STATE OF NEW JERSEY v. RODNEY HARRIS
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3125-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RODNEY HARRIS,
Defendant-Appellant.
_______________________________
Submitted October 6, 2009 - Decided September 8, 2010
Before Judges Skillman, Gilroy and
Simonelli.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 05-08-1983.
Yvonne Smith Segars, Public Defender,
attorney for appellant (William Welaj,
Designated Counsel, of counsel and on the
brief).
Paula T. Dow, Essex County Prosecutor,
attorney for respondent (Lucille M. Rosano,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
A grand jury indicted defendant Rodney Harris and other
individuals on numerous drug-related charges. Defendant and
codefendant Rodney Coleman, defendant's father, Kelly Felder,
defendant's step-mother, and Donald Scott, defendant's neighbor,
were tried jointly. A jury convicted defendant of second-degree
conspiracy to possess a controlled dangerous substance (CDS)
(cocaine) and/or possession of CDS with intent to distribute,
N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5 (count one); third-degree
manufacturing, distributing or dispensing CDS, N.J.S.A. 2C:35-
5a(1) (count four); distribution of CDS on or within 1,000 feet
of school property, N.J.S.A. 2C:35-7 (count five); and third-
degree manufacturing, distributing or dispensing CDS, N.J.S.A.
2C:35-5a(1) (count seven). The jury acquitted defendant of
third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (count
twelve), third-degree manufacturing, distributing or dispensing
2C:35-5a(1) (count thirteen); and third-degree
CDS, N.J.S.A.
distributing, dispensing or possessing CDS within 1,000 feet of
school property, N.J.S.A. 2C:35-7 (count fourteen), and the
judge dismissed the disorderly persons offense of use or
possession with intent to use drug paraphernalia, N.J.S.A.
2C:36-2.
At sentencing, the trial judge imposed a mandatory
extended-term sentence of seven years on count one; merged count
four with count five; imposed a concurrent five-year term of
imprisonment with three years of parole ineligibility on count
five; and imposed a concurrent mandatory extended-term sentence
of seven years with three years of parole ineligibility on count
A-3125-07T4
2
seven. The judge also imposed the appropriate assessments,
penalties and fees, and suspended defendant's driver's license
for two years.
We incorporate herein the facts set forth in our
unpublished opinion simultaneously filed with this opinion,
State v. Coleman, A-5208-06T4, which was calendared back-to-back
with this case.
Against these facts, defendant raises the following
contentions:
POINT I - THE TRIAL COURT ERRED IN DENYING
DEFENSE COUNSEL'S MOTION FOR A MISTRIAL
ARISING OUT OF THE JURY DELIBERATION
PROCESS.
POINT II - THE TRIAL COURT ERRED BY FAILING
TO INSTRUCT THE JURY REGARDING THE ISSUE OF
IDENTIFICATION. (NOT RAISED BELOW).
POINT III - THE DEFENDANT IS ENTITLED TO A
REMAND FOR A DETERMINATION AS TO THE REASONS
FOR THE STATE'S DECISION TO SEEK AN EXTENDED
TERM AND WHETHER SUCH A DECISION WAS
ARBITRARY AND CAPRICIOUS. (NOT RAISED
BELOW).
POINT IV - THE SENTENCE IMPOSED WAS
MANIFESTLY EXCESSIVE.
We affirm.
I.
Defendant contends in Point I that the judge erred in
denying his motion for a mistrial based on juror misconduct. We
disagree.
A-3125-07T4
3
In the afternoon of the second day of deliberations, the
jury foreperson sent the judge a note indicating that Juror No.
10 was verbally attacking her and "[t]hreatening [her] with you
better change your vote or else[.]" In counsel's presence, the
judge questioned both jurors. Juror No. 10 denied threatening
the foreperson. Rather, she angrily called the foreperson
"dumb" because the foreperson would not vote on three of the
sixteen questions on the verdict sheet. Juror No. 10 also
stated that despite this, she could continue to deliberate.
Although initially reluctant to continue, the foreperson
eventually agreed that she could continue to deliberate if the
judge instructed Juror No. 10 not to engage in any further
threatening conduct. The following colloquy between the judge
and the jurors then occurred:
[THE COURT]: As you continue your debate,
I don't want you to change your opinion
about anything -- unless you decide to
change your opinion -- because [of] what
happened in the jury room.
....
Your opinion should only be changed by
what happens in the jury room and not by
what happens out here talking to me. But I
would say that while healthy debate is what
we want, it can never get personal. There
can never be name calling and no one,
obviously, can threaten anyone.
So knowing that we can't do that, I am
confident that both of you can continue to
A-3125-07T4
4
function effectively as jurors with both of
you in the same jury. Do you both agree
with that?
[JUROR NO. 10]: Yes.
[FOREPERSON]: (Nods her head in the
affirmative).
Defense counsel moved for a mistrial based on the threats
to the foreperson. The judge denied the motion finding that the
jurors could continue deliberating fairly. The jury
subsequently reached a verdict as to all charges. After the
verdict, the judge polled the jurors, each of whom stated that
they agreed with the verdict.
A mistrial is an extraordinary remedy that should be
granted only to prevent a manifest injustice. State v. Winter
96 N.J. 640, 646-47 (App. Div. 1984). "Whether manifest
necessity mandates the grant of a mistrial depends on the
specific facts of the case and the sound discretion of the
court." State v. Allah,
170 N.J. 269, 280 (2002) (citing State
v. Loyal,
164 N.J. 418, 435 (2000)). The court should exercise
its discretion "with the greatest caution, under urgent
circumstances, and for very plain and obvious causes." Loyal,
supra,
164 N.J. at 436 (quotation omitted). In addition to
deciding whether a "manifest injustice" will result from
continuing the trial, the court must decide "whether or not the
prejudice resulting from the error is of a nature which can be
A-3125-07T4
5
effectively cured by a cautionary instruction or other curative
steps." Pressler, Current N.J. Court Rules, comment 5.1 to R.
3:20-1 (2010); see also State v. Ribalta,
277 N.J. Super. 277,
291 (App. Div. 1994), certif. denied,
139 N.J. 442 (1995). When
"the court has an appropriate alternative course of action[,]"
it should deny a request for a mistrial. Allah, supra,
170 N.J.
at 281 (citing Loyal, supra,
164 N.J. at 436-37).
When faced with possible juror misconduct, the court must
first determine whether the problem has the capacity to
prejudice the defendant. State v. Scherzer,
301 N.J. Super.
363, 487 (App. Div.) (citing State v. Bey,
112 N.J. 45, 84-86
(1988)), certif. denied,
151 N.J. 466 (1997). If so, the court
must conduct a voir dire, preferably individually in camera, to
determine whether the misconduct may affect the deliberation
process. Ibid. If the court finds that it may, it should then
question each juror to determine the nature of the misconduct
and whether the juror is capable of deciding the case
impartially based solely on the evidence presented at trial.
Ibid. "[T]he trial judge must make a probing inquiry into the
possible prejudice caused by any jury irregularity, relying on
his or her own objective evaluation of the potential for
prejudice rather than on the juror's subjective evaluation of
at 487-88. The grant of a
their own impartiality." Id.
A-3125-07T4
6
mistrial for juror misconduct is not warranted where a juror's
complaint "related to no more than the discomfort produced by
213 N.J.
the deliberative pressures[.]" State v. Williams,
Super. 30, 35 (App. Div. 1986), certif. denied,
107 N.J. 104
(1987). Because the court is in the best position to gauge the
effect of any alleged juror impropriety, we defer to its
State v. Harvey, 151 N.J.
decision on a motion for a mistrial.
117, 205 (1997). We will not disturb a trial court's ruling on
such a motion unless there is an abuse of discretion. Ibid.
We discern no abuse of discretion in the denial of a
mistrial based on the friction between the foreperson and Juror
No. 10. The judge had the opportunity to observe the two
jurors, and thus was in the best position to determine whether
that friction had been sufficiently defused to permit them to
continue deliberating fairly and impartially. The judge
supra, and
properly addressed the issue under Scherzer,
determined that the jurors could do so.
II.
Defendant contends for the first time on appeal in Point II
that the judge erred in failing to instruct the jury on the
issue of identification. Defendant concedes that there was no
substantial identification issue in the case, and thus it would
have been inappropriate to specifically instruct the jury on any
A-3125-07T4
7
of the various Model Jury Charges on identification.1 However,
he argues that the judge should have instructed the jury in
accordance with a shortened, generalized charge on
identification because he denied any involvement in the drug
activity attributed to him. This argument lacks merit.
An identification instruction is not required unless that
State v. Davis, 363
issue is an essential element of the case.
N.J. Super. 556, 561 (App. Div. 2003). Whether the failure to
give an identification charge constitutes plain error "depends
on the strength and quality of the State's corroborative
evidence rather than on whether defendant's misidentification
State v. Cotto,
182 N.J. 316, 326
argument is convincing."
(2005). When the defendant fails to request an identification
charge, the trial court is not required to give an
identification instruction sua sponte if the issue is not
compelling, such as when (1) the eyewitness identification is
persuasive, (2) the State presents substantial evidence
corroborating the identification, and (3) defense counsel has
had an opportunity to point out any inconsistencies in the
identification during cross-examination and in summation. State
1
See Model Jury Charge (Criminal), "Identification: Out-of-
Court Identification Only" (1999); Model Jury Charge (Criminal),
"Identification: In-Court Identification Only" (1999); and Model
Jury Charge (Criminal), "Identification: In-Court and Out-of-
Court Identifications" (1999).
A-3125-07T4
8
v. Salaam, 225 N.J. Super. 66, 70-72 (App. Div.), certif.
denied,
111 N.J. 609 (1988).
Identification was not a genuine issue in this case.
Defendant's primary defense was that the police fabricated the
evidence against him, and his strategy was to attack the
credibility of the State's witnesses. Defendant did not present
a misidentification defense, there was no evidence of
misidentification presented at trial, and there was overwhelming
evidence of defendant's involvement in the drug activity for
which he was convicted. Accordingly, no identification charge,
even an abbreviated one, was required.
III.
Defendant contends for the first time on appeal in Point
III that this matter must be remanded for a statement of reasons
for the prosecutor's decision to seek an extended-term sentence
and a determination of whether such decision was arbitrary and
capricious. The State contends that the judge erred in failing
to impose a mandatory extended-term sentence on count five, and
in failing impose a five-year period of parole ineligibility on
count seven pursuant to N.J.S.A. 2C:43-7c.
The prosecutor had filed a motion for a mandatory extended-
term sentence based on defendant's previous conviction for
third-degree manufacturing, distributing or dispensing CDS,
A-3125-07T4
9 N.J.S.A. 2C:35-5b(3), and third-degree possession of CDS within
500 feet of public housing facilities, parks or buildings,
N.J.S.A. 2C:35-7.1a. The prosecutor's motion papers did not
identify the offenses for which he sought a mandatory extended-
term sentence. However, at sentencing the prosecutor stated
that he was only seeking an extended term "on one of the third
degree drug convictions."
Defense counsel agreed that defendant was subject to an
extended term due to these prior convictions, and requested a
seven-year extended-term sentence on count seven. Prior to
imposing the sentence, the judge found that
I'm very familiar with the facts of the
case, as I presided over the trial. I've
also had an opportunity to review
[defendant's presentence report].
[Defendant] is 25-years-old and he has had a
lengthy involvement in the criminal justice
system. He does have a . . . history of
some employment, but it's very shaky.
As an adult [defendant] has been
arrested eleven times. He has two prior
indictable convictions, both of which are
for CDS offenses. He was once given the
benefit of a [Pre-Trial Intervention]
program in Morris County for a CDS offense
and then a year later he was terminated from
the program and is currently serving a three
year term, with nine months of parole
ineligibility on two indictments that were
sentenced out of Morris County.
The judge found aggravating factors N.J.S.A. 2C:44-1a(3)
(the risk that the defendant will commit another offense) based
A-3125-07T4
10
on defendant's prior record and the fact that he had committed
three CDS offense while released on bail for this case; N.J.S.A.
2C:44-1a(9) (the need for deterring the defendant and others
from violating the law); and N.J.S.A. 2C:44-1a(11) (the
imposition of a fine, penalty or order of restitution without
also imposing a term of imprisonment would be perceived by the
defendant or others merely as part of the cost of doing
business, or as an acceptable contingent business or operating
expense associated with the initial decision to resort to
unlawful practices) based on the extensive drug distribution
activity in which defendant was involved.
2C:44-
The judge also found mitigating factor N.J.S.A.
1b(13) (the conduct of a youthful defendant was substantially
influenced by another person more mature than the defendant)
based on Coleman's influence on defendant. The judge declined
to find mitigating factor N.J.S.A. 2C:44-1b(3) (the defendant
acted under a strong provocation [his father]). The judge found
that the aggravating factors outweighed the mitigating factors.
The judge imposed a mandatory extended term on count seven.
A person convicted of manufacturing, dispensing or
possessing CDS under N.J.S.A. 2C:35-5 who has been previously
convicted of manufacturing, distributing, dispensing or
possessing with intent to distribute CDS, "shall upon
A-3125-07T4
11
application of the prosecuting attorney be sentenced by the
court to an extended term as authorized by [N.J.S.A. 2C:43-7c]."
N.J.S.A. 2C:43-6f.
The court shall not impose an extended term
. . . unless the ground therefor has been
established at a hearing. At the hearing,
which may occur at the time of sentencing,
the prosecutor shall establish the ground
therefor by a preponderance of the evidence.
In making its finding, the court shall take
judicial notice of any evidence, testimony
or information adduced at the trial, plea
hearing, or other court proceedings and
shall also consider the presentence report
and any other relevant information.
[Ibid. ]
"[P]rosecutors must state on the trial court record the
reasons for seeking an extended sentence[]" in order to "provide
for effective judicial review and will help to insure that
prosecutors follow the guidelines in each case." State v.
Lagares,
127 N.J. 20, 32 (1992). The burden is on the defendant
to prove by clear and convincing evidence that the prosecutor's
decision to seek the extended term was arbitrary and capricious.
Id. at 33.
The purpose of the prosecutor placing a statement of
reasons for pursuing the extended term sentence on the record is
to facilitate judicial review. Although the prosecutor in this
case did not specifically state his reasons on the record, the
record clearly indicates that defendant is subject a mandatory
A-3125-07T4
12
extended-term sentence due to his prior CDS convictions.
Defendant did not object to the State's application for the
extended-term sentence and, in fact, agreed that he was subject
to such a sentence on count seven. More importantly, defendant
has failed to show by clear and convincing evidence that the
prosecutor's decision to seek an extended term was arbitrary and
capricious.
We disagree with the State that the judge erred in failing
to impose a mandatory extended-term sentence on count five.
Where multiple offenses are charged, the
notice obviously should include an
identification of the offense with respect
to which the prosecutor is seeking an
extended term in order to give the defendant
a fair opportunity to meet that claim.
Because it is the prosecutor's choice
whether to seek an extended term in the
first instance, it follows that the trial
judge should give weight to the prosecutor's
determination regarding which offense is to
be subject to an extended term, but that
selection is not dispositive. If the judge
has reason to disagree, he should state, on
the record, along with his reasons for the
sentence, why he chose to apply the extended
term to a different charge than that sought
by the prosecutor. That statement will, in
turn, provide the Appellate Division with a
foundation to determine whether the trial
judge exercised his discretion based upon
application of correct legal principles to
the facts.
[State v. Thomas,
195 N.J. 431, 436 (2008)
(citing State v. Roth,
95 N.J. 334, 363
(1984)).]
A-3125-07T4
13
Here, the prosecutor only requested an extended term on one
of the third-degree CDS convictions. The judge complied with
the prosecutor's request and imposed the extended term on count
seven. There is nothing in the record suggesting that the judge
abused his discretion in not applying an extended term to count
five, especially in light of the prosecutor's request to limit
such term to only one third-degree CDS conviction.
Further, N.J.S.A. 2C:43-6f, not N.J.S.A. 2C:43-7(c), is the
controlling statute with respect to the period of parole
ineligibility. N.J.S.A. 2C:43-6f requires that "[t]he minimum
term [of parole ineligibility] shall be fixed at, or between,
one-third and one-half of the sentence imposed by the court or
three years, whichever is greater[.]" Because a three-year
period of parole ineligibility is greater in this case, the
judge properly imposed it on count seven.
IV.
Defendant contends in Point IV that the judge abused his
discretion by imposing a seven-year term of imprisonment on
counts one and seven. He argues that the record does not
support the judge's findings of aggravating factors, and the
judge should have found mitigating factors N.J.S.A. 2C:44-1b(8)
(the defendant's conduct was the result of circumstances
unlikely to recur), and N.J.S.A. 2C:44-1b(9) (the character and
A-3125-07T4
14
attitude of the defendant indicate that he is unlikely to commit
another offense).
As previously stated, the judge found aggravating factors
three, nine and eleven and mitigating factor thirteen, and
declined to find mitigating factor three, the only other
mitigating factor defendant requested at sentencing. Although
we agree with defendant that aggravating factor eleven does not
apply because the judge was not balancing a non-custodial term
against a period of incarceration, State v. Dalziel,
182 N.J.
494, 502 (2005), the finding of this aggravating factor
constitutes harmless error. The judge's findings of aggravating
factors three and nine are amply supported by the record, while
mitigating factors eight and nine are not. Defendant was
involved in an extensive and highly lucrative drug distribution
ring, had a lengthy criminal history by the age of twenty-five
involving offenses other than those in this case, was terminated
from the Pre-Trial Intervention program for non-compliance,
committed other CDS offenses while released on bail in this
case, and had a scant employment history. The aggravating
factors clearly outweigh the mitigating factor, warranting the
seven-year sentences imposed on counts one and seven.
Affirmed.
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