STATE OF NEW JERSEY v. LUIS BONILLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4023-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS BONILLA,

Defendant-Appellant.

__________________________________________________

April 19, 2013

Submitted March 12, 2013 - Decided

Before Judges Messano and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-03-0522.

Saluti Law Group, attorneys for appellant (Gerald M. Saluti, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Luis Bonilla was charged in Count Five of Bergen County Indictment No. 10-03-0522 with third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3). Co-defendant, Jeremy D. Wicks, was charged alone in counts one through four with various drug offenses and was charged with defendant in Count Five. Defendant proceeded to trial alone.

Although it is unclear from the record provided what was the disposition of the charges against Wicks, he testified as a State's witness at trial. The first day of trial apparently included Wicks' direct examination and some cross-examination.1 When trial commenced on the second day, the prosecutor alluded to a "conversation that . . . juror number [eleven] had[]" at "the conclusion of the proceeding yesterday . . . ." The prosecutor stated the juror was "talking about character assassination of one of the witnesses or complimenting [defense counsel] on his skills." The prosecutor noted that "[defense counsel] expressed some concern about that." The judge indicated he would speak to the juror at sidebar, and defense counsel stated, "Understood."

We quote the colloquy that ensued at length:

Judge: Number [eleven], we went through a rather exhaustive process during the voir dire. And I asked you whether you could be fair and impartial and you said yes. And you took an oath. And you said that you would be bound by that oath.

Last night I'm not quite sure what it is you were saying, but you have an obligation to give the defendant a fair trial. . . .

We give a number of charges. We . . . tell you to listen to the testimony, assess the credibility. You haven't even heard all of the witnesses. And I'll give you these charges and you're bound to follow those charges.

I guess the first thing I need to know is whether you can do that. And right now we're down to [twelve] people. So when I asked you a few days ago if you could be fair and impartial and you gave me your work, you basically said you would and then you took an oath, I need to know whether you can discharge that all?

Juror: Absolutely, Your Honor.

Judge: Yes?

Juror: Yes, sir.

Judge: Okay. Questions from the attorneys?

The prosecutor asked the judge to explain the nature of cross examination. The judge continued:

Judge: You know something, sometimes lay people have difficulty understanding. A trial is basically a search for the truth. Okay. Sometimes it may seem like he he's citing a court rule and based upon the court rule of the case something's not allowed. I don't understand that or whatever. But, you know something, that's really not your call.

Basically, I take care of the law. You take care of the facts. What you have to find out is whether you believe somebody or don't believe somebody. Obviously you can't do that until you hear everything that's coming in.

But at the same time, you . . . sit in a different position. You're . . . a judge of the facts and a judge of the law [sic]. So there may be something from a legal standpoint that you're not quite sure of or you have reservations but that's a different story.

The judge continued:

It's extremely critical to us . . . to know that you can be fair and impartial. And whatever it is, whether you're guilty or not guilty after you've looked at all of the facts, the verdict of the jury will be unanimous and also it will be binding on the parties. But I can't have anybody equivocating. I can't have anybody changing their mind.

Last night, when you were leaving, you . . . seemed to compliment one of the attorneys and at the same time you seemed like it was a criticism of the system to be able to bring out information.

You have to understand something. The attorneys have an obligation, an obligation to do their very best within the bounds of the law.

. . . .

Do you have any disagreement with any of these concepts that I have just covered?

Juror: No, sir.

Judge: Once again, can you be fair and impartial?

Juror: Yes, sir.

Judge: I'm going to open this to the attorneys to ask questions.

The prosecutor had no questions, and defense counsel stated, "I have no questions." The judge asked again: "Can I assume that[,] based upon the questions I've asked[,] both of the attorneys and the defendant are satisfied?" Defendant, who was apparently participating in the proceedings, answered, "Yes." The prosecutor indicated his satisfaction. Defense counsel responded, "I'm . . . well --."

The judge then inquired whether the juror had discussed "this" with any of the other jurors. The juror indicated he had not, and he apologized for any misunderstanding. After allowing the juror to return to the jury room, the judge again asked if the attorneys were satisfied. Defense counsel responded, "Yes, I'm satisfied as well as my client." Defendant again reiterated his personal satisfaction with the court's inquiry. The issue was never again raised.

The jury subsequently returned a guilty verdict. The judge granted the State's motion to impose an extended term, pursuant to N.J.S.A. 2C:43-6(f), and sentenced defendant to a nine-year term of imprisonment with a four and one-half year period of parole ineligibility, along with appropriate financial penalties.

On appeal, defendant raises the following point for our consideration:

POINT I

THE CONVICTION MUST BE REVERSED BECAUSE A JUROR'S BIAS VIOLATES A DEFENDANT'S RIGHT TO A FAIR TRIAL

We have considered this argument in light of the record and applicable legal standards. The argument lacks sufficient to merit to warrant extensive discussion in a written opinion. R. 2:11-2(e)(2). We affirm and add these brief comments.

In State v. Jenkins, 178 N.J. 347, 358 (2004) (quoting State v. Pontery, 19 N.J. 457, 471 (1955), the Court said "a 'defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.'" Here, defendant agreed with the procedure used by the judge. Thereafter, on multiple occasions and in direct solicitation by the judge whether there were any further requests, both defendant and defense counsel affirmatively indicated satisfaction. The judge clearly relied upon these representations in deciding not to question the juror further or excuse him. See id. at 359 (noting the doctrine of invited error applies only if there is "[s]ome measure of reliance by the court").

Furthermore, having conducted an extensive questioning of juror eleven, the judge concluded the juror would consider the evidence fairly and impartially. We accord significant deference to those findings, particularly since, in this case, there is no evidence to the contrary. See State v. Bianco, 391 N.J. Super. 509, 522 (App. Div.) (citing State v. Locurto, 157 N.J. 463, 470 (1999)) (noting deference to be paid to trial court's findings regarding juror bias), certif. denied, 192 N.J. 74 (2007).

Defendant belatedly takes issue with a certain portion of the judge's inquiry, specifically the judge's comment to the juror -- "I can't have anybody equivocating." He claims this essentially misstated the law because it "demand[ed] that a verdict 'be unanimous.'" We acknowledge that the judge's statement was inartful, but, on the whole, the judge's questioning appropriately solicited the necessary information regarding the juror's ability to consider the evidence fairly and impartially. Moreover, reciting the final instructions from the Model Jury Charge, the judge specifically told the jurors:

It is your duty . . . 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.

We have no reason to conclude that juror eleven did not follow the judge's charge. See State v. Wilder, 193 N.J. 398, 415 (2008) ("We credit juries for following instructions carefully and applying the facts, as found, to the law, as instructed.") Affirmed.

1 We have not been provided with the transcript of Wicks' first day of testimony.