STATE OF NEW JERSEY v. HORACIO PALAEZ
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4386-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HORACIO PALAEZ,
Defendant-Appellant.
____________________________________________
May 13, 2010
Argued May 18, 2009 - Decided
Before Judges R. B. Coleman and Simonelli.
On appeal from the Superior Court of New
Jersey, Law Division, Union County,
Indictment No. 06-06-00638.
Steven F. Wukovits argued the cause for
appellant (Triarsi, Betancourt & Wukovits,
attorneys; Mr. Wukovits, of counsel; Richard
D. Huxford, on the brief).
Meredith L. Balo, Assistant Prosecutor,
argued the cause for respondent (Theodore J.
Romankow, Union County Prosecutor, attorney;
Ms. Balo, on the brief).
The opinion of this court was delivered by
R. B. COLEMAN, J.A.D.
Following a trial on two counts of second-degree robbery
before a jury and Judge Stuart Peim, defendant Horacio Palaez
was found guilty of the lesser included offense of simple
assault, a disorderly persons offense, on the first count and
guilty of the charged offense of second-degree robbery on the
second count. Before sentencing, defendant moved for a new
trial based upon allegations communicated by an anonymous juror
to defense counsel charging that at least one and possibly three
jurors had made bigoted comments that may have affected their
ability to render a fair and impartial verdict. The judge
denied the motion, finding that there was no evidence that
racial prejudice played any role in the jury's deliberations.
Defendant was sentenced to five years in prison, with a period
of parole ineligibility for eighty-five percent of the term and
with three years of parole supervision upon release, pursuant to
the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This
appeal followed.
A brief summary of the facts will suffice to provide the
context of the issues raised on appeal. In the early morning
hours of April 8, 2006, two separate incidents took place in
Hillside. In one of the incidents, Anthony Mangrella and his
girlfriend, Melissa DeFina were returning to Mangrella's home
following a birthday celebration when they were accosted by two
individuals who punched them and threw them to the ground. The
individuals, described as a stocky white man with a crew cut, a
striped polo shirt and sneakers, and a taller, skinny kid
A-4386-07T4
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wearing a black shirt with a fitted hat on backwards, were later
identified by the victims as Greg Fazewski and defendant. In
addition to assaulting Mangrella and DeFina, one of the
individuals picked up from the ground and ran away with a
Houston Rockets jersey that Mangrella had been given as a
birthday gift.
The second incident involved Bandy DaSilma. As he was
walking home from work, a man approached DaSilma and said that a
couple of guys were in a car chasing him and that they should
hide in the bushes behind a house. DaSilma thought the
situation was suspicious, but before he could protect himself,
the man tackled him. DaSilma fought back and got on top of the
man, but then a "bigger kid" grabbed DaSilma and held him.
According to DaSilma, as the first man got up, he took DaSilma's
backpack or duffel bag and ran. The second man followed, as
DaSilma shouted for them to drop his bag.
Almost immediately after this second incident, the Hillside
police approached two men coming out of rear yards over a fence.
DaSilma's duffle bag or backpack was in the possession of one of
the men, defendant.
At trial, defendant testified on his own behalf. Although
his version of the events differed somewhat, he did not deny
being present at and playing some role in the two incidents
A-4386-07T4
3
described above, however, he denied ever touching Mangrella or
DeFina. He stated that he was sitting on the grass at a party
with Greg Fazewski on the evening in question when Mangrella and
DeFina came walking down the sidewalk. Defendant testified he
did not know Mangrella and DeFina personally but he believed
Fazewski knew them. In fact, Fazewski appeared angry when he
saw Mangrella and DeFina together. Defendant stated that
Fazewski began making comments towards the couple, getting
louder and louder; and Fazewski began walking toward them.
About eight others, including defendant followed Fazewski,
crossing the street. Defendant testified that Fazewski then ran
up behind Mangrella, hit him and got on top of him. Then DeFina
"jumped on [Fazewski] and started pounding away." Defendant
testified he was just watching. Defendant stated that once
Fazewski got up, he picked up the jersey that had been on
Mangrella's shoulder and ran away.
Defendant testified that he and Fazewski later left the
party again to go get cigarettes. Defendant stated that he and
Fazewski encountered another individual (DaSilma), walking in
front of them, and defendant walked ahead of Fazewski and told
the individual to "hide behind a bush or a house" because "he
was going to get into a fist fight." Defendant explained that
he was "trying to distract [DaSilma], so [Fazewski] could go and
A-4386-07T4
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you know, hit him." Defendant claims that DaSilma suddenly hit
him, and he went down, grabbing onto DaSilma, who continued to
hit him. Defendant stated Fazewski then tackled DaSilma and
they struggled. During the fight, DaSilma's bag fell to the
ground. When defendant was able to scramble free, he ran away.
Eventually, Fazewski broke free and ran toward defendant with
the bag in his hand. Defendant testified he did not see
Fazewski pick the bag up, but he had it in his hand.
Defendant and Fazewski then ducked behind a few houses, ran
through some backyards and jumped over fences and shrubs to get
away. He thought DaSilma was following them. When they came to
a big fence, defendant jumped over, but Fazewski was unable to
jump the fence with the bag; so, he tossed the bag to defendant
and began to climb over. By the time Fazewski got down, they
turned around and the police were there with weapons drawn on
them.
Fazewski was present at trial on one or more days, but he
did not testify. During her summation, defense counsel
attempted to argue that the State had failed to call Fazewski as
a witness, however, the State objected and the trial court
sustained the objection. The trial court limited defense
counsel's argument to the issue of the State's lack of evidence.
Upon the completion of its deliberations, the jury found
A-4386-07T4
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defendant guilty of simple assault on Mangrella, a disorderly
persons offense (count one), and guilty of second-degree robbery
as to DaSilma (count two).
Thereafter, defendant filed a notice of motion for a new
trial, pursuant to Rule 3:20-1 or, alternatively, to examine the
jurors, pursuant to Rule 1:16-1, to determine whether a new
trial was warranted. In her certification in support of the
motion, defense counsel stated that approximately two weeks
after the jury returned its verdict, one of the jurors had
telephoned her and stated that, during the trial, juror number
five, "repeatedly made negative comments regarding [defense
counsel's] African American hair style and how she disliked
[her]." The anonymous juror further alleged that before any
deliberations took place, juror number five "stated to the other
jurors that they should just find Horacio Palaez guilty of
everything and just go home." According to defense counsel, the
anonymous juror also informed her that during deliberations,
juror number five, along with juror number three and juror
number four "commented to Black jurors who spoke with accents
that their pro-defense assessments of the evidence in the case
was due to their inability to understand the English language."
The anonymous juror added that the referenced comments "le[d] to
heated arguments about the racial biases, bigotry and prejudice
A-4386-07T4
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of [the three] jurors" and "almost erupted into physical
altercations." None of this information had been communicated
to the court or to counsel during jury deliberation or before
the jury was discharged.
The trial court heard argument on the motion and denied the
motion, reasoning as follows:
Even if I accept these facts as true, I
do not find that there's a sufficient basis
to grant the relief that you're asking for.
Once again, as noted in the argument, the
defendant here is Hispanic, not black. The
juror expressed some dislike for . . .
defense counsel and counsel's hair.
There is no evidence whatsoever
presented that any racial prejudice played
any role in the jury deliberations and in
the jury making their decisions as to who
they believed and who they didn't believe,
and I noted they were very discriminating in
terms of what evidence they accepted and
what evidence they didn't accept.
I would further note that they accepted
the evidence of an Afro-American male with a
prior conviction and they rejected the
testimony of . . . [a] Hispanic couple, a
male and a female.
....
Once again, as I previously noted, I do
not find that there is sufficient evidence
to make the showing here based on the
anonymous juror, but there is no evidence
here, even if the allegations are accepted,
that the defendant was convicted out of
bigotry or that -- or -- once again, there's
no evidence here that defendant was
convicted out of any bigotry.
A-4386-07T4
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Just to recap, the defendant is
Hispanic here. The jury did not find him
guilty of all charges. I do not find the
defendant here made a strong showing that a
litigant was harmed by any jury in its
conduct. There was a split verdict. There
was no indication that any juror's prejudice
in any way affected the verdict in this
case. And for those reasons, the motion to
examine jurors or for a new trial is denied.
The trial court then sentenced defendant to the low end of
the range of sentences for a second-degree crime, five years
with an eighty-five percent parole disqualifier and jail credit
of 185 days. A three-year period of special parole supervision
was imposed, and defendant was assessed the appropriate fines.
In his appellate brief, presented by new counsel, defendant
raises the following arguments:
POINT I: THE DEFENDANT DID NOT RECEIVE A
TRIAL BEFORE AN IMPARTIAL JURY IN VIOLATION
OF HIS SIXTH AMENDMENT RIGHTS UNDER THE
UNITED STATES CONSTITUTION AND ARTICLE I,
PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
THE TRIAL JUDGE ERRED IF [sic]
POINT II:
DENYING THE DEFENDANT'S MOTION FOR A NEW
TRIAL DUE TO RACIAL BIAS.
POINT III: THE DEFENDANT/APPELLANT DID NOT
RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN
VIOLATION OF HIS SIXTH AMENDMENT RIGHTS
UNDER THE UNITED STATES CONSTITUTION AND
ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY
CONSTITUTION.
1. THE APPELLANT'S CLAIM OF
INEFFECTIVE ASSISTANCE OF
A-4386-07T4
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COUNSEL IS PROPERLY RAISED ON
DIRECT APPEAL.
2. DEFENSE COUNSEL FAILED TO
MEET THE STRICKLAND STANDARD
BY MAKING PREJUDICIAL
STATEMENTS REGARDING THE
DEFENDANT/APPELLANT TO THE
JURY.
3. DEFENSE COUNSEL FAILED TO
MEET THE STRICKLAND STANDARD
BY FAILING TO PROPERLY
REQUEST A FAILURE TO CALL A
WITNESS CHARGE.
4. THE APPELLANT'S TRIAL COUNSEL
WAS NOT WHO THE APPELLANT
HIRED TO REPRESENT HIM AT
TRIAL AND WAS TOO
INEXPERIENCED TO CONDUCT A
SECOND DEGREE ROBBERY TRIAL.
Points I and II are essentially the same and will be
treated together. Point III, the arguments relating to
ineffective-assistance of counsel are not properly before us at
this time.
I.
At the outset, we note that "[A] motion for a new trial is
addressed to the sound discretion of the trial judge, and the
exercise of that discretion will not be interfered with on
appeal unless a clear abuse has been shown." State v. Russo,
333 N.J. Super. 119, 137 (App. Div. 2001). Moreover, the
governing standard as set forth in Rule 3:20-1, states, in
pertinent part, that
A-4386-07T4
9
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.
The trial court perceived no manifest denial of justice, and
based on our independent review of the record, nor do we.
Here, of course, defendant seeks a new trial based on
evidence implying racial bias on the part of one or more of the
jurors. This evidence is offered through a post-verdict
telephone communication from an anonymous juror to defense
counsel. As an alternate remedy, defendant requested that the
jurors be questioned in court, pursuant to Rule 1:16-1, to
determine whether or not a new trial is warranted. Rule 1:16-1
provides that "good cause" must be shown in order to interview
the jurors on a claim of juror misconduct.
Except by leave of court granted on
good cause shown, no attorney or party shall
directly, or through any investigator or
other person acting for the attorney
interview, examine, or question any grand or
petit juror with respect to any matter
relating to the case.
[R. 1:16-1.]
A-4386-07T4
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"'Good cause' intended by the rule . . . is some event or
occurrence [] injected into the deliberation in which the
State v. Loftin,
146 N.J. 295,
capacity for prejudice inheres."
381 (1996) (quoting Pressler, Current N.J. Rules, comment 1 on
R. 1:16-1 (1996)) (quoting State v. LaFera,
42 N.J. 96, 106
(1964)). Thus, the court has observed that the "rule recognizes
that there may be extraordinary circumstances in which jury
misconduct or the introduction of extraneous information into
the jury deliberations brought about an unjust result." State
v. Loftin,
191 N.J. 172, 189 (2007). The judge is to first
examine the information to determine if it has the capacity to
prejudice the defendant, and if it does, the judge must conduct
voir dire, preferably individually, in camera, to determine
whether any jurors were exposed to the information. State v.
Scherzer,
301 N.J. Super. 363, 487 (App. Div.), certif. denied,
151 N.J. 466 (1997).
Here, the trial court denied defendant's motion for a new
trial and found "[t]here was no indication that any juror's
prejudice in any way affected the verdict in this case." On
appeal, defendant argues that any racial bias which was held
against defense counsel "has a direct bearing on how a jury
determines their verdict" and that juror number five had "made
up her mind prior to deliberations and was not going to be
A-4386-07T4
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swayed by the other jurors." The State counters that defendant
has failed to show that a manifest injustice has occurred and
points out that the jury verdict finding defendant not guilty of
the charge or second-degree robbery contained in count one is
evidence that even juror number five was open to consideration
of the proofs presented at trial.
"[A]ny predetermination of guilt, whether or not motivated
by racial bias, is inconsistent with a juror's duty of
impartiality." Loftin, supra,
191 N.J. at 189. Moreover, we
are cognizant that "The Sixth Amendment of the United States
Constitution and Article I, paragraph 10 of the New Jersey
Constitution guarantee a criminal defendant the right to trial
by an impartial jury." Scherzer, supra,
301 N.J. Super. at 486.
"That constitutional privilege includes the right to have the
jury decide the case based solely on the evidence presented at
trial, free from the taint of outside influences and extraneous
State v. R.D.,
169 N.J. 551, 557 (2001). "'Securing
matters."
and preserving an impartial jury goes to the very essence of a
fair trial.'" Ibid. (quoting State v. Bey,
112 N.J. 45, 74
(1988)). "A new trial is warranted where 'jury misconduct . . .
could have a tendency to influence the jury in arriving at its
verdict in a manner inconsistent with the legal proofs and the
State v. McLaughlin,
310 N.J. Super. 242, 256
court's charge.'"
A-4386-07T4
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(App. Div.) (quoting Scherzer, supra,
301 N.J. Super. at 486
(additional internal quotations omitted)), certif. denied,
156 N.J. 381 (1998). "The test is 'not whether the irregular matter
actually influenced the result but whether it had the capacity
of doing so.'" Scherzer, supra,
301 N.J. Super. at 486 (quoting
Panko v. Flintkote Co.,
7 N.J. 55, 61 (1951)).
In considering the interests at stake, the Supreme Court
has stated that "[c]alling back jurors for interrogation after
they have been discharged is an extraordinary procedure which
should be invoked only upon a strong showing that a litigant may
State v. DiFrisco, 174
have been harmed by jury misconduct."
N.J. 195, 241 (2002) (quoting State v. Athorn,
46 N.J. 247, 250
(1966)); State v. Walkings,
388 N.J. Super. 149, 157 (App. Div.
2006) (quoting State v. Koedatich,
112 N.J. 225, 288 (1988),
cert. denied,
488 U.S. 1017,
109 S. Ct. 813,
102 L. Ed. 2d 803
Court recognized two exceptions to
(1989)). "The Koedatich
[this] rule." Loftin, supra,
146 N.J. at 382.
First, post-verdict interviews may occur
when "any racial or religious bigotry
manifested in jury deliberations may
invalidate a verdict." The second exception
"arises when a juror informs or misinforms
his or her colleagues in the jury room about
the facts of the case based upon his
personal knowledge of facts not in
evidence."
[Ibid. (quoting Koedatich, supra, 112 N.J.
at 288).]
A-4386-07T4
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The judge assumed, as we do, in spite of the anonymous
source of the allegations, that juror number five did make
negative comments about defense counsel's hairstyle and that
juror number five personally disliked defense counsel. These
are both personal and highly subjective matters of preference
that are nevertheless hinged no more on racial bias than on a
differing sense of fashion, style or personality. The judge
found also that the juror's dislike for defense counsel did not
necessarily equate to a dislike of the defendant himself. In
addition, the judge noted that the jury "accepted the evidence
of an Afro-American male and rejected the testimony of . . . [a]
Hispanic couple, a male and a female."
In State v. Roberts,
47 N.J. 286 (1966), the defendant, a
black man, was convicted of manslaughter in connection with the
killing of another black man. The defendant appealed the
conviction on the grounds of racial bias. Id. at 288. The
issue of race came about in that case, however, as a result of a
comment the judge made during defense counsel's voir dire of
jurors regarding prejudice against blacks. Ibid. According to
the court transcript, during the voir dire, the judge used a
racial epithet, which the judge categorically denied. Id. at
288-89. Defense counsel did not object to the comment at the
time and upon review, the Supreme Court found that the trial
A-4386-07T4
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itself was fair in every way. Id. at 291. Despite this, the
Court reversed and remanded for a new trial, explaining its
decision to require the defendant to initiate proceedings to
prove that the judge actually used the offensive racial epithet:
We understand the stenographer stands by her
notes, and we are certain of the integrity
of the trial court's certification. The
question then would be whether the
stenographer's record reflects an
unconscious slip of the judge's tongue or
the error of the stenographer in hearing or
in recording. It would be awkward to
resolve an issue of that kind. And if the
stenographer's version were upheld, the
trier of the facts would then have to deal
with defendant's assertion of his alleged
emotional reaction to the word. The record
of defendant's testimony does not reflect
the despair he now asserts. And it seems
incredible that, if he was so deeply moved,
he would have said nothing to his counsel at
that time. His silence, as well as the
silence of counsel, who was at that very
moment searching for unconscious prejudice
in a prospective juror, is difficult to
comprehend. But we are in an area of great
current sensitivity, and no matter how the
courts deal with the issue, there may remain
a doubt that the issue was handled
objectively. For this reason, and although
we are satisfied justice was done, we
conclude, with much reluctance, that the
image of justice would be better served by a
new trial.
[Id. at 290-91.]
We do not believe a valid comparison can be made between a
judge's presumed use of a clearly offensive racial epithet in
the mid-sixties, and a juror's expression of her personal
A-4386-07T4
15
feelings about a trial attorney and the attorney's hairstyle.
The capacity for prejudice engendered by the two situations are
not analogous.
In State v. Levitt, 36 N.J. 266, 268 (1961), after
defendant had been convicted of "committing a private act of
lewdness," a juror contacted the trial judge and stated that
there had been "prejudicial statements made by other jurors
during the jury's deliberations." In that case, unlike in this
case where the juror remains anonymous, the juror signed an
affidavit describing the alleged juror misconduct.
There, the trial court ordered a new trial and found:
There seems to be little doubt in this case
this man's religion [defendant is Jewish]
was injected into the deliberations of this
jury; that is corroborated. There seems to
be little doubt that at least one person on
the jury was affected, and it seems
prejudicially so and it makes little
difference that the infection was only
slight so long as it is present.
....
[T]he deliberations . . . should be free of
taint of passion, prejudice or mistake.
[Id. at 270.]
The Supreme Court affirmed, finding that "[s]ince the trial
judge could find, as he did, that the element of religious
prejudice had contaminated the jury verdict," the trial court
did not abuse its discretion. Id. at 273.
A-4386-07T4
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In the case at bar, the anonymous juror contacted defense
counsel approximately two weeks after defendant was convicted
and made the allegations, which the trial court accepted as true
for purposes of the motion. The comments describe a racially
charged environment during deliberations, wherein one or more
jurors were making racial comments which nearly led to "physical
altercations." It is surprising that in a setting so highly
charged with emotion, that no one contemporaneously reported any
impropriety to the judge, and none of it was detected by the
court or the court staff. The judge found, however, that the
assertions made by the anonymous juror did not manifest such
racial hostility or animus towards defense counsel or toward
defendant that a new trial or a hearing should be ordered to
interrogate all of the jurors concerning the alleged comments.
The judge, who we trust had a good feel for the case, found no
evidence that any racial prejudice played any role in the jury
deliberations.
This is a matter addressed to the sound discretion of the
trial court. Levitt, supra,
36 N.J. at 272. We do not perceive
that the court's exercise of that discretion was mistaken or
that the matters reported by the anonymous juror had the
capacity to result in an unjust result or a manifest miscarriage
of justice. Accordingly, we affirm.
A-4386-07T4
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II.
Defendant also argues that he was denied effective
assistance of counsel at trial. "Our courts have expressed a
general policy against entertaining ineffective-assistance of
counsel claims on direct appeal because such claims involve
allegations and evidence that lie outside the trial record."
State v. Castagna,
187 N.J. 293, 313 (2006) (quoting State v.
Preciose,
129 N.J. 451, 460 (1992)). "However, when the trial
itself provides an adequately developed record upon which to
evaluate defendant's claims, appellate courts may consider the
issue on direct appeal." Ibid. (citing State v. Allah,
170 N.J.
269, 285 (2002)).
Defendant's grounds for his ineffective-assistance of
counsel in this case arise out of (a) allegedly prejudicial
statements or admissions made by his attorney during closing
arguments, (b) the failure of counsel to request in advance a
failure-to-call-a-witness charge, and (c) the contention that
trial counsel was too inexperienced to competently try a second-
degree robbery case.
The key issue behind the allegedly prejudicial statements
is whether they were made as a part of sound trial strategy. In
order to understand defense counsel's strategy and thought
process, the court would need to question defense counsel
A-4386-07T4
18
herself. While we might make reasoned deductions, we have
before us no record of why defense counsel made the statements
now challenged by defendant during summation. Therefore, we
cannot reliably analyze whether these statements equated to
See State v. Allegro,
193 N.J. 352, 366
"sound trial strategy."
(2008) (internal quotations and citations omitted).
In a similar vein, we do not know why defense counsel did
not request in advance that the court give a charge on the
State's failure to call Fazewski as a witness, and we offer no
opinion on whether such a charge would have been appropriate.
See generally State v. Clawans,
38 N.J. 162, 170-71 (1962).
This also might have been strategy or it could have simply been
in error. However, without questioning defense counsel, there
is no way of knowing which it was.
Likewise, without an inquiry into defense counsel's past
criminal trial experience, one cannot conclude that she was "too
inexperienced to conduct a second degree robbery trial." It has
been observed, however, that "inexperience does not, in and of
itself, prove ineffectiveness." DiFrisco, supra,
174 N.J. at
247.
In this instance, we adhere to the practice of deferring
the issues of alleged ineffective-assistance of counsel to post-
A-4386-07T4
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conviction relief proceedings where the necessary factual record
can be established. See Castagna, supra,
187 N.J. at 316.
Affirmed.
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