STATE OF NEW JERSEY v. MICHAEL PIERCE (2011)

Defendant appeals from two orders entered by the trial court on April 20, 2007.   The first, a final judgment of conviction, recited defendant's convictions following a jury trial for second-degree robbery, N.J.S.A. 2C:15-1a(1) and (2);  two counts of aggravated assault, N.J.S.A. 2C:12-1b(1) and (7);  and burglary, N.J.S.A. 2C:18-2, and imposed an aggregate sentence of ten years in prison, subject to the parole ineligibility provisions of the No Early Release Act (“NERA”), N.J.S.A. 2C:43-7.2. The second denied defendant's motion to be resentenced under State v. Natale, 178 N.J. 51 (2003).   After reviewing the record in light of the contentions advanced on appeal, we affirm.

The judgment of conviction relates to offenses committed in 2000 and for which defendant was tried in 2001.   Two appeals have occurred in the interim, State v. Pierce, No. A-4208-01T4 (App.Div. Nov. 13, 2003), and State v. Pierce, No. A-5617-03T4 (Oct. 26, 2005).   In our first opinion, we gave the following factual background to the charges against defendant.

According to the State's proofs at trial, the victim, Dimas Munoz, who had suffered some residual brain damage from an earlier robbery in 1999, lived in an apartment in Vineland, where he allowed an acquaintance of his, Joseph Martinez, to stay with him rent-free.   In July 2000, Munoz received a pension payout check for approximately $2000.   Having learned of this event, Martinez enlisted defendant, who was Munoz' next-door neighbor, to help him rob Munoz of the pension monies.   Together, they hatched a scheme wherein defendant would disguise his identity and hide in Munoz' bathroom until the lights were turned out at which time Martinez would strike the victim[,] and both men would take the cash from him.

On July 14, 2000, Martinez and Munoz walked to a liquor store where Munoz cashed his check and bought some beer.   When they arrived back at the apartment building, and while Munoz was talking to some friends, Martinez walked over to defendant.   Then, as planned, defendant got a hooded jacket and went in to Munoz' bathroom to wait for the victim to either fall asleep or pass out.   Once back in the apartment, Martinez punched Munoz in the mouth.   When Munoz began to fight back, defendant came out of the bathroom, raised the ceramic toilet bowl tank lid that he was holding, and crashed it down on Munoz' head.   The two men dragged Munoz into the bathroom and put him in the shower to revive him.   They also went through the victim's pockets and took $1800 in cash which they split $1100 for Martinez and $700 for defendant.   As a result of this incident, Munoz suffered deep cuts over his forehead, a fractured skull and shoulder blade, and a ruptured left eye socket necessitating removal of his left eye.

Fearing they had killed Munoz, Martinez wanted to call the police but defendant talked him out of it.   Martinez left the area but eventually returned to Vineland, apparently distraught over the incident and reportedly suicidal.   When ultimately confronted by police, Martinez cooperated and gave a statement implicating defendant in the criminal episode.   When the police first arrived at defendant's apartment on an outstanding warrant for contempt of court, defendant denied any involvement in the robbery and assault of Munoz.   However, when confronted with Martinez' statement, defendant admitted agreeing to help Martinez in the theft, but only as a “lookout,” in return for which he was to receive $400.   Defendant denied being inside Munoz' apartment during the incident, insisting instead that he remained outside on the front steps.

[State v. Pierce, No. A-4208-01, supra, slip op at 2-4.]

In that first appeal, defendant raised three contentions:  that the trial court erred in admitting testimony that defendant had been arrested on an outstanding warrant, that his sentence had been excessive, and that the trial court had also erred in the manner in which it handled a post-trial complaint of juror misconduct.   We dealt with the substantive merits of defendant's first two arguments and rejected them.   Defendant's third contention, however, raised a matter of concern.   We noted that shortly after the jury returned its verdict, an alternate juror contacted defense counsel to advise that he believed that one of the deliberating jurors was related to someone in the case.  Id. at 7. Defendant's attorney promptly notified the prosecutor and the trial judge.   The trial judge placed a telephone call to that juror from chambers.   Our opinion notes that the conversation was on the record and in the presence of the prosecutor;  it also notes that while defense counsel was supposed to be connected to this call, the transcript indicates no response from him to an inquiry from the trial judge.  Id. at 8. The trial judge asked this juror to provide more information, and the juror responded:

Yes, after we left that evening, Thursday evening, I overheard two of the jurors mention that one of the other jurors was a cousin to somebody involved in the case.   I believe it was Martinez, but I don't know that.

[Ibid.]

We then recounted a further event that day.

A second conversation took place between the judge and juror McCaffrey on that same day, this one not on the record and in the presence of only the judge and his secretary.   The judge put on the record the details of that conversation.   During this conversation, juror McCaffrey advised that he remembered more details.   He saw two jurors near the elevator shortly after the verdict.   One of them said to the other, “[c]an you believe she just told us now that she's related to one of them?”   When McCaffrey tried to question the two men, they ignored him and entered the elevator.

[Ibid.]

Not content with this, the trial judge then questioned other jurors, also on his own.   Based upon his own independent investigation, he concluded that the allegation of juror misconduct was not substantiated, and he denied defendant's motion for a new trial.

In our opinion, we noted that the trial judge's unorthodox procedures foreclosed effective appellate review.  Id. at 13-14.   We thus remanded the matter for a hearing to be conducted “forthwith” and gave exacting specifications for the manner in which that hearing was to be conducted.   Id. at 14-15.

At the outset of this remand hearing, conducted in February 2004, defendant's attorney moved to have the trial judge recuse himself, noting that in the interim between defendant's trial and the remand hearing, a new county prosecutor had been appointed, who was the first cousin of the wife of the trial judge.   He pointed to Rule 1:12-1 which precludes a judge from presiding over any matter in which he is “by blood or marriage the first cousin of or more closely related to any attorney in the action.”

The trial judge responded that he had consulted with the presiding judge and the assignment judge who had both advised him that the decision was his to make after hearing argument but that neither thought that his recusal was mandated.   After hearing argument from the attorneys, the trial judge denied the motion, observing that he had presided over defendant's trial and that his actions had led to our direction to conduct remand proceedings.   He concluded that it would not be in the interest of justice for him to disqualify himself.   The court rule by its terms contains no such exception but, rather, only permits a judge to act in such an instance if the judge has received the explicit permission of the Chief Justice to do so.   The record here contains no indication such permission was obtained or even sought.

After denying that motion, the trial judge took up the remand hearing, at which four jurors testified.   The first juror was the individual who made the initial contact with defendant's trial attorney.   He testified that as the jurors were leaving after return of their verdict, he heard one juror mention to another that one of the defendants had a cousin on the jury.   He testified that he could remember nothing about the individual who made this remark other than that he was a white male.   He also said he believed that the remark was commenting about a female juror who, he believed, was Hispanic.   The four jurors to whom the trial judge initially spoke had been requested to return for this remand hearing;  they had reported to the jury management office.   This first witness testified that one of the three remaining jurors in the jury management office was the individual about whom the original remark he overheard had been made.

The second juror who testified at the remand hearing said that at the conclusion of the trial, he was walking toward the parking lot to get his car with another juror who made a comment to the effect, “I'm not sure, but I believe that the girl might be related to that boy that's on trial.”   He also testified that the individual who made this remark was the remaining male juror waiting in the jury management office to testify and that the individual who was the subject of the remark was the female juror waiting in the jury management office.

The third juror who testified said that he had recognized the second witness as a juror from the trial but said that he had not had any conversation with him after the trial concluded.   He said he had no recollection of ever saying that one of the female jurors had been related to someone in the case.   He did say that he recalled that during jury selection the waiting female juror had said that she knew defendant Pierce but remained on the panel.   He also testified that he had experienced several hospitalizations since the first trial and did not remember speaking to the judge on the telephone after the trial had concluded.

The remaining juror then testified.   She said that as far as she knew she had no relationship with anyone involved in the case, either defendant or any of the witnesses.   She denied ever making any remark to the effect that she was so related.   She did say that when she was in high school there was a student named Andy Pierce but that they had no relationship either in high school or later and that when people she assumed were defendant's parents attended the trial, they looked vaguely familiar to her.

At the conclusion of the testimony, defendant's attorney argued that the situation remained sufficiently unclear so as to call for the trial judge to question the remaining individuals who had served on the jury.   The prosecutor disagreed.   The trial judge concluded that the record was sufficient to permit him to conclude that the conversation about a female juror had, in fact, referred to the juror who had testified at the remand hearing but that this individual was not related to defendant or anyone else in the case.   He declined to speak to any other jurors and found that the verdict was in no way tainted.

Defendant again appealed to this court, arguing that the trial judge should have granted the motion for recusal and that he erred in not questioning all the female jurors who had been seated in this matter.   We concluded that the trial judge should not have presided over the remand proceedings in light of his relationship with the prosecutor;  we vacated his order and remanded the matter again, with directions that “another judge [ ] conduct the post-trial juror interrogations into possible juror misconduct as originally directed in our prior remand.”  State v. Pierce, No. A-5617-03, supra, slip op. at 9.

This second remand proceeding got underway in April 2006 when the judge to whom it was assigned (“remand judge”) met with the attorneys to review the procedures to be followed.   The first day of testimony was on June 7, 2006;  testimony concluded on November 15, 2006.   By that time, more than five years after the trial had concluded, one of the original jurors could not be located.   The remand judge questioned each of the remaining jurors and all denied being related to defendant or anyone involved in the trial of the matter, including the witnesses.   The remand judge placed his findings on the record in February 2007, and concluded there was no juror misconduct associated with defendant's trial.

Following entry of the trial court's conforming order, defendant again appealed to this court.   He raises the following argument.

DUE TO THE SIX YEARS THAT PASSED BETWEEN THE JURY TRIAL AND THE SECOND REMAND HEARING IN THIS CASE, THE OPPORTUNITY FOR A MEANINGFUL REVIEW HAS BEEN LOST. IN THE INTERESTS OF JUSTICE, DEFENDANT'S CONVICTIONS MUST THEREFORE BE REVERSED.

We reject this argument and therefore affirm.

The passage of time is indeed unfortunate, but our review of this record satisfies us that it provides no basis to reverse defendant's convictions.   The remand judge who presided over the second remand proceedings complied meticulously with our original 2003 instructions.   The questioning of the jurors, and their respective answers, provide no basis to conclude that defendant's trial was in any way tainted by juror misconduct.   Each juror, in turn, denied being related to defendant or any participant in the trial.   Indeed defendant, at the outset of the remand proceedings, declined to claim that any of the jurors were related to him.

We are acutely aware of the time that has passed since the question was first raised.   In an effort to assure complete review of this matter, we have also reviewed the transcript of the jury selection process which took place on May 21, 2001.   We could not help but notice that during that process, the female juror identified as the individual who was related to defendant responded that she thought she went to school with the prosecutor “a long time ago,” and that shortly thereafter, as another potential juror was being seated, defendant's attorney advised the trial judge that defendant had just informed him that the individual (who happened to be a woman) was his cousin.   That juror was excused.   It is, of course, impossible to reconstruct at this juncture exactly what led to the conversation which was reported.   It is, however, fairly inferable that the juror who made the remark was commenting on the fortuity of defendant's cousin being included in the petit panel and inadvertently merged that individual with the juror who recalled the prosecutor from many years before.

We noted at the outset of this opinion that defendant had included in his notice of appeal a separate order of the trial court that denied his motion to be resentenced under State v. Natale, 178 N.J. 51 (2003).   That issue is not addressed in defendant's brief and would, under general principles of appellate practice, be deemed waived.  Jefferson Loan Co. v. Session, 397 N.J.Super. 520, 525 n.4 (App.Div.2008);  Zavodnick v. Leven, 340 N.J.Super. 94, 103 (App.Div.2001).   We are aware, however, that defendant has been released from custody, and the issue is thus moot.

Affirmed.

PER CURIAM