STATE OF NEW JERSEY v. VINCENT SHELTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5838-07T45838-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VINCENT SHELTON,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 25, 2010 - Decided

Before Judges Carchman and Ashrafi.

On appeal from the Superior Court of New

Jersey, Law Division, Ocean County,

Indictment No. 07-02-0311.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Mark P. Stalford,

Designated Counsel, of counsel and on

the brief).

Marlene Lynch Ford, Ocean County

Prosecutor, attorney for respondent

(Samuel Marzarella, Assistant Prosecutor,

of counsel; Roberta DiBiase, Assistant

Prosecutor, on the brief).

PER CURIAM

Following unsuccessful motions to suppress evidence and then a jury trial, defendant Vincent Shelton was found guilty of second-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. He was acquitted of second-degree possession of a firearm while engaged in certain drug activity, N.J.S.A. 2C:39-4.1a. The trial judge sentenced defendant to an aggregate term of seven years imprisonment with five years of parole ineligibility.

On appeal, defendant asserts that the reconstituting of the jury after substituting a juror rather than declaring a mistrial was plain error and requires reversal. He also claims that the judge erred in denying his motion to suppress. We conclude that the substitution of the juror should have resulted in a mistrial rather than a reconstitution of the jury with continued deliberations. We further conclude that the judge did not err in denying the motion to suppress. We reverse the conviction and remand for a new trial.

These are the relevant facts adduced both at the motion to suppress and the trial. On December 27, 2005, at 2:18 p.m., Emergency 911 Dispatcher Robert Frandsen received a call from a female at a residence on Amherst Road in South Toms River reporting a possible fire on the premises. The dispatcher immediately dispatched both police and fire personnel to the scene to investigate. Firefighter and former chief, Joseph Jubert, responded to the residence and was advised by various individuals standing outside the residence that they had smelled something burning inside the house but saw no flames. Suspecting an electrical fire, Jubert began checking for heat sources using a thermal imaging camera, which revealed that the source of the fire was from the heating duct work, including the furnace and circuit breakers located in the basement. Upon entering the basement, the firefighters proceeded to do a systematic search in the basement, where the furnace was located on one side of the basement, and a living room and bedroom area on the other side. During the course of this investigation, Jubert noted in the living room a white powdery substance on a coffee table that had scratch and cut marks in it. He also spotted plastic bags in an open dresser drawer in the adjoining bedroom.

After viewing the white powder on the coffee table, Jubert contacted the sheriff's department which brought South Toms River Police Officer Timothy Meier to the basement at the residence, where he too observed the suspected CDS and summoned Detective David Burke to the scene. Detective Burke, an officer for over fifteen years, upon entry to the basement, observed "on the coffee table a large white powder, or substance . . . [with] chop marks in it, like it was being cut up." Based on his observations and suspicion that the white powder was cocaine, he thereafter applied for a search warrant by submitting his affidavit via facsimile to the municipal judge.

The judge then faxed back to Detective Burke a signed search warrant. The judge and Detective Burke then met, and the judge executed a duplicate search warrant.

After obtaining the search warrant, Burke photographed, field-tested, then bagged the substance for further examination and searched the rest of the basement where he found plastic baggies with corners missing, a scale, a .357 revolver (hidden in male underwear in a lower dresser drawer) and bullets on and in a dresser in the bedroom adjacent to the living room. Located on the top of the dresser were documents belonging to defendant, including his identification. Additionally, a search of the basement stairwell uncovered glassine bags and bullets within a man's sneakers.

At trial, the State's expert, Lieutenant Joseph Vitiello opined that the thirty-one grams of cocaine found on the coffee table were for the purpose of distribution and the presence of a scale, a gun, and plastic baggies with corners missing supported that opinion.

At the conclusion of presentation of the evidence, the matter was submitted to the jury. Deliberations began on February 6 at approximately 11:45 a.m. and continued until 4:30 p.m. except for a luncheon recess and a short break when the judge answered the jury's question about the relationship of the amount of CDS seized and intent to distribute. Deliberations resumed the following morning, only stopping briefly to address an error in the marking of an exhibit and proceeded into the afternoon following a lunch break. That afternoon, the jury deliberated for ninety minutes before informing the judge that agreements had been reached as to one charge but not the remaining two. The judge chose not to take a partial verdict at that time, instructing the jury to continue. Thereafter, deliberations continued for forty-five more minutes, until the jury was given requested instructions and dismissed for the day.

Deliberations continued the next morning and were interrupted several times with the jury's repeated requests for read-back of witness testimony. After the final read-back, Juror No. 11 advised the judge for the first time that he had recently remembered an incident from many years earlier in which a police officer had planted evidence, and a different officer he knew had gone undercover to catch the rogue officer. The juror believed his recollection rendered him unable to make a fair decision.

After an extended voir dire of the juror, the trial judge then excused the juror, and in ensuring that Juror No. 11 did not share any information with the others "given the fact that [they] ha[d] deliberated over a number of days," questioned the jurors individually, but each juror denied any knowledge of Juror No. 11's issue. An alternate juror was then selected, and the reconstituted jury was told to start anew, with the trial court instructing in part, "You must throw [your prior deliberations] out and start over again from scratch, okay, because [the alternate juror] did not participate in any of your deliberations up until this point." The judge noted:

And since what started out to be a partial verdict yesterday, and it was not taken by the Court because it was not complete, is also thrown out. Whatever the verdict was with regard to that third count, whatever that unanimous decision was . . . one of the jurors that participated in that decision is no longer here, and so that's also void and out.

Additionally, the judge instructed the jury in accordance with the model jury instructions on the matter. Neither the prosecutor nor defense counsel requested a mistrial or questioned the judge's determination to allow the reconstituted jury to continue its deliberations.

After the jury was reconstituted, the jury deliberated for over an hour and a half that day prior to being dismissed, continuing deliberations on February 11 with only brief interruptions, and continued into the day on February 13. That day, the deliberations broke briefly for jury questions, before the jury returned a verdict finding defendant guilty of two counts of the indictment but deadlocked on an additional count as to both defendant and his co-defendant. Trial on the charge of a felon in possession of a weapon commenced immediately thereafter, based on a prior conviction in New York, and a guilty verdict was delivered the same day.

In denying defendant's motion for a new trial, the motion judge noted:

The "new jury" as you call it continued to deliberate on Monday, Tuesday and Wednesday. On Wednesday at approximately 4:30 the jury advised they had reached a partial verdict, and that was the verdict that was received. That means by a partial verdict you mean they were hung on Count 1 and the other counts had been resolved.

. . . .

So under all of the circumstances that are involved, while I, I have read the Jenkins case carefully, I cannot find that, that this jury under the circumstances of this case did not take upon itself its obligation fairly and impartially to consider all of the evidence as a newly constituted jury; approach it . . . with a renewed spirit and renewed energy; that, that comes with, with the constitution of a new jury. I believe they faced the challenges that they had. They clearly did not rush the verdict on any count and, indeed, could not reach a verdict on, on one of the counts indicating to the Court that there was no overbearing, there was no[] exercise of extraordinary control by any of the parties against the alternate. So under all of those circumstances I find that the jury acted properly and proceeded properly in this case to come to their decisions.

She denied the motion for a new trial, and this appeal followed.

On appeal, defendant raises the following issues:

POINT I THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY JURY BY IMPROPERLY SUBSTITUTING A JUROR RATHER THAN DECLARING A MISTRIAL. (Not Raised Below)

A. The Court erroneously discharged a deliberating juror and substituted an alternate juror depriving the defendant of his right to a fair trial.

B. The trial court should have declared a mistrial once it discharged a juror rather than reconstituting the jury and continuing deliberations.

POINT II THE COURT ERRED IN FAILING TO SUPPRESS THE EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT ISSUED BY A MUNICIPAL COURT JUDGE WITHOUT THE PERSONAL APPEARANCE OF THE APPLICANT AND NOT SUPPORTED BY PROBABLE CAUSE.

A. The search warrant was issued in violation of the personal appearance requirement of R. 3:5-3(a).

B. The affidavit does not establish the required probable cause for the issuance of a search warrant.

POINT III THE GUILTY VERDICT ON COUNT IV IS IRRECONCILABLY INCONSISTENT WITH THE NOT GUILTY VERDICT ON COUNT I AND SHOULD BE VACATED AND A NOT GUILTY VERDICT ENTERED.

POINT IV THE CONVICTION ON COUNT III SHOULD BE MERGED INTO THE CONVICTION ON COUNT II AND THE SENTENCE ON COUNT III VACATED. (Not Raised Below).

POINT V THE SENTENCE IMPOSED BY THE COURT IS MANIFESTLY EXCESSIVE.

I.

We first address the issue of whether the jury should have been reconstituted or a mistrial declared.

R. 1:8-2(d)(1), provides:

The court in its discretion may direct the impanelling of a jury of such number as it deems necessary to ensure that a sufficient number of jurors will remain to deliberate. If a juror is excused after being sworn but before opening statements begin, another juror may be impanelled and sworn, but no juror may be impanelled and sworn thereafter.

. . . .

Following the drawing of the names of jurors to determine the issues, the court may in its discretion order that the alternate jurors not be discharged, in which event the alternate jurors shall be sequestered apart from the other jurors and shall be subject to the same orders and instructions of the court, with respect to sequestration and other matters, as the other jurors. If the alternate jurors are not discharged and if at any time after submission of the case to the jury, a juror dies or 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 deceased or 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.

[(Emphasis added).]

"Proper resort to the rule requires meticulous compliance with its signal requirements" which first mandate the jury "be instructed that its deliberations must begin anew, a requirement which, moreover, implies that deliberations have not progressed so far that the substituted juror would be unable to function as an equal member of the panel" and the second "is that the excused juror must be found to be 'unable to continue' within the intendment of the rule." Pressler, Current N.J. Court Rules, comment 4.3 on R. 1:8-2 (2010)(hereinafter, Pressler).

We focus here on the first prong of the two-prong test. In State v. Jenkins, 182 N.J. 112 (2004), the Supreme Court enunciated the general rule to apply when a juror has been removed for bias.

The removal of a juror for bias during deliberations ordinarily will call for a mistrial, not reconstituting the jury with an alternate. Here, the trial court did not determine whether the discharged juror injected racial consideration into the jury's deliberations. Arguably, defendant stood to benefit from a personal racial appeal by juror number nine to her fellow jurors on his behalf. Defendant contends, however, that the jurors might have reacted negatively to any argument premised on race. We glean from the colloquy between the court and juror number nine that the remaining jurors were prepared to convict defendant and, therefore, were not swayed by any impermissible appeal to nullify the law.

[Id. at 131 (internal citations omitted).]

Although the Court specified removal for bias, the Court noted an additional consideration beyond the basic reason for removal of a juror. The Court said: "We need not decide whether any possible inappropriate remarks by [the juror] in the jury room somehow backfired to the detriment of defendant because we now conclude that the jury deliberations had advanced to the point that substitution with an alternate juror was not an acceptable option." Ibid.

The Court then added:

We have recognized that, despite the benefits of judicial economy allowed by the substitution procedure of Rule 1:8-2(d)(1), there are times when jury deliberations have proceeded too far to permit replacement of a deliberating juror with an alternate. In [State v.] Corsaro, [ 107 N.J. 339, 349, 351 (1987)] we observed that "[t]he reconstitution of the jury by the substitution of a new juror in the course of the jury's deliberations 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."

[Jenkins, supra, 182 N.J. at 131-32 (internal citations omitted).]

For the reconstituted jury, including the substituted juror, to have meaningful deliberations, the substituted juror must be able to function on an equal level with all other members of the jury:

As a general rule, "[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."

[Id. at 132 (citations omitted).]

In Corsaro, supra, 107 N.J. at 352, the Court noted

where the deliberative process has progressed for such a length of time or to such a degree that it is strongly inferable that the jury has made actual fact-findings or reached determinations of guilt or innocence, the new juror is likely to be confronted with closed or closing mind [,] and thereby, unlikely to be able to play a meaningful role.

In Corsaro, the jury had already reached a partial verdict, but in Jenkins, supra, 182 N.J. at 132, the Court found that deliberations need not have yet reached that stage of finality to preclude substitution and the issue, rather, is whether the deliberations have reached a point where practically deliberations cannot begin anew. "A presumption arises that a jury has progressed too far in its deliberations if it announced that it is deadlocked." Pressler, supra, comment 4.3.1. on R. 1:8-2(d) (citing State v. Banks, 395 N.J. Super. 205, 220 (App. Div.), certif. denied, 192 N.J. 598 (2007)). See also Corsaro, supra, 107 N.J. at 349, 351 ("The reconstitution of the jury by the substitution of a new juror in the course of the jury's deliberations 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."). "The jury is presumed to adhere to instructions, and we must assume the jury followed that mandate." State v. Farmer, 366 N.J. Super. 307, 319 (App. Div.) (finding a mistrial was not warranted where the discharge had nothing to do with the juror bias, outside influences or problems arising in the interaction between jurors and the judge ensured that the jury had not been tainted or prejudiced by interviewing each juror), certif. denied, 180 N.J. 456 (2004).

The 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." State v. Valenzuela, 136 N.J. 458, 467 (1994). The Court cautioned that,

The Rule, however, is to be employed sparingly. "[T]he potential prejudicial impact upon the integrity of the jury deliberation process would mandate that the rule be invoked only as a last resort mechanism to avoid the deplorable waste of time, effort and money inherent in a mistrial."

. . . .

A trial court cannot discharge a juror merely because that juror is one "whose position is at odds with the rest of the jury."

[Id. at 468-69 (internal citations omitted).]

The State contends Jenkins is distinguishable as the reconstituted jury in that case returned a verdict after only twenty-three minutes of deliberation.

We recognize that the time involved greatly exceeds that described in Jenkins, yet we deem the critical factor to be the jury's reporting that it had reached a verdict as to one of the counts of the indictment. That being the case, we are mindful of the admonition of Jenkins and Corsaro regarding jury deliberations proceeding to a point where reconstitution is not a viable alternative. The report of reaching a verdict is a critical factor in the analysis. Such information informs us that the remaining eleven jurors had reached a conclusion that, even with instructions that the jury was to begin deliberations anew, may be unalterable. Moreover, the excused juror, even though not exposing his bias, participated in the deliberative process presumably lending his view to the merits of the issues before the jury.

We can not speculate as to what took place in the jury room both before and after the reconstituting of the jury. We resolve the balance between judicial economy and insuring a fair trial in favor of the latter and conclude that the appropriate course of relief is to order a new trial. Accordingly, we conclude that the jury verdict must be set aside and the matter remanded for a new trial.

We now address the suppression motions. In considering defendant's arguments, we are mindful of certain established principles that inform our decision. As a threshold matter, in reviewing a motion to suppress, we will "uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (citing State v. Locurto, 157 N.J. 463, 474 (1999)); State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990). Moreover, we defer to those findings of the trial judge "which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). In sum, a trial judge's findings should be disturbed only if "they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (citing Johnson, supra, 42 N.J. at 162).

We will "accord substantial deference to the discretionary determination resulting in the issuance of the [search] warrant." State v. Jones, 179 N.J. 377, 388 (2004) (internal citations omitted). Doubts as to the validity of the warrant "should ordinarily be resolved by sustaining the search." Id. at 389 (quoting State v. Kasabucki, 52 N.J. 110, 116 (1968)).

Defendant contends the evidence should be suppressed because the affiant did not personally appear before the municipal judge as required by Rule 3:5-3(a), and instead sent his sworn affidavit via facsimile. The State argues that since Detective Burke personally appeared before the municipal court judge and obtained a duplicate original of the search warrant later the same day, and while the premises were secured in the interim, "the results of the search were the same as they would have been had the detective appeared personally before the judge at the time of the discovery of the cocaine." The State asserts that "defendant suffered no prejudice from the procedure employed, and the State realized no untoward advantage from it." Further, "defendant has not alleged any police misconduct or impropriety, nor has he made a constitutional claim[,]" rather relying "solely on a minor procedural irregularity that did not affect the validity of the warrant."

Rule 3:5-3(a) provides, in relevant part, that "[a]n applicant for a search warrant shall appear personally before the judge, who must take the applicant's affidavit or testimony before issuing the warrant." Recently in State v. Gioe, 401 N.J. Super. 331, 340-44 (App. Div. 2008), certif. denied, 199 N.J. 129 (2009), we held the requirement of Rule 3:5-3(a), that the affiant personally appear before the issuing judge, was of non-constitutional dimension, permitting a telephonic communication between a police officer/affiant and the municipal court judge followed by the faxing of a signed affidavit to the court.

In Gioe, we noted that

"[t]he purpose of requiring an affiant to 'appear personally' before the issuing judge stems from our Court's recognition that '[t]estimony in the judge's presence safeguards the individual's rights under [the] Fourth Amendment and the State Constitution. The presence of the applicant, along with the testimony or affidavits of any witnesses, leads to a more thorough and deliberate examination of the factual basis for issuing the warrant.'"

[Id. at 342 (quoting State v. Valencia, 93 N.J. 126, 135 (1983)).]

Relying on Rule 41 of the Federal Rules of Criminal Procedure and United States v. Johnson, 641 F.2d 652, 656 (9th Cir. 1980), we found the failure of the affiant to personally appear before the judge alone is insufficient to create a "fundamental" violation warranting suppression of the evidence discovered under the warrant. Gioe, supra, 401 N.J. Super. at 343-44. Relying on the two factor test utilized in Johnson, supra, we found suppression of evidence would only be required if: "(1) there was 'prejudice' in the sense that the search might not have occurred or would not have been so abrasive if [Rule 41] had been followed, or (2) there is evidence of intention or deliberate disregard of [Rule 41]." 641 F.2d at 656. In discussing the first factor we found the search "would have occurred had the procedural requirements of Rule 3:5-3(a) been explicitly followed" since "the same affidavit would have been produced, based upon the same evidence establishing probable cause, and the search warrant would undoubtedly have been issued exactly as it was via facsimile." Gioe, supra, 401 N.J. Super. at 343.

In Valencia, supra, 93 N.J. 126, the Court addressed a similar argument by the State that suppression of evidence is warranted in the context of a telephonic warrant request in which the officer read his unsworn affidavit to a judge and was not placed under oath. The Court explained that "[c]ourts in this State consistently have maintained that strict adherence to the protective rules governing search warrants is an integral part of the constitutional armory safeguarding citizens from unreasonable searches and seizures." Id. at 134. However, the Court noted:

Noncompliance with the rules can be tolerated only if it is insubstantial. Thus, as long as the objectives underlying the procedural requirements that govern the application, issuance, execution, filing and return of the search warrants are not fundamentally compromised, a slight departure from strict compliance with the rules will not invalidate the search.

[Ibid.]

Here, defendant does not contend that his constitutional rights have been compromised but only that the failure to comply with the procedural requirements of Rule 3:5-3(a) warrants suppression of the evidence. The deviation from the warrant requirements does not merit reversal as the other procedural requirements have been met, cured by the later personal appearance of the detective and the municipal judge in executing a duplicate warrant and does not mandate suppression of the evidence as noted by the judge in denying defendant's second motion to suppress evidence.

We next address defendant's argument that Detective Burke's affidavit provides insufficient factual information to establish probable cause for the issuance of a search warrant. Defendant's principal contention centers on the assertion that the Assistant Fire Chief Jubert, the first to spot the cocaine on defendant's coffee table, lacked the requisite training or experience that would have allowed him to reach the conclusion that the white powdery substance was in fact a controlled dangerous substance, rendering his affidavit insufficient to establish probable cause to issue a warrant.

Before issuing a warrant, "the judge must be satisfied that there is probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence a crime is at the place sought to be searched." State v. Sullivan, 169 N.J. 206, 210 (2001). Probable cause means "less than legal evidence necessary to convict though more than mere naked suspicion." State v. Mark, 46 N.J. 262, 271 (1966). "[N]o mathematical formula exists for application either by a trial or appellate court in deciding whether a search warrant was supported by probable cause." Kasabucki, supra, 52 N.J. at 117. Probable cause is to be determined objectively by the totality of the circumstances. State v. O'Neal, 190 N.J. 601, 612-14 (2007). Probable cause "is not a technical concept but rather one having to do with 'the factual and practical considerations of every day life' upon which reasonable men, not constitutional lawyers, act." State v. Waltz, 61 N.J. 83, 87 (1972) (citing Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879, 1890 (1949)).

We reject defendant's argument. Probable cause is not a "technical concept" but one based on the reasonable perceptions of an objective observer. Here, the presence of a white powdery substance on a coffee table bearing cut marks and the presence of plastic baggies in the adjoining bedroom is more than "naked suspicion" and is sufficient for a layperson, such as a firefighter, to create a reasonable suspicion that a crime has been committed.

We conclude that defendant's arguments as to both the warrant as well as probable cause are without merit and the judge properly denied defendant's motions to suppress.

Since we have determined that the judgment of conviction must be reversed and we remand for a new trial, defendant's remaining arguments are moot and need not be addressed.

 
Reversed and remanded for a new trial.

Although the substance initially tested negative after field tests, following more sophisticated laboratory testing, it tested positive for cocaine with a weight of thirty-one grams.

(continued)

(continued)

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A-5838-07T4

July 14, 2010