STATE OF NEW JERSEY v. DEBRA HERRING

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3772-04T43772-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEBRA HERRING,

Defendant-Appellant.

 

Submitted November 1, 2006 - Decided November 20, 2006

Before Judges Winkelstein and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 04-06-1043-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Raquel Y. Bristol, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Karen M. Kazanchy, Assistant Prosecutor, on the brief).

PER CURIAM

Following a jury trial, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1. The court imposed a seven-year prison term, with an eighty-five percent period of parole ineligibility and a three-year period of parole supervision. On appeal, defendant raises the following legal arguments:

POINT I

THE DEFENDANT'S CONSTITUTIONAL RIGHTS TO AN IMPARTIAL JURY AND A FAIR TRIAL WERE VIOLATED WHEN THE COURT REFUSED TO ASK THE JURORS SPECIFIC QUESTIONS DURING VOIR DIRE, WHICH DEFENSE COUNSEL HAD REQUESTED. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, 1, 10.

A. THE COURT'S INQUIRY REGARDING POTENTIAL RACIAL BIAS OF JURORS WAS INADEQUATE.

B. THE COURT'S INQUIRY REGARDING POTENTIAL JUROR BIAS TOWARDS LAW ENFORCEMENT OFFICERS WAS DEFICIENT.

POINT II

WHERE THE STATE'S PRINCIPAL WITNESS COULD NOT IDENTIFY THE DEFENDANT WITH CERTAINTY AS THE PERPETRATOR OF THE OFFENSE, THE COURT'S FAILURE TO INSTRUCT THE JURY THAT THE STATE HAD TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT DENIED DEFENDANT HER CONSTITUTIONAL RIGHTS TO PRESENT A DEFENSE AND TO A FAIR TRIAL. (Partially Raised Below).

POINT III

THE DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

We have carefully considered defendant's arguments in light of the existing law. We vacate defendant's sentence and remand to the trial judge for resentencing; in imposing a new sentence, the judge shall consider the mitigating factors described in N.J.S.A. 2C:44-1b(1) and (2). See State v. Dalziel, 182 N.J. 494, 501, 504-06 (2005). In all other respects, we reject defendant's remaining points on appeal and affirm her conviction.

We begin with the trial proofs. Elhalim Elhassan, the State's primary witness, was a security guard at Grand National Liquidators in Jersey City. He had been employed by the company for over two years, had received training as and was licensed as a security guard. During his time with the company, he had witnessed thousands of shopliftings.

On April 18, 2004 at 5:55 p.m., he was at his post at the front of the store when an African-American woman entered. The woman drew his suspicion because when she entered, "she was looking at [him] too much, and she smiled at" him. In his experience, shoplifters go out of their way to interact with the security guard, whereas most customers tend to ignore the guard. He also believed that "there was something fishy" about the way she looked at him - "[i]t was not the regular way of making eye contact when you smile at someone." When asked at trial if he saw that woman in the courtroom, he testified that he was "50 percent" sure that defendant was the woman.

The witness observed her walk to the corner of the store, and return a minute later with a white plastic bag in her hands. She had not been holding a bag when she entered. When Elhassan asked her what was in the bag, she replied that the bag contained goods from another store. Believing that the bag contained goods from his store, Elhassan demanded that she return the goods. She refused and told him to get out of her way. When he did not move, the woman "got nervous," gave him "a blow," then "pushed [him] just like a boxer." As a result, he sustained scratches on his neck and some back pain, "but [had] no problems." A customer assisted him in "stopp[ing] the thing." The police arrived five minutes later and apprehended defendant at the scene.

The only other witness at the trial was Officer Shawn Broderick of the Jersey City Police Department. He testified that he arrived at the store at approximately 6:00 p.m., where he met with Elhassan and observed scratch marks on his face and neck. In the courtroom, Officer Broderick identified defendant as being in the store at the time he arrived.

I. Jury Selection

In her first point on appeal, defendant challenges the jury voir dire, claiming the court's inquiry was inadequate to determine the jury's potential racial bias, and bias in favor of law enforcement officers. She also claims the jury was not sufficiently questioned as to its understanding of the proceedings. These arguments are without merit.

Jury selection occurred November 9, 2004. Defendant proposed twenty-three questions for the court to ask jurors as part of the selection process; the questions related to racial prejudice, bias towards and relationships with law enforcement personnel, and the jury's ability to understand the proceedings and certain legal precepts. The court agreed to ask one of the questions submitted by the defense, noting that "the majority of [the questions] are already covered in the standard voir dire . . . [or] were not particularly relevant." The one question that the court did ask was: "Have you had any unpleasant experience with a black person, which would cause you to view black persons generally in an unfavorable light?" One juror responded in the affirmative to this question.

On appeal, defendant challenges the court's failure to ask the following questions:

2. Do you have any defect or disability that would make it difficult for you to follow or evaluate the evidence in this case?

. . . .

5. Are you able to understand, read, write, and speak the English language?

. . . .

11. Do you realize that the fact that defendant has been indicted is no evidence of her guilt and that an indictment is merely a formal legal pleading, a piece of paper filed by the prosecution in order to start their proceedings and has no legal meaning beyond that?

12. Do you accept the concept of American justice that the burden of proving the case beyond a reasonable doubt is always upon the prosecution and remains with them during the entire trial, and that the defendant has no obligation to either prove or disprove any fact?

13. Are you friendly with any police officer on the Jersey City police department or with any member of the Hudson County Prosecutor's Office?

14. If so, would you find it embarrassing with your friend if you were to be on a jury which acquitted the defendant?

15. Would any of you place a greater amount of weight upon the testimony of law enforcement officers simply because of the official position of those officers?

. . . .

17. Do you have any animosity toward members of the Black race?

18. Do you belong to any organization which excludes Black persons from its membership?

19. Have you ever moved out of a neighborhood because Blacks have moved in?

20. Do you favor open occupancy laws which permit a person to live anywhere that he/she can afford and which would require a person who desires to sell his/her property to sell it to a Black person if that person can afford to buy it?

. . . .

22. Do you believe that too many Black persons are on welfare? That Black persons are looking for "Something for nothing" or that they are too demanding or given to violence to obtain their goals?

23. Would you, if you were the defendant, be satisfied with a jury of twelve persons of your background, your prejudices, if any, passing judgment on you?

The court, though rejecting these questions, inquired into the jurors' ability to understand the proceedings and be impartial; inquired into jurors' biases towards law enforcement officers; and explained to them the burden of proof and the effect of the indictment. The judge asked if there were any reasons jurors could not accept and follow the principles of law he related to them in his instructions. He asked if there was anything about the nature of the charge that would prevent the jurors from being fair and impartial, and if there was any other reason that would prevent any juror from being fair and impartial.

Though the court did not ask about the jurors' understanding of the meaning of the indictment and the burden of proof, the judge did charge the jury on these issues prior to trial, prior to jury deliberations, and again during deliberations. The court informed the jury that the indictment was not evidence of guilt, and explained the State's burden of proof beyond a reasonable doubt on every element of the offense charged. The court also asked whether the jurors knew the prosecutor trying the case or if they knew anyone else in law enforcement, including prosecutors, police officers, sheriff's officers, or FBI agents. Several jurors answered yes to this question, but indicated that they could still be impartial. The court also asked whether any jurors would "tend to give any greater or lesser weight to the testimony of a law enforcement officer just because he or she was a law enforcement officer." One juror raised his hand to this question. Two jurors informed the court that they were unable to fully understand English, with one of those jurors also informing the court of a hearing impairment.

Questions asked during voir dire are a matter of judicial discretion. State v. Moore, 122 N.J. 420, 443-44 (1991) ("control over [the] . . . scope and content [of voir dire] is left to the experienced judgment and discretion of the trial judge"); State v. Kelly, 302 N.J. Super. 145, 151 (App. Div. 1997), certif. denied, 156 N.J. 409 (1998). That discretion is broad and will not ordinarily be disturbed on appeal. State v. Singletary, 80 N.J. 55, 62 (1979). Voir dire designed to expose potential bias is essential to ensure an impartial jury. State v. Hunt, 115 N.J. 330, 348, reconsideration denied by 117 N.J. 152 (1989). A thorough voir dire enables counsel to make informed decisions in exercising peremptory challenges and in seeking disqualifications of jurors for cause. State v. Oates, 246 N.J. Super. 261, 267 (App. Div. 1991). Voir dire should be tailored to the particular matter on trial. Id. at 269.

A. Racial Bias

Whenever there is a racial or ethnic difference between the victim and the accused, at defendant's request, the trial judge should inquire of the prospective jurors whether the disparity will affect their ability to be impartial. State v. Horcey, 266 N.J. Super. 415, 418 (App. Div. 1993). It is reversible error for a trial judge to refuse a request to ask at least a threshold question about bias where there is a racial disparity and the defendant is charged with a violent crime. Id. at 419-20.

Nevertheless, discrete questions concerning racial bias are not mandatory whenever a defendant happens to be a member of a minority group. Kelly, supra, 302 N.J. Super. at 152. They are only necessary when racial issues are "inextricably bound up with" the issues at trial or there are "substantial indications" that they will play a role in the trial. Ibid.

Here, defendant is African-American. According to defendant's brief on appeal, the race of the victim, Elhalim Elhassan, is unclear, although his name reflects Middle Eastern descent and he testified at trial in French, through an interpreter. The trial judge, while not asking every question suggested by the defense regarding racial prejudice, did question the jurors about how their racial attitudes might affect their deliberations and perceptions. The court asked a question proposed by defendant that inquired whether any juror had an unpleasant experience with a black person that would cause him or her to view black people generally in an unfavorable light. The court also posed broad questions about the jurors' inability to serve, which in a general sense addressed the jurors' inability to serve based on their biases. The jurors were aware that defendant is African-American, as she was present in the courtroom during voir dire. Had any jurors felt that they were unable to serve because of racial bias, they were given an opportunity to speak out.

The trial court was within its discretion to reject the extensive list of questions regarding race and instead pose a more limited general inquiry. Race was not inextricably bound up with any of the issues at trial. Nor were there any substantial indications that race would play a role in the trial. The questioning here was adequate under the circumstances. Indeed, one juror expressed that he had an unpleasant experience with a black person that caused him to view blacks in an unfavorable light. That juror was excused.

B. Law Enforcement Bias

Defendant claims the court erred by not asking sufficient questions on voir dire with regard to jurors' opinions about law enforcement officers. That argument is without merit. The court asked the jurors if they would tend to give greater or lesser weight to the testimony of a law enforcement officer simply because he or she was a law enforcement officer. The court also asked the jurors if they had friends or relatives who were in any way connected with law enforcement. These questions were, in our opinion, sufficient to probe the potential bias of the jurors either in favor of or against the testimony of law enforcement officers.

C. Jurors' Understanding of the Proceedings

Next, defendant argues that the trial court did not adequately question the jurors concerning their understanding of the proceedings. That argument too is without merit. The judge properly questioned the jurors as to whether they were able to accept and follow the principles of law as presented by the court, and whether there was anything that would prevent them from being fair and impartial. The court explained the burden of proof, and that the indictment was not evidence of guilt. Overall, the court's charge to and questioning of the jury were sufficiently broad to assure that each juror would comply with the governing legal standards.

II. Identification Charge

At trial, the judge denied counsel's request for a cross-racial identification jury charge. On appeal, defendant does not argue that a cross-racial identification charge was needed, but that the court should have given the general identification instruction, presumably as is set forth in the Model Jury Charges (Crim.). Nevertheless, whether defendant was seeking a general identification charge, or a cross-racial identification charge, her arguments are without merit.

Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial. State v. Concepcion, 111 N.J. 373, 379 (1988). The charge must provide a comprehensible explanation of the questions the jury must determine, and should be tailored to the particular case at hand. Ibid. When evaluating the propriety of a jury charge, we examine the charge as a whole. Id. at 376. A trial court should instruct on identification when a defendant's identification is a fundamental or essential issue in the case. State v. Robinson, 165 N.J. 32, 40 (2000). A cross-racial identification occurs when an eyewitness is asked to identify a person of another race. But, a cross-racial identification jury instruction is not necessary whenever this occurs; only where identification is a critical issue in the case and the witness's identification is not corroborated by other evidence giving it independent reliability. State v. Cromedy, 158 N.J. 112, 120 (1999).

Here, identification was not a critical issue. The defense admitted that defendant was the perpetrator, only arguing that the offense committed did not constitute the charged crime of robbery. Defense counsel stated,

this case is about [defendant] going into a store, and allegedly, from the State's perspective, committing a robbery. [Defendant], all along from day one, has admitted and is willing to admit to this Court, that she did go into the store that evening, and that . . . she did commit a crime, shoplifting.

In summation, defense counsel maintained this position, stating, "[f]rom day one, we've admitted . . . [defendant] was in the store," that defendant "was trying to shoplift" and that she "only contests whether or not she got into an altercation with Mr. Elhassan."

Further, substantial evidence corroborated the in-court identification. The security guard identified defendant in the store soon after he watched her enter and almost immediately after she attacked him. He watched her enter the store, paying close attention to her because of the way she looked at him. A minute after defendant entered, Elhassan saw her with a bag in her hand and attempted to stop and question her. It was at this point that she struck him. Five minutes later, the police arrived. Defendant was apprehended within minutes of the guard's initial encounter with her. Though the security guard was unable to conclusively identify defendant at trial, the police officer had no such difficulty.

In sum, no need for an identification charge, cross-racial or otherwise, was established.

III. Defendant's Sentence

The court imposed a seven-year prison term with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The seven-year term imposed was the presumptive term in effect at the time for a second-degree offense. The judge found aggravating factors three, the risk that defendant would commit another offense; six, the extent of defendant's prior record; and nine, the need for deterrence. The aggravating factors were based on defendant's prior criminal history.

The issue, as we see it, concerns the court's failure to discuss any mitigating factors. While an appellate court should not second-guess a trial judge's sentencing discretion, where mitigating factors are adequately supported on the record, they must be part of the judge's deliberative process. Dalziel, supra, 182 N.J. at 501, 504-06. The failure to find mitigating factors that are supported by the evidence is error. Id. at 506.

Here, defendant contends that mitigating factors one and two were present, in that her conduct neither caused nor threatened serious harm, and she did not contemplate that her conduct would cause or threaten serious harm. Defendant has a point. The judge agreed with defense counsel's characterization of the offense as an "aggravated shoplifting;" the court commented that the "level of . . . violence and injury that are here . . . are relatively minor." The judge found that the incident was "basically a shoplifting gone wrong."

According to the trial testimony, defendant pushed the security guard, which resulted in some scratches to his face and neck and some pain in his back. Given the factual underpinnings of the conviction, we conclude that the judge should have considered mitigating factors one and two, even though not raised by defendant at the time of sentencing. "[T]he trial judge is required to consider all of the aggravating and mitigating factors and to find those supported by the evidence." Id. at 505. In the absence of that consideration, we vacate defendant's sentence and remand for resentencing. That said, as the Supreme Court noted in Dalziel, supra, our opinion should not be "viewed as tilting one way or the other regarding [defendant's] ultimate sentence." Id. at 506.

We affirm defendant's judgment of conviction, vacate defendant's sentence, and remand for resentencing and for correction of the judgment of conviction to indicate that defendant was found guilty by a jury. We do not retain jurisdiction.

Affirmed in part, reversed in part, and remanded.

 

The judgment of conviction incorrectly indicates that defendant entered a guilty plea.

Discrepancies exist in defendant's brief regarding which questions she maintains the court should have asked.

(continued)

(continued)

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A-3772-04T4

November 20, 2006