STATE OF NEW JERSEY v. MAURICE VALENTINE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0274-08T40274-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAURICE VALENTINE,

Defendant-Appellant.

_________________________________________________

 

Submitted October 21, 2009 - Decided

Before Judges Payne and Miniman.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment Nos.

99-01-0356 and 99-01-0357.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Mark P. Stalford,

Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Kenneth P. Ply,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Maurice Valentine, was indicted for crimes allegedly occurring on August 13, 1998, consisting of first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree possession of a shotgun without a firearms purchaser identification card, N.J.S.A. 2C:39-5c(1) (count two); third-degree unlawful possession of a sawed-off shotgun, N.J.S.A. 2C:39-3b (count three); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); as well as crimes allegedly occurring on August 14, 1998, consisting of third-degree possession of a shotgun without a firearms purchaser identification card, N.J.S.A. 2C:39-5c(1) (count five); and third-degree unlawful possession of a sawed-off shotgun, N.J.S.A. 2C:39-3b. In a separate indictment, defendant was charged with second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. The matter was tried to a jury, which reached a partial verdict of guilt on the two August 14 weapons charges. After determining that the verdict on the two counts was unanimous and instructing the jury that its verdict would be deemed final as to those counts, the trial judge took a partial verdict. Thereafter, he gave the jury a modified Allen charge, and he instructed the jury to recommence deliberations. Following a weekend hiatus, the jury rendered guilty verdicts on the remaining counts of the first indictment. Trial of the convicted felon charge contained in the second indictment also resulted in a guilty verdict. Following merger of certain charges, defendant was given concurrent custodial sentences that totaled twenty years, subject to the eighty-five percent parole ineligibility period and the five-year period of parole supervision mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2.

The record reveals that, on August 13, 1998, defendant robbed Edwin Negron when Negron entered the lobby of 254 Prince Street in Newark to purchase heroin. During the robbery, defendant struck Negron twice in the head with a sawed-off shotgun, causing an injury that required sixteen stitches. The robbery was fully or partially witnessed by a building tenant, Jeannette Martin, and was reported to the police. Defendant was apprehended the following day, and a sawed-off shotgun was found in his left pants leg.

On appeal, defendant's convictions and sentence were affirmed. State v. Valentine, 345 N.J. Super. 490 (App. Div. 2001). His petition for certification was denied. State v. Valentine, 171 N.J. 338 (2002).

Thereafter, on May 3, 2002, defendant sought post-conviction relief (PCR), but his petition was denied after oral argument by counsel, held on June 16, 2008. This appeal followed.

On appeal, defendant presents the following arguments:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL IN VIOLATION OF U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, 10.

POINT II

THE TRIAL COURT ERRED AND TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN SHE AGREED TO THE COURT TAKING PARTIAL VERDICTS AND CONTINUING JURY DELIBERATIONS AFTER GIVING A MODIFIED "ALLEN" CHARGE.

POINT [III]

DEFENDANT'S POST-CONVICTION RELIEF CLAIM IS NOT PROCEDURALLY BARRED.

In essence, defendant claims ineffective assistance of trial counsel in acquiescing to receipt of an interim verdict, a modified Allen charge, and the resumption of jury deliberations rather than demanding that a mistrial occur as to the counts of the indictment upon which the jury initially claimed to be deadlocked. Defendant claims ineffectiveness of appellate counsel in failing to raise these issues on direct appeal. After considering defendant's appeal on the merits, we reject defendant's arguments, determining that the procedures adopted by the trial judge were authorized by Rule 3:19-1(a) and State v. Shomo, 129 N.J. 248 (1992).

We recognize that, in Shomo, the Court stated "we strongly discourage routine use of partial verdicts." Id. at 257. Nonetheless the Court found that "trial courts possess the discretion to accept such verdicts absent a showing of prejudice to the defendant." Ibid. The Court continued,

Interim partial verdicts may be warranted, for example, when the jury has deliberated at length, when the charges against a defendant are rooted in unrelated facts, when the court has reason to be concerned that a juror may become ill before deliberations conclude, when there is a risk of taint to the jury's decision-making process, or when the State has indicated its intention to dismiss the unresolved counts.

[Id. at 257-58.]

In the present case, the judge did not inquire as to the counts upon which the jury had reached its partial verdict prior to its acceptance in open court. However, it is noteworthy that the indictment contained six counts, four relating to August 13 and two relating to August 14, and it is not unreasonable to presume that the jury had reached its verdict on the August 14 charges. That appeared to have been counsels' assumption and, in argument concerning the prejudice that defendant might suffer if the partial verdict were taken, the State agreed not to introduce evidence of the earlier conviction if juror deadlock on the remaining charges required a retrial as to them. Defendant has offered no other evidence of potential or actual prejudice stemming from the procedures utilized. We thus find no abuse of discretion in the trial judge's determination to accept a partial verdict.

Further, we find that the procedures adopted by the trial judge in accepting the partial verdict met the requirements set forth in Shomo. There, the Court held

that an interim partial verdict may be considered final when a jury was properly instructed, and when the verdict was received in open court, recorded, and if requested, confirmed by a polling of the jurors. Under those conditions, an interim partial verdict will be subject to impeachment in the same limited circumstances that warrant challenge of a final verdict rendered at the end of jury deliberations.

[Id. at 259.]

In the present matter, after determining in open court that the jury had reached a verdict on two counts, but was deadlocked as to the remainder, the judge instructed the jury to reconfirm whether unanimity had been reached, and the judge required the jury to indicate its understanding that the partial verdict would be final as to the counts upon which the verdict was rendered. After permitting further juror consultation and receiving a written assurance that the two conditions had been met, the judge took the partial verdict in open court, the verdict was duly recorded, and at defense counsel's request, the jury was polled. Unlike Shomo, there is no evidence in the present case that would suggest that a juror misunderstood the judge's instructions with respect to finality or had second thoughts upon resumption of deliberations. Compare Shomo, supra, 129 N.J. at 259 (noting evidence of juror reconsideration). Unlike Shomo, here, there was no evidence of a casually taken partial verdict "that the jury may not have thought was final and that may not have reflected the jury's unanimous determination." Compare id. at 260. See also State v. Short, 131 N.J. 47, 66 (1993) (O'Hern, J. concurring in part, dissenting in part) ("Lest the jury be misled, we will not let a jury return a partial verdict unless the jury intended the verdict to be final and it fully understands the significance of such action.").

Our examination of the revised Allen charge given by the judge in this matter satisfies us that it met Czachor's requirements and did not mislead the jury. Although the judge instructed the jurors to "reexamine your own views and to change your opinion if convinced it is erroneous," in light of the judge's careful instruction with respect to the finality of the jurors' partial verdict, the charge can only have been construed by the jurors as applicable to the remaining counts. Further, we find no other errors to have occurred as the result of the judge's initial determination to accept a partial verdict while then requiring the jury to continue its deliberations on the indictment's remaining counts. In the absence of such error, ineffective assistance by counsel cannot be demonstrated. As a consequence, the court's denial of PCR is affirmed.

 
Affirmed.

Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896); see also State v. Czachor, 82 N.J. 392, 407 and n.4 (1980) (directing instruction in accordance with ABA Standards 5.4 set forth in the cited footnote).

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A-0274-08T4

January 26, 2010