STATE OF NEW JERSEY v. DAVID U. BELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6071-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID U. BELL,

Defendant-Appellant.

______________________________

March 1, 2012

 

Submitted March 23, 2011 - Decided

Before Judges Fuentes and Newman.

On appeal from Superior Court of New Jersey,

Law Division, Salem County, Indictment No.

07-10-0520.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Brian Plunkett, Assistant

Deputy Public Defender, of counsel and on

the brief).

John T. Lenahan, Salem County Prosecutor,

attorney for respondent (Gregory G. Waterston,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant David U. Bell was tried before a jury and convicted of third degree aggravated assault against a county corrections officer.1 The victim of the assault was a corrections officer at the Salem County Correctional Facility where defendant was being detained at the time for an unrelated matter. The trial court granted the State's motion seeking an extended term pursuant to N.J.S.A. 2C:43-2, and sentenced defendant to a term of seven years.

We now reverse defendant's conviction and remand the matter for a new trial. The trial court's extensive remarks, in direct response to the foreperson's statement that the jury was deadlocked, unduly promoted unanimity over dissent and impermissibly focused attention on the dissenting juror. Under these circumstances, the judge's comments had the capacity of being perceived as coercive, thus undermining the independence of the deliberative process.

We will address this issue in the context of the following facts, which we have derived from the record developed before the trial court.

 

I

On August 16, 2007, defendant was arrested on an outstanding warrant for failure to pay child support and was brought to the Salem County Correctional Facility. Based on the answers he gave in an initial commitment interview, the "booking officer" determined that defendant met the criteria for possible suicidal tendencies. Defendant was thus placed in the infirmary on "suicide watch."

According to Investigator Robert Stussey of the Salem County Sheriff's Department, inmates on "suicide watch" are confined to individual cells; required to remove their clothing; searched to ensure that they are not harboring anything that might be used to harm themselves; and made to wear a "suicide gown."2 The corrections officers assigned to this unit monitor these inmates through a series of rounds made every fifteen minutes. Individuals confined under these conditions are segregated from the rest of the inmate population until a psychologist or psychiatrist determines that they are no longer at risk. This usually takes approximately three days.

The incident that gave rise to this criminal charge occurred when corrections officers attempted to escort defendant to his cell. Corrections Officer Jeffrey Thomas Hoglen is a member of the "Response Team," a specialized group of officers dispatched by the correctional facility when there are problems with inmates.

On the date in question, Hoglen testified that the "booking patrol" called the Response Team "[t]o escort Mr. Bell to the infirmary." A total of six officers responded to the call. Hoglen and his fellow officers were to "assist" defendant in putting on the suicide gown. According to Hoglen, defendant was initially uncooperative, "hollering" and cursing at the officers. He then appeared resigned to his fate; defendant complied with the officers' request and voluntarily walked toward the infirmary.

The situation escalated into a physical confrontation when defendant reached the infirmary and was told to put on the suicide gown. Hoglen testified that when he approached defendant with the gown, defendant said: "We might as well go down now, meaning fight." Defendant also hollered at two other officers, who responded by putting defendant against the wall and handcuffing him. Unfortunately, the matter did not end there.

When defendant reached his cell, the officers asked him to kneel on the bed in order to remove his clothing and put on the gown. Hoglen gave the following description of what occurred next:

We laid him down on the bunk and I . . . proceeded to take his trousers off and boxers off and then we were going to put the gown on him.

 

Once we got . . . his pants off, before we can grab his legs again, Mr. Bell threw his right leg back around and kicked me underneath the chin and throat area.

 

PROSECUTOR: Okay. And what was your reaction to that?

 

A. It stunned me. It knocked me back two or three steps, and I kind of lost my balance. I stood there for a couple minutes, got myself back under control and proceeded to help [the other officers] again.

 

PROSECUTOR: Okay. . . and when that occurred, . . . his face was down, is that correct?

 

A. Yes, it was down facing.

 

PROSECUTOR: [H]e's laying down and he kicked up?

 

A. Yes, his right leg came up and kicked - - like a backwards kick.

 

Hoglen testified that he received medical attention for his injuries, which mainly consisted of applying a topical antibiotic ointment. A photograph of Hoglen's chin showing a red bruise was taken to document the incident. The other members of the Response Team who testified at trial essentially corroborated Hoglen's account of the incident.

Defendant did not call any witnesses. His attorney argued to the jury that, given the description of the incident as testified to by the State's witnesses, it was clear that defendant's alleged assault was inadvertent. Defense counsel argued that defendant reasonably reacted to an unwarranted use of force against him, and did not intentionally assault Hoglen.

The prosecutor argued that the officers responded to a volatile situation of defendant's own making. The State emphasized that defendant did not have the right to refuse to wear the suicide gown. Given defendant's use of physical force in defiance of lawful authority, the prosecutor maintained it was entirely foreseeable that Hoglen would be injured.

The prosecutor thus argued that defendant committed the offense of third degree aggravated assault, as defined in N.J.S.A. 2C:12-1b(5)(h), because Hoglen was a corrections officer, in uniform, and acting in the performance of his duties. While defendant may not have specifically targeted Hoglen, his actions were nonetheless wanton, reckless, and utterly unjustified.

Following the court's instructions on the law, the jury requested reinstruction on the elements of aggravated assault. Shortly after responding to the jury's request, the trial judge informed counsel that he believed "the jury is going to tell us that they're at an impasse." The judge advised counsel that, in his view, it was "too early to declare a mistrial . . . with just a couple hours" of deliberations.

The foreperson soon thereafter confirmed the judge's suspicions when he reported that the jury was indeed at an impasse. The judge responded by informing the jury that it was too early in the deliberations "to quit." The judge then addressed the jury as follows:

Is there anything that I could do in terms of going over any or all of the charge of the law that . . . you feel would help? In other words, were I to go over again, and there's no problem with doing it as many times as necessary, the law with regard to aggravated assault upon a law enforcement officer would that be of any help to you in reaching a unanimous verdict, do you think? Does anyone feel that it would? I'll be happy to go over it again. Would it be of any assistance to . . . have you view3 again the testimony of any of the witnesses or all of the witnesses for that matter? Would anyone feel that that would be of any assistance. [Addressing the foreperson by name] any thought on that? I mean, I don't want to put you on the spot. I mean, it's directed at anyone?

 

FOREPERSON: I don't think that would help, but if anybody wants to see.

 

THE COURT: You know we could play back. We have the capacity to play back any of the testimony. Yes ma'am [Recognizing one of the jurors]

 

UNIDENTIFIED JUROR: I have a problem with the law.

 

THE COURT: Sure.

 

UNIDENTIFIED JUROR: The way I see it the law says one certain thing. It's cut and dry, what you've described as the law, and it bothers me that there is a jury because if go by that law we really don't have a choice in guilty or not guilty.

 

THE COURT: That's correct. That's correct.

 

UNIDENTIFIED JUROR: So why are we here?

 

From this point on, the judge's comments can be characterized as a lengthy exposition on the role of juries in a criminal trial. The judge explained that jurors did not have a choice to disregard the applicable legal principles described by the court. He contrasted his role as the judge of the law with the jury's responsibility to determine the facts from the evidence presented at trial. As the judge put it, to determine "what happened, what didn't happen[.] You've heard the testimony. You have great discretion with regard to how it occurred, what occurred, when it occurred, all that."

At a point in these remarks, the same unidentified juror asked the judge: "What happens if we can't come to a decision, a unanimous decision?" The judge responded: "What would happen eventually is that there would be a mistrial." The juror persisted: "How long do we have for that?" The judge indicated that there are no set number of hours involved. He noted, however, that "[c]ertainly we don't want to give up" after only one hour and forty minutes of deliberations.

After this exchange with the unidentified juror, the judge addressed the jury on the question of unanimity. After emphasizing the need for the jury to consider the evidence impartially, the judge addressed the question of dissent. He admonished the jurors

not to be like a cigar store Indian, you know, and you're not gonna move, nobody's gonna move me from anything, but you would listen to what your other fellow jurors. Say, well, you know, that makes sense, and you would allow yourself the luxury to be persuaded to the direction of other jurors if it makes sense or to be dissuaded from whatever position that you have, if that makes sense.

 

But, to take your point one step further, yes, if you have a deep felt conviction one way or the other we wouldn't ask you to say, okay, well, I'll just surrender my view so that we could all leave and go home, you know. But, if you think about it in terms of when we started this, when we started this I know the first thing I said to you was we were looking for a jury that could be fair, that could arrive at the truth, that could lay this evidence dispassionately and deliberate, not steadfastly, hold onto one view, necessarily, but, rather, allow yourselves to give and take. That's what deliberation is all about.

 

[(Emphasis added).]

 

The judge then characterized the deliberative process as "negotiations." He explained that, although not "necessarily [a] negotiation," the deliberative process "to some extent . . . has a similar characteristic." The judge continued:

A negotiation were I say I offer you $10 that's it. It's not negotiation; is it?

 

How about . . . 7.50, how about $9? Can we come to common ground? You know, so it's a negotiation of sort, but its different in that with a negotiation you typically have a particular - - you're the seller of the car or you're the buyer of the car. you have a particular angle from which you're approaching it where in this there is no angle because you're - - you're not the State of New Jersey, you're a judge of the facts. You're not the defendant. You don't have his particular view of mind, nor the State's, but rather a view towards arriving at the truth.

 

At this point, there was an off-the-record4 sidebar conference initiated by the prosecutor. Thereafter, the judge resumed his comments to the jury, which continued for several pages in the transcript of the trial. These comments were far more esoteric as compared with the previous remarks. The judge discussed the history of the jury system in England, commencing with the coronation of Henry II. The judge concluded by reinstructing the jury on the elements of third degree aggravated assault upon a law enforcement officer and defining reckless conduct.

The jury resumed deliberations and continued until the end of the court-day on Thursday, August 21, 2008. At that point, the judge excused the jury until the following Tuesday, August 26, 2008. The jury resumed deliberations on Tuesday and returned a guilty verdict.

Before the court imposed its sentence, defendant moved for a new trial alleging that on the morning of August 26, 2008, before the jury rendered its verdict, several jurors saw him wearing prison clothes as he was being transported from the jail to the courtroom. The court deferred acting on the motion until after defendant was sentenced on September 30, 2008. On November 3, 2008, more than two months after the conclusion of the trial, the court recalled the jurors and asked each one of them individually whether they had seen defendant in prison clothing on the morning of August 26, 2008. All of the jurors polled denied having seen defendant in this fashion on the day in question. Accordingly, the court denied defendant's motion.

II

Against this record, defendant now appeals raising the following arguments.

POINT I

 

THE TRIAL COURT'S INSTRUCTIONS TO THE JURY FOLLOWING ITS ANNOUNCEMENT THAT IT WAS DEADLOCKED WERE ERRONEOUS AND COERCIVE AND REQUIRE A REMAND FOR A NEW TRIAL.

 

POINT II

 

THE DEFENDANT'S SENTENCE IS EXCESSIVE BECAUSE THE COURT FAILED TO FIND APPLICABLE MITIGATING FACTORS.

 

We agree with defendant's argument as reflected in Point I. In this light, we need not, and specifically do not reach the argument reflected in Point II.

In determining whether a court should give supplemental charges in response to a report from the jury that it cannot reach a unanimous verdict, "the question is whether the supplemental instruction has improperly influenced the dissenting jurors to change their votes." State v. Figueroa, 190 N.J. 219, 238 (2007). This need to insure that supplemental instructions be free from even a subtle form of pressure to conform was concisely captured in the Court's admonition in In re Stern, 11 N.J. 584, 588 (1953) that "coercion of a jury is not permissible in any degree under our constitutional system of judicial administration." (Emphasis added.)

This concern drove the Court in State v. Czachor, 82 N.J. 392 (1980), to reject the so-called Allen5 charge in favor of the language reflected in the American Bar Association model charge. The current version of this charge, as used in the State of New Jersey, reads as follows:

It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous but do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. You are not partisans. You are judges--judges of the facts.

 

[Model Jury Charge (Criminal), "Deliberations" (2004). ]

 

Although the trial judge is left with the discretion to modify or supplement this language to address the needs of a particular set of facts, we have disapproved of the exclusion of language that directs each juror "to decide the case for himself or herself and that the vote should represent the individual view of each juror as to insure a just and proper result." State v. Allen, 308 N.J. Super. 421, 430 (App. Div. 1998). Here, the judge's instructions communicated both an unwillingness to accept the jury's right to return a non-unanimous verdict, and disapproval of the dissenting juror's right to remain true to his or her convictions. Most troublesome was the judge's characterization of the deliberative process as "negotiations," through which jurors could bargain away their assessment of the evidence to reach some ephemeral compromise.

Although undoubtedly unintentional, the tenor of the colloquy between the trial judge and the dissenting juror, followed by the court's extensive recitation of the roles juries have played in our Anglo-Saxon heritage, conveyed an anti-dissent message. This, coupled with the court's reference to a "cigar store Indian,"6 created the impression that the dissenting juror was unreasonably unwilling to consider his or her fellow jurors' point of view. When considered as a whole, the judge's response to the foreperson's announcement that the jury was deadlocked communicated a subtle but distinct message favoring conformance over dissent. In our view, these remarks had the capacity to undermine the independence of the deliberative process, and as a consequence taint the reliability of the verdict.

Given the brevity of the deliberations at the time the foreperson indicated that the jury was deadlocked, the judge's response should have been to inquire whether further deliberations will likely result in a verdict. State v. Valenzuela, 136 N.J. 458, 469 (1994). Instead, the judge, without soliciting input from counsel, engaged in an unwarranted attempt to dissuade the dissenting juror or at the very least promote unanimity. Supplemental instructions are intended to remind the deliberating jurors of their role as judges of the facts, not to encourage the jury to reach a verdict for its own sake.

In Figueroa, the Court directed appellate courts to determine the propriety of supplemental jury charges "guided by a concern for the weighty role that the judge plays in the dynamics of the courtroom." Supra, 190 N.J. at 238. Guided by this admonition, we conclude the trial court's approach here irremediably tainted the jury's deliberations requiring a new trial.

Reversed and remanded. We do not retain jurisdiction.

1 This offense is a simple assault, as defined in N.J.S.A. 12:1-a(1),(2), or (3), committed upon "[a]ny Department of Corrections employee, county corrections officer, juvenile corrections officer, State juvenile facility employee, juvenile detention staff member, juvenile detention officer, probation officer or any sheriff, undersheriff, or sheriff's officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority." N.J.S.A. 2C:12-1b(5)(h).

2 The "suicide gown" is made of heavy thick material to prevent an inmate from using it as a noose to hurt themselves.

3 We infer from this comment that the courtroom was equipped with a video recording system.

4 No explanation has been offered for having these discussions off-the-record. We emphasize the absolute need to preserve for appellate review all sidebar discussions. State v. Paduani, 307 N.J. Super. 134, 141 (App. Div.), certif. denied, 153 N.J. 216 (1998).

5 Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).

6 Although we are certain that the remark was uttered without any intent to offend, it was nevertheless insensitive to modern and generally accepted notions of tolerance and civility with respect to Native Americans.