STATE OF NEW JERSEY v. ERIC GRAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC GRAY,

Defendant-Appellant.

_________________________________

December 12, 2016

Submitted November 28, 2016 Decided

Before Judges Sabatino and Haas.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-06-0527.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Eric Gray appeals from the January 9, 2015 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Following a jury trial, defendant was convicted of second-degree robbery and third-degree theft from a person as lesser-included offenses of first-degree robbery. The trial judge merged the theft conviction into the second-degree robbery conviction and sentenced defendant to an extended term of thirteen years in prison subject to the 85% parole ineligibility period required by the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed, and our Supreme Court denied certification. State v. Gray, No. A-2931-10 (App. Div. Aug. 21, 2013), certif. denied, 217 N.J. 295 (2014).

Defendant then filed his petition for PCR, principally contending his trial counsel rendered ineffective assistance of counsel by failing to ask the trial judge to question all of the jurors after learning that one of them, Juror No. 4, had had an "intimate relationship" with a detective who testified for the State. Defendant also argued that his trial attorney should have objected "to numerous instances of prosecutorial misconduct" during the trial.

We need not repeat the facts developed at trial, which are set forth in detail in our decision on direct appeal. Gray, supra, (slip op. at 4-11). Instead, we focus upon the facts relevant to defendant's claims for PCR.

During the jury selection process, the trial judge read a list of names of potential witnesses to the jury. The detective's name was on this list. During her individual voir dire, Juror No. 4 did not disclose that she knew the detective and she was selected to serve on the jury.

The detective testified on Thursday, March 11, 2010, the first day of testimony. At the end of his testimony, the detective told the prosecutor that he recognized Juror No. 4. The prosecutor immediately advised defendant's attorney, and they requested a sidebar with the judge.1 The detective then left the courtroom.

After the State's next witness completed his testimony, the trial judge excused all of the jurors except Juror No. 4. In the presence of the prosecutor and defendant's attorney, the judge told the juror that the detective "indicated that he may have recognized" her. Juror No. 4 stated, "he is either a friend of a friend of a friend type situation. I don't really know him very well personally." The juror also stated that she had not seen the detective for over three years. The judge told the juror, "just please don't discuss it with any of the other jurors that you know[.]" As noted above, the other jurors had already been excused for the day.

At the start of the next trial day, Tuesday, March 16, 2010, the trial judge, the prosecutor, and defendant's attorney arranged for the detective to appear in court outside of the jury's presence. The detective testified under oath that he and Juror No. 4 had "messed around probably about three years ago" and "there was an intimate relationship at one point between" them.

Based upon the detective's testimony, the trial judge stated he was inclined to excuse Juror No. 4. The prosecutor agreed, as did defendant's attorney. However, defendant's attorney noted for the record that defendant disagreed with his position and wanted the juror to remain on the jury. The judge asked the jury aide to bring Juror No. 4 into the courtroom as soon as she arrived.

When Juror No. 4 got to court, she was immediately brought into the courtroom. The judge told the juror that he was going to excuse her from the jury. He also asked her whether she had discussed "this issue with any other jurors or the fact that you were left behind" at the end of the day on March 11, 2010. Juror No. 4 replied, "No, not with anybody." The judge then excused Juror No. 42 and stated he was "satisfied by her response that this issue wasn't discussed with any of the other members that are currently in the deliberation room."

Turning to defendant's claims of prosecutorial misconduct, defendant complained that the prosecutor asked one of the victims how he felt after defendant left the gas station after the robbery. The victim replied that he felt "really scary, really scary" and that he was "[n]ot comfortable" testifying in court about the incident because his family was "afraid that [he was] in danger[.]"

Defendant also argued it was improper for the prosecutor to ask one of the police officers whether he "had occasion to interact with [defendant]. . . on any other occasion?" The witness replied, "Yes, I did; a month prior." Defense counsel objected, a sidebar was conducted,3 and the prosecutor did not ask any further questions regarding the matter.

During his summation, the prosecutor noted that defendant's attorney had "point[ed] to [defendant's] education" during his closing statement. In response, the prosecutor stated, "[s]mart people sometimes do dumb things. It's obvious [defendant] did some dumb things in his past. It's obvious that he did a pretty dumb thing on March 19, 2009[,]" the date of the robbery. Defendant also complained that the prosecutor improperly speculated defendant may have been "contemplating robbing the store on the inside," before going back outside and robbing the gas station attendant. Finally, defendant asserted the prosecutor "belittled" him by stating that defendant "had some cockamamie explanation" for what occurred on the day of the robbery.

In his brief in support of his petition for PCR, defendant argued that his trial attorney was ineffective because he failed to demand that the trial judge question all of the jurors to determine whether Juror No. 4 had told them about her prior relationship with the detective. Defendant also asserted that his attorney was ineffective because, with one exception, he never objected to any of the incidents of prosecutorial misconduct outlined above.

Following oral argument, the PCR judge rejected defendant's contentions in a written opinion. With regard to defendant's claim that Juror No. 4 had tainted the entire jury, the judge concluded that defendant failed to satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), which requires a showing that trial counsel's performance was deficient and that, but for the deficient performance, the result would have been different.

Contrary to defendant's contention, the PCR judge found that the trial judge "took immediate steps to investigate and resolve the issue of an allegedly biased juror." In addition, the PCR judge noted that the trial judge had made a credibility call that Juror No. 4 had been forthright when she confirmed that she never discussed her relationship with the detective with any of the other jurors. Under these circumstances, the PCR judge found that defendant's trial counsel was not ineffective for failing to ask the judge to question the other jurors.

Turning to defendant's claim that his attorney should have objected to incidents of prosecutorial misconduct, the PCR judge stated that defendant had raised this contention on his direct appeal and, therefore, the claim was barred by Rule 3:22-5 (stating that "[a] prior adjudication on the merits of any ground for relief is conclusive [when] made in any post-conviction proceeding"). Therefore, the judge did not address the merits of defendant's contention. This appeal followed.

On appeal, defendant argues

POINT I

THE PCR JUDGE ERRED WHEN SHE RULED DEFENDANT WAS BARRED FROM BRINGING A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO CHALLENGE PROSECUTORIAL MISCONDUCT AS PREVIOUSLY ADJUDICATED.

POINT II

DEFENDANT'S PETITION FOR [PCR] SHOULD NOT BE BARRED AS HAVING HAD THE POTENTIAL OF BEING HEARD IN PRIOR PROCEEDINGS BECAUSE NO RECORD EXISTED TO MAKE THAT ADJUDICATION AND BECAUSE THE INTERESTS OF JUSTICE REQUIRE HIS CLAIMS BE HEARD.

POINT II[I]

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO [PCR].

A. Counsel was ineffective for failing to demand the trial court address the issue of jury taint with the remaining jurors after learning [Juror No. 4] had an intimate relationship with one of the State's key witnesses.

B. Counsel was ineffective for failing to object to numerous instances of prosecutorial misconduct which deprived defendant of his constitutional right to a fair trial.

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

To establish a prima facie claim of ineffective assistance of counsel, the defendant is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, l04 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066; 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, the defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

Having considered defendant's contentions in light of the record and the applicable law, we affirm the denial of his petition for PCR. Turning first to the contention defendant raises in Point III.A, we conclude that defendant's trial attorney was not ineffective because he failed to ask the trial judge to question the other jurors about whether Juror No. 4 had spoken to them about her past relationship with the detective.

"The Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants the right to . . . trial by an impartial jury." State v. R.D., 169 N.J. 551, 557 (2001) (alteration in original) (citations and internal quotation marks omitted). Thus, a criminal defendant "is entitled to a jury that is free of outside influences and [that] will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself." State v. Williams, 93 N.J. 39, 60 (1983). "The securing and preservation of an impartial jury goes to the very essence of a fair trial." Ibid.

"[I]f during the course of the trial it becomes apparent that a juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." R.D., supra, 169 N.J. at 557-58. As we have held,

The thrust of the New Jersey and federal cases on mid-trial allegations of jury misconduct is that the trial judge must make a probing inquiry into the possible prejudice caused by any jury irregularity, relying on his or her own objective evaluation of the potential for prejudice rather than on the jurors' subjective evaluation of their own impartiality. Although the trial judge has discretion in the way to investigate allegations of jury misconduct, an adequate inquiry on the record is necessary for the purposes of appellate review.

[State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div.) (citations omitted), certif. denied, 151 N.J. 466 (1997).]

Significantly, there is no per se rule requiring the individual voir dire of each juror. R.D., supra, 169 N.J. at 560-61. The appropriate method for determining if an individual voir dire is necessary was explained in R.D. as follows

An appropriate voir dire of a juror allegedly in possession of extraneous information mid-trial should inquire into the specific nature of the extraneous information, and whether the juror intentionally or inadvertently has imparted any of that information to other jurors. . . . [T]he court must then determine whether it is necessary to voir dire individually other jurors to ensure the impartiality of the jury.

[Id. at 560.]

We review a judge's decision regarding questions of the conduct of a jury voir dire for abuse of discretion. Id. at 559-60.

Here, the trial judge scrupulously followed these principles. Once the issue was brought to his attention, the judge conferred with the prosecutor and defendant's attorney. At the next break in the testimony, which occurred at the end of the trial day, the judge excused all of the other jurors and spoke to Juror No. 4 alone in the courtroom in defendant's and the attorneys' presence. The judge questioned Juror No. 4 about her relationship with the detective and gave each attorney the opportunity to follow up with questions of their own.

The very next trial day, the judge began by questioning the detective to determine the nature of the relationship. Both the prosecutor and defendant's attorney agreed with the judge that Juror No. 4 should be excused. As soon as Juror No. 4 arrived, the judge had her brought to the courtroom, where she confirmed that she had not spoken to any of the other jurors about her relationship with the detective. The judge found that Juror No. 4 was credible and excused her from the jury.4

We discern no abuse of discretion in the judge's determination. The judge properly addressed the issue under Scherzer, supra, and R.D., supra. In addition, the judge had the opportunity to hear, see, and evaluate Juror No. 4 during the voir dire, and we defer to his finding that the juror did not speak with the other jurors about her relationship with the detective. See State v. Locurto, 157 N.J. 463, 471 (1999) (holding that an appellate court should give "deference to those findings of the trial judge which are substantially influenced by his [or her] opportunity to see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy") (citing State v. Johnson, 42 N.J. 146, 161-62 (1964).

Because we conclude the judge was not obligated to individually question each of the other jurors, defendant's attorney was not ineffective under either Strickland prong because he failed to ask for such a voir dire. Therefore, we reject defendant's contention on this point.

We now address defendant's contentions in Points I, II, and III.B that his trial attorney was ineffective because he did not object to "numerous instances of prosecutorial misconduct" at trial. Initially, we note that the PCR judge did not address the substantive merits of defendant's claim on this point because she mistakenly concluded that defendant had raised alleged prosecutorial misconduct as an issue on direct appeal. However, as the State concedes and as stated in our prior opinion, he did not. Gray, supra, (slip op. at 2-4).

Therefore, contrary to the PCR judge's decision, defendant's claim was not barred by Rule 3:22-5. Moreover, even if defendant had raised this issue on direct appeal, his claim of ineffective assistance by trial counsel in failing to object to the alleged prosecutorial misconduct at trial is cognizable in a PCR application under Rule 3:22-4(a)(1). Preciose, supra, 129 N.J. 451, 460 (1992) (noting that "[i]neffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding").

Under these circumstances, we could remand the matter to the trial court to consider defendant's contention on its merits. However, the facts underlying defendant's claim of ineffective assistance of counsel on this point are readily apparent from the record before us. Therefore, we will exercise our original jurisdiction and address the issue raised by defendant because it is "necessary to the complete determination of [this] matter on review." R. 2:10-5.

Prosecutorial misconduct is not a basis for reversal unless the conduct was "so egregious that it deprived defendant of a fair trial." State v. DiFrisco, 137 N.J. 434, 474 (1994) (quoting State v. Ramseur, 106 N.J. 123, 322 (internal quotation marks omitted), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). We analyze a prosecutor's comments within the context of the whole trial. State v. Feaster, 156 N.J. 1, 64 (1998). A reversal is warranted only where the misstep was so egregious that it clearly and unmistakably deprived the defendant of a fair trial. State v. Echols, 199 N.J. 344, 360 (2009); State v. Kelly, 406 N.J. Super. 332, 351 (App. Div. 2009), aff'd, 201 N.J. 471 (2010). This standard requires some degree of real possibility that an error led to an unjust result, namely, one sufficient to raise a reasonable doubt as to whether it caused the jury to convict where it otherwise would have acquitted. State v. R.B., 183 N.J. 308, 330 (2005); R. 2:10-2.

Considerable leeway is also afforded to prosecutors in presenting their arguments to the jury at trial "as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). Accordingly, the prosecutor's statements to the jury must constitute a clear infraction and "substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his defense" in order to warrant a reversal. State v. Roach, 146 N.J. 208, 219 (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied sub nom., Bucanis v. New Jersey, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).

Applying these principles, we are satisfied that no misconduct warranting a reversal occurred in this case. Taken in context, the prosecutor's question asking the victim whether he was afraid of defendant was reasonably connected to establishing an element of the robbery charge, namely, whether defendant put the victim "in fear of immediate bodily injury[.]" N.J.S.A. 2C:15-1(a)(2). The prosecutor did not dwell on this topic and promptly moved on to other matters. Similarly, defendant's attorney immediately objected when the prosecutor asked the police officer whether he had ever interacted with defendant before; a sidebar was held; and the subject was dropped. Under these circumstances, we discern no prejudice to defendant by these individual questions.

Similarly, the prosecutor's remarks during his summation were fair comments upon defendant's contentions and, in any event, were fleeting and non-prejudicial. The prosecutor stated he did not know whether defendant entered the store attached to the gas station to see if there were any other witnesses or to rob the store. This was a fair comment upon the proofs presented at trial by both parties. Similarly, the prosecutor's "cockamamie" remark, although rather colorful, was a fair comment directed to the lack of credibility of defendant's testimony. Finally, the prosecutor's statement that defendant may have been "smart" as his attorney had argued in his closing statement, but "did a pretty dumb thing" on the day of the robbery, was not improper, but instead an appropriate response to defense counsel's advocacy.

Under these circumstances, defendant's attorney was not ineffective for failing to object to these comments or to ask for curative instructions. Therefore, defendant failed to meet either prong of the Strickland test and his petition for PCR was properly denied.

Affirmed.

1 The transcript indicates that the sidebar was "completely inaudible" and, therefore, it is not part of the record.

2 The trial judge had selected fourteen jurors at the beginning of the trial. Thus, there were still enough jurors to continue the trial.

3 This sidebar was also "inaudible."

4 As noted above, defendant objected to his attorney's acquiescence to the judge's decision to remove Juror No. 4 from the jury. He does not contend that this particular objection deprived him of effective assistance.