STATE OF NEW JERSEY v. TYRONE HENRY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3888-06T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TYRONE HENRY,
Defendant-Appellant.
________________________________
Submitted October 7, 2009 Decided January 5, 2010
Before Judges Cuff and C.L. Miniman.
On appeal from the Superior Court of New
Jersey, Law Division, Warren County,
Indictment No. 03-04-0133-I.
Yvonne Smith Segars, Public Defender,
attorney for appellant (William Welaj,
Designated Counsel, on the brief).
Thomas S. Ferguson, Warren County
Prosecutor, attorney for respondent (Dit
Mosco, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Tyrone Henry appeals from a November 29, 2006,
order denying his application to vacate his conviction and
permit him to be retried by a jury. We now reverse.
Defendant was tried before the bench on December 13, 2004,
and was convicted on Count I of Indictment No. 03-04-0133-I
charging him with third-degree aggravated assault contrary to
N.J.S.A. 2C:12-1b(7). He was sentenced to a five-year term on
January 28, 2005, with credit for twenty-five days time served,1
at which time Counts II through IV of Indictment No. 03-04-0133-
I were formally dismissed pursuant to a pretrial suppression
motion the judge had granted.2
Defendant appealed his conviction and sentence, raising the
following issues on appeal:
POINT I THE DEFENDANT DID NOT EFFECTIVELY
WAIVE HIS CONSTITUTIONAL RIGHT TO A JURY
TRIAL. (NOT RAISED BELOW)
POINT II THE TRIAL COURT ERRED IN GRANTING
THE STATE'S REQUEST TO EXTEND THE INTERSTATE
AGREEMENT ON DETAINERS.
POINT III THE SENTENCE IMPOSED WAS
MANIFESTLY EXCESSIVE.
POINT IV ASSUMING THE COURT DOES NOT
CONCLUDE THAT THE DEFENDANT'S SENTENCE [WAS]
MANIFESTLY EXCESSIVE BASED UPON A REVIEW OF
THE APPLICABLE AGGRAVATING AND MITIGATING
FACTORS SUPPORTED BY THE RECORD, THE
DEFENDANT IS ENTITLED TO A REMAND PURSUANT
TO STATE V. NATALE.
1
An offender search of the records of the Department of
Corrections indicates that defendant has been released from
prison. https://www6.state.nj.us/DOC_Inmate/results. This
appeal is not moot, however, because defendant remains on parole
until the expiration of his sentence on January 3, 2011.
2
Count I of Complaint No. W2002-913-2110 and Counts I and II of
Complaint No. S2002-911-2119 were also dismissed.
A-3888-06T4
2
We addressed only the first two points on appeal. State v.
Henry, No. A-3427-04 (App. Div. May 15, 2006) (slip op. at 6).
Id. at 10. However, we remanded
We found no merit to Point II.
the jury-trial issue to the judge for a plenary hearing to
determine whether defendant's waiver of his constitutional right
to a jury trial met the criteria of State v. Dunne, 124 N.J.
Id. at 17-19. We permitted defendant to "seek
303, 317 (1991).
review of that determination and also renew his sentencing
arguments in a new appeal." Id. at 19. However, in this appeal
from the remand proceedings, he has not renewed his sentencing
arguments, confining the issues on appeal to the following:
POINT I THE TRIAL COURT ERRED IN
CONCLUDING THE DEFENDANT KNOWINGLY,
VOLUNTARILY AND INTELLIGENTLY WAIVED HIS
RIGHT TO A JURY TRIAL.
A. FACTUAL INTRODUCTION.
B. THE TESTIMONY ELICITED AT THE
REMAND HEARING DEMONSTRATED THE
DEFENDANT DID NOT KNOWINGLY,
VOLUNTARILY AND INTELLIGENTLY
WAIVE HIS RIGHT TO A JURY TRIAL,
AND THE TRIAL COURT ERRED BY
CONCLUDING OTHERWISE.
As a consequence, we limit our discussion of the facts to
those necessary to an understanding of the jury-trial issue.
Defendant and Heather Hanson had a dating relationship and on
December 20, 2002, they had dinner together. They began to
argue after dinner because Hanson did not want defendant to
A-3888-06T4
3
drive her car since he had been drinking. He left, but then
made repeated calls to her cell and house phones, which she
never answered.
Defendant returned to Hanson's apartment in the early
morning hours of December 21 and they again argued, this time
over her failure to answer his telephone calls. He grabbed her
cell phone, they struggled for possession of it, and it broke.
Hanson left her bedroom, where they had been arguing and asked
Jameel Stevens, a mutual friend who was also at her apartment,
if he could fix it, but he said he could not. She returned to
her bedroom where defendant was waiting.
At this point, a physical altercation occurred. Hanson's
and defendant's accounts of the altercation varied
substantially, with Hanson accusing defendant of being the
aggressor and defendant claiming that Hanson punched him in the
face when she returned to the bedroom. Hanson denied ever
hitting him. Defendant admitted that he swung his arm and hit
her face, causing her to fall to the floor, but testified that
this occurred while he was fending off blows from her. She
briefly lost consciousness and awoke on the bathroom floor with
blood on her face. Neighbors called the police on a noise
complaint and, when the police entered the apartment with the
superintendant's assistance, they arrested defendant. The local
A-3888-06T4
4
rescue squad took Hanson to the hospital, where she was
diagnosed with a broken nose and contusions around her eye.
There were no other documented injuries to Hanson or defendant.
On the day set for trial of the aggravated-assault charge,
defendant's counsel stated defendant wanted to waive his right
to a trial by jury and proceed with a bench trial. The judge
conducted a limited voir dire of defendant as follows:
THE COURT: Mr. Henry, is that correct?
THE DEFENDANT: Yes, sir, your Honor.
THE COURT: You have a right to have this
matter decided at a trial before a jury
present or a judge. It's your choice. I
just want to make sure it is your choice.
THE DEFENDANT: Yes, sir.
THE COURT: It is. Very well, okay.
On appeal, we found this truncated voir dire did not
Id. at 17. Because the
satisfy the requirements of Dunne.
record was so sparse, we remanded the matter "for further
proceedings in the Law Division to ascertain the actual
voluntariness of defendant's waiver, and for an informed
judicial assessment of the defendant's reasons for giving up his
right to jury trial." Id. at 18 (citation omitted). We
specifically instructed the court to "explore any discussions
that may have taken place between defendant and his trial
A-3888-06T4
5
counsel on this subject" and to "determine why the request was
not raised until the brink of the trial." Ibid.
The remand proceedings took place on October 27, 2006.
First to take the stand was defendant's trial counsel, Rachelle
Jones, a Public Defender who had been assigned to Warren County
shortly before meeting defendant in September 2004. She
testified that, after the October 8, 2004, ruling on the
suppression hearing, defendant discussed "whether or not he
wanted to proceed with a jury or go with a bench trial." Jones
was surprised at the idea of having a bench trial because in her
experience criminal defendants always had jury trials.
Defendant said that he wanted a bench trial "based on the nature
of the charge that it was an aggravated assault, the fact that
he's a Black man and the victim is White that he would not get a
fair trial in Warren [C]ounty." He also said that he was "very
comfortable" that the judge "would be fair and listen to his
side in light of the fact that [the judge] granted his motion to
suppress." After this conversation, Jones spoke with other
defense attorneys in Warren County, "only to find out that, yes,
in this county there were many [b]ench trials."
Jones acknowledged stating on October 21, 2004, that it was
going to be a jury trial, but explained she "would always put on
the record that [she was] going to use a jury" to avoid making a
A-3888-06T4
6
disclosure to the prosecutor so far in advance of the December
trial date. She then clarified that the discussions about
waiving a jury occurred after October 21.
Jones testified that the decision to proceed with a bench
trial was not made on the day of trial; that she knew far in
advance of the trial that a jury would be waived. She had no
doubt that defendant knew what he was doing because he was an
intelligent man and would speak with her as though he was an
attorney, discussing whether the motion to suppress would be
granted based on Wong Sun.3 Furthermore, his letters were always
articulate; he had been in the criminal justice system since
1997; and she could converse with him on different levels from
other clients.
Jones explained that, if she felt in any way that he did
not understand his right to a jury trial, she "would have spoken
to him more at length," but he dictated how he wanted things to
be done. She was very impressed with him because he was a very,
very bright man. She related that defendant never expressed any
reservation about the correctness of his decision to waive a
jury. She denied having any recollection of any discussions
with the prosecutor in chambers about waiving a jury. Although
3
Wong Sun v. United States,
371 U.S. 471,
83 S. Ct. 407,
9 L. Ed. 2d 441 (1963).
A-3888-06T4
7
she testified that she spoke with defendant at length about
waiving a jury, she also testified that "our conversations were
really limited----well, we really talked about, are you sure
that's what you want and he was comfortable and confident with
that."
Defendant's remand counsel asked Jones to relate the
content of these conversations between October and December; she
replied that they discussed why defendant wanted to waive a jury
and whether he was sure. She did not think defendant was
correct that an African-American man could not get a fair jury
trial in Warren County. She could not remember any other
content to these conversations. She was completely convinced
that defendant wanted a bench trial and did not keep checking to
make sure he had not changed his mind.
Jones did not tell defendant that there was a jury
selection process that might answer his concerns about a
racially prejudiced jury, because he told her he knew Warren
County better than she and knew "what the makeup of the jury
would be." She did not tell him that a jury verdict had to be
unanimous because "he came across as if he knew the system
well." She had no discussions with him about how a jury decides
the case. If he thought it was by majority vote, she would not
know that. Defendant did not discuss the fact that one of the
A-3888-06T4
8
grand jurors asked the prosecutor if defendant was Black. She
thought he really wanted a bench trial.
On cross-examination by the prosecutor, Jones testified
that defendant never told her that he wanted a bench trial
because he understood that evidence of injuries to Hanson's hand
would not be available in a jury trial. She had no recollection
of ever discussing with defendant the requirement that the
verdict of twelve jurors had to be unanimous. She rejected the
suggestion she had discussed waiving a jury with the prosecutor
several days before trial, explaining that she wanted him to
spend time on his opening rather than anything else. She
explained that she believed at the time that defendant acted
voluntarily, knowingly, and competently in waiving a jury and
that he did so in good faith, without trying to get an unfair
advantage. She believed at the time that defendant's concern
about a prejudiced jury was a sufficient factor to waive a jury
trial because he felt he could "get a better shot with the
[j]udge because he saw what happened on the motion to suppress."
Defendant testified next and explained that, when he saw
the transcript of the grand-jury proceedings during which a
grand juror asked if he was Black, he was shocked, and because
"Warren [C]ounty is known to be racial," he "felt . . . there
was a potential for racial bias." He communicated these
A-3888-06T4
9
concerns about the grand-jury proceedings to Jones and she filed
a motion to dismiss the indictment. He also told her that was
one of the reasons he wanted to waive a jury, "but there was
never a major discussion about it." Additionally, he asked his
attorney to obtain the x-ray of Hanson's hand showing a fracture
to substantiate his claim of self-defense and also to obtain
evidence of the medication she was taking to treat aggression to
corroborate his claim that she was the aggressor. Because Jones
did not do so, he felt there was no need for a jury trial when
he could not present evidence substantiating his claim of self-
defense.
Jones never discussed with him the differences between a
bench trial and a jury trial. She never discussed what would
happen in a jury trial. He never had a jury trial before in
this or any other jurisdiction. He had bench trials in
Municipal Court, but never went to trial in the Superior Court.
He thought a jury verdict could be rendered by a majority of
twelve jurors.
Defendant testified that he did not know that he had a
right to challenge prospective jurors and never had any
discussions with his lawyer about peremptory and for-cause
challenges. He knew the verdict had to be beyond a reasonable
doubt from television shows. He did not know that a prejudiced
A-3888-06T4
10
juror could be removed from the jury; he only knew that a juror
would be removed if they stood up and said they were prejudiced.
Jones never discussed with him that there were certain hearings
about the admissibility of evidence that could be heard outside
the presence of the jury. Jones only told him that, if he
testified, his "criminal record would be used against [him]."
If he had known everything that was discussed at the plenary
hearing, he would have chosen a jury trial.
On cross-examination, he admitted he chose a bench trial of
his own free will, but did not feel it was voluntary because he
"had no other recourse," although he admitted no one forced him
to choose. He testified that, given what he knows now, he did
not "knowingly" waive a jury trial, although he did know at the
time that he was in fact waiving a jury trial. He did not feel
that the judge would be fair and impartial when he waived a jury
trial.
On questioning by the court, defendant testified that he
did not believe he would have a fair trial whether he had a jury
or bench trial because Jones did not gather the evidence which
would have tended to prove self-defense. The judge reserved
decision and issued a written decision and order on November 28,
2006.
A-3888-06T4
11
The judge found Jones to be a credible witness but did not
find defendant to be particularly credible. He found "his
testimony to be tailored to fit the constitutional educational
background of a laymen's [sic] knowledge of the intricacies of a
jury trial." He discredited defendant's "testimony regarding
his lack of knowledge in this area, specifically with respect to
the unanimity of a verdict and the process by which a jury is
selected." He also found his testimony not credible because
there was a discrepancy between his "original reasons for
seeking a bench trial, and those offered at the plenary
hearing," that is, at the plenary hearing he contended for the
first time that Jones failed to obtain evidence of self-defense.
He concluded that this new reason was "incredible in light of
his initial assertion of reasons for seeking the same."
The judge concluded,
Although the colloquy between the
[c]ourt and the defendant on the date of
trial may have been brief, it was preceded
by days, weeks, and perhaps months of
direction concerning the defendant's desire
for a bench trial. It was clear to this
[c]ourt that although defense counsel did
indicate that she did not explain the
intricacies and technicalities of a jury
trial to this defendant, he knowingly,
intelligently, and willfully made a
decision, based upon his own reasons, to
have a bench trial rather than a jury trial.
For the foregoing reasons, it is the
opinion of this [c]ourt that [defendant's]
A-3888-06T4
12
waiver of his right to trial by jury was
made knowingly, voluntarily, and
intelligently, and the defense's request
that this [c]ourt vacate the conviction and
permit the defendant to be re-tried by a
jury is hereby DENIED.
This appeal followed.
We begin with our limited scope of review of the judge's
factual findings. "We do not weigh the evidence, assess the
credibility of witnesses, or make conclusions about the
evidence." State v. Barone,
147 N.J. 599, 615 (1997). We only
determine "whether the findings made [by the trial court] could
reasonably have been reached on sufficient credible evidence
present in the record." State v. Johnson,
42 N.J. 146, 162
(1964).
We are not in a good position to judge credibility and
should not make new credibility findings. State v. Locurto,
157 N.J. 463, 474 (1999). It is only where we are "thoroughly
satisfied that the finding is clearly a mistaken one and so
plainly unwarranted that the interests of justice demand
intervention and correction . . . [that we] appraise the record
as if [we] were deciding the matter at inception and make [our]
own findings and conclusions." Johnson, supra,
42 N.J. at 162.
However,
[w]hether the facts found by the trial court
are sufficient to satisfy the applicable
legal standard is a question of law subject
A-3888-06T4
13
to plenary review on appeal. See State v.
Sailor,
355 N.J. Super. 315, 320 (App. Div.
2001) (quoting Manalapan Realty, L.P. v.
Township Comm. of Manalapan,
140 N.J. 366,
378 (1995) ("A trial court's interpretation
of the law and the legal consequences that
flow from established facts are not entitled
to any special deference")); see also State
v. Brown,
118 N.J. 595, 604 (1990).
[State v. Cleveland,
371 N.J. Super. 286,
295 (App. Div.), certif. denied,
182 N.J.
148 (2004).]
Thus, we conduct a plenary review of the legal conclusions
implicit in the judge's decision.
As we said previously, "The constitutional right of an
accused to a trial by an impartial jury of his or her peers has
Henry, supra, slip
long been enshrined in our jurisprudence."
op. at 12 (citations omitted). A defendant's consent to waive a
jury must be intelligent as a matter of constitutional impera-
tive. Patton v. United States,
281 U.S. 276, 312, 50 S. Ct. 854, 870 (1930). In considering an
253, 263, 74 L. Ed.
application to waive a jury,
the duty of the trial court . . . is not to
be discharged as a mere matter of rote, but
with sound and advised discretion, with an
eye to avoid unreasonable or undue depar-
tures from that mode of trial or from any of
the essential elements thereof, and with a
caution increasing in degree as the offenses
dealt with increase in gravity.
[Id. at 312-13,
50 S. Ct. at 263, 74 L. Ed. at 870.]
A-3888-06T4
14
A defendant does not have the right to demand a bench
trial. Dunne, supra,
124 N.J. at 312. However, under the New
Jersey Constitution, he has the right to waive a jury trial. Id.
at 311-12; State v. Mazza,
330 N.J. Super. 467, 470 (App. Div.
"[T]he more serious the crime, . . . the greater the
2000).
burden on the defendant to show why there should be a non-jury
trial." Dunne, supra,
124 N.J. at 314-15. In permitting a
jury-trial waiver, the judge must:
(1) determine whether a defendant has
voluntarily, knowingly, and competently
waived the constitutional right to jury
trial with advice of counsel;
(2) determine whether the waiver is
tendered in good faith or as a stratagem to
procure an otherwise impermissible
advantage; and
(3) determine, with an accompanying
statement of reasons, whether, considering
all relevant factors, including those listed
below, it should grant or deny the defen-
dant's request in the circumstances of the
case.
[Id. at 317.]
"'Whether a waiver is given knowingly depends upon whether the
totality of the circumstances supports that conclusion.'"
Mazza, supra,
330 N.J. Super. at 471 (quoting State v. Jackson,
272 N.J. Super. 543, 550 (App. Div. 1994) (internal quotation
omitted), certif. denied,
142 N.J. 450 (1995)).
A-3888-06T4
15
The Dunne Court explained the factors to be weighed in
ruling on an application to waive a jury:
At one end of the scale, tilting in favor of
jury trial, will be the gravity of the
crime. The higher the degree of the crime,
the greater the weight given to that factor.
Other factors that will tip the scale will
be the position of the State, the antici-
pated duration and complexity of the State's
presentation of the evidence, the amenabil-
ity of the issues to jury resolution, the
existence of a highly-charged emotional
atmosphere (this may work both ways . . .),
the presence of particularly-technical mat-
ters that are interwoven with fact, and the
anticipated need for numerous rulings on the
admissibility or inadmissibility of evi-
dence. The sources of principled decision-
making will remain rooted in a statement of
reasons that will accompany the decision.
This statement of reasons will give struc-
ture to the trial court's discretionary
judgment and will soundly guide appellate
review. State v. Roth,
95 N.J. 334, 363-64
(1984).
[Dunne, supra,
124 N.J. at 317-18.]
Defendant contends that the testimony elicited at the
remand hearing failed to establish that "defendant voluntarily,
knowingly and competently waived his constitutional right to a
jury trial with the advice of counsel." He urges that the
nature of the charge itself "'tilted'" in favor of a trial by
jury, especially because defendant faced the maximum sentence
given his prior history. Because the credibility of the victim
was pivotal to the outcome, he contends that this issue was
A-3888-06T4
16
particularly suited to resolution by a jury. Additionally, his
trial attorney failed to counsel him how his concerns about a
jury trial could be alleviated and assure him that there were
procedural safeguards in jury selection to ensure an unbiased
jury. Finally, he urges there was no record support for the
judge's finding that his concern about counsel's failure to
secure evidence of self-defense was additional to the "two
original reasons" he presented as there were no such reasons.
On the record before us, we cannot say that we are thor-
oughly satisfied that the judge's rejection of defendant's
claimed lack of knowledge respecting jury trials was clearly
mistaken. However, we come to the opposite conclusion
respecting defendant's testimony about Jones's failure to obtain
evidence. It was the judge's duty on the day of trial to elicit
from defendant all the reasons for his waiver of a jury. The
judge did not do so. To reject this reason as incredible
because defendant did not communicate it to his attorney prior
to trial is akin to blaming defendant for what the judge failed
to do----ensure that the record contained all the reasons, whether
communicated to Jones or not----to allow the judge to determine
whether defendant's request to waive a jury satisfied the
requirements of Dunne.
A-3888-06T4
17
Although we instructed the judge to consider the Dunne
factors on remand, he did not discuss them in his opinion. We
Dunne requires the
now apply those factors to the evidence.
court to "determine whether a defendant has voluntarily,
knowingly, and competently waived the constitutional right to
jury trial with advice of counsel." Id. at 317 (emphasis
added). It is clear from Jones's testimony that she did not
provide him with advice of counsel respecting the advantages and
disadvantages of waiving a jury nor did she explain the
procedural safeguards during jury selection to avoid empanelling
a prejudiced juror. Rather, she merely assumed that defendant
knew what he was doing in waiving a jury simply because he was
an intelligent and articulate man.
Jones made it clear at the remand hearing that although she
spoke at length with defendant about waiving a jury, those
conversations "were really limited" to making sure that was what
defendant wanted and that he was comfortable and confident about
it. Furthermore, she did not think defendant was correct that
an African-American man could not get a fair jury trial in
Warren County, yet she did not communicate that belief before he
waived an important constitutional right. Clearly, counsel gave
defendant no advice at all about waiving a jury and absent such
advice, there is no record support for the judge's conclusion
A-3888-06T4
18
that the waiver was a knowing one. We would come to this
conclusion even if we did not consider counsel's failure to
secure corroborating evidence of self-defense.
Next, we must "determine whether the waiver [was] tendered
in good faith or as a stratagem to procure an otherwise
impermissible advantage." Ibid. Nothing in the record suggests
an impermissible stratagem; the waiver was apparently tendered
in good faith. Defendant was merely seeking to avoid conviction
based on racial animus.
Finally, we must consider "all relevant factors" in
deciding whether the request to waive a jury should have been
Those are: (1) "the gravity of the
granted or denied. Ibid.
crime," (2) "the position of the State," (3) the "duration and
complexity of the State's presentation of the evidence," (4)
"the amenability of the issues to jury resolution," (5) "the
existence of a highly-charged emotional atmosphere," (6) "the
presence of particularly-technical matters that are interwoven
with fact," and (7) "the anticipated need for numerous rulings
on the . . . evidence." Ibid.
As to the first factor, the crime here was more serious
than a fourth-degree crime, but not as serious as a first- or
second-degree crime, yet it was closer to a second-degree crime
than a fourth-degree crime because defendant would likely have
A-3888-06T4
19
been given a maximum third-degree sentence in light of his
criminal record. Thus, he bore a weighty, although not heavy,
Id. at
burden "to show why there should be a non-jury trial."
314-15. His reasons for waiving a jury did not meet this
weighty burden. His fear that a jury would be motivated by
racial animus was not objectively reasonable in light of the
many safeguards surrounding the empanelling of a jury and the
requirement that a verdict be unanimous. Neither was waiving a
jury objectively reasonable because his counsel failed to
procure evidence, which could have been addressed by an
adjournment of the trial and assignment of new counsel. Thus,
the gravity of the crime weighed in favor of a jury trial.
Second, the State did not object to a waiver of its right
to trial by jury. This weighs in favor of the waiver.
Third, the State's proofs were very short in duration,
consuming only one trial day, and not at all complex. This
factor weighs in favor of a jury trial.
Fourth, the issues were especially amenable to resolution
by a jury because credibility was the central issue in the case
in light of defendant's claim that Hanson was the aggressor and
he was acting in self-defense. Thus, this factor weighs in
favor of a jury trial.
A-3888-06T4
20
Fifth, there was no highly charged emotional atmosphere.
As a result, there was no reason to be concerned that a jury
might be influenced by emotional factors. This factor weighs in
favor of a jury trial.
Sixth, there were no technical matters interwoven with
fact, much less particularly technical ones. This was a
factually simple case. Again, this factor weighs in favor of
trial by jury.
Finally, the record does not suggest that there would be
any need for numerous evidentiary rulings during this one-day
trial. As a result, this factor, too, favors a jury trial.
Clearly, almost all of the factors identified by the Dunne
Court weigh in favor of trial by jury, not the bench. Equally
clearly, the judge should not have granted defendant's
application to waive a jury. As a consequence, defendant's
conviction must be vacated and this matter remanded to the trial
judge, who is to allow defendant a reasonable time to gather the
evidence his counsel failed to procure and thereafter schedule
the matter for trial by jury.
Reversed and remanded for proceedings consistent with this
opinion.
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21
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