Jury Charge (Criminal), “Identification:  Out-of-Court Identification Only” (1999);  Model Jury Charge (Criminal), “Identification:  In-Court Identification Only” (1999);  and Model Jury Charge (Criminal), “Identification:  In-Court and Out-of-Court Identifications” (1999)..  FN1. See Model Jury Charge (Criminal), “Identification:  Out-of-Court Identification Only” (1999);  Model Jury Charge (Criminal), “Identification:  In-Court Identification Only” (1999);  and Model Jury Charge (Criminal), “Identification:  In-Court and Out-of-Court Identifications” (1999).

PER CURIAM