COURT OF STATE OF NEW JERSEY v. DELANCE J. SAMUELS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DELANCE J. SAMUELS, a/k/a

LANIE J. SAMUELS,

Defendant-Appellant.

___________________________________

July 17, 2015

Submitted March 17, 2015 Decided

Before Judges Hayden and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 12-01-0084 and 13-05-0511.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for defendant (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Following a jury trial, defendant Delance J. Samuels was convicted of all charges: third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(3)(count two); and third-degree distribution of a CDS, N.J.S.A. 2C:35-5b(3) (count three). After granting the State's motion for a discretionary extended term, the trial judge imposed a sentence of six years with a two-year period of parole ineligibility on count three, and merged the other two counts. In addition, the judge imposed mandatory fees and penalties as though the counts were not merged.

Before us, defendant raises the following issues

POINT I

MR. SAMUELS WAS DENIED HIS CLEAR RIGHT TO BE PRESENT DURING JURY QUESTIONS AND THE RETURN OF THE VERDICT, AND BECAUSE HE DID NOT WAIVE THAT RIGHT, HE IS ENTITLED TO A NEW TRIAL. ([U.S. CONST. amend.] VI, XIV; [N.J. CONST. art.] I, PARS. 1 AND 10).

POINT II

THE JUDGE ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL.

POINT III

THE JUDGE ERRED IN IMPOSING FINANCIAL PENALTIES ON MERGED OFFENSES.

We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction and remand the matter solely for the purpose of amending the judgment of conviction ("JOC") to vacate imposition of fees and penalties on the merged offenses.

I

We discern the following facts and procedural history from the record. On July 23 and 24, 2013, defendant was tried before a jury on the CDS possession and distribution charges. To address the issues on appeal it is unnecessary to recount the circumstances that led to the three charges on which defendant was tried. After deliberating for less than an hour, the jury decided to take a lunch recess. At some point during the recess, defendant became ill and was taken from the courthouse on a gurney by emergency medical personnel to the hospital, in the presence of several jurors.

After the recess concluded and the jury returned to its deliberations, defendant's counsel moved for a mistrial contending that some of the jurors may have been prejudiced by seeing defendant removed from the courthouse. Counsel was not aware what caused defendant's illness, or the seriousness of the illness. Nonetheless, he argued that the jurors' observations could cause them to infer negative "thoughts as far as whether Mr. Samuels may or may not be have been on drugs or stressed or slipped and fell. The outcome that the jury may or may not come up with might be tainted as a result thereof." At the same time defense counsel was making his motion, the trial judge was presented with questions from the jury.

The judge denied the motion, but advised defense counsel and the prosecutor that she would instruct the jury not to consider defendant's medical emergency in their deliberations and would inquire if any juror could not follow the instruction. As for the jury's questions, the attorneys agreed with the judge that she could not answer the questions and the jury would have to rely upon their collective recollection of the evidence.

When the jury returned to the courtroom, the judge stated

Ladies and Gentleman, there was a medical emergency. You're not to speculate as to why the [d]efendant may have had a medical emergency.

You're to disregard it, totally strike it from your memory. It should not enter into your discussions or deliberations in any way at any time.

It was not evidence presented in the courtroom and you're not to speculate one reason or another as to why he had that medical emergency.

Is there anyone that feels that they cannot follow that instruction? If so, please raise your hand. Very Good.

No juror raised a hand to indicate that he or she could not follow the instruction. The judge then acknowledged the jury's questions, and told the jurors "to rely on their combined recollection as to the evidence. [Are] you asking for a playback of that testimony?" The jury responded that it wanted a playback.

While the playback was being arranged, the judge asked the attorneys at sidebar if they had any concerns over her limiting instruction. They expressed no concern, and voiced no objection to the testimony playback. After the playback, the jury continued deliberating approximately ten minutes. Then, it returned its verdict on all charges, with defendant not present in the courtroom.

At sentencing, it was stated that defendant's medical emergency was caused by seizures. As noted, defendant was sentenced to six years in prison with a two-year parole ineligibility on count three, and the other two counts were merged. However, mandatory fees and penalties were imposed on the two counts as though they were not merged. This appeal followed.

II

It is well settled that the United States and New Jersey Constitutions guarantee a defendant's right to be present for every stage of his trial. State v. Luna, 193 N.J. 202, 209 (2007) (citations omitted). Our court rules have codified this principle in Rule 3:16(b), which provides

The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule. Nothing in this Rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver [14] may be found either from (a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date, or (2) trial has commenced in defendant's presence.

However, a defendant's reason for being absent and the part of the trial he missed must be considered to determine prejudice. In State v. Dellisanti, 203 N.J. 444, 460-61 (2010), the Court held that there were no grounds for reversal of the defendant's conviction pursuant to Rule 3:16 when the trial judge answered two jury questions and the jury returned its verdict during the defendant's absence from his trial to go to a local hospital for a medical evaluation due to chest pains.1 The Court viewed the defendant's absence as a voluntary waiver of his right to be present; his failure to object or move for a new trial constituted his consent that the trial proceed in his absence. Id. at 460.

Furthermore, the Court cited State v. Auld, 2 N.J. 426 (1949), the earliest case interpreting the court rule protecting a defendant's right to be present at trial, "for the propositions that due process requires only that a defendant be able to contribute to his defense and that a violation of defendant's due process right to presence must be assessed from the perspective of whether a fair and just hearing was thwarted by defendant's absence." Id. at 457-58. As such, the Court concluded there was no presumption of "prejudice to defendant because the jury was told that an undisclosed medical need caused him not to be present when the jury returned to the courtroom to have [33] its simple factual questions answered by the court and also when it returned its verdict." Id. at 460.

Defendant argues that Dellisanti supports reversal of his conviction because unlike the defendant there, he did not waive his right to be present as he was incapacitated due to illness and his counsel objected to the trial going forward by moving for a mistrial. Defendant asserts he was prejudiced by the trial judge's failure to protect his right to be present. Specifically, he argues that if he had been in court, he might have been able to advise his counsel that a testimony playback was not a necessary response to the jury's questions. Defendant also relies upon the dissent's comment in our unpublished decision in State v. Dellisanti, No. A-5230-07 (App. Div. July 30, 2009), citing State v. Morton, 155 N.J. 383, 473 (1998) (Handler, J., dissenting), for the proposition that he was deprived of psychologically influencing the jury's verdict. Defendant further contends that due to the uncertainty of his condition, the judge should have adjourned the trial for the balance of the day. We are not persuaded that defendant's right to be present at his trial was violated.

Here, the trial judge's decision to proceed with the trial in defendant's absence is supported by Dellisanti and does not violate Rule 3:16 or constitutional due process rights. Like the circumstances in Dellisanti, defendant's absence from court due to medical reasons was explained to the jury, and he was not present when the jury posed two simple fact questions to the court and later rendered its verdict. Also, similar to Dellisanti, defendant did not object to the trial proceeding in his absence. His counsel sought a mistrial, not an adjournment, due to some of the jurors observing defendant being removed from the courthouse by emergency medical personnel. No motion or request for an adjournment was made. Thus, as in Dellisanti, defendant, in effect, waived his right to be present.

Moreover, we see no prejudice to defendant's defense by the trial continuing in his absence. Defendant provides no reasonable explanation how his absence due to his untimely illness affected the jury's deliberations to his detriment. His argument that had he been present, he could have prevented the testimony playback prompted by the jury's questions, is pure speculation and has no legal support. On the record before us, we perceive no basis for challenging the trial judge's response to the jury's questions. As noted, defendant's trial counsel agreed with the judge that she could not answer the jury's questions and a playback was appropriate. With respect to defendant's reliance on the dissent in Dellisanti for the proposition that he was deprived of psychologically influencing the jury's verdict, unpublished and dissenting opinions are not precedential or binding authority. Rule 1:36-3; See In re Civil Commitment of W.X.C., 204 N.J. 179, 194-95 (2010). Moreover, we do not find the proposition persuasive under the circumstances in this matter.

Next, we address defendant's contention that the trial judge erred in denying his motion for mistrial based upon some of the jurors' observation of seeing him being removed from the courthouse on a gurney by emergency medical personnel. It is important to underscore that "[f]aith in the ability of a jury to examine evidence critically and to apply the law impartially serves as a cornerstone of our system of criminal justice." State v. Afanador, 134 N.J. 162, 178 (1993). A mistrial is an extraordinary remedy, which should be used only to prevent manifest injustice. Yough, supra, 208 N.J. at 397; State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). Granting or denying a motion for a mistrial rests within the sound discretion of the trial court. State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, Harvey v. N.J., 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). "For that reason, an appellate court should not reverse a trial court's denial of a mistrial motion absent a 'clear showing' that 'the defendant suffered actual harm' or that the court otherwise 'abused its discretion.'" Yough, supra, 208 N.J. at 397 (quoting State v. Labrutto, 114 N.J. 187, 207 (1989)); see also R. 2:10-1.

Further, where the trial judge gives curative instructions to ameliorate the consideration of inadmissible evidence, we defer to the judge's determination when weighing its effectiveness to ensure that the curative instruction focuses on the capacity of the offending comment to lead to an unjust verdict. State v. Winter, 96 N.J.640, 647 (1984). The decision whether curative instructions are sufficient in curing the introduction of inadmissible evidence "is one that is peculiarly within the competence of the trial judge[.]" Ibid.

We are satisfied that a mistrial was not warranted. Given the stage of the trial and the two questions presented by the jury, the trial judge did not abuse her discretion in denying the motion for mistrial as there was no unjust result from proceeding in defendant's absence. There is no plausible indication that defendant was prejudiced by his medical emergency.

Besides, the trial judge's curative instructions were sufficient to ameliorate any prejudice that may have been caused by some of the jurors' observations of defendant being removed from the courthouse by emergency medical personnel. The judge directed the jury not to speculate about defendant'smedical situation and not consider it in their deliberations. Although the judge was addressing an incident that occurred outside the courtroom and not within the confines of the trial presentation, she made it clear to the jury that the occurrence had no evidential value for their deliberations. After the judge gave the instructions, the record indicates that no juror indicated an inability to follow her instructions to disregard defendant'sabsence and not consider his medical emergency in their deliberations. See id. at 649 (noting "[t]he record lends no support to the suggestion that the jurors were unable to comply with the court's instruction"). Moreover, there was no objection to the judge's curative instructions.

Lastly, the State agrees with defendant that the trial judge should not have imposed mandatory fees and penalties for counts one and two which merged into count three. We agree as well.

Defendant's convictions are affirmed. We remand to the trial court to amend the JOC by vacating the fees and penalties on counts one and two. Jurisdiction is not retained.

1 This was the Court's second opinion in this matter as an earlier opinion had to be withdrawn due to the factual inaccuracy regarding the defendant's absence. Dellisanti, supra, 203 N.J. at 448.