STATE OF NEW JERSEY v. TERRY ALLUMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6043-03T56043-03T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRY ALLUMS,

Defendant-Appellant.

___________________________

 

Argued January 18, 2006 - Decided April 28, 2006

Before Judges Kestin, Lefelt and Seltzer.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County,

S-1193-02.

Jill Horowitz argued the cause for

appellant (Donald Horowitz and

Associates, attorneys; Mr. Horowitz,

of counsel and on the brief and

Ms. Horowitz, on the brief).

Ron T. McCormick, Assistant Prosecutor,

argued the cause for respondent (John L.

Molinelli, Bergen County Prosecutor,

attorney; Mr. McCormick, of counsel and

on the brief).

PER CURIAM

Defendant appeals from his convictions on charges of fraudulent use of a credit card, N.J.S.A. 2C:21-6h; receiving stolen property, N.J.S.A. 2C:20-7; and robbery, N.J.S.A.

2C:15-1. He also appeals from the sentences imposed. Because defendant was improperly prevented from attending the sidebar voir dire of potential jurors in violation of State v. W.A., 184 N.J. 45 (2005), we reverse and remand for a new trial.

Given the limited basis for our decision, we provide a truncated recitation of the evidence produced by the State. That evidence would permit a fact-finder to conclude that on October 23, 2001, defendant purchased an item from Sears using a gift card that had been purchased with a stolen credit card. The State also produced evidence that, on the following day, defendant received goods bought by his co-defendant with a gift card purchased with a stolen credit card. Finally, the State produced evidence that when defendant and co-defendant were approached by security officers immediately after defendant had received the merchandise, defendant attempted to leave the area in a vehicle containing the purchased items.

A jury was selected on January 13, 2004. Before selection began, defense counsel moved "to permit the defendant to be present at sidebar conferences with prospective jurors during jury selection." The trial judge denied the application. He explained that defendant would be required "to remain at counsel table which is no more than ten feet from where the questioning will be conducted . . . ." The judge noted that defense counsel would have to walk "only a matter of a few feet" to relay information obtained at the sidebar to defendant and to obtain defendant's comments with respect to prospective jurors. The judge felt this "shuttle" system was necessary to "create an atmosphere more conducive to candor with the prospective jurors."

After a five-day jury trial, defendant was convicted of the three charges we have described. He was sentenced on May 21, 2004, and appealed timely. While that appeal was pending, the Supreme Court decided State v. W.A., supra, 184 N.J. 45, the applicability of which neither party disputes. That case held that a defendant's presence while a prospective juror was questioned at sidebar was a integral component of the defendant's right to be present at trial, id. at 59, and a request to be present should be accommodated "as far as security will allow." Id. at 60. There is no suggestion here that security concerns were implicated by defendant's request to be present when prospective jurors were interviewed at sidebar.

Nevertheless, W.A. subjected those cases in which a defendant was improperly excluded from a sidebar voir dire to a "harmless error" analysis. If the voir dire involves a "matter of substance" and the juror is seated, the error is not harmless. Id. at 65. "Matters of substance" include those issues implicated by the facts of the offense as opposed to questions relating to "juror qualifications such as physical impairments, family obligations, and work commitments." Id. at 64.

Of the twelve jurors who both participated in the verdict and were interviewed at sidebar, six revealed that they, members of their immediate family, or close friends were associated with law enforcement officers or had been the victims of, or charged with, a crime. Much of the evidence adduced by the State came from security officers whose credibility was crucial to the convictions. Under these circumstances, we cannot state that the matters revealed by the six jurors related solely to qualifications. They were, we believe, matters of substance within the meaning of State v. W.A.

Although the State points out that each of the jurors represented that the association or experience disclosed would not affect the ability to judge the evidence impartially, defendant was not required to accept those assurances. The purpose of peremptory challenges is to permit a juror to be excused in the absence of cause. State v. Fortin, 178 N.J. 540, 579 (2004). The inability of defendant to participate fully in deciding whether to exercise a challenge compels the reversal of defendant's conviction and a new trial. See State v. W.A., supra, 184 N.J. at 61.

Given this determination, we need not reach defendant's other contentions, many of which were not presented to the trial judge. We add, however, the following comments with respect to the evidence produced by the State regarding defendant's behavior on October 23, 2001, the date before the crimes with which he was charged took place.

The evidence relating to defendant's use of a store credit card purchased with a stolen credit card was admitted pursuant to N.J.R.E. 404(b) to prove either "a common scheme or plan" or defendant's "intent and knowledge." After his conviction, defendant moved for a new trial, challenging both the admission of the evidence and the failure of the judge to provide instructions limiting the use to which that evidence might be put. The judge rejected the challenges and explained that, despite his prior rationale for admitting the evidence, "[D]efendant's actions are not other crimes or acts under Rule 404(b). The defendant's acts are part of one crime spree and 404(b) does not apply" so that limiting instructions were not necessary.

We take the judge's comments to suggest that he ultimately believed the evidence was res gestae evidence. We are not convinced that conclusion is correct. Nevertheless, if, at the retrial, the State seeks to introduce the same evidence and the defendant interposes the same objections, we anticipate the judge will provide a thorough analysis to support a conclusion that the evidence is admissible either under N.J.R.E. 404(b) or as res gestae evidence. If admitted under N.J.R.E. 404(b), the judge should instruct the jury with respect to the limited use to be made of that evidence. State v. Stevens, 115 N.J. 289, 304 (1989).

Reversed and remanded for a new trial.

 

The husband of juror one "had been in trouble" with the police some five years earlier. The cousin of juror five was, and might have been at the time of jury selection, employed by a District Attorney in Rockland County. The uncle of juror eight was a Bergen County police officer. A good friend of juror ten was a United States Marshall. Juror eleven numbered among his friends several police officers and a chief of police in GlenRock. Juror fourteen was a member of Crime Watch in 1990, his home had been vandalized in 1997, and his daughter's SUV had been vandalized.

(continued)

(continued)

6

A-6043-03T5

April 28, 2006