STATE OF NEW JERSEY v. ROBERT LAMONT HART, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5849-04T35849-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT LAMONT HART, JR.,

Defendant-Appellant.

_______________________________________________________________

 

Submitted May 30, 2006 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-01-0138D.

Jacobs & Barbone, attorneys for appellant (Louis M. Barbone, on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Robert Hart, was convicted by a jury on February 17, 2005, of three counts on eight-count Atlantic County Indictment No. 04-01-0138D. Defendant was found guilty of two counts of second-degree robbery by committing a theft against Michael Jenkins and inflicting bodily injury upon Michael Jenkins in the course of committing a theft, proscribed by N.J.S.A. 2C:15-1, and one count of conspiracy with David Wilborn, and other unidentified co-conspirators to commit the crime of first-degree robbery, proscribed by N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1. Defendant was sentenced on May 13, 2005 on Count One to a prison term of seven years with a parole disqualifier of 85% and three years parole supervision on release. His convictions on Count Two and Count Four were merged into Count One for sentencing purposes. Defendant appeals his May 13, 2005 judgment of conviction. We affirm.

On November 29, 2003, Michael Jenkins was the victim of an armed robbery inside an apartment at 121 Sassafras Run in Pleasantville, where Jenkins was visiting with his friend, Lisa Ford. Jenkins testified that when he arrived, Lisa and several other individuals, including defendant, were present at the apartment. In the presence of those persons, Jenkins pulled a roll of currency in the amount of $580 out of his pocket and gave $20 to Lisa's son and daughter. After a period of time, some young men with whom Jenkins was unacquainted arrived at the apartment. They stayed for about forty-five minutes. Some were cutting hair in the bathroom, some playing videogames and some hanging out in the living room. Suddenly, most of the people left the apartment.

A short time later, without knocking, four men came into the apartment. Three came in at first and one shortly thereafter. Two were wearing scarves over their faces, preventing Jenkins from identifying them. Two were not wearing scarves, one of whom Jenkins later identified as David Wilborn. According to Jenkins' trial testimony, Wilborn remained near the door during the robbery. Jenkins was also able to identify a man known as "Q" on the street, who he stated hit him on the head with an aluminum bat. After he was hit, Jenkins dropped to his knees and was bleeding profusely from his head. The person standing in front of him at that point had a gun. The robbers demanded money and Jenkins replied that he had none. A man Jenkins could not identify reached into Jenkins' pocket and removed the remainder of his money. The man holding the gun pointed it at Jenkins and pulled the trigger twice but it misfired. The entire robbery took place in a matter of seconds. All of the men involved fled the apartment immediately.

Jenkins was never able to identify defendant as one of the robbers, either on the night of the robbery or on subsequent occasions. The police interview with Jenkins was limited on the night of the robbery as he had to be taken to the hospital because he suffered from a concussion and needed stitches in his head.

Jenkins stated that a couple of weeks after the robbery, defendant came to him while he was at Lisa Ford's apartment and told Jenkins that he had been involved. Defendant offered Jenkins $80 down and $1,000 later if he dropped the charges or if he failed to appear in court. Although he spoke with the police and an investigator after the offer was made, Jenkins never told police of the offer, until January 26, 2005, when the police questioned him further. Jenkins also testified that an individual claiming to be defendant's stepfather also approached him and offered him $2,500 if Jenkins failed to appear in court.

On November 29, 2003, after giving defendant Miranda warnings, the police interrogated defendant and he provided police with a taped statement confessing to his involvement in the robbery. This tape was played to the jurors during trial. They were also provided with transcripts to follow along.

Defendant, in his statement, asserted that he went to 121 Sassafras with a relative. While there playing videogames, he met with David Wilborn. Defendant and Wilborn went outside the apartment and met with "Q" and "Ab." They then devised a plan to rob Jenkins. "Q" had a bat and "Ab" had a gun. "Q" hit Jenkins twice with the bat. "Ab" pointed the gun at Jenkins and defendant went through Jenkins' pockets, removing Jenkins' cash. Defendant received $40 from Wilborn for his part in the robbery. The police also took a statement from Wilborn.

At trial, defendant testified that prior to the robbery he had been a frequent visitor to Ford's apartment. He had seen Jenkins before but they had never met. He claims that he heard the door to the apartment slam and heard a person he knew only as "Miz," who was holding a gun, say, "nobody is not going nowhere." Defendant then testified that the person holding the gun pointed it at him while he was sitting on the couch during the robbery and told him to reach into Jenkins' pocket and grab the money. Defendant complied with the instruction, removed the money from Jenkins' back left pocket, and gave it to the man holding the bat. Defendant left the apartment a few minutes after the other men left. He testified he did not call the police because, in his mind, he did not feel the police could offer him any help. He further stated that he was fearful for his own safety and the safety of his family if he were to speak. At trial, defendant maintained that he only reached into Jenkins' pocket because he was forced at gunpoint to do so and that he had not planned to participate in the robbery.

When defendant gave his taped statement to the police two days after the robbery, defendant admitted complicity in the robbery but made no mention of any duress upon him. He maintained at trial, however, that he had gone into Jenkins' pocket because he had been forced to do so, having had a gun pointed at him and being told to do so. Regarding the encounter he had with Jenkins two or three weeks after the robbery, defendant testified that Jenkins had said he was the wrong person, that it was too late for him to get out of it and that for some crack cocaine and $80 he would write a letter for defendant, which he actually did. However, the letter was not available because defendant had crumbled it back in 2003.

Defendant presents the following arguments for our consideration.

POINT I

OVER OBJECTION THE TRIAL COURT ERRONEOUSLY ADMITTED EVIDENCE OF AN ALLEGED BRIBE-TYPE OFFER TO THE VICTIM.

POINT II

THROUGH ERROR, A TAPE CONTAINING NOT ONLY DEFENDANT'S STATEMENT BUT ALSO THE STATEMENT OF HIS CO-DEFENDANT WAS SUBMITTED TO THE JURY, BY REASON OF WHICH DEFENDANT'S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED.

POINT III

THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS INSTRUCTION TO THE JURY AFTER REPLACEMENT OF A JUROR WITH AN ALTERNATE. (NOT RAISED BELOW).

POINT IV

THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR A NEW TRIAL.

I

At trial, Jenkins testified to an alleged bribe-type offer from a man purporting to be defendant's stepfather. Specifically, Jenkins stated that he had been offered $2,500 to refrain from showing up in court to testify against defendant. Defendant claims this evidence was inadmissible and should not have been allowed because (1) it was hearsay as to whether the person who approached Jenkins was in fact defendant's stepfather, and (2) there was no evidence that any such offer was authorized by defendant. Defendant argues that this evidence was highly prejudicial, that it should not have been admitted because it suggested that defendant attempted to tamper with a witness, and its admission constituted reversible error.

The State contends that the evidence of the bribe-type offer was admissible, and even if it were not, in the context of this case, the error was harmless. First, the State contends that any statements of the supposed stepfather were not impermissible hearsay because they were not offered to prove the truth of the matter asserted but rather to relate to defendant's consciousness of guilt and the credibility of Jenkins. In addition, the State argues the evidence was not admitted to show the criminal disposition of defendant.

On Jenkins' direct examination, the following questions and answers were given:

QUESTION: Have you been approached from members of Robert Hart's family?

ANSWER: Just one claiming to be his stepfather.

QUESTION: An individual claiming to be his stepfather?

ANSWER: Yes.

[DEFENSE COUNSEL:] Objection.

QUESTION: When the stepfather came up to you and he spoke to you, what was that conversation about?

[DEFENSE COUNSEL:] Objection.

QUESTION: I'm not asking for a statement. I'm saying what was it about? He was involved in the conversation. We have firsthand knowledge.

THE COURT: I'll allow it.

QUESTION: What was that conversation about?

ANSWER: About not showing up for Court.

QUESTION: About not showing up for Court?

ANSWER: Yes.

QUESTION: Was any money offered to you?

ANSWER: Twenty-five hundred dollars.

The objected-to testimony followed Jenkins' testimony concerning defendant's own offer to pay Jenkins money if he dropped the charges or refused to go to court. That testimony, admissible as a statement by a party under N.J.R.E. 803(b)(1), was as follows:

QUESTION: How did you come to know Robert Hart was involved in this?

ANSWER: He told me himself.

QUESTION: Robert Hart told you himself?

ANSWER: Yes.

QUESTION: When did he tell you this?

ANSWER: A couple weeks after the robbery.

QUESTION: And you remember the context of that conversation?

ANSWER: Yes.

QUESTION: Can you tell the jury about that?

ANSWER: He came to me at Lisa Ford's and he said he will give me a couple dollars to drop the charges against him and he will give me the rest after I go to Court or if I don't show up in Court he'll give me the money, the rest of the money, which was a thousand dollars that he was supposed to give me.

QUESTION: Now, let's back up a second. There's a lot of information. The first part, who initiated that contact? Who came to who first?

ANSWER: Fantasia Oliver same to me first and said he wanted to talk to me.

. . . .

QUESTION: Fantasia Oliver. Who is Fantasia Oliver?

ANSWER: At the time it was his girlfriend.

QUESTION: Girlfriend makes contact with you?

ANSWER: Uh-huh. (Nods in the affirmative.)

QUESTION: And now after this contact with the girlfriend, did you have contact with Mr. Hart?

ANSWER: Right.

QUESTION: So at this point you're in Lisa Ford's apartment and talking and Mr. Hart is talking to you about dropping the charges?

ANSWER: Exactly.

QUESTION: And offering you money to drop the charges?

ANSWER: Yes.

QUESTION: How much money did he initially offer you?

ANSWER: Eighty dollars down and a thousand dollars later.

QUESTION: If you didn't show up or drop the charges?

ANSWER: Exactly.

Although we are convinced that the testimony was clearly hearsay and defense counsel's objection should have been sustained, we are equally convinced that its admission was harmless error in light of the clearly admissible earlier testimony that defendant himself had offered Jenkins money not to testify. See State v. Macon, 57 N.J. 325, 335 (1971).

Additionally, defendant, in his direct testimony, offered his explanation for his contact with Jenkins two to three weeks after the robbery. Defendant testified that his girlfriend Fantasia told him that Jenkins wanted to speak to him at Lisa Ford's apartment. In court, defendant testified that when he met with Jenkins at Ford's apartment defendant stated,

ANSWER: Because he was talking to me and had said I had got caught up and I was the wrong person that got charge with the crime and that it's too late for me to get out of it now. She he had told me to --

. . . .

He said that it's too late for me to get out of it. So he said all I had to do is give him crack cocaine and eighty dollars right -- like give him crack cocaine at that time and eighty dollars and he said that he would -- no. He did write a letter and signed it and he said that you can give me some more money after they got notarized and that was it.

. . . .

QUESTION: Did you take a letter from Mr. Jenkins?

ANSWER: Yes.

QUESTION: And what did you do with it?

ANSWER: I had took it to my grandmom's house and my grandmon had said --

QUESTION: Don't tell us what your grandmom said. What did you

do with the letter?

ANSWER: I balled it up.

QUESTION: What do you mean you balled it up?

ANSWER: Crumbled it up.

QUESTION: This is back in 2003?

ANSWER: Yes.

We are satisfied that in the context of the totality of the testimony and evidence that the truth or falsity of the objected to statement was not directly relevant to the offenses charged by the indictment. Further, the consequences of the statement were mitigated by defense counsel's questioning of Jenkins when he elicited that Jenkins could not identify the person who allegedly identified himself as defendant's stepfather and that there was no additional police investigation into the person's identity, other than the police investigator's admonition to Jenkins that if he was contacted again that Jenkins should page the investigator.

The facts here are similar to those in People v. Vicaretti, 54 A.D.2d 236, 388 N.Y.S.2d 410 (N.Y. App. Div. 1976). In Vicaretti, an appeal of the defendant's conviction for rape in the first degree, the defendant charged "that the admission of testimony by [the victim] that her cousin had told her that defendant's father was offering [her] $2,500 to drop the charges was hearsay, grossly prejudicial and constituted a denial of a fair trial." Id. at 242-43. In determining that the hearsay testimony did not constitute grounds for reversal on hearsay grounds, the New York Appellate Division stated:

[a]lthough this statement was decidedly hearsay and, therefore, was technically inadmissible at trial, the fact that it was admitted, even over objection, does not automatically require reversal. First of all, the entire issue of the offer and acceptance of the bribe . . . is a collateral matter which has no direct effect on whether defendant was guilty of rape in the first degree. At best it relates only to the issue of complainant's credibility. As such the fact of complainant's acceptance of the bribe was more crucial than the issue of who originally offered it. Second, it would appear that the statement was not offered for its truth since no effort was made to corroborate its substance. Such a statement, offered solely to establish that the comment was made and not to establish its truth, would not contravene the hearsay restriction (see Richardson, Evidence [10th ed], 200). Although admittedly no limiting instructions were given on this issue to the jury, the fact that it need not have decided the truth of the statement in order to find defendant guilty is indicative of the fact that the truth or falsity of this statement was not directly relevant to the charge under the indictment.

Consequently, the mere mentioning of defendant's father's name in connection with the bribe did not deprive defendant of a fair trial. To ascribe to this assumption would suggest that defendant may have been or could be convicted merely upon the actions of his father which admittedly occurred subsequent to the crime charged.

[Id. at 243 (emphasis added).]

We are satisfied that the testimony concerning the bribe by defendant's alleged stepfather was a collateral matter in this case and that its admission into evidence did not unfairly prejudice defendant. The alleged bribe-type offer took place well after the crime. A determination was never made as to whether it was actually defendant's stepfather who approached Jenkins with the offer, and there was no attempt in court to prove that defendant's step-father, in fact, offered Jenkins $2,500. Moreover, the elements of the crimes alleged against defendant in the indictment and his defense of duress were not impacted by this evidence. We are satisfied that the objectionable evidence was cumulative of evidence of a bribe made by defendant directly, that its admission did not deprive defendant of a fair trial, and was, therefore, harmless error.

II

Defendant next asserts that the submission of the audiotape of defendant's recorded statement to police to the jury during their deliberations constituted reversible error because the tape also contained, on its other side, the taped statement of Wilborn, who jurors were aware had been present on the day of the robbery. The court noted that the tape was labeled, "Robert Hart's statement" on one side and "David Wilborn's statement" on the other side. However, the jury never listened to the tape during their deliberations.

The jurors were made aware from the outset of trial that co-defendants were involved in this matter, however for legal reasons they were being tried separately. At the outset of jury deliberations, the jury was not supplied with a tape player, but they were informed that if they so requested they would be supplied with a tape player in order to listen to defendant's taped statement that had been played to them during the trial. On the first day of deliberations the jurors requested the tape player. The colloquy between the court and counsel brought to everyone's attention that the tape of defendant's statement contained Wilborn's statement as well on the opposite side. The jurors were aware that Wilborn's statement was also on the tape. This occurrence led defense counsel to move for a mistrial.

Defendant argues that the jury, having never heard during trial testimony that Wilborn gave a taped statement to police, could well have been under the impression that Wilborn's information may not have been of sufficient importance to warrant the taping of his statement. It was only as a result of the two-sided tape being submitted to the jury in the jury room that the jury learned that Wilborn had actually given a taped statement. Accordingly, defendant argues, the court's denial of his motion for a mistrial was reversible error.

The State concedes that it was error for the jurors to have seen the tape containing both defendant's and Wilborn's statements. However, the tape was never actually listened-to by the jurors during their deliberations. The only additional information the jurors received as a result of the tape was that Wilborn's statement to the police was recorded onto the audiotape. The substance of his statement was never heard by the jurors.

After the discovery of both statements on the tape, the judge gave an emphatic curative instruction to disregard the information. The judge instructed the jury:

All right, ladies and gentlemen. Sorry to bring you back, but you had this in evidence. It indicates on here that there is somebody else's statement as well. All right. That is not relevant to the case. We're giving you a copy of this, that only has Mr. Hart's statement obviously.

The fact that you may have seen somebody else's name with another statement is not relevant to the case. It's not relevant to your deliberations. You're not to consider it. You are not to draw any inferences, any speculation, any conclusions, anything. The only thing that is relevant is the tape that is in the machine now that you are going to take in there with you. Do you understand that? All right. Thank you.

When the mistake was realized, the court recognized what a significant impact the tape could have had if the jury had listened to Wilborn's tape. Had the jury listened to it, a mistrial most likely would have had to have been granted. However, the jurors did not listen to the tape because they had no access to a tape player at that point.

We are satisfied, given the court's swift curative instruction, that there was no basis to conclude that the jurors would have assumed Wilborn made a taped statement, as opposed to just an untaped statement or that the taped statement would have incriminated defendant. The jurors could just as well have assumed that the statement would be exculpatory. Jurors are presumed to follow a court's curative instruction. See State v. Manley, 54 N.J. 259, 270 (1969). We are convinced that the trial court did not err in denying defendant's motion for mistrial because the court's curative instruction eliminated any potential for prejudice.

III

Defendant contends that the instructions given to the jury by the court, upon the replacement of one juror for a juror excused for a family emergency after deliberations had begun, constituted plain error in that the instructions were defective, unclear, ambiguous, confusing and not in accordance with the law. Defendant concedes that no objection was raised at trial at the time the jury instruction was given by the court. Specifically, defendant argues that although the jury was instructed by the court to begin their deliberations anew, they were not instructed to set aside and disregard all previous deliberations. Further, defendant argues that the instruction was not given to the jurors "in clear and unequivocal terms[,]" as required by State v. Miller, 76 N.J. 392, 407 (1978).

We are satisfied, however, that the jury instruction, when considered in its entirety, was not flawed because the jurors were effectively told that their deliberations must be started anew because a new juror has been substituted in. See Claudio v. Snyder, 68 F.3d 1573, 1575 (3d Cir. 1995), cert. denied, 517 U.S. 1109, 116 S. Ct. 1329, 134 L. Ed. 2d 480 (1996).

The jury instructions provided by the court stated:

All right, ladies and gentlemen, Juror Number 14, as you can see, is missing. She had a family emergency come up with her son and I had to excuse her because nobody can tend to the emergency. There's nobody else. Had something to do with her son. So, Mr. Baker, in Seat Number 13, you were previously designated as Alternate Number One. Therefore, you'll be a new sitting member of the jury.

Now, since we're almost finished this testimony, we're going to finish it, but I have to advise you under the law, when a new juror, and alternate, joins the array, you must begin your deliberations anew, as if you started from scratch and that is obviously to benefit the new juror who obviously was not privy to your discussions before that. So you have to discuss everything that you discussed before, including anything that you picked up new from these readbacks when I dismiss you when we finish with this, all right?

So we'll continue.

(Whereupon the Court Reporter read back the rest of the testimony of Mr. Robert Hart to the jury, Court and Counsel.)

As I indicated, because you have a new juror that did not take part in your original discussions, you should begin discussing the case from anew.

[(emphasis added).]

Rule 1:8-2(d)(1) governs the substitution of already deliberating jurors and provides in pertinent part:

If the alternate jurors are not discharged and if at any time after submission of the case to the jury, a juror . . . is discharged by the court because of illness or other inability to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is . . . discharged. When such a substitution of an alternate juror is made, the court shall instruct the jury to recommence deliberations and shall give the jury such other supplemental instructions as may be appropriate.

This court in State v. Williams, 377 N.J. Super. 130, 139 (App. Div.) (quoting State v. Valenzuela, 136 N.J. 458, 467 (1994)), certif. denied, 185 N.J. 297, stated, "Our Supreme Court has noted that '[t]he Rule attempts to strike a balance between the need for judicial economy, especially in the context of lengthy trials, and the fundamental right of defendants to a fair trial by jury.'"

Our Supreme Court, in State v. Jenkins, 182 N.J. 112, 131 (2004), determined that the jury's deliberations had advanced to such a point when an alternate juror was added that the newly reconstituted jury would be unable to consider anew the guilt or innocence of the defendant. In Jenkins, "[t]he trial court . . . recharged the reconstituted jury to begin deliberations anew[,]" however, "[t]wenty-three minutes later, the jury convicted defendant." Williams, supra, 377 N.J. Super. at 148. In Williams, we stated:

The Court observed that "there are times when jury deliberations have proceeded too far to permit replacement of a deliberating juror with an alternate." Reconstituting a jury with an alternate juror during the deliberative process "'can destroy the mutuality of the jury's deliberations,' and 'impose precisely the kind of extraneous influence upon the deliberative process that this Court has forbidden.'" If deliber-ations proceed for a period of time and to an extent where it is highly likely that the jury has already made a decision as to guilt or innocence, the role of the new juror in the deliberations may be inconsequential.

Thus, "'[t]he longer the period of time the jury deliberates, the greater is the possibility of prejudice should a juror be substituted or replaced.'" "However, '[t]he concern in determining whether substitution can take place at a given point in the deliberations is not merely the length of time that the jury has deliberated but the effect that the progress in deliberations will have on the reconstituted jury's ability truly to begin deliberations anew.'" The Court found the fact that the newly reconstituted jury returned a verdict in twenty-three minutes was evidence "that minds were closed when the alternate joined the deliberations." The other jurors were prepared to convict the defendant. It was unlikely that the original jurors would have been able to begin deliberations anew or that the alternate juror would not have felt pressured to agree with them.

[Id. at 148-49 (citations omitted).]

However, in Williams, we evaluated the impact of the substituted juror and the reconstituted jury according to the totality of the circumstances. Id. at 149-50. We observed that New Jersey looks at the "overall effect that substituting an alternate juror . . . will have on the jury's ability to begin deliberations anew." Id. at 149. We recited the following factors to be taken into consideration in determining whether a juror's late substitution prejudiced the defendant:

(1) the length of the jury's deliberations before and after the substitution;

(2) the . . . court's instruction to the alternate juror prior to dismissing [him or] her and thereafter, prior to impaneling [him or] her;

(3) the alternate juror's exposure to the outside influences; and

(4) the . . . court's instructions to the jury upon the substitution to begin its deliberations anew.

[Williams, supra, 377 N.J. Super. at 149 (quoting United States v. Virgen-Moreno, 265 F.3d 276, 289 (5th Cir. 2001), cert. denied, 534 U.S. 1095, 122 S. Ct. 843, 151 L. Ed. 2d 721 (2002).]

In Williams, the jury had already been deliberating for approximately twelve hours when the jury was reconstituted. Id. at 150. After the substitution was made, a verdict was returned in less than one hour. Ibid. We concluded that "it is highly doubtful that the jury could have been expected to begin its deliberations anew as opposed to the deliberating jurors simply informing the substituted juror of their respective positions based on their twelve hours of deliberations and then continuing deliberations from that point." Ibid.

This case is distinguishable from Williams in that the length of time of jury deliberations both before and after the substitution were roughly equal, leading to the conclusion that the jurors could have considered the case anew as they had been instructed by the court. On the morning of February 16, 2005, the court read the jury charge. The jury commenced its deliberations at 11:38 a.m. and continued until lunch, which ran from 12:30 p.m. until 1:00 p.m. The jury began its deliberations at 1:00 p.m. and continued until 1:55 p.m. when the jurors were called back into the courtroom. They were sent back out immediately and came back into the courtroom at 2:05 p.m. Again the jury commenced deliberations at 2:22 p.m. and continued until 2:30 p.m., beginning deliberations again at 2:31 p.m. The jury returned to the courtroom at 3:42 p.m. and then deliberated one last time for the day from 3:44 until 4:00 p.m. A total of approximately 202 minutes of deliberations took place on February 16, 2005.

On the morning of February 17, 2005, the jury, now with the substituted juror, was in the courtroom from 8:30 a.m. until 11:05 a.m. in order to listen to readbacks of both Jenkins' and defendant's testimony. Deliberations began at 11:05 and continued until lunch at 12:30 p.m. The jury commenced deliberations at 1:00 p.m. and continued until 2:22 p.m., when it returned to the courtroom. Further deliberations commenced at 2:30 p.m. and continued until the jury returned its verdict at 2:43 p.m. A total of approximately 180 minutes of deliberations took place with the reconstituted jury. The 180 minutes of deliberations with the newly constituted jury is far more indicative of the reconstituted jury fully considering the charges against defendant than was the case in Williams, where the newly constituted jury only deliberated fifty-nine minutes before reporting its verdict.

Notwithstanding the fact that the court told the jurors they must re-discuss everything they had discussed before, we are satisfied the court's erroneous statement did not rise to the level of plain error warranting reversal. The court ended its instruction by reinforcing its previous instruction when it stated, "As I indicated, because you have a new juror that did not take part in your original discussions, you should begin discussing the case from anew." Given the totality of the circumstances, we are convinced that there was no infringement upon defendant's fundamental right to a fair trial by an impartial jury of twelve.

IV

Finally, defendant contends that pursuant to Rule 3:20-1, the verdict was against the weight of the evidence and that his conviction was a manifest denial of justice. Specifically, defendant contends that he testified that his taped statement to the police was coerced and involuntary. He claims he fabricated the nicknames "Q" and "Ab" out of his fear that the same men that forced him to participate in the robbery would retaliate in violence if he would have given any more descriptive information to the police. The State, in its attempt to discredit defendant's credibility, attempted to prove that "Q" and "Ab" were the actual co-conspirators who committed the robbery with defendant. In regard to "Q," the State attempted to obtain defendant's admission on cross-examination that "Q" was the nickname for a man defendant knew named Nathan Redfern. Defendant testified that he did know a Nathan Redfern who lives in Pleasantville, but he did not know Redfern's nickname to be "Q." Defendant contends that the failure to exclude the speculation as to "Q's" identity based on the hearsay testimony of Jenkins was plain error requiring a new trial.

The State contends that the jury's verdict was not a denial of justice but rather the product of compelling evidence of defendant's guilt. Prior to trial, defendant confessed to his participation in the robbery to the police in a sworn taped statement. At trial he put forth the defense of duress for the first time, offering a version of events that was not contained in his statement to the police. As the court asserted in its decision denying defendant's motion for a new trial, the real question the jury had to decide was whether defendant willingly participated in the robbery or whether he was forced to participate under duress. The true identities of the other robbers was not crucial to that determination.

Defendant was concerned with the jury making a possible connection between Redfern and the nickname "Q." However, the corrective instruction requested by defense counsel was given by the court. The instruction cautioned the jury not to take the comments of the court as suggesting "Q" was actually Redfern, and the jury was directed to decide the case based on the evidence presented.

We are satisfied, given the totality of the evidence presented in this case, that the decision of the jury was not against the clear weight of the evidence. Rule 3:20-1 states in pertinent part:

The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

At the end of trial, defendant moved for a mistrial, but the motion was denied by the trial court. Rule 2:10-1 instructs that, "The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." In deciding whether there was a miscarriage of justice, an appellate court defers to the trial court with respect to "intangibles" not transmitted through the record (e.g., credibility, demeanor, "feel of the case") but otherwise makes its own independent determination of whether a miscarriage of justice occurred. See Carrino v. Novotny, 78 N.J. 355, 360 (1979).

At the May 13, 2005 hearing on defendant's motion for a mistrial, defendant submitted that the culmination of three errors during trial, if not in their individual capacities, deprived him of a fair trial. The first error defendant alleged deals with the multiple and various bits of testimony that were permitted in front of the jury with regard to the identity of the co-conspirators. Jenkins was asked directly whether or not he could identify a guy named "Q." Jenkins said he could and ultimately said that he didn't know his real name. Defendant claims that Jenkins' hearsay testimony affected defendant's credibility and was the most destructive piece of evidence against him. The second error defendant alleges is that in the course of the trial and in the course of the court's instruction, there were a number of times where the identity of "Q" was intermixed with the name Redfern. The final error that defendant asserts was that, "On voir dire examination in open court that a juror explained his concern with regard to another juror's alleged sympathy for [defendant]."

To these contentions the court responded:

[D]ue to the fact that this defendant was severed, he - he had his own trial, he gave a taped confession where he made a reference to Q, whether or not Q is equated with Redfern or not, this case came down to on the one count that he was convicted of, the robbery, whether or not he participated in this robbery of his own volition, or whether or not he was under duress by the other individuals when he participated and was identified by the victim as participating in the robbery. That was the issue in this case. Q wasn't on trial. And quite frankly, it's kind of a red herring in my view because that is really the sole substance of the whole thing as far as guilt or innocence of - of this case. Do they believe the confession that was given immediately thereafter or a year and a half after during the trial when the defendant does an about face and now indicates that the confession was - was not right? I gave it because I was afraid, whatever. Now I'm saying that I participated because I was under duress and I was being threatened to participate in it. That's the issue in this case. The Court - the jury decided that he was not guilty of the possession of the weapon offenses. That evidently they believed these other people had the weapons, but they believed that on the robbery and they believed on the conspiracy to commit the robbery that this defendant operated and acted of his own free will and volition. And whether or not there was an equation of Q to Redfern or there wasn't and where it came from and did the Court mention it in the charge, I think is quite frankly of no - of no moment. The issue in the case was - was the confession valid or was the duress valid. That was it.

We are convinced that the court properly concluded that the primary issue for the jury to decide was whether the defendant's confession the day after the robbery was true or whether the defense of duress he proposed in his trial testimony was valid. The trial court's decision to deny the motion for mistrial will not be disturbed as we are satisfied that the jury's verdict was not against the weight of the evidence and does not clearly and convincingly constitute a miscarriage of justice under the law.

Affirmed.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed 2d

694 (1966).

(continued)

(continued)

29

A-5849-04T3

July 14, 2006