STATE OF NEW JERSEY v. WILLIAM BURDEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4253-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM BURDEN,

Defendant-Appellant.

_______________________________

November 2, 2012

 

Submitted October 17, 2012 - Decided

 

Before Judges Sapp-Peterson and Haas.

 

On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 03-08-0408.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Robert M. Schaaf, Assistant Deputy Public Defender, of counsel and on the brief).

 

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant William Burden appeals from an October 22, 2010 order denying his petition for post-conviction relief (PCR). Because we conclude that defense counsel's admitted error in failing to strike an obviously biased juror from the jury prevented defendant from receiving a fair trial, we reverse and remand to the trial court for further proceedings.

I.

A.

Following a jury trial, defendant was convicted of third-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2; second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5f; and fourth-degree obstruction of justice, N.J.S.A. 2C:29-1. After merging the unlawful possession of an assault firearm conviction into the second-degree possession of a weapon for an unlawful purpose conviction, the trial court sentenced defendant to an aggregate extended-term sentence of twenty years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On direct appeal, we affirmed the convictions, but reversed the merger of the weapons convictions and remanded for reconsideration of the sentence. State v. Burden, No. A-1773-04 (App. Div. May 18, 2007).

On June 19, 2007, pursuant to our mandate, the trial court sentenced defendant to extended terms of twenty years in prison for conspiracy to commit robbery; fifteen years in prison for possession of a weapon for an unlawful purpose; seven years in prison for attempted burglary; seven years in prison for unlawful possession of an assault firearm; and four years in prison for obstruction of justice. All of the sentences were to run concurrent with each other.

On August 13, 2009, defendant filed a timely petition for PCR. After conducting an evidentiary hearing, the PCR judge issued a written opinion denying PCR, concluding that, although defendant demonstrated that his trial counsel was ineffective, defendant failed to prove that there was a reasonable probability that the result would have been different absent his attorney's errors. This appeal followed.

B.

We set forth the underlying facts in our opinion on direct appeal. At approximately 11:30 p.m. on November 21, 2001, the victim Tameka Clayton heard noises outside her apartment. (Slip op. at 2-3). She looked out the window and saw four or five men in the yard. Id. at 3. One of the men asked "'could he come in,' and another responded '[s]he know me, come on' as if to urge the original speaker to leave." Ibid. Although Clayton was "'not able to identify any of the individuals by sight,'" she "'testified the second voice she heard outside (urging the others to 'come on') was'" defendant's. Ibid. She knew defendant because he had come to her house in the past. Ibid.

Right after Clayton observed the men, the police arrived in response to a "'prowler complaint.'" Id. at 4. The men began to run away. Ibid. Four suspects, including defendant, were apprehended. Id. at 5. The police found that the screen had been taken off a window at Clayton's apartment. Id. at 4. In a dumpster near where the men had run, police also found "'a Mack 11 automatic weapon and a loaded magazine.'" Id. at 5. One of the suspects gave a statement to police in which he claimed defendant solicited the others "to commit a home invasion in Salem" and that defendant brought the gun that night. Id. at 7.

While he was incarcerated, defendant had another individual call Clayton to offer her money if she did not testify against him. Id. at 6. The phone call was recorded at the jail and the tape was played for the jury. Ibid.

Defendant testified he and his friends had driven to Salem from Philadelphia that night "'to see some girls.'" Id. at 12. He claimed the group stopped at Clayton's house "'to urinate' after their long ride from Philadelphia." Ibid. He stated he did not know Clayton, although he had played basketball in the past with her brother. Ibid. Defendant asserted that, while the men were outside, Clayton came to the window and said she was going to call the police after one of the other men made a comment to her. Id. at 13. Defendant stated that none of the men entered her home or touched her window. Ibid.

As for the telephone call that was made to Clayton, defendant claimed that, although "he 'never committed a crime that night,'" he was tired of having to come to court so often. Id. at 14. Therefore, he had his friend call Clayton to see if "'I could resolve it, you know, through her and give her, you know a couple hundred dollars and just be done with it.'" Ibid.

C.

In his petition for PCR, defendant argued his trial counsel was ineffective because he did not move to excuse a potential juror, Brian Beal, who stated during voir dire he could not be fair and unbiased in his review of the case. On September 8, 2010, the PCR judge conducted an evidentiary hearing to review defendant's petition.

The transcript of the May 25, 2004 juror voir dire was presented to the PCR judge during the hearing. The transcript shows that, after Beal introduced himself to the trial judge and counsel and stated he worked at an auto body shop, he asked to come to sidebar to discuss his answers to the standard jury selection questions. The following colloquy ensued in connection with Beal's response to a question asking whether he or his immediate family had ever been the victim of a crime:

THE COURT: Yes, sir.

 

MR. BEAL: The immediate family, victim of crime. Last - - about November my brother's house got broke into, they tore the house up and all that stuff. And never got anything out of it.

 

THE COURT: Did they ever apprehend anybody who may have done that?

 

MR. BEAL: No.

 

THE COURT: Okay. But you didn't live there yourself, that was your brother's house.

 

MR. BEAL: No. But a lot of my stuff was in there.

 

THE COURT: You had some stuff taken.

 

MR. BEAL: Yeah.

 

THE COURT: And I know that was unhappy for you. You lost your whatever it was you lost and that's bad. But that was other times, other places. Was that here in Salem County.

 

MR. BEAL: Yes.

 

THE COURT: Can you put that aside, over there, and decide this case based on what you hear right here in this one?

 

MR. BEAL: Not really, because there was stuff that was taken.

 

THE COURT: Sure there was stuff taken, but there's stuff taken every day. Stuff taken from the garage where you work. But that doesn't mean this fellow took anything.

MR. BEAL: I know that but - - that's the way I feel about it.

 

THE COURT: You feel this guy's guilty?

 

MR. BEAL: Yes.

 

THE COURT: Mr. Beal, are you sure you - - you wouldn't just say that maybe so that you can get back to the garage?

 

MR. BEAL: No.

 

THE COURT: No.

 

Although we feel the trial judge certainly had the option to immediately excuse the juror for cause based upon his affirmative response to the question, "You feel this guy's guilty?", the judge asked counsel for their positions. Turning first to the prosecutor, the following discussion occurred:

THE COURT: Do you have any questions for this gentleman?

 

MR. OSTROWSKI [Prosecutor]: I'll leave it to the discretion of the Court.

 

THE COURT: Mr. DeSanctis [Defense counsel].

 

MR. DeSANCTIS: I have no additional questions, Judge. Can I ask, is there any particular reason why you feel my client's guilty?

 

MR. BEAL: Well pretty much because the statement, he said here, the gun - -

 

Although this is not clear from the record, we surmise Beal was referring to something that had been included in the judge's preliminary instructions to the jury, which usually involve a short description of the State's allegations. The trial judge then continued the inquiry:

THE COURT: No, he didn't say gun. No, he didn't say gun. The State claims he had a gun.

 

MR. BEAL: That's what I mean.

 

THE COURT: Maybe he had a tire iron, maybe he didn't have anything at all.

 

MR. BEAL: Maybe it's wrong. See that's what got stolen out of my brother's house.

 

THE COURT: What, a tire iron?

 

MR. BEAL: No. Guns.

 

THE COURT: It wasn't a Cobray M-11?

 

MR. BEAL: No.

 

The judge then continued to attempt to persuade Beal to put aside his stated opinion that defendant was guilty:

THE COURT: See, in other words, Mr. Beal, I think I really - - I realize you had a problem, and I sympathize with you. You lost some material and that's bad. But this is another day, this is another place. This is another set of circumstances and you could be fair - - I mean there's people accused of things everyday. Everyday, if you sat here there'd be accused every single day. Some are guilty, some are not, and some get - -

 

MR. BEAL: I could, I guess. I'm not really sure.

 

THE COURT: Give it your best shot? That's all we can ask.

 

MR. BEAL: I guess I could try - -

 

THE COURT: Give it your best shot. Have a seat, be comfortable.

 

At the conclusion of the judge's questioning of Beal, defense counsel exercised a peremptory challenge on another juror and jury selection continued until a jury was selected. Despite his statement that he thought defendant was guilty and that all he could do was "try" to sit on the jury, defense counsel did not ask that Beal be excused for cause and he did not use a peremptory challenge to remove him from the jury. Beal was one of the twelve jurors who determined defendant was guilty of the crimes with which he was charged.

By agreement of the parties, defendant's trial counsel, Julio DeSanctis, Esq., testified by telephone at the PCR hearing. He did not remember the colloquy with Beal, but he did not question the accuracy of the transcript. DeSanctis explained that he would have placed Beal "high on the list of [jurors] to bump" and it "was error on my part" not to move to excuse him. Pointing out that Beal "thought my client was guilty," DeSanctis testified he did not keep him on the jury as part of any "trial strategy." He guessed that he must have gotten his notes on the jurors mixed up and confused Beal with another juror, who was excused in his place. DeSanctis stated, "I'm just supposing here, gentlemen. I cannot think of any reason for me to have left him on the jury except that I made an error. I apologize to Mr. Burden for this. Because, obviously, it was a grievous error."

The PCR judge issued a written decision denying defendant's petition. Regarding defense counsel's representation of defendant at trial, the judge held:

Clearly, [defendant] has met his burden on the first prong of the Strickland . . . test. The facts here differ markedly from a case such as where the petitioner makes mere bald assertions of ineffective assistance. [case citation omitted.] [Defendant's] trial counsel acknowledges that Juror Beal should have been stricken and that he should have done so. He asserts that he would have done so but for an apparent mistake which caused him to misidentify the juror he intended to strike. He also acknowledges that his failure to strike Juror Beal was not a strategic trial decision on his part. I find that Mr. DeSanctis' representation in the selection of the jury was objectively deficient.

 

The judge, however, found that defendant had failed to demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." The judge reviewed the evidence the State presented against defendant at trial, which included Clayton's voice identification of him, the co-defendant's statement to police implicating him, and his own testimony at trial that placed him at Clayton's house and which confirmed the attempted bribe he later made to her through an accomplice. The judge therefore ruled that the result would not have been any different had DeSanctis acted to strike Beal from the jury.

II.

On appeal, defendant presents the following argument:

POINT I

 

TRIAL COUNSEL'S UNMOTIVATED FAILURE TO ACT, TO PREVENT AN EGREGIOUSLY BIASED VENIREMAN FROM SITTING AS A DELIBERATING JUROR, WAS SO CONSTITUTIONALLY PREJUDICIAL AS TO REQUIRE A NEW TRIAL, REGARDLESS OF WHETHER LATER TRIAL PROCEDURES APPEARED TO BE FAIR, OR WHETHER THE GUILTY VERDICTS APPEARED TO BE RELIABLE. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947). ART. 1, PARS. 1, 5, 9, 10.

 

To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant "must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as 'counsel' guaranteed the defendant by the Sixth Amendment.'" ___ State v. Parker ___ (2012) (slip op. at 11) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984)). In making that determination, a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance. Parker, supra, (slip op. at 11).

"A showing of deficient performance, standing by itself, is insufficient" to warrant the granting of PCR. Ibid. "In addition, a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense." Ibid. Thus, to obtain PCR, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 2068. If defendant establishes one prong of this test, but not the other, his petition for PCR must fail. Parker, supra, (slip op. at 12).

Here, there is no dispute that defendant's trial counsel's performance was ineffective within the meaning of the first prong of the Strickland test. Beal told the judge that his brother's house in Salem had recently been broken into and some of Beal's possessions, together with his brother's guns, were stolen. Thus, Beal was the victim of a similar crime to that involved in this case. Beal forthrightly and persistently advised the judge and counsel that he had already decided that defendant was guilty of the offenses charged. The judge attempted to get Beal to state that he could nevertheless review the case fairly. However, Beal said that, at most, he "could try," but he was "not really sure" he would be able to be fair.

Under those circumstances, defendant's attorney had the duty to move to strike Beal from the jury for cause. Beal's bias was plainly evident. If he was unsuccessful with that motion, the attorney should have used one of his available peremptory challenges.1 Instead, all counsel did was confirm that Beal thought defendant was guilty. He did not move to strike him and he did not use a peremptory challenge to ensure a biased juror did not take part in rendering a verdict concerning his client. Defense counsel candidly admitted that he made a "grievous error." Thus, the PCR judge correctly ruled defendant had met the first prong of the Strickland test.

However, we part company with the PCR judge with respect to his ruling on the second prong of Strickland. The PCR judge, after examining the facts presented by the State at trial, found that the evidence against defendant was overwhelming and, therefore, having a biased juror on the panel as the result of defense's counsel's palpable error would not have changed the result. We disagree.

The United States and New Jersey Constitutions guarantee a criminal defendant's right to a fair trial before an impartial jury. U.S. Const. amend. VI; N.J. Const. art. 1, 10. The right to an impartial jury "is one of the most basic guarantees of a fair trial." State v. Loftin, 191 N.J. 172, 187 (2007). It 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 matters." State v. R.D., 169 N.J. 551, 557 (2001).

Thus, "[t]he securing and preservation of an impartial jury goes to the very essence of a fair trial." State v. Williams, 93 N.J. 39, 60 (1983) (citations omitted). Indeed, "[a] trial is poisoned at its inception if the jurors deciding the case cannot review the evidence dispassionately, through the light of reason." State v. Fortin, 178 N.J. 540, 575 (2004). When, as here, a juror unmistakably advises the trial court and counsel that he has already formulated a strong and unwavering opinion that defendant is guilty, that juror must be excused from service on the panel. Williams, supra, 93 N.J. at 61. That, however, did not occur here.

As a result, defendant sat through the trial with a clearly biased juror deciding his fate. No matter how strong the State's proofs, defendant could not receive a fair trial under these circumstances. Even if the PCR judge accurately characterized the evidence presented against defendant at trial as "overwhelming," this would not be a justifiable basis for depriving defendant of his constitutionally guaranteed right to a fair trial by fair and impartial jurors. As the Supreme Court has observed, "[t]he impact of violating a defendant's right to a fair trial cannot be measured by, or weighed against, the quantum of evidence bearing upon his or her guilt." State v. Frost, 158 N.J. 76, 87 (1999).

The second prong of Strickland is satisfied with proof "that counsel's deficient performance deprived the defendant of 'a fair trial,' that is, 'a trial whose result is reliable.'" State v. Allah, 170 N.J. 269, 283-84 (2002) (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Because a biased juror participated in deciding defendant's guilt, the jury's ultimate verdict can not be deemed "reliable" within the intendment of Strickland.

Therefore, we conclude that defendant has plainly demonstrated ineffective assistance of counsel due to the failure of his trial counsel to move to excuse Beal for cause or to use an available peremptory challenge to strike him from the jury.

Reversed and remanded to the trial court for further proceedings.

1 Defense counsel had at least one peremptory challenge left after Beal was questioned. However, counsel used that challenge to excuse a different juror.