STATE OF NEW JERSEY v. MICHAEL W. BANKO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4936-04T24936-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL W. BANKO, a/k/a

MICHAEL McCABE,

Defendant-Appellant.

_____________________________________

 

Argued October 12, 2006 - Decided

Before Judges Lefelt, Sapp-Peterson and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 99-12-2233.

Philip De Vencentes argued the cause for appellant (Galantucci & Patuto, attorneys; Mr. De Vencentes on the brief).

John J. Scaliti, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Mr. Scaliti and Brandy B. Galler, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This criminal appeal returns for consideration of defendant's arguments that were not previously resolved in our November 18, 2003 opinion directing, on other grounds, judgment of acquittal on his conviction of possession of a weapon for an unlawful purpose under N.J.S.A. 2C:39-4a, and the Supreme Court's ensuing reversal on that discrete issue. See State v. Banko, 364 N.J. Super. 210 (App. Div. 2003) (declaring proofs insufficient to establish defendant's unlawful purpose in possessing weapons in light of his acquittal by the jury on all other substantive counts of the indictment), rev'd, 182 N.J. 44 (2004)(reinstating defendant's conviction, in spite of apparent inconsistent verdicts, but preserving defendant's other points for future review).

We shall not repeat the underlying facts at length, as they are comprehensively described in our prior opinion, see id., 364 N.J. Super. at 214-19, as well as in the opinion of the Supreme Court, see id., 182 N.J. at 45-53. The following brief summary will suffice.

On April 30, 1999, defendant Michael Banko met the alleged victim, Carmen Miles, at a Manhattan bar. After socializing further at a dance club, defendant arranged through his friend to have a car service drive Miles and him to his New Jersey apartment. During the course of the evening, defendant made romantic overtures toward Miles, although no sexual touching evidently occurred. While in his apartment, defendant showed Miles his unloaded BB gun. Miles ran out of the apartment shortly thereafter and sought police assistance. Defendant denies ever pointing the gun at Miles, and claims that Miles herself brought up the subject of guns and even held the BB gun in her own hands.

Following a ten-day trial in May 2002, defendant was acquitted of the most serious charges (first-degree attempted aggravated sexual assault and first-degree kidnapping) and was also acquitted of fourth-degree aggravated assault by pointing a firearm. However, the jury convicted defendant of second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a. That conviction, reinstated by the Supreme Court, is now before us, following a remand to the trial judge who declined in an opinion dated April 4, 2005 to set aside the verdict on any of the additional grounds that were not decided in his first post-verdict opinion. Defendant was sentenced to seven years imprisonment, including three years without parole pursuant to the Graves Act. On October 18, 2005, the Supreme Court granted defendant's motion for bail pending appeal.

On the present appeal of his conviction, defendant raises the following issues:

POINT I

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO BE "PRESENT" AT ALL PHASES OF HIS TRIAL BY THE TRIAL COURT'S DENIAL OF HIS RIGHT TO BE PHYSICALLY PRESENT AT SIDEBAR VOIR DIRES OF JURORS, PREJUDICING DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL JURY.

POINT II

MULTIPLE ACTS OF PROSECUTORIAL MISCONDUCT, UNCORRECTED BY THE TRIAL JUDGE, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR AND IMPARTIAL VERDICT [PARTIALLY RAISED BELOW].

a. The prosecutor in summation accused Defendant of "tailoring" his testimony based on what he heard at trial; suggested Defendant had "orchestrated" his testimony with his trial attorney; vouched for the credibility of the Complainant; and made an inappropriate appeal to jurors' personal fears.

b. The prosecutor consistently violated a court order by referring to the Complainant as the "victim," and the court erred in denying Defendant's six mistrial motions based on such violation.

POINT III

BOTH INITIALLY, AND ON RE-INSTRUCTION, THE TRIAL JUDGE ERRED IN FAILING TO PROVIDE THE JURY WITH A "SPECIFIC UNANIMITY" CHARGE, AND APPROPRIATE JURY VERDICT SHEET, AS TO COUNT 4; AND HIS ANSWERS TO THE JURY'S QUESTIONS WERE INADEQUATE TO PRESERVE DEFENDANT'S RIGHT OF DUE PROCESS [NOT RAISED BELOW].

POINT IV

THE TRIAL COURT COMMITTED SEVERAL ERRORS WHICH, INDIVIDUALLY AND CUMULATIVELY, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR AND IMPARTIAL VERDICT [PARTIALLY RAISED BELOW].

a. The trial judge erred in permitting and accepting "jury" questions during trial requesting the provision of evidence, and in redacting evidence after it had been admitted in unredacted form.

b. The trial judge erred in failing to provide the jury with an "adverse inference" instruction, and in permitting the State to use Defendant's prior testimony at a suppression hearing against him.

POINT V

THE MOTION JUDGE ERRED IN DENYING DEFENDANT'S PRETRIAL MOTION TO REQUIRE PRODUCTION OF THE COMPLAINANT'S PSYCHOLOGICAL RECORDS, AND HIS MOTION TO SUPPRESS.

Having considered the issues and the record, we are persuaded that there are a number of reversible errors that require the conviction to be vacated and the matter remanded for a new trial.

I.

After carefully examining the transcripts, we conclude that three distinct aspects of the trial, singularly and in combination, jeopardized defendant's right to a fair trial. Those aspects were (1) the reception of substantive questions from the jury about defendant's BB gun and the prosecution's subsequent eliciting of testimony that responded to those questions; (2) repeated improper references to complainant Miles as a "victim" by the prosecutor and by a State's witness, in direct violation of the court's admonitions not to do so; and (3) the prosecutor's arguments in summation that defendant had "tailored" his testimony in an "orchestrated" manner. We examine the erroneous and prejudicial nature of these items in turn.

A.

At several points during the course of the trial, jurors submitted written questions to the judge. The questions initially concerned only scheduling and housekeeping matters. However, the questions soon delved into more substantive topics. On the third day of trial, the jury sent four notes to the judge, one of which asserted, among other things, that "[t]he jury has . . . concerns [about] [t]he slow pace of the trial[.]" The notes were followed on the ensuing trial day by a juror blurting out in the courtroom, while a police detective was demonstrating how he had located the BB gun under defendant's bed, "Would you mind pointing that down?"

During a break in the detective's testimony, the judge was handed two more notes from the jury. These two notes raised very specific matters of substance concerning the defendant's BB gun. While the jury was in recess, the judge described the contents of the notes to counsel on the record as follows:

[THE COURT:] [N]ow I have questions from the jury.

I'm going to read the information to the attorneys and we'll come to an agreement as to what I will tell the jury. The first note that was handed to me said - - says "Can a pellet gun kill someone?" That was the first question.

[The] [s]econd question addressed to the Court requests to [the judge], "I would like statistical information on the gun/weapon, such as 1:P velocity for both BB and pellet in F.P.S[.]" I would imagine that must mean Feet Per Second.

Number 2, impact capacity.

Number 3, general data on the gun.

The judge then suggested to counsel that the jury would be given "sufficient information" in the jury charges to respond to their expressed concerns about the evidence. Both counsel declined the judge's offer to impart, through the court, any additional guidance at that time to the jury.

When the jury returned from their break, the judge stated the following to them:

THE COURT: Welcome back, please be seated.

The questions that were given to the Court have been discussed with the attorneys and we are of the opinion that we certainly appreciate your attentiveness and thoughtfulness, but I would think that during the course of the trial and during the instructions your questions will be addressed and sometimes what will happen during deliberations there will be a need for specific questions to be asked and answered. My thinking is that until such time as you begin your deliberations some of these questions may be answered during the course of the trial, or during my instructions; so we will hold these in abeyance. If they still need to be answered, you will let us know.

Neither attorney objected to this instruction to hold "in abeyance" the jury's evidentiary concerns.

Having been alerted to the "jury's" very specific queries about the characteristics of defendant's BB gun, the prosecutor chose to explore those topics on the next day, during the course of defendant's cross-examination. In particular, the prosecutor confronted defendant with the owner's manual for the gun that had been found by the police under his bed. Using the manual as a reference, the prosecutor posed numerous questions to defendant about specific attributes of the gun, including its maximum shooting distance, ammunition capacity, caliber and muzzle velocity (specifically 420 feet per second). Defendant stated that he had not noticed these specifications in the manual, doubting that he had read "past the first couple of pages that had . . . pictures on it." The prosecutor also had defendant acknowledge that the manual states that the gun could cause "death or serious bodily injury."

Through this examination the prosecutor succeeded in responding to the two main substantive areas raised in the queries from the jury: (1) the lethal potential of the BB gun, and (2) the gun's muzzle velocity, specified in feet per second, and other ballistic features. We recognize that the manual was a defense exhibit and that the defendant's trial counsel did not object to the prosecutor's cross-examination about passages in the manual. Even so, we consider the substantive questions posed by the jury, and the insights gleamed by the prosecutor from those questions, highly problematic.

Since 1993, our law has clearly prohibited jurors from posing evidentiary questions during the course of a criminal trial. In State v. Jumpp, 261 N.J. Super. 514, 534 (App. Div.), certif. denied, 134 N.J. 474 (1993), we reviewed circumstances in which a criminal trial judge had permitted the jury to submit such questions. Although we recognized that other jurisdictions have approved the practice in the court's discretion, we recognized that it carries with it inherent "dangers," including that (1) counsel are placed "in the intolerable position of either offending the juror by objecting or permitting improper and possibly prejudicial testimony to come in without objection;" (2) a juror's involvement in the interrogation process "may lessen his or her objectivity and cause a premature judgment on some issues in the case;" (3) "personal interaction between juror and witness may produce tension or actual antagonism;" and (4) "the potential that the jury might abandon its role as arbiter of the facts and become an inquisitor, demanding that defendant justify himself." Id. at 530 (quoting 75B Am. Jr.2d Trial 1624 (1992) as to first three dangers and citing United States v. Johnson, 892 F.2d 707, 715 (8th Cir. 1989) (Lay, C.J., concurring) (as to fourth cited danger).

Recognizing these potential hazards of juror questioning, which may offset its potential gains in juror attentiveness and jurors' understanding of a case, we observed in Jumpp that various procedures are necessary to keep those risks to a minimum. Those procedures include, but are not limited to, assuring that all juror questions are presented in writing, subjecting them to potential reformulation by the judge, and allowing counsel a right to object. Id. at 532. We also expressed concern "as to whether or not such procedures are truly effective." Ibid.

Weighing the many risks posed to the integrity of the trial process, we instructed in Jumpp that "we do not endorse the practice [of juror questioning] because the inherent dangers are considerable." Id. at 534. More specifically, we directed that "trial courts withhold implementing such practice[s] until the Supreme Court has had an opportunity to thoroughly consider this issue to determine whether jurors should be permitted to question witnesses and, if so, establish precise guidelines and procedures." Ibid. The Supreme Court denied certification. 134 N.J. 474 (1993).

Following our opinion in Jumpp, the Supreme Court's Civil Practice Committee recommended a pilot program to experiment with juror questioning in civil trials. That experiment in the civil arena proved to be successful, based upon the largely favorable responses of judges, jurors, and attorneys who participated in the pilot program. The experience led the Court to adopt a new Rule in 2002, R. 1.8-8(c), later amended in 2006, which now authorizes juror questioning at court's discretion in a "civil action." R. 1:8.8(c). The Rule contains a variety of special procedures to follow if juror questioning is so allowed. Ibid.

The Court has also fashioned preliminary and final model jury charges to administer in such civil cases where juror questioning is permitted. See Model Civil Jury Charges 1.23 and 1.24 (effective 9/02). Among other things, the model charges caution the jurors that they should not collaborate with their fellow jurors about the formulation of such questions, and that they should not "treat a jurors' questions or the answers to those questions differently than [they] would treat any other testimony." Ibid. These instructions are designed to minimize the risk that jurors will not stray from their non-adversarial function as fact-finders and to assure they will keep an open mind until all proofs are received and the final charge is presented.

Notably, neither our Supreme Court, nor its separate Criminal Practice Committee, have endorsed to date the use of substantive juror questioning in criminal cases. We certainly do not foreclose such future innovation with appropriate safeguards and procedures. But it remains the law of our State that such questioning is disallowed in the criminal setting, whatever its virtues and present customs may be in the Civil Part.

In the present case, the judge did not specifically invite the jurors to submit substantive questions, as did the trial judge in Jumpp. Nor were the juror questions, which were submitted to the court in the midst of a detective's testimony, actually posed by the court to the detective. In these limited respects, the jury questioning in this case is less problematic than in Jumpp.

On the other hand, we do not regard the multiple questions from the jury concerning the BB gun as insubstantial. This contrasts with Jumpp, in which we characterized the sole question submitted by the jury as "innocuous," and one which "merely sought further detail as to previous testimony and did not introduce any new or unrelated subject matter." Jumpp, supra, 261 N.J. Super. at 533. Rather, the juror questions regarding the BB gun here undoubtedly induced the prosecutor to elicit new and very specific proof concerning the gun's ballistic characteristics through her ensuing cross-examination of the defendant.

We have serious concerns about whether the jury questions in this case unduly influenced the conduct of the trial. The judge described the questions as having come from "the jury," rather than from an individual juror, which indicates that the jurors had improperly discussed the questions among themselves prior to their deliberations. That is flatly contrary to the Model Criminal Charges (Instructions After A Jury Is Sworn), which "direct that [jurors] not discuss the case among [themselves] . . . until the entire case has been concluded[.]" (emphasis in original). The likelihood of such premature deliberations by this jury is heightened by the other notes submitted to the judge during the trial, which likewise were referred to as notes from the "jury" as a whole, rather than as inquiries from individual jurors. The judge conducted no investigation of the possibility of such premature deliberations, nor did he renew the general instructions from the first day of trial prohibiting such discussions.

Although neither attorney requested it, we further observe that the judge did not instruct the jury, as is now required in civil trials, that any testimony elicited in response to juror questions should be accorded no greater weight than other testimony in the case. The omission of such proper guidance compounds our concern that the jurors here may have read too much into the significance of the ballistics and the specifications of the BB gun, which were probed into at length by the prosecutor once she realized that the jury was keenly interested in those subject.

In sum, the juror questioning in this trial, however uninvited it may have been, runs contrary to our mandates in Jumpp. We appreciate that the trial judge did not solicit questions from the jury and attempted (albeit somewhat indirectly) to discourage their continuation by advising the jury to await the court's final instructions in the jury charge. We also recognize the absence of any timely objection from trial counsel. Nevertheless, the apparent inquisitorial activism of the jury in the conduct of this trial raises considerable doubts in our minds about the fairness of the proceedings, particularly when it is considered in light of other prejudicial aspects of the trial that we will examine, infra.

B.

Before the trial began, defendant sought and obtained a preemptive ruling from the court precluding the State from referring to Carmen Miles as the "victim," allowing it instead to refer to her as the "complainant" or "the alleged victim." Although we do not pass on whether such a prohibition was absolutely necessary to assure defendant a fair trial, the judge's imposition of the prohibition was unmistakable.

Despite the judge's clear ruling, the prosecutor on four separate occasions -- twice in her opening statement and twice in her summation -- violated that order, referring to Miles as "the victim" without preceding that term with the qualifying adjective "alleged." When this violation occurred a second time, the prosecutor assured the judge that it would not happen again and that she had instructed all of the State's witnesses not to use the term "victim." Nevertheless, one of the State's key witnesses, a Detective Alvarez, twice referred to Ms. Miles as "the victim" in the course of his subsequent testimony.

The judge's order was thus violated on six separate occasions. In each such instance, the defense timely objected and moved for a mistrial. The judge denied each mistrial request. Instead, the judge delivered cautionary instructions to the jury, advising that they alone would decide credibility issues and would determine whether, in fact, Ms. Miles was indeed a victim.

A criminal defendant is, of course, entitled to the presumption of innocence. In re Yengo, 84 N.J. 111, 120 (1980); see also State v. Daniels, 182 N.J. 80, 98 (2004). That presumption was unfortunately diluted here by the prosecutor's repeated statements characterizing Ms. Miles as a "victim," in violation of the trial judge's express mandate to refrain from doing so. The presumption of innocence was further watered down by the testifying detective's echoed use of the disallowed term.

To be sure, we recognize that attorneys and witnesses are human beings and, as such, prone to an occasional slip of the tongue. See State v. Darrian, 255 N.J. Super. 435, 453 (App. Div. 1992) ("not every deviation from perfection on the part of a prosecutor warrants a reversal of a conviction"). However, the six instances in this case, some of them coming almost immediately after a renewed admonition from the trial judge, are too persistent to cast aside. This is not a situation as in Darrian, in which the prosecutor's references in opening statement to the alleged victim's attractiveness and personal ambitions were deemed to be "isolated comments which did not substantially prejudice defendant's right to a fair trial." Id. at 454. Here, the recurrent violations of the judge's order were excessive.

We do take into account that the trial judge provided the jury with the standard charge advising them that the comments of the attorneys are not evidence, and that he also issued a renewed instruction on that principle each time that the State referred to Ms. Miles as a "victim." Our concern is that the repeated slip-ups of the prosecutor and her witness could easily have undermined the seriousness of the court's admonitions in the eyes of the jurors. Indeed, the judge at one point remonstrated with counsel that he would not tell her "a second or third time" to obey this instruction, only to have the instruction violated several more times thereafter.

We do not presume that the prosecutor's repeated misstatements were deliberate or that she misled the court in assuring it that she would advise her witnesses to avoid referring to Ms. Miles as a victim. But no such motive is required for a finding of prosecutorial misconduct. In this case, the comparative credibility of Ms. Miles, on the one hand, and defendant, on the other, regarding exactly what transpired at defendant's apartment on April 30, 1999 was critical. We would be remiss if we consigned the prosecutor's repeated indiscretions to the dustbin of harmless error. Considered in tandem with the other improprieties in the prosecutor's summation, which we next address, infra, we consider the six successive violations of the judge's prohibition as sufficiently egregious to warrant a new trial. See State v. Scherzer, 301 N.J. Super. 363, 433 (App. Div.), certif. denied, 151 N.J. 466 (1997).

C.

In her summation, the prosecutor specifically highlighted the defendant's presumed advantage in hearing the testimony of all of the other witnesses before he himself testified. In particular, the prosecutor charged the defendant with having deceptively "tailored" his account of the events to mesh with the testimony of the other witnesses. Such allegations of tailoring were expressed six times in her closing:

What the defendants' statement is going to show you, and when you compare that to what he said here at the stand, you are going to see that what the defendant was doing was, he was tailoring his testimony to what the evidence was, as it was coming out in the case.

* * * *

Why lie about the little things. It is because you are making it up as you go along.

* * * *

Why lie about the little things, if you have not done anything wrong. It is because you are making it up as you go along.

* * * *

Again, he is lying, he is making it up as he is going along, because it is a story, that is exactly what it is.

* * * *

It's one lie expounded on top of another. Again, trying to tailor his testimony based on the evidence as it comes out through the trial.

* * * *

Well, I went down and I conducted a surveillance and I never heard her scream. Then there was a break, the court took a recess. Who talks about that. I went down and conducted a surveillance. People do not talk like that, that is because it is orchestrated testimony. He is making it up as he goes along.

[Emphasis added.]

Defense counsel did not object to these "tailoring" comments of the prosecutor in her summation, but now argues that they comprise reversible error.

Although the United States Supreme Court has not deemed a prosecutor's allegations of tailoring as sufficient to deprive a defendant of his constitutional right to a fair trial, the Court also declined to endorse the desirability of such attacks on the defendant as "a matter of sound trial practice." Portuondo v. Agard, 529 U.S. 61, 73 n.4, 120 S. Ct. 1119, 1127 n.4, 146 L. Ed. 2d 47, 58 n.4 (2000). Instead, the Court referred such assessments, as well as "the desirability of putting prosecutorial comment into proper perspective by judicial instruction," to "trial courts, and to the appellate courts which routinely review their work." Ibid.

Our own Supreme Court has unambiguously spoken on this subject. In State v. Daniels, 182 N.J. 80 (2004), the Court held that "[a]lthough, after Portuondo, prosecutorial accusations of tailoring are permissible under the Federal Constitution, we nonetheless find that they undermine the core principle of our criminal justice system--that a defendant is entitled to a fair trial." 182 N.J. at 98. "Prosecutorial comments suggesting that a defendant tailored his testimony inverts those rights, permitting the prosecutor to punish the defendant for exercising that which the Constitution guarantees." Ibid.

The Court's opinion in Daniels classified accusations of tailoring in two categories: generic and specific. "Generic accusations occur when the prosecutor, despite no specific evidentiary basis that defendant has tailored his testimony, nonetheless attacks the defendant's credibility by drawing the jury's attention to the defendant's presence during trial and his concomitant opportunity to tailor his testimony. . . . Allegations of tailoring are specific when there is evidence in the record, which the prosecutor can identify, that supports an inference of tailoring." Ibid.

Daniels clearly prohibits prosecutors from making generic accusations of tailoring in summations, for such accusations are not "a legitimate means to bring about a just conviction." Ibid. If, however, a prosecutor makes specific accusations of tailoring tied to particular evidence in the record, then "a prosecutor may comment, but in a limited fashion. The prosecutor's comments must be based on the evidence in the record and the reasonable inferences drawn therefrom." Id. at 99.

Further, our Supreme Court in Daniels was quite explicit in condemning, even in the context of specific accusations of tailoring, a prosecutor calling the jury's attention to the defendant's attendance during the testimony of other witnesses:

[T]he prosecutor may not refer explicitly to the fact that the defendant was in the courtroom or that he heard the testimony of other witnesses, and was thus able to tailor this testimony. In all such circumstances, we expect that prosecutors will act in good faith.

[Ibid. (emphasis added).]

These precepts guide our evaluation here. The prosecutor's accusations of tailoring by defendant Banko were, at various points, both general and specific. They were specific with respect to defendant's testimony about a number of subjects, including, for example, who paid for the car service on the night of the parties' social encounter, how much alcohol they drank, whether or not he heard Miles scream, and his impressions of Miles' personality. But the prosecutor did far more than argue the lack of credibility of those sworn statements. Instead, the prosecutor bluntly accused the defendant of "trying to tailor his testimony based on the evidence as it comes out through the trial."

At sidebar during a break in defendant's redirect examination, the prosecutor specifically accused defense counsel of coaching, noting that she had seen defendant and his attorney "talking outside." This perception apparently led the prosecutor at one point in her summation to label the defendant's testimony as "orchestrated." The comment clearly intimates collusion on the part of defendant and his trial counsel, an accusation that runs counter to the presumptive constitutional right of a criminal defendant to the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984).

The repeated comments of the prosecutor accusing defendant of tailoring are precisely what the Supreme Court interdicted in Daniels. We believe those comments, again viewed in the context of the other prejudicial features of the trial which we have already addressed, had the clear capacity to produce injustice. State v. Josephs, 174 N.J. 44, 124 (2002).

D.

In determining a remedy for these assorted trial errors, we are mindful that this was a close case. There were no independent eyewitnesses, and the case turned substantially on the credibility of Ms. Miles and defendant, both of whom had been drinking during the course of the evening. The jury acquitted defendant on three of the four counts charged in the indictment, following three days of deliberations.

In light of these factors, our confidence in the strength of the proofs put forward at trial to show that defendant was guilty beyond a reasonable doubt is undermined by the procedural errors in the conduct of the trial, standing alone and especially in a cumulative sense. See State v. Koskovich, 168 N.J. 448, 540 (2001) (cumulative trial errors warranting relief); see also State v. Middleton, 299 N.J. Super. 22 (App. Div. 1997) (reversing conviction because of cumulative errors).

II.

Although it is not necessary to do so, we now address, for sake of completeness and for guidance to the Law Division, defendant's other points on appeal. None of those arguments warrants a new trial.

A.

Defendant contends that he was improperly excluded from sidebar conferences during jury selection. He chiefly relies on State v. W.A., 184 N.J. 45 (2005), an opinion which our Supreme Court issued three years after the trial in this case.

W.A., which also arose from a jury trial in the Bergen County Courthouse, resolved the question of whether a criminal defendant has a right to attend sidebar conferences held during jury selection. Without finding a constitutional basis for such a right, the Court construed R. 3:16(b) to assure that "[i]f a defendant seeks to be present at sidebar during voir dire he should be accommodated as far as security will allow." Id. at 60. That holding is consistent with the language of the Rule, which declares that "[t]he defendant shall be present at every stage of the trial, including the impaneling of the jury[.]" R. 3:16(b).

The Court's holding in W.A. recognized the importance of an accused participating in the evaluation of potential jurors who could be struck through peremptory challenges. In particular, the Court observed that "it is that undefinable frisson either of comfort or unease that passes from one person to another that is the essence of the peremptory challenge and that is a crucial rationale for affording a defendant the right to be present at the questioning of potential jurors." W.A., supra, 184 N.J. at 55.

The Court in W.A. announced a series of considerations pertinent to the defendant's right to participate in the sidebar examination of potential jurors. First, the defendant must affirmatively request to be present with his or her counsel at sidebar, otherwise that right of presence is waived. Id. at 63-64. If such an affirmative request is made, the Court may then consider whether "safety issues militate against" the defendant's physical presence. Id. at 60. If such safety concerns, which the Court instructed should be "clearly state[d]" by the trial judge on the record, are present, then "other methods should be employed to guarantee [defendant's] meaningful participation in the jury selection process." Ibid. As examples of such other methods, the Court suggested wireless listening devices, closed-circuit television, or a "struck jury" procedure in which jurors are questioned in open court individually. Id. at 60-61.

If all of these alternatives identified in W.A. are not feasible, the trial judge may resort to a "lawyer-shuttle" system, in which defense counsel "must confer with his client after each sidebar interview that involves more than innocuous scheduling-type matters." Id. at 61. Upon request, "the judge should take a recess before defendant's peremptory challenges are exercised to allow [defendant] to listen to the tape or review the court stenographer's notes of the sidebar colloquy with the non-excused jurors." Ibid. All of these procedures are fashioned to "balance the court's interest in security, the juror's in privacy, and the defendant's in presence." Ibid.

The parties disagree as to whether W.A.'s holding and its specified procedures should apply retroactively to this case, which was tried in 2002 but was in the appellate "pipeline" when W.A. was issued in June 2005 by the Supreme Court. We recognize that retroactivity is presently the core issue in another Bergen County criminal case, State v. Michael Colbert, A-5638-02, on which the Court has granted certification, but not yet heard argument. We shall not rule upon the prospectivity/retroactivity issue here, although we do note in passing that the general principles in W.A. appear to have been substantially foreshadowed in State v. Dishon, 297 N.J. Super. 254, 268 (App. Div.), certif. denied, 149 N.J. 144 (1997) (holding that a defendant was improperly excluded from examinations of jurors conducted with counsel in chambers after defendant had exhausted his peremptory challenges), and by the plain words of R. 3:16(b).

In any event, we shall presume that W.A. has "pipeline retroactivity," see State v. Purnell, 161 N.J. 44, 53 (1999), to cases like this one which was on direct appeal when W.A. was decided. Even so, we conclude that the trial judge substantially complied with the precepts of W.A. and that any error committed in straying from the procedural mandates of W.A. was harmless.

W.A. specifically rejected the notion that "a defendant's exclusion from sidebar, after having requested presence, and in the absence of a substituted process such as the use of technology, automatically warrants reversal." W.A., supra, 184 N.J. at 64. Instead, each case involving this sort of claim "is subject to a harmless error analysis." Ibid. By way of illustration, the Court cited situations in which a prospective juror is questioned at sidebar on matters not involving "substance," or where the juror in question was not involved in deliberations. Id. at 64-65. The Court thus instructed that "reversal will not be automatic but will depend on the facts." Id. at 65.

We therefore examine the pertinent facts here regarding the sidebar conferences with jurors in this case. As a preliminary matter, we note that defendant was absent from the court on the first day of jury selection but apparently authorized his counsel to proceed with the selection nonetheless. Defendant made no affirmative request to be present at sidebar until the second day of jury selection. This signifies that defendant waived his right to be present on that first day, and no reversible error therefore can arise from the empanelment of jurors from that phase of the proceeding. W.A., supra, 184 N.J. at 63-65.

At the outset of the second and final day of jury selection, the trial judge announced that defendant would not be permitted to be present at sidebar. The judge initially noted that such exclusion was warranted by the small size of the courtroom. A diagram furnished in the record shows that the courtroom in question, which was a civil courtroom then being used for criminal trials, was only twenty three feet wide. Moreover, the area to the judge's right side used for sidebars was, as the trial judge specifically found in his April 14, 2005 opinion, only two to three feet away from defense counsel's table where defendant was seated. The judge also found, and there is no contrary proof before us, that the sidebar conversations were within earshot of the defendant.

After defendant's counsel objected to the judge's preemptive ruling, the judge amplified his concerns about defendant's requested physical presence at sidebar. He noted that this case involved allegations of attempted sexual assault and the misuse of a firearm. He also observed that on the first day of jury selection three or four female potential jurors had stated they had been sexually assaulted in the past, and one of them was crying. On this particular point, the judge described defendant in his April 4, 2005 opinion as "a towering individual . . . approximately 6 feet 2 inches tall," who he found "might be intimidating to a potential juror." The judge subsequently elaborated that eleven of the fifty prospective jurors who came to sidebar on the first day of trial had revealed that they or someone close to them had been victimized by sexual assault. The judge expressed concern that "having [a] defendant present during [sidebar] questioning only adds to the stress level of that particular [juror] and may impact that [juror's] ability to be straightforward with the court, and give . . . all of the information necessary so as to select a fair and impartial jury[.]"

Given all of these factors specific to this case, the trial judge reasoned that "if [d]efendant, who is accused of sexual assault and weapons charges, [were] permitted to be present at [sidebar], not only might potential jurors be intimidated, especially the victims of sexual assault who share intimate, stressful details, but additionally, there arises a concern of potential harm to the [c]ourt, attorneys and jurors." On this latter point, the judge noted that defendant was charged with first and second degree crimes carrying the potential for long-term incarceration, raising security considerations in order "to avert possible tragedy." The judge placed those security concerns into a broader context, citing a prior incident in which another criminal defendant had jumped out the third floor window of a courtroom in the same courthouse, and recent attacks on judicial officers in Atlanta and Chicago.

The judge did give consideration, albeit briefly, to electronic measures to accommodate defendant's interest in being present at sidebar. Defense counsel remarked on the record that some federal courts have televised rooms available for that purpose, but he recognized that the Bergen County Courthouse lacked such facilities. The trial judge concurred in that observation, lamenting that the courthouse was in the process of renovations and that he was required to make use of a civil courtroom for criminal trials. Defense counsel made no request to transfer the jury selection proceedings to another larger courtroom, and there is nothing in the record showing that such alternative facilities were even available during jury selection.

Faced with these constraints, the trial judge advised defense counsel that he was "free to consult with [his] client [and] give your client the result of any of the information [elicited at sidebar.]" In the ensuing voir dire process, defense counsel made only one such request to confer with his client specifically about a potential juror. The judge, as promised, accommodated that request, and after a short recess, the juror was peremptorily excused at the defendant's request.

Defendant now focuses on one juror, "T.B.", who was interviewed at sidebar, and who reported that he owned a collection of guns and engaged in hunting and target shooting. That juror attested, however, that he could be fair and impartial, and he was empaneled without any challenge from the defendant. Defendant now speculates that T.B. may have been a source of the juror questions posed during the course of the trial regarding the BB gun. We shall not engage in that exercise of speculation, as we are remanding for a new trial on other issues in any event. Moreover, T.B. was excused from the jury and replaced by an alternate before deliberations, lending further support to a finding of harmless error. See W.A., supra, 184 N.J. at 64 ("a defendant's absence from the sidebar examination of a juror who does not deliberate in the case is necessarily harmless").

On the whole, we discern no reversible error arising out of the defendant's exclusion from the voir dire sidebars in this case. The trial judge identified significant security-related and other legitimate reasons for not allowing defendant to stand side-by-side with prospective jurors in his small courtroom. The allegations involving sexual aggression and firearms in this case accentuated the judge's rightful concerns for protecting the jurors and avoiding their intimidation. These concerns, in our view, were legitimate. We are thus satisfied that sufficient reasons exist in this particular case to justify the use of an alternative to defendant's physical presence at sidebar.

As to such alternatives, we acknowledge that the trial judge did not give lengthy consideration to electronic measures or give any consideration to a "struck jury" option, measures preferred in W.A. Instead, the judge opted for a lawyer-shuttle system, an option which W.A. classifies as less preferable but nonetheless satisfactory when other measures are not viable. We also acknowledge that the specific guidance in W.A. to administer such a shuttle system was not followed in all respects, in that, as best as we can tell from the record, defense counsel apparently did not walk back and forth to confer with his client after each prospective juror was questioned on substantive matters. That shortcoming, however, is excusable in this particular setting, given the trial judge's explicit finding that defendant was seated only two or three feet away from the sidebar and was within earshot. We also emphasize that the singular request by defense counsel for a recess to speak to his client about what had emerged at sidebar regarding one juror was readily granted. There is no indication in the record that defendant, having seen the rest of the prospective jurors from counsel table, wanted to speak to his attorney, or that the time interval between the sidebar discussions and the attorneys' exercise of peremptory challenges was too short to enable such lawyer-client conferences. Cf. W.A., supra, 184 N.J. at 50-51 (holding that defense counsel had insufficient time to confer with his client about a critical sidebar discussion with a juror).

In sum, we agree with the assessment of the trial judge in his April 4, 2005 post-verdict opinion that the procedures utilized in this case provided defendant with "the functional equivalent of being present at [sidebar]." As such, they substantially complied with the tenets of W.A. Accordingly, we regard any errors arising out of the court's deviations from the specific procedures subsequently announced in W.A. as harmless in nature. See State v. Macon, 57 N.J. 325, 337-38 (1957); see also W.A., supra, 184 N.J. at 64-65. Hence, we decline to include the sidebar exclusion issue within the grounds otherwise warranting a new trial in this matter.

B.

Defendant contends that the trial judge unconstitutionally permitted the State to impeach his trial testimony by confronting him with perceived inconsistent statements he made at a pretrial suppression hearing. We reject that contention.

Before the trial defendant moved to suppress the fruits of evidence that the police had obtained from his apartment and his motor vehicle. Defendant elected to testify at the evidentiary hearing on his suppression motion, which substantially concerned the voluntariness of defendant's consent to the police searches and defendant's alleged request to be present during those searches.

In the course of his suppression hearing testimony, defendant stated that he had told the police that Miles' clothes "were in the back of the [car] trunk where she had left them where she had taken them off[.]" That prior testimony varied somewhat from defendant's testimony at trial, in which he stated that defendant had left her belongings in his apartment. The prosecutor confronted defendant with that prior testimony, over defense counsel's objection, in cross-examination. Defendant then attempted to explain that apparent discrepancy on redirect examination, asserting that he had misspoken at the suppression hearing and that he had placed Miles' belongings in the car trunk after she had left them on the kitchen chair in defendant's apartment.

Likewise, the prosecutor attempted to impeach defendant by showing that he had testified at the suppression hearing that he had "had no choice" but to go down to the prosecutor's office because the police "told [him] he had to," whereas in his trial testimony defendant asserted that he had been "very cooperative" with the police. Defendant chose not to clarify this apparent inconsistency on redirect examination.

Defendant's theory, one which the courts of our State have yet to endorse, is that the impeachment use at trial of a criminal defendant's suppression hearing testimony forces the defendant to make an impermissible "Hobbon's choice" on whether to take the stand at the suppression hearing. We are unpersuaded by this claim.

The United States Supreme Court has held that a criminal defendant's testimony at a suppression hearing may not be admitted as substantive proof of guilt at trial. Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). However, the Supreme Court has also recognized that a defendant may not commit perjury "free from the risk of confrontation with prior inconsistent utterances." Harris v. New York, 401 U.S. 222, 226, 92 S. Ct. 643, 646, 28 L. Ed. 2d 1, 5 (1971) (allowing a defendant's prior inconsistent statements to the police for impeachment at trial, even though the prior statements were extracted in violation of the Miranda doctrine). Defendant was under no compulsion to testify at his suppression hearing. Having chosen to do so, and having presented under oath an account of the relevant events, he should be accountable for any material variations from that former testimony if he thereafter takes the stand at trial. See N.J.R.E. 613(a) (authorizing use of prior inconsistent statements for impeachment).

A defendant has no constitutional right to commit perjury. While we make no determination that defendant, in fact, committed such perjury, the prosecutor was entitled to explore that possibility by confronting defendant with his prior sworn testimony. Defendant was afforded, as N.J.R.E. 613(b) contemplates, "an opportunity to explain" his prior statements which he did concerning his earlier testimony about the location where Miles left her belongings. We reject defendant's argument that he should have been given advance notice of the prosecutor's intent to impeach him with his prior testimony; such notice is unnecessary. We further reject defendant's claim that the judge should have fashioned special limiting instructions on this issue for the jury, which also were not required.

In short, we discern no constitutional violation and no error otherwise in the procedures followed by the trial court.

C.

Defendant also claims that the trial judge wrongfully denied him an "adverse inference" charge concerning the police's failure to preserve the surface of the BB gun before the gun could be tested for Miles' fingerprints. The record discloses that defendant did not request such fingerprint testing until more than a year after his arrest. The record also discloses that defendant, when he was first encountered by the police, did not immediately reveal to them his recollection that Miles had handled the gun in his apartment. By the time that defendant furnished that information at the police station, a search team was already on its way to defendant's apartment to retrieve the gun. The search team located the gun under defendant's bed and noticed that it was in a cocked position, which caused them to handle the gun in order to disable it. A police detective thereafter mistakenly handled the gun without wearing gloves, in the presence of a defense expert, before conducting ballistics testing.

However, these events do not mandate an "adverse inference" charge, incorrectly described as a "spoliation" charge by defendant's trial counsel. Defendant wished the judge to instruct the jury that the state's failure to present fingerprint proofs would sustain an inference that the police had deliberately contaminated the gun in order to thwart defendant's effort to corroborate his account of Miles' handling of the gun at his apartment. While such an inference is circumstantially plausible, the trial judge was well within his discretion to decline to give such a charge. See State v. Montijo, 320 N.J. Super. 483, 491-492 (Law Div. 1998) ("[t]he determination of what is an appropriate sanction for the destruction of discoverable evidence is committed to the trial court's sound discretion"). Moreover, defense counsel specifically argued in his summation that the police had indifferently prevented the gun from being tested for Miles' fingerprints. We decline to overrule the trial judge's exercise of discretion on this issue.

D.

We also have considered defendant's argument that the trial judge failed to provide appropriate jury instructions on the weapons offense, and also erred in the manner in which he responded to the deliberating jury's questions regarding the interplay between the weapons charge and the other substantive counts of the indictment.

Specifically, defendant contends that the judge should have given a "unanimity" charge to assure that the members of the jury all agreed upon the particular "unlawful purpose" contended by the state, i.e., "to unlawfully confine Carmen Miles with the purpose to commit the crime of aggravated sexual assault upon Carmen Miles." Defendant speculates that some jurors might have been convinced of a purpose to "confine" Miles, but not of a purpose to "sexually assault" her, or vice-versa, thus denying him a unanimous verdict on his guilt.

The jury charge provided by the trial judge, which tracked the Model Criminal Charges, is presented at length in the Supreme Court's opinion, as well as the note received from the deliberating jury and the judge's supplemental instruction responding to that note. See State v. Banko, supra, 182 N.J. at 50-53. The Court has already examined those charges and has declared that the judge's instructions "pass[ed] muster." Id. at 58; see also State v. Villar, 150 N.J. 503, 511 (1997). We will not second-guess the Supreme Court's assessment of the propriety of the charge, and thus reject defendant's speculative claims of the jurors' lack of unanimity.

E.

We have considered the defendant's other contentions of error by the trial judge and consider them to lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

III.

Having addressed defendant's numerous contentions of error at the trial, we lastly turn to defendant's claim of error by the motion judge prior to the trial, in failing to conduct an in camera review of Carmen Miles' psychological treatment records. We consider this issue because it will provide guidance to the Law Division on remand before a second trial is conducted.

As we previously noted, the trial hinged upon the juror's comparative assessment of the credibility of defendant and of Ms. Miles about the events transpiring when they were together in defendant's apartment, there being no third-party eyewitnesses to those events. At the time she met defendant, Miles was then cohabitating with another man, her boyfriend, and there was evidence that the boyfriend was abusive. The record also reflects that Miles had previously been divorced in Georgia from another man that she claimed in her divorce proceedings to have been abusive and violent. As a result of her difficulties with her former spouse, Miles had been treated in Georgia by a psychotherapist.

Defendant's proffer is that the psychological harm to Miles from those two allegedly abusive relationships, coupled with Miles' consumption of several alcoholic drinks on the night she met defendant, may have influenced her perceptions and recollections of what actually transpired at defendant's apartment.

Defense counsel moved before trial to obtain the records from Miles' divorce proceedings in Georgia, including "the reports, records and/or notes of the psychotherapist, psychologist, or psychiatrist who treated [her]." The State opposed that application, among other reasons, on grounds of patient-psychotherapist privilege. N.J.S.A. 45:14B-28; see also Arena v. Saphier, 201 N.J. Super. 79, 85 (App. Div. 1985). The motion judge observed at oral argument on this issue that the "medical" aspects of the divorce files "might be privileged." The judge declined to compel the State to produce the requested records, and instead suggested to defense counsel that he attempt to obtain them from the Georgia courts. Apparently, defense counsel was unsuccessful through those means to gain access to Miles' psychological records before trial.

The psychologist-patient privilege safeguards important aspects of a patient's privacy and access to mental health professionals. Arena, supra, 201 N.J. Super. at 87. However, the privilege is not absolute. State v. L.J.P., 270 N.J. Super. 429, 439 (App. Div. 1994). The "requisite foundation for piercing the privilege involves a showing of legitimate need for the shielded evidence, its materiality to a trial issue, and its unavailability from less intrusive sources." Ibid.; see also Kinsella v. Kinsella, 150 N.J. 276, 306-07 (1997); In re Kozlov, 79 N.J. 232, 243-44 (1979). That tripartite analysis is highly fact-intensive, and may be aided in appropriate circumstances by an in camera review of the pertinent records. See State v. L.J.P., supra, 270 N.J. Super. at 441. However, in camera review is not always necessary, and we are mindful of the intrusion upon a patient's right of privacy attendant to any third person, including a judge, inspecting his or her psychological treatment records.

The record before us is not sufficiently developed to ascertain whether or not an in camera review of Miles' psychological records was warranted in this case. The motion judge was not specifically requested by defendant's counsel to undertake such review. The judge did not categorically reject such review, nor did he have the opportunity to place on the record a statement of reasons as to why it should not be conducted. See R. 1:7-4(a). It is also unclear to us what, if any, psychological records were in the public domain in the Georgia divorce proceedings. We therefore decline to resolve whether or not an in camera review is justified in this matter, and leave that fact-sensitive determination to be made in the first instance by the Law Division when and if defense counsel makes a proper application for such relief.

IV.

As we have specified in detail, the determinations of the Law Division are affirmed in part and reversed in part. We thus vacate defendant's conviction and remand for a new trial and for other related proceedings consistent with this opinion.

 

None of these issues were addressed in the Law Division's April 4, 2005 opinion. A remand for consideration of those issues is unnecessary, as they are adequately presented in the parties' appellate briefs. Additionally, a further remand on legal issues would only prolong this case, which has an already extensive procedural history.

We affirm, however, the trial judge's exercise of discretion in redacting a portion of the BB gun manual under the heading "A Message to Parents." At the close of proofs, defense counsel had moved the admission of the manual, Exhibit D-4, in its entirety, and the prosecutor did not object. Upon closer inspection of the manual, however, the prosecutor requested that the court excise the opening clause of the sentence, which read, "Although your new Daisy is not a firearm, it has a lethal potential that should be treated with caution and respect due any conventional firearm." (emphasis added).

The prosecutor rightly was concerned that the manual, which apparently is a generic one used for sales in multiple states, utilized a different definition of a "firearm" than the definition applicable under New Jersey law covering BB guns. See N.J.S.A. 2C:39-1(f) (defining "firearms"); see also State v. Rackis, 333 N.J. Super. 332, 345 (App. Div. 2000); State v. Mieles, 199 N.J. Super. 29, 35-38 (App.Div.) (finding that a spring action BB pistol constitutes a "firearm"), certif. denied, 101 N.J. 265 (1985). Defense counsel did not disagree with that distinction, but simply advocated that the manual be left unaltered, or not admitted at all. The judge thus decided to redact the opening clause of the sentence, so that the jury would not be confused about the meaning of the term "firearm." We affirm that determination, consistent with the precepts of N.J.R.E. 403. (court's authority to exclude unduly prejudicial or confusing proofs).

Defendant argues for the first time on appeal that the court should have redacted the remaining portion of the sentence, concerning the BB gun's "lethal potential," and that the gun thus should be "treated with caution and respect." We discern no plain error in the judge's failure to excise that additional language. See R. 2:10-2. Indeed, the language of the sentence left intact is true, relevant, and not misleading.

Lastly, we reject defendant's argument that once the manual had been admitted, without objection by the State, that the court lacked the power to redact it in any manner. Such a wooden approach to the receipt of evidence is inappropriate, and we see nothing in State v. DiFrisco, 137 N.J. 434, 496 (1994), which is cited by defendant on this point, that robs a trial judge of the power to prevent juror confusion before an admitted exhibit is taken into deliberations. See N.J.R.E. 403; see also N.J.R.E. 102 (evidence rules are to be applied to secure, among other things, the ascertainment of truth and the just determination of proceedings).

We recognize that the State has argued that Daniels should be applied only prospectively. However, we have previously determined that Daniels should be accorded "pipeline retroactivity", an approach that we shall likewise follow here until the Supreme Court instructs otherwise. See State v. Roman, 382 N.J. Super. 44, 58-59 (App. Div. 2005), certif. granted, 188 N.J. 219 (2006) (applying Daniels to a case pending appeal when Daniels was decided).

The trial judge made no finding of any improper coaching, and we decline to consider whether it did or did not occur.

We have considered the other allegedly prejudicial remarks of the prosecutor, and we find defendant's claims of prejudice as to those comments lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Ironically, defendant's right to a fair and impartial jury trial may have been enhanced, not hindered, by his physical absence from sidebar, in that the jurors could have felt less restrained from admitting that they had attitudes or experiences concerning sexual assault or firearms.

(continued)

(continued)

45

A-4936-04T2

November 16, 2006