STATE OF NEW JERSEY v. ROBERT FIGUEROA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2941-04T22941-04T2

STATE OF NEW JERSEY,

 

Plaintiff-Respondent,

v.

ROBERT FIGUEROA,

Defendant-Appellant.

____________________________

 

Submitted April 25, 2006 - Decided June 23, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Criminal Part,

Union County, 03-10-01110.

Anthony J. Pope and Associates, attorneys

for appellant (Annette Verdesco, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel and Mr. Kaflowitz and Amy F. Newcombe, on the brief).

PER CURIAM

Defendant appeals from his conviction of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5c.

On appeal, defendant asserts that: "The trial court committed reversible error in denying appellant's motion for a new trial." The motion for a new trial was premised on a belief that: (a) the judge coerced the ultimate guilty verdict by improperly responding to the jury's advice that it was unable to reach a verdict; (b) defense testimony was improperly excluded; and (c) the judge failed to take appropriate action, at defendant's request, in response to the prosecutor's charges in summation that defense witnesses were "lying." We believe defendant's first argument has sufficient merit to justify a reversal of the conviction and a remand for a new trial.

Defendant does not contest the sufficiency of the evidence to sustain the verdict. Nevertheless, a short recitation of that evidence is necessary to place our discussion of the defendant's first argument in context.

On February 16, 2003, Samir Pretlow and Phillip Austin were shot in the vicinity of Deja's Bar on First and Court Streets in Elizabeth, New Jersey. Pretlow died without providing any statement to the police. When Austin was initially questioned by the police, he was uncooperative, identifying himself by several different names although the police ultimately determined his true identity. When asked who had shot him, he did not provide any names although he did say that he thought "the suspects may be from out of town because he knew all the guys there."

The next day, however, Austin provided a written statement to the Elizabeth Police in which he claimed that defendant and Pretlow had had a "tussle" inside Deja's Bar which they continued outside the bar. He claimed that co-defendant, Colon, went to his motor vehicle, described by Austin as a "greyish, charcolish like, an Intrepid," to retrieve a gun that he ultimately gave to defendant. He asserted that defendant used that gun to shoot Austin and Pretlow.

When he testified at trial, however, Austin failed to recall any of the events surrounding the shooting and he specifically denied seeing Colon hand defendant a gun. Defendant produced a private investigator, David Foster, who had taken a taped statement made by Austin in which Austin recanted the statement given to the police on the day after the shooting. The statement given to Foster was consistent with the testimony Austin gave at trial.

The State also produced testimony from Willie Davis. Davis claimed to be Pretlow's best friend. He related a dispute between defendant and Pretlow and claimed that he saw Colon get a gun from his car and hand it to defendant. He testified to seeing defendant aim the gun at Pretlow who grabbed for it, after which defendant again pointed the gun at Pretlow. Davis then claimed to have fled the scene. While fleeing, he testified, he heard shots. Several days later he appeared at the police station and gave a statement describing the incident, although many of the details contained in his trial testimony were absent from statement originally provided to the police.

Davis also admitted giving a recanting statement to Foster ("I, Willie Davis, did not see anything at all on any date."),

although at trial he repeated the substance of his original statement, claiming that he was intimidated when he gave the recanting statement.

Defendant did not testify. He did produce two witnesses. The first was Joseph Rolo who testified that he was the manager of an automobile repair shop and that Colon's car was in his shop for repairs from February 10 or 11, 2003, until February 24, 2003. If believed, this testimony would contradict Davis's testimony that Colon had retrieved the gun from his car. Finally, the defense produced Investigator Foster who testified to the recanting statements given by Davis and Austin.

During his summation, the prosecutor vigorously attacked the testimony of the defense witnesses. He attacked Foster, accusing him of being a "blatant liar" and a "documented liar". Rolo was also called a "liar" and a person who "lied on the stand." Austin, a witness called by the state was also referred to as "a liar" who was "clearly, clearly lying" with respect to his recanting statement.

In short, the evidence against defendant, while sufficient to sustain a verdict, was not overwhelming. It rested primarily on the testimony of two witnesses, only one of whom identified defendant as the shooter at trial. Both witnesses had given prior statements in which they asserted that they could not identify defendant as the shooter.

Against this background, the jurors began deliberations on Tuesday, October 26, 2004, at 2:45. The record is not clear when they adjourned for the evening or when they returned the following day but there was a luncheon recess between noon and approximately 1:30. Shortly before 2:25, the jurors advised the judge that they were unable to reach a verdict. The judge had the jury return to the courtroom, where he made the following comments:

THE COURT: All right. I received your note and will read it into the record for the purpose of the record.

"Judge, we cannot unanimously agree[] on the verdict."

You began your deliberations yesterday at 2:45. It's 2:26 today, and I want to tell you, right now, that one day does not a deliberation make. Sometimes it takes time to go through the process.

And in response to your note I just want to speak with you for a minute or two. I want to speak about the jury deliberation process to be sure that you fully understand just what is contemplated.

It is a process in which you are asked to do two things. You are asked to listen to what is being said by the other jurors with a view towards accepting what you hear, and at the same time you are asked, when it's your turn to speak, to speak with a view towards persuading the others to what you are saying, and it works when jurors are able to do both. It's not that difficult to do when you realize what is a rational deliberative process and it's a process of which you are requested, as you listen to what the others are saying, to receive that with an open mind, in other words, in a receptive frame of mind to be persuaded to what you are hearing. Then, as I say, when you speak you are also to speak with a view towards persuading the others to what you are saying.

Now, that, obviously, is an ongoing process, but functions when the jurors are only able to do both and you do that in a building block fashion . . . if you will, where you start out with some rather basic simple facts and begin to move on from there to other facts and you talk about the evidence and then address, are we satisfied with this, that, or the other thing has been established and exists, and what you are doing is building a foundation, if you will, a factual foundation, and then when you've done that you begin to then address, what does that mean? What does this tell us? What may we properly and reasonably infer from what we've concluded are the basic facts and what is a strong rational inference or is it not? Are we persuaded we should draw that inference and only when you've gone through that, still just dealing with the facts and drawing inferences from those facts do you get, then, to the elements of the offense and ask yourselves, now, has the State established this element beyond a reasonable doubt, but all throughout that process it is both a speaking and listening deliberation and each juror is expected to listen with a view to be persuaded by what the others may be stating and what the juror hears at the time, and also speaking with a view towards persuading others as to what is to be said at the time. Through that deliberation, through that rational process you begin to go and build those blocks.

I got to be here tomorrow, I got to be here Friday. I got nothing going on on Saturday, and Giants are playing away on Sunday, so we will be here as long as it takes you to go through this process.

I want you to continue, but I want you to do so keeping in mind what I said both now and earlier, the basic instructions that I delivered to you yesterday. I think if you focus on that process and what is being asked of you as a deliberating jury that, maybe, that will be of some assistance to you.

[emphasis added.]

Defendant objected and requested that the court explain to the jury that they would not be held over the weekend unless a verdict was reached. Counsel specifically indicated that no mistrial was requested. The judge refused to add to his comments and less than one and one-half hours later, the jury returned with a verdict of "guilty."

Defendant asserts that the emphasized comments were impermissibly coercive. We agree. We begin from the axiom that "coercion of a jury is not permissible in any degree under our constitutional system of judicial administration. The resolution of the facts is the exclusive province of the jury, and an invasion of the independence of that tribunal vitiates the verdict." In re Stern, 11 N.J. 584, 588 (1953), rev'd on other grounds, 16 N.J. 73 (1954). See also State v. Spruill, 28 N.J. Super. 381, 391 (App. Div. 1953) ("Coercion of a jury is not permissible in any degree under our constitutional system of judicial administration.").

The literal sense of the language used by the judge was to inform the jury that they would remain in the courthouse until a verdict had been reached, even if it meant continuing through Sunday. On the motion for a new trial, the judge explained that he intended to do nothing more than indicate to the jury that there would be sufficient time for a considered deliberation. He believed that, "taken in the totality of the circumstances up close and live with an opportunity to observe here, as opposed to the written word," there was no coercive effect. In its appellate brief, the State urges that "a reasonable juror would have understood that the judge was being facetious by alluding to the weekend."

The difficulty with such an explanation, however, is that "appellate courts are ill-equipped to detect . . . the extent of jury coercion or confusion[.]" State v. Czachor, 82 N.J. 392, 398 (1980). There is, on the other hand, every reason to believe the jury would not have seen these remarks as anything other than what they purported to be - a judicially enforced continuation of the deliberative process until a verdict has been reached. The representation that the weekend would be devoted to jury duty has the clear capacity to cause the jury to reach a verdict on consideration of jury convenience rather than on the weight of the evidence.

Nor may a judge, given the role assigned to that office, expect judicial comments to be recognized as an exaggeration or a facetious remark.

"The judge * * * is the governor of the trial for the purpose of assuring its proper conduct and the fair and impartial administration of justice between the parties to the litigation." 53 Am. Jur., Trial, sec. 74, p. 73. "The trial judge occupies a high position. He presides over the trial. The jury has great respect for him. They can be easily influenced by the slightest suggestion coming from the court, whether it be a nod of the head, a smile, a frown, or a spoken word. It is therefore imperative that the trial judge shall conduct himself with the utmost caution in order that the unusual power he possesses shall not be abused." State v. Wheat, 131 Kan 562, 292 Pac 793, 85 A.L.R. 1412, 1417 (Sup. 1930).
 
[Marino v. Cocuzza, 14 N.J. Super 16, 22 (App. Div. 1951).]

The influence exerted by trial courts is well recognized. See Peter David Blanck, The Appearance Of Justice: The Appearance Of Justice Revisited, 86 J. Crim. L. & Criminology 887, 894 (1996) ("Trial and appellate courts acknowledge that juries, witnesses, and other trial participants accord great weight and deference to even the most subtle behaviors of the judge."); Joe Cecil and Valerie Hans, Citizen Comprehension Of Difficult Issues: Lessons From Civil Jury Trials, 40 Am. U.L. Rev. 727, 777 (1991) ("The courts, legal scholars, practitioners, and social scientists recognize that trial judges' verbal and nonverbal behavior may have important effects on trial processes and outcomes. Courts caution repeatedly that juries may accord great weight and deference to even the most subtle behaviors of the trial judge.") (footnotes omitted.).

We believe the judge failed to appreciate the effect his comments might have on the jury. We have no confidence that the jury was able to overcome the clear suggestion that they would remain in the courthouse throughout the weekend unless they were able to reach a verdict. We similarly have no reason to believe, especially given the exalted position of authority with which we cloak our trial judges, that the jurors were able to recognize what the judge may have meant to be hyperbole. The threat of continued deliberations cannot be overcome, as the State suggests, by reference to instructions given the previous day directing the jurors to deliberate without violating the dictates of their conscience. See State v. Czachor, supra, 82 N.J. at 400 ("There appears to be no obvious basis for the assumption that jurors subjected to mental pressure by reference to extraneous, coercive factors in an instruction can extricate themselves from such coercive influence.").

In short, we believe the judge's comments tainted the process, requiring a new trial. The remaining arguments advanced on appeal lack sufficient merit to justify discussion in a written opinion. See R. 2:11-3(e)(2). We add, however, that at the retrial any allegations that a witness is "lying" should be firmly tied to facts in the record justifying the allegation and care should be taken to insure the jury is fully aware that the appellation is one that is suggested by the record and not by the personal opinion of the prosecutor. See State v. Abdullah, 372 N.J. Super. 252 (App. Div. 2004), rev'd on other gounds, 184 N.J. 497 (2005).

Reversed and remanded.

 

Defendant's Notice of Appeal also indicates an appeal from the sentence imposed. He has not briefed that issue and, accordingly, it is deemed abandoned. Liebling v. Garden State Indemn., 337 N.J. Super. 447, 465-66 (App. Div.), certif. denied, 169 N.J. 606 (2001).

The language quoted from Wheat comes from a dissenting opinion. Nevertheless it has been quoted approvingly by the Kansas Supreme Court. State v. Hamilton, 731 P.2d 863, 868 (Kan. 1987).

(continued)

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A-2941-04T2

June 23, 2006