STATE OF NEW JERSEY v. VANCLEVE ASHLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5700-03T45700-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VANCLEVE ASHLEY,

Defendant-Appellant.

 
 

Submitted September 28, 2005 - Decided

Before Judges Conley and Weissbard.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, 00-05-0515.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Steven M. Gilson, Designated

Counsel, of counsel and on the brief).

Bruce J. Kaplan, Prosecutor, County of Middlesex,

attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Vancleve Ashley was charged in a five-count indictment with the following offenses: third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); first-degree armed robbery, N.J.S.A. 2C:15-1 (count three); fourth-degree retaliation against a witness or informant, N.J.S.A. 2C:28-5b (count four); and second-degree witness tampering, N.J.S.A. 2C:28-5a (count five).

After a jury trial, defendant was convicted of second-degree robbery as a lesser offense under count three, and witness tampering. He was found not guilty on counts one, two and four. After denial of his motion for a new trial, and after granting the State's motion for extended term sentencing, defendant was sentenced to concurrent fifteen-year prison terms with seven and one-half years of parole ineligibility on counts three and four. Appropriate penalties were imposed as well as an order that defendant pay $1027 in restitution. We affirm defendant's conviction but remand for resentencing.

The facts underlying defendant's convictions are as follows. Jeannene Scofield worked in the escort business between 1999 and 2000. In 1999, she worked for Diamond Escorts, which was run by Bobby Jackson, known as "Bo." Defendant, known as "Q," worked as a driver for the service. Defendant and Bobby Jackson, who were cousins, together operated Q & B Productions, a t-shirt company that served as the front for the escort service.

On August 6, 1999, defendant and Bobby Jackson were each served with criminal complaints emanating from Passaic County. On December 7, 1999, Scofield was arrested for prostitution while still working for Diamond Escorts. Following her arrest, Scofield ceased working for Diamond and began working for Athena's, another escort service run by Rich Tracy and David Staab who were former drivers for Diamond Escorts.

On March 1, 2000, while working for Athena's, Scofield was scheduled to meet clients at Lee's Motel in room 201. After meeting with one client, "Bill," Scofield called Athena's and learned that another client, "John," would be arriving shortly. Scofield heard a knock on the door around 2:45 p.m. or 3:00 p.m. and assumed that "John" had arrived. However, when she opened the door, she saw "Q" and tried to shut the door. Defendant pushed open the door, threw Scofield on the bed, pulled her hair, put his gloved hands in her mouth, cursed at her, and called her names. Defendant told Scofield that he would kill her and her family if she testified against him or Bo. Defendant then put a pillow over Scofield's face, making it difficult for her to breathe, and threw her against the wall. Finally, he threw her in the bathroom, told her to count to one hundred, and threatened to "blow her fuckin' brains out" if she left the bathroom before finishing the count. During the ordeal, defendant had a handgun in his waistband, which he adjusted, but did not remove, when he threatened Scofield.

After counting and hearing defendant leave, Scofield left the bathroom to find that her purse was on the bed, and her wallet, which had contained about one thousand dollars, was missing. She opened the door and saw defendant leave the hotel in a gray, hatchback Toyota Corolla. Scofield suffered a bruised neck, cuts to her face and gums, and a swollen lip from the incident.

Following these events, Scofield called Athena's, and David Saab, along with a friend, picked her up from the motel. Saab first took her back to his apartment in Linden to calm her down. Thereafter, Saab, Tracy, and Scofield went to the Edison Police Department to provide a statement.

During the police investigation, two partial fingerprints and a partial palm print were found on the inside of the main door of the motel room, neither of which belonged to defendant. The parties stipulated at trial that defendant owned a 1982 Toyota Corolla, gray wagon from December 8, 1999 to July 18, 2000.

On appeal, defendant presents the following issues:

POINT I

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT IMPROPERLY LIMITED THE SCOPE OF VOIR DIRE, THEREBY DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JURY PURSUANT TO THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT II

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO CLARIFY A JUROR'S EQUIVOCAL OR AMBIGUOUS RESPONSE DURING A JURY POLL AND/OR DID NOT GRANT LEAVE FOR A POST-TRIAL INTERVIEW OF THE JUROR. (Partially Raised Below)

POINT III

DEFENDANT'S SENTENCE WAS EXCESSIVE AND MUST BE VACATED. (Not Raised Below)

A. The Sentencing Court Erred By Imposing Two Extended Terms

B. The Sentencing Court Violated The Sixth And Fourteenth Amendments To The United States Constitution

I

Defendant argues that the trial judge improperly limited the scope of voir dire, thereby depriving him of his right to an impartial jury. Specifically, the judge declined to ask potential jurors two questions requested by defense counsel that related to criminal charges filed against defendant's cousin, Bobby Jackson. Defense counsel was apparently concerned that jurors might view defendant unfairly in light of the fact that his cousin had been charged with criminal activity. The two questions proffered by defense counsel were as follows:

(1) The testimony here may involve allegations that a relative and the defendant were a target of a criminal investigation. Would the fact the defendant has a close relative who has been under investigation influence your view of the defendant in any way?

(2) There may be testimony that a close relative of the defendant was accused of promoting prostitution and/or distributing drugs. Would that in any way make it difficult for you to fairly judge the defendant in this case?

The trial judge declined to ask the questions on the basis that they too closely tracked the facts of the case and sought "on some level to identify or indoctrinate jurors to a point of view before the case has even begun." Instead, the judge indicated that she would ask the prospective jurors whether they or a family member or friend were ever accused of or charged with a crime or subject to a criminal investigation. It was the judge's view that questioning the jurors about their personal experiences and the experiences of those close to them sufficiently dealt with the "issues at the heart of proper jury selection." Defense counsel again raised this issue of inadequate voir dire as part of his motion for a new trial, which was denied.

Both the Federal and State Constitutions afford defendants the right to trial by an impartial jury. U.S. Const. amend. VI, XIV; N.J. Const. art. I, para. 10. In order to ensure jury impartiality, the Court has "emphasized the critical importance of the voir dire in exposing potential and latent bias." State v. Papasavvas, 163 N.J. 565, 584 (2000). Voir dire should be "probing, extensive, fair, and balanced." Id. at 585. Thus, the trial court must give counsel an opportunity for a sufficient voir dire to effectively evaluate jurors for potential prejudice and bias. State v. Williams (Williams II), 113 N.J. 393, 409 (1988). Courts "should be particularly responsive to the requests of counsel regarding the examination of prospective jurors as to potential bias." State v. Williams (Williams I), 93 N.J. 39, 68 (1983).

No fixed rules exist, however, regarding what questions the trial judge must ask during voir dire. State v. Loftin, 287 N.J. Super. 76, 105 (App. Div.), certif. denied, 144 N.J. 175 (1996). The mere fact that the judge fails to ask certain questions requested by counsel does not necessarily mean that the voir dire as a whole is inadequate. See State v. Josephs, 174 N.J. 44, 105 (2002) (finding no abuse of discretion in trial court's refusal to ask two voir dire questions submitted by defendant). When defendant challenges the adequacy of the voir dire, we must examine the totality of the voir dire. Williams II, supra, 113 N.J. at 411. Accordingly, our function is to inspect the record to determine whether, overall, the voir dire was sufficiently probing to lead to the selection of an impartial jury. See id.; see also State v. Biegenwald, 106 N.J. 13, 21-22 (1987) (conducting independent review of record to determine adequacy of overall scope and quality of voir dire).

In doing so, we must give great deference to the trial judge, who has broad discretion in conducting voir dire. State v. Koedatich, 112 N.J. 225, 274 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); Williams II, supra, 113 N.J. at 410; see also State v. Manley, 54 N.J. 259, 269 (1969) (explaining that New Jersey law vests trial courts with broad discretion in conducting voir dire). The trial court's exercise of discretion in administering voir dire will ordinarily not be disturbed on appeal. Williams II, supra, 113 N.J. at 410 (quoting State v. Jackson, 43 N.J. 148, 160 (1964), cert. denied sub. nom, Ravenell v. State of New Jersey, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965)). Nevertheless, a conviction will be reversed when the voir dire is so inadequate that it deprives defendant of his constitutional right to a fair and impartial jury trial. See, e.g. State v. Oates, 246 N.J. Super. 261, 265 (App. Div. 1991) (reversing defendant's conviction on grounds of inadequate questioning during voir dire).

Contrary to defendant's contention, the voir dire in this case was not so limited as to deprive him of his right to a fair and impartial jury. Although the judge declined to ask two particular questions proffered by defense counsel, the voir dire was sufficiently probing to ensure an impartial jury. Significantly, the trial judge covered all areas that we have deemed essential to an adequate voir dire in criminal cases: explaining that an indictment is not evidence of guilt; inquiring whether any jury member or close family member has ever been accused of or charged with a crime; inquiring whether any juror has ever served on a grand jury and explaining the different functions of grand juries and trial juries; inquiring whether any juror has ever served on a civil jury and explaining the different burdens of proof in civil and criminal cases; and explaining that jurors must apply the law to the facts and inquiring whether the jurors could follow the law even if they disagreed with a particular legal principle. See Oates, supra, 246 N.J. Super. at 268.

Furthermore, the judge sought to screen out potential bias by asking generally whether the nature of the charges would prevent any jurors from remaining fair and impartial in the case and whether jurors had any personal concerns, which were not specifically raised in voir dire, that would prevent them from remaining fair and impartial. The judge promptly excused jurors who responded in the affirmative and indicated that they could not maintain an open mind.

Moreover, this case is readily distinguishable from State v. Fortin, 178 N.J. 540 (2004), which defendant relies on in arguing that the voir dire should have included questioning about other-crime evidence. In Fortin, the Court reversed defendant's conviction because the trial court did not question jurors about potential bias resulting from defendant's prior criminal act, evidence of which was going to be introduced at trial. Id. at 540. The other-crime evidence in Fortin was the most critical aspect of the State's case because the prosecution sought to establish that similarities between the previous crime and the crime at issue established the identity of the killer. Id. at 576, 579. The Court was specifically concerned that some jurors might be so disturbed by the gruesome details of the other-crime evidence that they might lose the ability to remain objective and to follow the trial court's limiting instructions. Id. at 580.

This case does not raise the same concerns presented in Fortin. Here, the jury did not hear any details regarding the Passaic County charges previously filed against defendant and his cousin. In fact, the trial judge acknowledged the potentially prejudicial nature of the criminal charges and prohibited the State from revealing information about the nature of those charges beyond the fact that the charges existed. Likewise, the judge's limiting instruction specifically told the jury that the nature of the charges was not relevant and would not be revealed. Thus, the risk that jurors might be so disturbed by details of the other crime so as to be unable to fairly consider the evidence or to follow the trial judge's limiting instruction did not exist here.

The judge conducted a thorough voir dire that covered the critical areas of concern in criminal trials and adequately probed for potential bias; the voir dire was not so limited as to violate defendant's constitutional rights. The decision not to ask two particular questions requested by defense counsel, based on the judge's opinion that they too closely tracked the facts of the case and that the concerns they raised were adequately addressed by other questions, falls well within her broad discretion in conducting voir dire. We reject defendant's argument.

II

After the verdict was rendered by the foreperson, defense counsel requested that the jury be polled. When Juror Number 6 was polled, the following dialogue transpired:

JUROR NO. 6: What is the answer as to what now?

THE CLERK: If you agree with the verdict as responded by the foreperson on all counts please respond agree.

JUROR NO. 6: I agree.

THE COURT: Pardon me?

JUROR NO. 6: I agree.

[THE COURT]: Speak up, speak up.

JUROR NO. 6: Agree.

[DEFENSE COUNSEL]:

Your Honor, I'm a little bit concerned because juror in box number six, I believe it is, when polled was shaking her head and then seemed to reluctantly say she agreed. There seems to be a lack of --

THE COURT: Mrs. [J.], may we have your response with respect to the question, do you agree with the verdict on all counts.

JUROR NO. 6: Yes.

THE COURT: Ladies and gentlemen, again, I want to thank you for your service in this matter. You are now dismissed.

As part of defendant's motion for a new trial, defense counsel raised the issue of Juror Number Six's putatively ambivalent response. Defense counsel explained that the juror appeared to shake her head with an expression of disagreement when the foreperson rendered the verdict. Defense counsel indicated that the juror finally said she agreed, but the manner in which she said it was, "at odds with any true commitment to the verdict." Additionally, defense counsel noted that two other jurors on the panel responded in an agitated, annoyed manner at the apparent hesitation of Juror Number Six, which seemingly indicated some discord among the jury members. In particular, one juror looked up at the ceiling with an annoyed expression and another juror shook his head with an apparent disgusted expression. Defense counsel noted that she had spoken with another attorney who was present in the courtroom during the jury poll, who had also observed this behavior.

The judge denied defendant's motion for a new trial, reasoning that Juror Number Six unquestionably responded in the affirmative when asked whether she agreed with the verdict. The judge distinguished this case from State v. Milton, 178 N.J. 421 (2004), relied on by defendant, in which a juror hesitated for a long time when polled, and uncertainty existed as to whether the juror's verdict had changed.

On appeal, defendant argues that the trial judge improperly failed to clarify Juror Number Six's ambiguous response during the jury poll. Specifically, defendant argues that the juror's questionable responses during the poll mandated that the court conduct an inquiry at sidebar or in chambers to afford the juror an opportunity to freely express her state of mind. Defendant alternatively argues that after hearing the argument on the motion for a new trial, the court should have interviewed the juror pursuant to R. 1:16-1 to resolve whether she in fact concurred with the verdict. We disagree.

The right to a unanimous verdict is an essential component of the defendant's right to a jury trial. Milton, supra, 178 N.J. at 431; see also R. 1:8-9 (establishing that verdicts in all criminal actions must be unanimous). New Jersey has firmly established an absolute right for all parties to request that the jury be polled after announcement of the verdict. R. 1:8-10; Milton, supra, 178 N.J. at 432; State v. Schmelz, 17 N.J. 227, 232 (1955). Polling ensures a unanimous verdict by eliminating any uncertainty as to the verdict, protecting against coerced verdicts, and allowing jurors an opportunity to freely express their state of mind. Milton, supra, 178 N.J. at 432; Schmelz, supra, 17 N.J. at 232-33.

The trial court has broad discretion in determining whether, when polled, a juror's response reflects concurrence with the verdict. Milton, supra, 178 N.J. at 433 (citing United States v. Fiorilla, 850 F.2d 172, 176 (3d Cir.), cert. denied, 488 U.S. 966, 109 S. Ct. 492, 102 L. Ed. 2d 529 (1988)). Only the trial judge has the advantage of hearing a juror's answers and observing a juror's demeanor; hence the trial court "is in the best position to ascertain whether hesitancy or equivocation on the part of a juror reflects involuntary or coerced assent." Id. at 434. In exercising its discretion during the jury poll, however, the trial court must eliminate any doubt as to the unanimity of the verdict. Milton, supra, 178 N.J. at 434. Although, due to the unique circumstances of each case, a bright-line rule does not exist for determining whether a hesitant juror has fully agreed with the verdict, a trial court confronted with an uncertain juror must obtain clarification using measures that allow the juror an opportunity for free expression. Id. at 438.

The Court has previously expressed unwillingness to require further clarification from a juror who, despite initial hesitation or ambiguity, gives a final statement of concurrence. In State v. Schmelz, supra, 17 N.J. at 233, the Court stated that, "if it clearly appears that the juror concurs in the verdict any evasive statement or explanation volunteered by him is to be disregarded." In Milton, supra, 178 N.J. at 437, however, the Court "interpret[ed] that comment to mean that a trial court first must clarify the nature and intention of a juror's otherwise equivocal or ambiguous response before disregarding prior statements that may bear on the meaning of the juror's final answer." In other words, in some circumstances, a juror's final statement of agreement with the verdict will not cure uncertainty stemming from an initial ambiguous answer. Id. at 437-38. In reversing Milton's conviction, the Court found that the case fell "within the limited class of cases in which a juror's final concurrence with the verdict does not eradicate the uncertainty created by her initial hesitation." Id. at 440 (emphasis added).

Defendant relies on Milton in arguing that his conviction likewise must be reversed due to the trial court's failure to clarify ambiguity on the part of Juror Number Six. However, the instant case is not factually similar to Milton. In Milton, when Juror Number Eight was polled on Count Two, she was silent for approximately 15 seconds before asking the clerk, "Do you want me to tell [the truth?]" Id. at 427. The following colloquy then occurred:

COURT: Ma'am, absolutely -- I want to know what your verdict is on Count -- on Count Two, Ma'am.

JUROR NO. 8: My verdict?

COURT: Yes. How -- how you voted, yes, Ma'am.

JUROR NO 8.: [No response]

[Approximately ten seconds pass]

COURT: Ma'am, the Foreperson indicated the jury was unanimous. We're trying to confirm that the -- that the verdict was unanimous. That's the purpose of this, Ma'am. Was your -- was your verdict not guilty or guilty, Ma'am?

JUROR NO. 8: [No response]

[Approximately twenty seconds pass]

COURT: Well, Ma'am, you have to respond.

JUROR NO. 8: Um, guilty. That was the verdict that I gave.

[Id. at 427-28.]

Creating further confusion, defense counsel approached the bench and explained that he heard Juror Number Eight whisper "not guilty" before she said "guilty." Id. at 428. During the hearing on defendant's motion for a new trial, two assistant prosecutors and the court clerk also indicated that they thought Juror Number Eight softly said "not guilty" before stating "guilty." Id. at 428-429. The assistant prosecutor who tried the case and who, except for the judge, was closest to the juror, did not hear the juror say "not guilty." Id. at 429-430.

Moreover, the Milton Court heavily emphasized the fact that the juror expressed concurrence with the verdict in the past tense: "um, guilty. That was the verdict that I gave." Id. at 427, 441 (emphasis in original). The Court explained that the trial court's attempts to elicit a clear response from Juror Number Eight served to create more uncertainty about the juror's present state of mind during the poll. Id. at 441. Specifically, because the trial judge phrased the question in the past tense and the juror responded in the past tense, "the trial court elicited a mere recap of the verdict given in the jury room and failed to afford Juror No. 8 an opportunity to express unequivocally her present thoughts about the verdict." Ibid.

In reversing the defendant's conviction, the Milton Court referred collectively to Juror Number Eight's prolonged pauses in answering the poll, her question to the court regarding the truth, her past-tense expression of agreement with the verdict, and the uncertainty about whether she first said "not guilty." Id. at 440. None of these facts are present in this case. Here, Juror Number Six responded to the poll without hesitation. Additionally, no one suggested that she ever verbally expressed disagreement with the verdict. In contrast, she stated, "I Agree," three times and responded, "Yes," when the court asked for clarification whether she agreed with the verdict on all counts.

Moreover, the trial court's question to Juror Number Six was phrased in the present tense, eliminating any ambiguity as to her present state of mind. In fact, in Milton, the Court indicated that asking the juror for clarification in the present tense would have prevented the uncertainty as to her concurrence:

[T]he trial court should have either posed other questions that would have ensured that Juror No. 8 was not in doubt or tailored its questioning to elicit a response that reflected her present state of mind concerning the verdict. . . . Any of those measures would have obviated the uncertainty that now casts a cloud on the verdict.

[Milton, supra, 178 N.J. at 442.]

In this case, this is precisely what the trial court did by clearly asking the juror whether she presently agreed with the verdict. Thus, unlike Milton, this case does not fall within the "limited class of cases," in which a juror's final agreement with the verdict fails to eliminate apparent initial uncertainty.

See id. at 440.

Notably, each uncertainty as to the juror's concurrence in Milton stemmed from ambiguities in the juror's verbal response, namely prolonged pauses, a past tense expression of agreement, and a question as to whether the juror first said "not guilty." Ibid. Here, nothing suggests ambiguity or uncertainty in Juror Number Six's verbal response. Rather, any ambiguity stems from the juror shaking her head, an apparent expression of disagreement, and expressions of annoyance made by two other jurors. This is not the type of ambiguity that courts have held creates uncertainty as to the unanimity of the verdict. For example, in United States v. Musto, 540 F. Supp. 318, 341-342 (D.N.J. 1982), the court found no uncertainty in the jury's verdict when a juror verbally expressed her agreement but, at the same time, cried and shrugged her shoulders. The court indicated that it will not look beyond a juror's stated response to determine whether the juror's body language is consistent with the verbal answer, explaining that "to require the court to evaluate the juror's posture, body movements, and other gestures is to impose a standard incapable of application." Id. at 342.

This case is much closer to Musto, which involved clear verbal responses accompanied by uncertain gestures, than to Milton. In fact, the Musto court specifically distinguished instances of ambiguous gestures or body language from situations in which the verbal response itself reveals uncertainty. Ibid. Only in the latter case is remedial action appropriate. Ibid. Accordingly, we reject this argument.

III

Defendant contends that his sentence was excessive and must, therefore, be vacated. First, defendant argues that the trial judge's imposition of extended terms on both counts of conviction was improper. The State agrees. No more than one extended term sentence may be imposed. N.J.S.A. 2C:44-5a(2). In addition, the State concedes that if defendant's conviction in Passaic County, for which he was on bail at the time of the charged offenses, was for conspiracy to kidnap, rather than kidnapping, he was not eligible for a mandatory extended term under N.J.S.A. 2C:44-5.1. He was, however, eligible for a discretionary extended term as a persistent offender. N.J.S.A. 2C:44-3a.

Second, defendant argues that imposition of a parole disqualifier based on the judge's finding of three aggravating factors violated the precepts of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). However, the Court recently rejected that argument. State v. Abdullah, 184 N.J. 497, 510-12 (2005).

Nevertheless, since State v. Natale, 184 N.J. 458 (2005), eliminated presumptive sentences in order to preserve the constitutionality of our sentencing scheme in light of Blakely, and since Natale applies to defendant's case, id. at 494, defendant must be resentenced without reference to the presumptive term. Of course, any new sentence cannot exceed that previously imposed. State v. Rodriguez, 97 N.J. 263, 277 (1984). Accordingly, we vacate defendant's sentence and remand for imposition of a new sentence consistent with this opinion.

Conviction affirmed; sentence vacated, remanded for a new sentencing. We do not retain jurisdiction.

 

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A-5700-03T4

November 1, 2005