STATE OF NEW JERSEY v. TYSHON BEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4985-02T44985-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYSHON BEY,

Defendant-Appellant.

_________________________________________________

 

Submitted September 27, 2005 - Decided November 18, 2005

Before Judges Skillman and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

I-01-10-4132.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael C.

Kazer, Designated Counsel and on the

brief).

Peter C. Harvey, Attorney General,

attorney for respondent (Maura K.

Tully, Deputy Attorney General, of

counsel and on the brief).

PER CURIAM

Defendant Tyshon Bey was observed to be selling drugs in East Orange, within 1,000 feet of the Islamic Center Day School, by two off-duty narcotics detectives employed by the Essex County Sheriff's Office. The detectives called for assistance, and two uniformed sheriff's officers responded. Bey was arrested, and seventy-nine bags of cocaine were discovered in the stash from which Bey had procured an item exchanged in the witnessed sale. He had $534 in his possession at the time of arrest.

Bey was indicted for and convicted following a jury trial of the third-degree crimes of possession of cocaine, N.J.S.A. 2C:35-10a(1), possession of cocaine with the intent to distribute it, N.J.S.A. 2C:35-5a(1) and -5b(3), and possession of cocaine with the intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7. At sentencing, the convictions were merged into the school zone offense, and Bey was sentenced to a three-year term in state prison, with a three-year period of parole ineligibility. An erroneous calculation of the applicable fines and penalties was corrected on remand following an application by the State for that relief.

On appeal, Bey makes the following arguments:

POINT I

THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE HIS CONSTITUTIONAL RIGHT TO A FAIR AND IMPARTIAL JURY WAS COMPROMISED BY THE TRIAL COURT.

(A)

THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO AN IMPARTIAL JURY BY FAILING TO EXCUSE JUROR FOUR FROM THE JURY PANEL BECAUSE THE JUROR WAS A POLICE OFFICER IN THE SAME VENUE WHERE THE CRIME WAS ALLEGED TO HAVE BEEN COMMITTED BY THE DEFENDANT.

(B)

THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO AN IMPARTIAL JURY BY FAILING TO CONDUCT A SUPPLEMENTAL VOIR DIRE OF JUROR FOUR UPON THE DEFENDANT'S REQUEST.

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE ON THE CHARGE OF POSSESSION OF COCAINE WITH THE INTENT TO DISTRIBUTE WITHIN A SCHOOL ZONE ON COUNT THREE.

POINT III

THE PROSECUTOR COMMITTED MISCONDUCT IN SUMMATION BY SUGGESTING THAT THE JUROR'S "OATH" REQUIRED THEM TO FIND THE DEFENDANT GUILTY. (NOT RAISED BELOW.)

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED THE LAW OF "MERGER" IN IMPOSING SENTENCE.

(A)

THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING DEDR, VCCB AND SNSF BENALTIES ON THE DEFENDANT'S CONVICTION FOR POSSESSION OF COCAINE ON COUNT ONE AND POSSESSION OF COCAINE WITH THE INTENT TO DISTRIBUTE ON COUNT TWO BECAUSE THOSE COUNTS MERGED INTO THE DEFENDANT'S CONVICTION ON COUNT THREE FOR POSSESSION OF COCAINE WITH THE INTENT TO DISTRIBUTE WITHIN A SCHOOL ZONE.

(B)

THE MATTER SHOULD BE REMANDED IN ORDER TO ENTER AN AMENDED JUDGMENT OF CONVICTION.

We reverse as the result of a mistaken exercise of judicial discretion occurring in the jury selection process.

I.

Defendant's challenge to jury selection arises out of the court's reliance upon the lack of any statement by a Newark police officer whose "in-law" served on its Narcotics Task Force that he would be unable to fairly judge defendant's case and its refusal to conduct further questioning of the prospective juror to determine whether he should be excused for cause. The issue arose near the end of jury selection after defense counsel had exercised his last peremptory challenge. At that time, a potential juror was called to fill seat number four, and he was asked if he had answered "yes" to any of a series of printed questions supplied to each juror when seated in the jury box. The questions included whether he had relatives or close friends associated with law enforcement, there was any reason he could not judge the testimony of a police officer in the same fashion as any other witness, and there was any reason he could not fairly judge the matter to be tried. After the juror responded "no," the following exchange took place:

THE COURT: Please tell me about any close friends or relatives connected with law enforcement.

JUROR FOUR: My in law is a police officer.

THE COURT: And where is he a police officer?

JUROR FOUR: In Newark.

THE COURT: Do you know what unit he's assigned to?

JUROR FOUR: The narcotics Task Force.

THE COURT: Any other yes answers, sir?

JUROR FOUR: No.

THE COURT: What is your profession?

JUROR FOUR: I am a police officer.

THE COURT: What is that at?

JUROR FOUR: Newark.

THE COURT: What unit are you assigned to?

JUROR FOUR: Patrol Division.

Following additional questioning regarding the occupation of the juror's wife, whether he had children, and what his interests were, a sidebar conference occurred, at which time defense counsel requested an opportunity to question the prospective juror further about his occupation and whether he could fairly assess the testimony of a brother officer in a case in which the veracity of the police witnesses would be challenged. Counsel continued: "I don't really see how someone who works side by side with an officer can engage in that function. Further more, [juror four's] brother in law is in narcotics and I believe that is the unit that investigated this case." The prosecutor responded that the Sheriff's Bureau of Narcotics worked independently from the police's Newark Task Force, but he acknowledged that they might occasionally work assignments together.

Following this exchange, defense counsel challenged the juror for cause, stating: "They're hasn't been any questions as to whether he could evaluate police officers under the same standard." The prosecutor argued:

This juror was asked if he could weigh the testimony of a police officer in the same fashion with any other witness. The Judiciary thinks that police officers are capable jurors. They have not excluded them from jury experience and I don't think that this juror should be excused for cause.

The court then responded:

In past jury selection and indeed in this jury selection there have been officers as well who have no problem telling this Court when it is that they could not be fair and impartial and because it's this individual's job [as] a police officer, I think it would be a bias on the part of the Court to bring him over and to question whether or not he's being truthful in saying no to the questions other than question four ["Do you have any relatives or close friends connected with any law enforcement agency?"]. I am not bringing him over to ask him further questions about whether or not he could judge the testimony of others who are police officers in a fair and impartial fashion.

Defense counsel then moved for additional peremptory challenges, claiming an under representation of African Americans on the jury. His motion was denied, and jury selection was concluded.

On the following day, before the jury was sworn, defense counsel renewed his challenge for cause to juror four, his request for further voir dire, and his request for additional peremptory challenges, premising his argument on the Supreme Court's decision in State v. Reynolds, 124 N.J. 559 (1991). Counsel argued, in part:

Your Honor, we have a situation that is different from Reynolds in that we have exhausted our challenges. We do not have any peremptory challenges to make. I had asked the Court to inquire further concerning any potential bias of the witness. The Court declined to do that indicating that the witness had not responded that he could not be fair in a jury questionnaire that was given to him.

I would note for the record that the juror did not respond on the record as to whether he had even read that question. The Court commonly asked jurors if you have read the questions on the jury questionnaire. We don't have any affirmative indication that he has read or responded to that question.

At the conclusion of defense counsel's argument, the prosecutor stated, because he did not "want the risk of reversible error based on keeping this juror because the State's proofs are strong," he would consent to having juror four excused for cause. Both counsel agreed that if the juror were excused, jury selection should continue with a new panel, but that the defense would have no additional peremptory challenges unless granted by the court.

The judge denied defense counsel's application, finding that other jurors who had connections with law enforcement had experienced no difficulty in disclosing when they could not be fair and impartial, and that there was "no indication" from juror four "that he was at all uneasy about the questions or the responses that he gave." The jury was then sworn, and trial took place. Juror four participated in the jury's deliberations and its guilty verdicts.

Following defendant's conviction on all counts, defense counsel moved for a new trial on the basis, among others, of the court's refusal to ask additional questions of juror four, to excuse him for cause, or to grant the defense additional peremptory challenges. The court denied the motion, stating first that because the occupations of alphabetically-listed potential jurors are provided to the attorneys, defense counsel should have known of the possibility that when he exercised his last peremptory challenge, a police officer could be chosen to fill the existing vacancy. The judge continued:

At the point when the request was made to either excuse juror number four [f]or cause or to allow additional challenges, the Court had asked juror number four if he had answered yes to any of the [printed] questions and he had not answered yes to any of the questions. He did answer and tell us what his position was as well as provide some biographical information. There was no indication in any of the responses that this juror [g]ave to give any hint to this Court that he was asserting that he could be anything other than impartial, fair and impartial.

Since juror number four did not inform the Court that he had any problem with any of the questions nor did he request the side bar, this Court had no clue that he was [not] going to be impartial and in fact exempted on the basis of that. He was telling the Court that he could be fair and impartial.

After stating that unless a potential juror indicated that he or she could not be fair and impartial, the court concluded there was no basis for conducting, and it would be inappropriate to conduct, further inquiry regarding potential bias. The motion for a new trial on this ground was thus denied, as it was in all other respects.

II.

We find that the manner in which the court conducted voir dire was ineffective, and that the court failed to fully appreciate the function of that exercise under the Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution, both of which guarantee to a criminal defendant the right to a trial before an "impartial" jury of the defendant's peers. As the Supreme Court has stated:

The courts in this State have recognized that under the State Constitution, Art. I par. 10, the right of a defendant to be tried by an impartial jury is of exceptional significance. We have stressed repeatedly that the triers of fact must be "as nearly impartial 'as the lot of humanity will admit.'"

[State v. Williams, 93 N.J. 39, 60 (1983) (citations omitted).]

The court acts as gatekeeper in securing and preserving an impartial jury, and in this role is charged with the duty of ensuring the jury's impartiality throughout the trial process. State v. Tyler, 176 N.J. 171, 181 (2003). In the present case, the court had the duty to ensure the absence of bias among the jurors who were selected, since that bias could affect jury deliberations and the verdict itself.

The trial judge chose in this matter to utilize a pre-printed jury questionnaire as an aid in jury selection. We recognize that such a practice is common among judges in the Criminal Part, and we have no objection to it. Approval of the practice was recently expressed by the Special Supreme Court Committee on Peremptory Challenges and Voir Dire (Voir Dire Committee) in its report of May 15, 2005. See id. at 32. However, as the Voir Dire Committee stated, "this may not serve as a substitute for orally asking each question to each juror." Ibid.

The fact that relevant information may be omitted if agreed-upon questions are not asked directly of each juror was illustrated in this case by the failure of juror four to indicate in response to the court's initial question whether he had an affirmative response to any of the court's written questions that, not only was he a police officer, but his in-law was a Newark police detective working in its Narcotics Task Force - an omission upon which the court later commented. The information was of clear relevance in choosing a jury in a drug possession and distribution case utilizing law enforcement officers as witnesses.

Further, because the court never asked the juror to state whether he could judge the testimony of a fellow-officer in the same manner as other testimony and whether he could judge the case fairly, counsel and their clients were deprived of crucial evidence on these essential issues. The court's presumption that the juror could be fair, premised upon the juror's failure to volunteer that he could not, lacked an adequate foundation.

We also find it to have been a mistaken exercise of the judge's discretion in the circumstances presented to have denied defense counsel's request for further inquiry regarding the juror's attitudes. As the Voir Dire Committee observed:

When there is something particular about the juror that raises a red flag in a particular case type (e.g. a police officer in a criminal case, a nurse in a medical malpractice case, etc.), follow-up questioning should be sufficiently probative to ferret out the ability of the individual to fairly judge the case; merely asking whether, notwithstanding the apparent impediment, he or she could be fair and impartial, with a conclusory answer, is not sufficient.

* * *

It is in those cases where the jurors give the "right' answer, i.e., that they can be fair, where the judge must evaluate the reliability of that answer in light of all the other answers the juror has given, the juror's background, and the juror's demeanor. Judges must not mechanistically accept the "right answer" if it is placed in significant doubt by the other relevant circumstances.

[Voir Dire Committee Report at 39.]

As we have noted, in this case, the "right answer" was merely hypothesized by the court, and no follow-up questioning was permitted to test the court's assumption of impartiality.

The Supreme Court has held that as defense counsel approaches the exhaustion of his peremptory challenges, "the trial court should become increasingly sensitive to the possibility of prejudice from its failure to dismiss [a] juror for cause." State v. Bey, 112 N.J. 123, 155 (1988). We cannot determine on the basis of the record created by the trial judge here whether a dismissal for cause was warranted. The record is insufficient for such an evaluation to occur. It thus may have been that, upon further inquiry, defense counsel would have been satisfied that juror four could judge the matter fairly and impartially. The problem that exists is that the question of bias remained unanswered, whereas the potential of prejudice to defendant remained. Yet when defense counsel, lacking meaningful voir dire, requested the court to excuse the juror for cause, and even after the State consented to the request in order to avoid potential error, the court rejected the application.

As the Supreme Court has observed in a case in which it held that members of the law enforcement community were not automatically excluded from jury service by N.J.S.A. 2A:69-1 and that police officers could serve as jurors if they chose to do so:

If members of the law-enforcement community do not opt out of jury service, they are ordinary jurors available to serve on general jury panels. We have no sense that the ordinary citizen-litigant would feel it inappropriate to have a member of the law-enforcement community sit as a juror in a contract or products-liability matter.

On the other hand, we can well imagine that a criminal defendant would not be so easily assuaged. Although strictly speaking an excusal for cause may not be required, prudence counsels that a court, on request of a defendant in a criminal case, should be inclined to excuse a member of the law-enforcement community.

[Reynolds, supra, 124 N.J. at 564-65.]

In Reynolds, upon which defense counsel heavily relied in his applications at trial and his motion for a new trial, a juror, Kaminski, was challenged for cause on the ground that he had once worked as an investigator in the Division of Criminal Justice with defense counsel and because of his presumed "proclivity to assume that State Police don't lie." Id. at 566. The Supreme Court held that the trial judge's refusal to excuse the juror for cause was not reversible error. Id. at 567. However, there, specific questioning of the juror as to his potential biases occurred, and thus the court had grounds for noting his demeanor, which was found to be "outstanding." Ibid. The Court stated: "[g]iven the responses by juror Kaminski with respect to his fairness and openness" the court's failure to excuse him for cause did not constitute error. Ibid. The Reynolds Court further noted that, in contrast to counsel here, defense counsel had eight peremptory challenges remaining that could have been utilized to excuse the juror if counsel had deemed it to be warranted. Id. at 568.

Nonetheless, the Court concluded: "To avoid challenges such as this, we believe that in criminal cases a court, on request of a defendant, should tend to favor excusal of a member of the law enforcement community." Ibid.

We are mindful that the determination to excuse a juror for cause or to refuse additional voir dire lies within the trial court's discretion, to which deference must be accorded on appeal. State v. Simon, 161 N.J. 416, 465 (1999); State v. Hunt, 115 N.J. 330, 348 (1989). However, we find in this case that a mistaken exercise of discretion occurred, and that because the integrity of the jury selection process was not adequately maintained, reversal is required, regardless of the lack of any showing of actual prejudice. Tyler, supra, 176 N.J. at 182; State v. Wagner, 180 N.J. Super. 564, 567 (App. Div. 1981).

The Supreme Court stated in State v. Fortin that

The trial court's duty "to take all appropriate measures to ensure the fair and proper administration of a criminal trial" must begin with voir dire. A "vital aspect" of that responsibility is to ensure the impaneling of only impartial jurors by ferreting out potential and latent juror biases. To carry out that task, a thorough voir dire "should probe the minds of the prospective jurors to ascertain whether they hold biases that would interfere with their ability to decide the case fairly and impartially." Although a trial court's exercise of its broad discretionary powers in conducting voir dire "will ordinarily not be disturbed on appeal," we have not hesitated to correct mistakes that undermine the very foundation of a fair trial the selection of an impartial jury.

[ 178 N.J. 540, 575 (2004) (citations omitted).]

Here, the trial court, at a minimum, should properly have asked each juror individually the questions set forth on the jury questionnaire. The court should not have assumed from the absence of a response indicating an inability to judge fairly the testimony of various witnesses and the trial itself that the juror could be fair. Additionally, the court should not have rejected defense counsel's request for additional voir dire, and should have conducted a further examination to determine, among other things, whether the juror had arrested persons for drug offenses, whether he had testified in criminal cases, whether he had worked with or knew officers in the Essex County Sheriff's Department, whether he or his in-law had participated in joint investigations with members of that department, and whether he or his in-law has ever worked with members of the Essex County Prosecutor's Office. If, upon receipt of those responses, any question remained whether the juror could be impartial, he should have been dismissed for cause. Because none of these steps occurred, we reverse.

III.

Defendant additionally contends that evidence of the commission of a drug offense within a school zone was insufficient. We find that argument to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-4(e)(2). A map, certified as accurate by the City Engineer of East Orange, indicating that the location where the offense occurred lay within a school zone was shown to the jury and placed in evidence, and a detective witness testified that he had observed students leaving the Center with books.

In light of our resolution of defendant's jury selection argument, we find no need to address defendant's additional claim that the prosecutor committed misconduct in his closing argument.

We note that the sentencing errors of which defendant complains, consisting of the imposition of fines and penalties on counts that were merged with defendant's school zone conviction, were corrected upon remand.

 
Reversed and remanded for a new trial.

The questions asked whether (1) the juror knew persons named as potential witnesses or the location of the alleged crime; (2) there was any reason the juror could not accept the presumption of innocence and the State's burden of proof; (3) the juror had heard or read anything about the case; (4) the juror had relatives or close friends connected with law enforcement; (5) there was any reason the juror could not judge the testimony of a police officer by the same standards as any other witness; (6) the juror had prior jury experience; (7) the juror or anyone close to him or her had ever been the victim of a crime; (8) the juror had ever been accused, arrested, or convicted of a crime; (9) the juror had ever been a witness in a court case; (10) there was any reason the juror could not follow the court's instructions on the law; (11) there was any reason the juror could not be impartial; and (12) there was anything in the nature of the charge that affected the juror's ability to be fair and impartial.

Although we recognize that this list of questions has become the norm, we urge their supplementation through detailed follow-up or additional questions to provide counsel with a more adequate foundation for the exercise of peremptory challenges.

It is unclear from the record what led the court to ask this question. However, we note that a juror's occupation is generally specified on the list of potential jurors comprising a panel that is given to the attorneys and the court when a panel arrives for jury selection.

The record reflects that this question was not posed to juror four.

This report can be found at htp://home.courts.judiciary. state.nj.us/notices/reports/peremptory_voirdire.pdf.

The Committee also recommended a far more extensive voir dire than heretofore has been commonly employed or was employed in this case.

The statute was replaced in 1997 by N.J.S.A. 2B:20-1, which contains no language that could be construed as an exemption from jury service of members of any profession.

(continued)

(continued)

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A-4985-02T4

November 18, 2005