STATE OF NEW JERSEY v. LENNOX RISDEN (2011)

Defendant, Lennox Risden, appeals from his conviction by a jury of first-degree murder, N.J.S.A. 2C:11-3a(1) or (2) (Count One);  first-degree felony murder, N.J.S.A. 2C:11-3a(3) (Count Two);  first-degree robbery, N.J.S.A. 2C:15-1 (Count Three);  and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (Count Four).   He also appeals his sentence of life imprisonment for murder, subject to the eighty-five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and his consecutive sentence of twenty years in custody for robbery, also subject to NERA.

On appeal, defendant raises the following issues for our consideration:

I.  THE TRIAL JUDGE DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND THE PRESUMPTION OF INNOCENCE WHEN HE DENIED DEFENSE COUNSEL'S REQUEST TO QUESTION THE JURORS ABOUT A PHOTOGRAPH OF DEFENDANT WEARING HANDCUFFS WHICH HAD APPEARED IN THE NEWARK STAR LEDGER AND THEN IMMEDIATELY STARTED STATIONING A SHERIFF'S OFFICER BETWEEN DEFENDANT AND THE JURORS.  (Partially Raised Below)

II.  THE JURY INSTRUCTIONS ON ACCOMPLICE CULPABILITY DID NOT COMPLY WITH STATE V. BIELKIEWICZ.  (Not Raised Below)

III.  REVERSAL IS REQUIRED BECAUSE THE TRIAL JUDGE, BY OBSERVING THAT THE NAME “BILL” HAD BEEN “THROWN OUT” BY THE DEFENSE, INDICATED TO THE JURY THAT HE DID NOT BELIEVE THAT PORTION OF DEFENDANT'S STATEMENT AND OPERATED TO UNDERCUT THE DEFENSE CASE. (Not Raised Below)

IV.  A NEW SENTENCING HEARING IS REQUIRED SINCE [THE TRIAL] JUDGE, ABOUT A MONTH AFTER SENTENCING, REVISED DEFENDANT'S SENTENCE UPWARD WITHOUT A HEARING AND OUTSIDE THE PRESENCE OF DEFENDANT AND HIS ATTORNEY.  (Not Raised Below)

V. THE SENTENCE MUST BE REVERSED BECAUSE IT WAS EXCESSIVE;  ADDITIONALLY, THE NERA SENTENCES VIOLATE FEDERAL AND STATE CONSTITIONAL PROSCRIPTIONS AGAINST CRUEL AND UNUSUAL PUNISHMENT.

VI. REVERSAL IS REQUIRED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS SET FORTH IN POINTS I THROUGH V, SUPRA.

We affirm defendant's convictions, but remand for resentencing.

I.

Evidence adduced at trial supported the State's position that defendant, a Jamaican native, sought to purchase a used truck for the use of his family in Jamaica.   In that connection, he had on several occasions visited Brandywine Trucking, a used truck business in Woodbridge, New Jersey, owned and operated by Jerome O'Brien.   On December 23, 2004, defendant borrowed an Acura Integra owned by a co-worker, Noel McKenzie, and drove it to Brandywine.

Kerisha Sayles, a customer who had gone to Brandywine with her husband, Leopold, to pick up an order for parts, testified that while at Brandywine, she had observed O'Brien in his office apparently sleeping.   His office door was locked.   Although she attempted to rouse O'Brien by knocking, she could not do so.   Some time later, she was approached by defendant, who asked if she knew where O'Brien was.   Thereafter, defendant approached Leopold Sayles, asking him “what's up with Jerry,” and informing Leopold that he had come to pay O'Brien, but that he had left his keys in O'Brien's locked office.   The two men then approached O'Brien's office and observed him to be slumped in a chair at his desk.   When O'Brien failed to respond to repeated pounding on the office door, Leopold called 9-1-1.   The police arrived, and after the office door had been opened, determined that O'Brien had been shot in the chest and was dead.   It was subsequently determined that he died from a single close-range shotgun blast.

Defendant was transported to police headquarters in furtherance of the police's criminal investigation.   After defendant left the police vehicle, a live shotgun shell was found where he had been sitting.   At the station, and after receiving Miranda ¹ warnings, defendant gave a statement in which he claimed that he drove to Brandywine in Noel McKenzie's car, arriving at approximately noon.   Once there, he encountered an acquaintance named “Bill” and agreed at Bill's urging to assist him in robbing O'Brien at gunpoint with an allegedly unloaded gun.   Bill gave the gun to defendant, instructing him to point it at O'Brien while Bill accomplished the robbery.   However, while O'Brien was removing money from his wallet, the gun accidentally, and to defendant's surprise, fired.   Defendant was then instructed by Bill to leave the premises.

Once outside, Bill took the money and gun and headed up the street in the direction of defendant's car.   After Bill left, defendant saw a shotgun shell on the pavement and put it in his pocket.   Defendant admitted that he “played along” in his encounter with Leopold Sayles when he asked whether something was wrong with O'Brien.   He stated that he remained on the premises because he had left his keys inside O'Brien's office.

The police towed to headquarters the Acura that had been driven by defendant.   After obtaining defendant's written consent, they searched the vehicle finding a shotgun wrapped in a white towel with a spent shell in the chamber, envelopes filled with a large amount of cash, a receipt and truck title bearing blood stains, and a blue bandana.   Subsequent investigation revealed O'Brien's DNA on the receipt and title, and defendant's DNA on the bandana.   No fingerprints of value were detected.

The shotgun found in the car driven by defendant was tested and found to be operable, with no malfunctions.   Testimony was presented that six and three-quarter pounds of trigger pull was required to discharge the weapon, and that constituted a “substantial amount of force.”   The gauge of the weapon was the same as the shell that had hit O'Brien and, upon test firing, the gun produced the same pellet pattern as that found on O'Brien's chest.

II.

On appeal, defendant first argues that he was not afforded a fair trial because, on the fourth day of trial and the last day of testimony, the judge refused a defense request to voir dire the jury regarding a photograph of defendant in handcuffs that had appeared in the Star Ledger in the prior week.

In refusing counsel's request, the judge noted his frequent and detailed instructions to the members of the jury that they should not look at newspapers while the trial was in progress, and the lack of any evidence that his instructions had been violated.   The judge also stated:

I have to believe that any reasonable person with any understanding of the criminal justice system at all would understand that given the nature of the charges, 99.9 percent of the folks who are pending disposition would be in custody.   I will at the close of the case, during my charge repeat and state with specificity that defendant's position is one of absolute presumption of innocence, and should they have seen or read anything that might in any way impact on their analysis of this case, they should put that aside.

The judge noted that the article itself “didn't talk a whole lot about the defendant” and gave no indication that he had a prior criminal history.   The judge stated:  “There's no indication that he is in any status other than that of an accused, nothing that gave rise, to my mind, as I read it[ ][t]o indicate that there was any prejudicial information, other than the photograph and the indication that he is, in fact, incarcerated, that in and of itself, even if they saw it, I don't think is of particular relevance.   I don't think it would impact on their deliberations.”   Additionally, the judge stated his concern that, to engage in individual questioning at that stage of the proceedings, would prejudice defendant “as those jurors will be sitting there and wondering why are they being asked these questions, my goodness, what's been written about this man.”

At our request the photograph at issue was provided by defense counsel.   It is in color and is reproduced as a eight-and-one-half by eleven glossy.   We find it unlikely that the photograph was printed in color in the Star Ledger, or that it appeared in an equivalent size.   However, we have not been supplied a copy of the photograph as printed in the newspaper.   The color photograph depicts defendant dressed in civilian clothes, but cuffed and escorted by a Middlesex County sheriff's officer.   Although from a judicial perspective it appears that the photograph was taken in a courtroom,² it is unclear whether that fact would be obvious to a lay person or to anyone if the photograph were printed in a reduced size in black and white.   There is no indication in the record whether it was taken at a bail hearing, when defendant's arraignment occurred, or at some point thereafter.   Further, the record does not disclose where in the Star Ledger the picture was placed;  whether it appeared on the front page of the paper or the front page of an interior section, whether it was buried within the paper, or whether it was located above or below the fold.   Its size when reproduced is not known, and it is not known whether the photograph was cropped in some fashion.

On appeal, defendant does not suggest that the content of the article that accompanied his picture in the paper was prejudicial.   He argues only that the judge failed to take sufficient steps to ensure that the jurors were not exposed to the picture itself.

The Supreme Court has held:

A defendant's right to be tried before an impartial jury is one of the most basic guarantees of a fair trial.   See U.S. Const. amend.   VI;  N.J. Const. art.   I, ¶ 10;  State v. Williams, 93 N.J. 39, 60 (1983) (Williams I ) (explaining that “securing and preservation of an impartial jury goes to the very essence of a fair trial”).

[State v. Loftin, 191 N.J. 172, 187 (2007).]

In the present case, we are concerned with that aspect of impartiality mandating “ ‘that the jury's verdict be based on evidence received in open court, not from outside sources.’ ”  State v. Bey, 112 N.J. 45, 75 (1988) (quoting Sheppard v. Maxwell, 384 U.S. 333, 351, 86 S.Ct. 1507, 1516, 16 L. Ed.2d 600, 613 (1966)).

As expressed by Justice Holmes, “[t]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.”  Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879, 881 (1907).

[Bey, supra, 112 N.J. at 75.]

Once a trial judge learns that “a juror may in fact be tainted, ․ the trial court, upon being apprised of such a circumstance, is obliged to interrogate the juror in the presence of counsel to determine if there is a taint.   If so, the court is then obliged to interview the other jurors to determine if they or any of them have been infected by the taint.”   Pressler and Verniero, Current N.J. Court Rules, comment 2.1 on R. 1:16-1 (2011).   We review a trial judge's decision whether and in what manner to conduct a voir dire of the jury utilizing an abuse of discretion standard.  State v. R.D., 169 N.J. 551, 558-60 (2001).  “Application of that standard respects the trial court's unique perspective.   We traditionally have accorded trial courts deference in exercising control over matters pertaining to the jury.”  Id. at 559-60.

Bey is a leading case on the issue of mid-trial taint from newspaper publicity.   In Bey, the defendant was charged with the murders of Cheryl Alston and Carol Peniston.   Trial of the Alston matter occurred first.   During that trial, near the close of trial testimony, defense counsel produced six articles that had appeared in local papers since the inception of jury selection.   Four mentioned defendant's pending trial for the murder of Carol Peniston and one also mentioned his prior convictions for robbery and aggravated assault.  Bey, supra, 112 N.J. at 56.   After offering the articles, counsel moved for a mistrial or for voir dire of the jury to determine whether it had been tainted.   The trial judge denied both motions, relying on the assumption that the jurors had complied with his repeated cautionary instruction not to read publicity regarding Bey or the case while trial was in progress.  Id. at 56-57.   On appeal from convictions for murder, felony murder, aggravated assault, and aggravated sexual assault, the Supreme Court reversed, in part because defendant's right to a fair and impartial jury was violated as the result of prejudicial publicity and the judge's inaction in the face of such publicity.  Id. at 90-91.

In reaching its conclusion that the trial judge erred when he refused to question the sitting jury, the court observed:

The procedure of questioning an impaneled jury when prejudicial publicity threatens the fairness and integrity of a defendant's trial should not be invoked begrudgingly.   While we do not mean to suggest that any publicity relating to the defendant or the proceedings will automatically require that the jury be polled, see United States v. Lord, 565 F.2d [831,] 838 [ (2d Cir.1977) ] (polling not required if information disseminated was “clearly innocuous” or possibility of jury exposure was “remote”), a court might properly choose to err on the side of caution when ruling on such motions.

[Bey, supra, 112 N.J. at 89.]

The Bey Court established a two-part test to determine whether jury voir dire was required.   It held that “[t]he court should first examine the information disseminated to determine if it has the capacity to prejudice the defendant.”   Id. at 84.   In that connection, the Court gave as possible indicia of prejudice, “ ‘the timing of the media coverage and its possible effects on legal defenses.’ ”  Ibid. (citing United States v. Manzella, 782 F.2d 533, 542 (5th Cir.), cert. denied, sub nom.  Jimenez v. United States, 476 U.S. 1123, 106 S.Ct. 1991, 90 L. Ed.2d 672 (1986)).   Additionally, the Court mentioned “reports of a confession or of inculpatory physical evidence that the court has ordered suppressed, or of proceedings held outside the presence of the jury.”  Id. at 84-85 (citing Virgin Islands v. Dowling, 814 F.2d 134, 139 (3d Cir.1987) (“extra-record information about the case” such as defendant's attempt to enter non-vult guilty plea may be prejudicial);  United States v. Williams, 809 F.2d 1072, 1092 (5th Cir.) (publicity referring to revocation of defendant's bail after damaging testimony could prejudice jury by putting judge's “official imprimatur” on its credibility), reh'g denied, 817 F.2d 1136, reh'g granted, 828 F.2d 1, cert. denied, 484 U.S. 896, 108 S.Ct. 259, 98 L. Ed.2d 216 (1987);  United States v. Perotta, 553 F.2d 247, 250-51 (1st Cir.1977) (article reporting that district court had characterized suppressed evidence as extremely prejudicial could suggest to jury the existence of “serious evidence” of defendant's guilt).

As further potentially prejudicial publicity, the Court noted:

publicity referring to a pending indictment or prior conviction could gravely prejudice defendant's rights to a fair trial.   See, e.g., Marshall v. United States, 360 U.S. 310, 312-13, 79 S.Ct. 1171, 1172-73, 3 L. Ed.2d 1250, 1251-52 (1959) (reversing conviction where jurors learned of prior convictions);  State v. Kociolek, 20 N.J. [92,] 96 [ (1955) ] (juror knowledge of pending assault indictment in death phase of murder trial “would be calculated to disparage the defendant in the minds of the jurors”);  Virgin Islands v. Dowling, supra, 814 F.2d at 138 (publicity referring to prior convictions or criminal activities “carries great potential” for prejudice);  United States v. Gray, 788 F.2d [1031,] 1032-33 [ (4th Cir.1986) ] (article charging that defendant had previously been acquitted of “masterminding a $30 million dollar Amsterdam-to-New York heroin ring” satisfied prejudice threshold);  United States v. Pomponio, 517 F.2d [460,] 462-63 [ (4th Cir.1975) ] (article disclosing that current trial was for ten counts of 113 count indictment was prejudicial).

[Bey, supra, 112 N.J. at 85 (footnote omitted).]

As a second step in its analysis, a court that “is satisfied that the published information has the capacity to prejudice the defendant ․ should determine if there is a realistic possibility that such information may have reached one or more of the jurors.”  Id. at 86.   In that regard, the Court held that a trial judge should consider the “extent, notoriety, and prominence of the media coverage,” ibid. (citing Williams, supra, 809 F.2d at 1092;  Manzilla, supra, 782 F.2d at 543;  and United States v. Trapnell, 638 F.2d 1016, 1022-23 (7th Cir.1980)).

Turning to the present case, we conclude that it would have been preferable for the trial judge to question the jury regarding its knowledge of the Star Ledger picture and the possibility of juror taint.   However, we also conclude that defendant has failed to meet his burden of demonstrating prejudice as the result of the judge's failure to do so.  State v. Mance, 300 N.J.Super. 37, 54 (App.Div.1997).   Defendant has pointed to nothing that would suggest that a single photograph of him in handcuffs, published mid-trial, had the capacity to prejudice the empanelled jurors.

The Court has held:

Consistent with the right to a fair trial, a trial court may not require a defendant to appear before the jury in restraints absent compelling reasons.   State v. Damon, 286 N.J.Super. 492, 498-99 (App.Div.1996), (citing Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L. Ed.2d 353, 359 (1970);  State v. Roberts, 86 N.J.Super. 159, 162-63 (App.Div.1965)).   We disfavor placing physical restraints on a defendant at trial because the jury is likely to consider such a defendant “ ‘as being in the opinion of the judge a dangerous man, and one not to be trusted, even under the surveillance of officers.’ ”  Kennedy v. Cardwell, 487 F.2d 101, 106 (6th Cir.1973) (quoting State v. Kring, 64 Mo. 591, 593 (1877), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L. Ed.2d 310 (1974)).

[State v. Artwell, 177 N.J. 526, 534 (2003).]

However, we have not expressed the same concern when a defendant was momentarily viewed by jurors in handcuffs while being transported to or from court.   In State v. Sykes, 93 N.J.Super.   90 (App.Div.1966), a case in which defendant was viewed by jurors in a hallway in handcuffs and accompanied by a guard, we observed:

[I]t is not suggested that defendant was manacled at any time during the trial itself.   The handcuffing took place outside the courtroom and was designed to prevent defendant, who was in custody, from attempting to escape while passing through the public corridors.   In these circumstances we think the defendant was, at the very least, required to show prejudice.   We find no such showing and therefore dismiss the point.

[Id. at 94.]

Judge King, sitting as a trial judge, reached the same conclusion in State v. Jones, 130 N.J.Super. 596, 599-600 (Law Div.1974).   Accordingly, the judge, without conducting a voir dire of the jury, denied defendant's motion for a mistrial.  Ibid.

We find the circumstances set forth in Sykes and Jones to be analogous to those presented by the photograph in the present case and, likewise, find that, in the absence of some demonstration of prejudice, the trial judge did not commit reversible error.   In reaching this conclusion, we are mindful of the circumstances cited in Bey as potentially prejudicial.   Defendant has failed to demonstrate that a juror's potential mid-trial viewing of his photograph was in any respect comparable to the examples provided by the Bey Court.

Defendant argues that he was further prejudiced when, on the last day of testimony, the judge directed that a sheriff's officer stand between him and the jury as the jurors entered the courtroom.   However, defense counsel did not object to this procedure at the time.   Additionally, defendant acknowledges that the presence of sheriff's officers at trial need not be interpreted as indicating that defendant is dangerous or culpable.   See Holbrook v. Flynn, 475 U.S. 560, 569, 106 S.Ct. 1340, 1346, 89 L. Ed.2d 525, 534-35 (1986).   Moreover, defendant does not establish any prejudice to him flowing from this one-time positioning of a court officer.   We thus find the judge's direction that the officer stand between defendant and the jury had no capacity to bring about an unjust result and decline to reverse on this basis.  R. 2:10-2;  State v. Macon, 57 N.J. 325, 336 (1971);  State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L. Ed.2d 797 (1970).

III.

Defendant next argues that the trial judge erred in instructing the jury regarding accomplice liability, since he did not inform it that, when aiding the principal, defendant's state of mind could differ from that of the principal.   Each participant in the crime could thus be guilty of a higher or lower degree of crime than the other, the degree of guilt depending entirely upon the participant's own actions, intent and state of mind.  State v. Bielkiewicz, 267 N.J.Super. 520, 528-31 (App.Div.1993).   Counsel did not object to the charge as given, and thus we must determine whether that charge constituted plain error.  R. 2:10-2.   We conclude that it did not.

We base our conclusion on the evidence produced at trial.   As we have previously noted, the sole factual basis for the theory of accomplice liability was established through the confession that defendant made to the police on the day of the crime.   At that time, defendant admitted that he voluntarily aided a person named Bill in the commission of an armed robbery by pointing a gun supplied by Bill at O'Brien while Bill demanded that O'Brien surrender his cash.   By doing so, defendant established that his state of mind was the same as that of Bill in connection with the robbery and weapons charges.   A Bielkiewicz charge was thus unnecessary.

In his confession, defendant also claimed that he was told by Bill that there were no shells in the gun, but that, as he was holding it, the gun suddenly went off, killing O'Brien.   Thus, according to defendant, the police “could say I shot him but it was accidentally.”   Although the jury was informed that it could render a verdict of aggravated manslaughter or reckless manslaughter, there was no evidence in the record to support either charge.   The record supported only a conviction for murder or, under defendant's accomplice theory, an acquittal of the murder charge.   Accordingly, a Bielkiewicz charge would not have conformed to the evidence and would have served only to unnecessarily confuse the jury.

We also find no plain error to have occurred when, during the course of his instruction to the jury, the trial judge stated:

Now, in this case, ladies and gentlemen, the State argues to you that there is no Bill, that this was an act committed solely by the defendant.   However, as there has been the name “Bill” thrown out ․ for your consideration, should you believe whether there be a reasonable doubt as to the existence of a Bill, I am going to charge you on what we call accomplice liability, that is, what would make somebody responsible as an accomplice.

Defendant argues that by saying that the name of Bill was “thrown out,” the judge signaled disbelief, thereby undercutting the defense's case.   While we regard the judge's phraseology to have been unfortunate, when we view the charge as a whole, we cannot conclude that the judge's single, stray remark could have led the jury to a result that it would not otherwise have reached.   Macon, supra, 57 N.J. at 336.

In summary, we find none of the alleged errors addressed by defendant on appeal to have been sufficient, individually or cumulatively, to require a reversal of defendant's convictions, which we affirm.

IV.

At the conclusion of this case, the trial judge sentenced defendant to a life term for the merged convictions for murder and felony murder and to a consecutive twenty-year term with an eighty-five percent period of parole ineligibility pursuant to NERA for the merged convictions of armed robbery and possession of a weapon for an unlawful purpose.   One month later, the judge amended defendant's sentence to impose a NERA term on the merged murder convictions.   Neither defendant nor defense counsel was present when the sentence was thus modified.

We agree with defendant that the procedure employed by the judge violated the Court Rules and was improper.   See Rule 3:16(b) (mandating the presence of the defendant at every stage of trial, including sentencing, unless the defendant expressly waives his presence) and Rule 3:21-4(b) (absent explicit waiver, requiring the presence of the defendant at sentencing and according him the opportunity to present information in mitigation of punishment).

The initial sentence imposed for murder by the trial judge was illegal because of the absence of the parole ineligibility period mandated by NERA, and it was subject to correction at any time.  N.J.S.A. 2C:43-7.2;  State v. Kearns, 393 N.J.Super. 107, 113 (App.Div.2007).   However, the addition of the period of parole ineligibility significantly altered the effective length of defendant's sentence.   Defendant should be permitted to argue that, in light of the real-time consequences of NERA, the imposition of a lifetime sentence for murder, together with the consecutive sentence for armed robbery resulted in a sentence that was excessive, and thus that the sentence should be modified.   See State v. Marinez, 370 N.J.Super. 49, 58-59 (App.Div.) (reducing a sentence to the then-effective presumptive term in light of NERA's real-time consequences), certif. denied, 182 N.J. 142 (2004);  State v. Berardi, 369 N.J.Super. 445, 450-55 (App.Div.2004) (recognizing impact of NERA upon sentencing for carjacking), appeal dismissed 185 N.J. 250 (2005).

Defendant's convictions are affirmed;  his sentence is vacated and the matter is remanded to the trial court for resentencing.

FOOTNOTES

FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966)..  FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

FN2. The photograph provided on appeal depicts a wood-paneled background typical of modern courtrooms..  FN2. The photograph provided on appeal depicts a wood-paneled background typical of modern courtrooms.

PER CURIAM