STATE OF NEW JERSEY v. MICHAEL PIERCE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5617-03T45617-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL PIERCE,

Defendant-Appellant.

__________________________________

 

Submitted October 3, 2005 - Decided

Before Judges Parrillo and Gilroy.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 00-10-00912-I/A.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

Ronald J. Casella, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Pierce appeals from the trial court's order of February 4, 2004, entered on remand from this court (A-4208-01T4), for a post-trial interview of several petit jurors pursuant to R. 1:16-1 to determine whether there was any juror misconduct in the trial leading to defendant's conviction. For reasons hereinafter expressed, we vacate the order and remand the matter for consideration anew by another judge.

On May 2, 2001, a jury convicted the defendant of: 1) second-degree robbery, N.J.S.A. 2C:15-1a(1) and (2); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); and third-degree aggravated assault, N.J.S.A. 2C:12-1b(7). Following the verdict, alternate juror Lawrence McCaffrey overheard a discussion between two male deliberating jurors, wherein he believed one juror relayed to the other, that a female deliberating juror was related to someone involved in the case. McCaffrey telephoned defense counsel and left a message on the attorney's answering machine, advising what he had heard. Defense counsel immediately reported the message to the trial judge and prosecutor.

On May 29, 2001, the trial judge conducted a post-trial inquiry of juror McCaffrey and of jurors Frank Pillsbury, Thomas Lemon and Tonya Thomas. The judge concluded that not only was McCaffrey's report unsubstantiated, but it was also based solely upon wild assumptions formed by McCaffrey after hearing a partial statement made by Lemon. The trial judge denied defense counsel's motion to recall the entire jury for a full evidentiary hearing and sentenced the defendant to a ten-year term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act on the conviction for second-degree armed robbery and to concurrent seven- and five-year terms on the second- and third-degree aggravated assault charges.

On appeal, this court: 1) affirmed defendant's convictions, subject, however, to a remand with directions that the trial court conduct a R. 1:16-1 hearing, on the record and in presence of counsel, on the issue of possible juror impropriety; and 2) directed that the judgment of conviction on remand be amended by merging defendant's conviction for third-degree aggravated assault into his conviction for second-degree aggravated assault. State v. Pierce, No. A-4208-01T4 (App. Div. Nov. 13, 2003). This court provided the following instructions to the trial court for development of a record concerning possible juror impropriety:

At a minimum, juror voir dire must be conducted on the record and in the presence of counsel, who must be afforded a meaningful opportunity to be heard in the matter. Initially, the court is obliged to interrogate the alternate juror who came forward with the information as to the specific nature and content of the overheard conversation. If satisfied as to the potential of juror misconduct, the court, employing the same procedural protocols, must conduct a similarly exacting probe of the jurors who engaged in that conversation, to the extent they may be identified and available, to determine the basis, if any, for the relief that a sitting female juror had an undisclosed relationship, acquaintanceship, or familiarity with a participant in the trial. Depending on the jurors' answers, the court must then determine whether it is necessary to voir dire other jurors individually to ascertain the source of this extraneous information. In any event, if, after this searching inquiry, a basis exists for such a belief, and the affected juror remains unidentified, then all sitting female jurors should be interviewed individually, on the record of course, and in the presence of counsel. The decision to voir dire individually any other members of the jury best remains a matter for the sound discretion of the trial court. That determination, as well as all others, however, should be explained on the record supported by appropriate findings to facilitate appellate review under the abuse of discretion standard.

[Ibid. slip op. at 14-15.]

Between the date of conviction and our appellate decision, the first cousin of the trial judge's wife became the prosecutor of Cumberland County, the county of venue. Upon appointment of the new prosecutor, the trial judge was transferred to the Family Court to hear matters other than juvenile and domestic violence cases. Prior to conducting the second post-trial interview, pursuant to this court's remand, defendant filed a motion seeking recusal of the trial judge because of the judge's wife's relationship to the prosecutor citing R. 1:12-1(b).

On February 4, 2004, the judge denied the motion after determining that the interest of justice would best be served by his remaining on the case and conducting the remand hearing, rather than recusing himself and having the matter assigned to another judge.

On the same date, the trial judge conducted an inquiry of the same four jurors, on the record and in the presence of counsel, questioning their recollection of any post-trial comments concerning the relationship of one of the jurors to the witnesses and parties in the trial. McCaffrey testified that he recalled overhearing one of two male jurors, advising the other, that one of the remaining jurors was a cousin to somebody involved in the case. Originally, he thought they were referring to a relationship between a female juror and Joseph Martinez, a co-defendant who pled prior to trial, but at the remand hearing McCaffrey believed the jurors were referring to defendant Pierce. Pillsbury testified that it was Lemon who told him: "I'm not sure, but I believe that the girl might be related to that boy that's on trial." Pillsbury further testified that Lemon was not sure of his belief.

Lemon had little recollection of the events surrounding the trial due to several serious medical operations in the interim. He did not recall ever discussing the matter with another juror post-trial. He testified that he believed Thomas had advised the court during voir dire that she knew the defendant and that the court advised Thomas that she could sit if she remained fair and impartial. Thomas testified that she was not related to anyone involved in the case and that she never advised anyone to the contrary post-trial.

After inquiry of the four jurors, defense counsel requested that the court continue the hearing and inquire of all other female jurors who sat on the case whether any of them were related to witnesses or parties in the case. The judge, having been satisfied that Lemon who had allegedly made the statement was mistaken as to what he heard, and that McCaffrey was also mistaken, denied the request for continuance by stating: "We have the right people, we have the right jurors, we have the correct female juror and she [is] not related nor does she know anyone. I see no reason to conduct this inquiry any further." The judge concluded that the jurors had not committed any impropriety during the course of the trial, and reaffirmed his findings from the previous hearing.

On appeal, defendant argues that the trial judge erred in denying the motion for recusal because of his wife's familial relationship to the county prosecutor; and for his failing to conduct a post-trial hearing into jury impropriety with all female jurors.

While it may have been more efficient for the trial judge to have resolved the remanded issue himself, rather than transferring the matter to another judge unfamiliar with the prior proceeding, we conclude that his decision to retain and conduct the post-trial inquiry was erroneous. Accordingly, we vacate the order of February 4, 2004, and remand.

The judge should have recused himself from the remand proceeding because of his wife's relationship to the county prosecutor. R. 1:12-1(b). The rule provides:

The judge of any court shall be disqualified on the court's own motion and shall not sit in any matter, if the judge

(a) . . . .

(b) is by blood or marriage the first cousin of or is more closely related to any attorney in the action. This proscription shall extend to the partners, employers, employees or office associates of any such attorney except where the Chief Justice for good cause otherwise permits . . . .

[Ibid.]

We conclude that the bright-line rule of disqualification applies "except when required by the rule of necessity, [i.e.,] '[I]f by the disqualification of a judge there would be no means of proceeding, he [or she] may take such cognizance of the case as is absolutely necessary.'" Rivers v. Cox-Rivers, 346 N.J. Super. 418, 421, 421 n.1 (App. Div. 2001) (quoting Pyatt v. Mayor & Council of Dunellen, 9 N.J. 548, 557 (1952)) (first alteration in original).

In Rivers, we held that a judge should have recused himself from presiding over a Family Part matter where the judge had "previously represented one of the parties in a matter before him against the other" and failure to do so causes "any action taken [to be] a nullity." Ibid. Although Rivers is distinguishable from this matter because the judge's failure to recuse himself violated both a rule of court, R. 1:12-10(c), (f) and statute, N.J.S.A. 2A:15-49b, we conclude that the need to apply the bright-line rule to the present matter is equally applicable. "That result is required by the need 'to maintain public confidence in the integrity of the judicial process, which in turn depends on a belief [by litigants and the general public alike] in the impartiality of judicial decision making.'" Rivers, supra, 346 N.J. Super. at 421 (quoting State v. Kettles, 345 N.J. Super. 466, 469-70 (App. Div. 2001)) (alteration in original).

Because we conclude that the bright-line rule of disqualification of Rivers is applicable to the present matter, we express no opinion as to the other issues raised on appeal.

The order of February 4, 2001, is vacated, and the matter is remanded for another judge to conduct the post-trial juror interrogations into possible juror misconduct as originally directed in our prior remand. Counsel for defendant shall provide the judge, at least two weeks prior to the hearing, with: copies of the transcripts of proceedings from the original trial; a copy of this court's prior decision, Docket NO. A-4208-01T4; a copy of defendant's motion for recusal; copies of the transcripts of the telephone and in-court interrogation of the jurors conducted on May 29, 2001, and February 4, 2004, respectively; a copy of the order of February 4, 2004; and a copy of this decision.

 

N.J.S.A. 2C:43-7.2

(continued)

(continued)

9

A-5617-03T4

October 26, 2005