STATE OF NEW JERSEY v. JEFFREY MAYES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1078-05T41078-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY MAYES,

Defendant-Appellant.

_______________________________________

 

Submitted February 7, 2007 - Decided March 12, 2007

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-08-1738.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gregory P. Jordan, Designated Counsel, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Lora B. Glick, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of possession of heroin, N.J.S.A. 2C:35-10a(1); possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); and distribution of heroin, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); and found not guilty of possession of heroin with intent to distribute on or near school property, N.J.S.A. 2C:35-7; and distribution of heroin on or near school property, N.J.S.A. 2C:35-7. After appropriate mergers, defendant was sentenced to a seven-year term of incarceration, with a forty-two month period of parole ineligibility. For the reasons that follow, we affirm the convictions but vacate the sentence and remand for re-sentencing.

I.

Defendant's convictions arise from the following facts. On November 16, 2003, Grace Rhee (Rhee) was an inmate in a "boot camp" in Atlantic County. On that day, visiting hours commenced at about 7:00 p.m. and Corrections Officer Jason Richard Mascio (Mascio) was on duty in the "chow hall" where visitation occurs. Mascio testified that Rhee was brought to the "chow hall" for a visit with defendant. They were seated across from one another at a table. Mascio saw Rhee reach across the table, make contact with defendant, and cup her hand. Mascio reported to the sergeant that an inmate made contact with a visitor and "something was passed off to her."

Corrections Officer Domenick T. McNew (McNew) also was on duty at the "boot camp" on the evening of November 16, 2003. McNew testified that he observed Rhee sitting at a table across from her visitor. McNew observed defendant reach his hand across the table. Rhee took something with her right hand, "brought it back across the table and cupped it in her right hand." Rhee got up from the table and came out of the cafeteria. McNew saw Rhee take the "possible contraband" and place it between the waistband of her pants and her stomach "to try to conceal it."

Sergeant Sue Ramsey (Ramsey) testified that Rhee was removed from the cafeteria, taken to another area, and strip-searched in a mop closet inside the female dormitory. When Ramsey pulled Rhee's pants and underwear apart, a small blue package fell to the floor. Ramsey picked up the package. The evidence was secured, taken to the investigation trailer, where it was tested and "came up positive for heroin."

Defendant called Rhee in his defense. She testified that, before she went into the "chow hall" for the visit, the inmates in her unit were having a "shakedown" for a missing razor. Rhee said that a "lady" gave her "something to hold for her." Rhee described it as a "balloon." Rhee said that she was called unexpectedly for a visit and took the "balloon" with her to the "chow hall." Rhee stated that the visit was interrupted because she and defendant were kissing, and the officers saw them exchanging an object.

Rhee was questioned by Mascio after the incident and later gave a taped statement to Sergeant Echevarria (Echevarria), in which she initially stated that during the visit, defendant tried to pass something off to her. However, after further questioning, Rhee said that defendant had, in fact, handed something to her. Rhee testified at trial that she provided her statement to Echevarria because she was scared at the time. Rhee asserted that she did not think that defendant would get in trouble so she "put the blame on him." Subsequently, during a disciplinary hearing at the county jail, Rhee again stated that defendant had passed something to her during the visit on November 16, 2003.

Rhee also said that as a result of this incident she had been charged with possession of heroin and pled guilty to the offense. Rhee noted, however, that when she entered her plea, she did not mention that defendant had passed the heroin to her during the visit. Rhee additionally testified that when she was incarcerated at the Clinton Correctional Facility, she had written a letter to defendant, in which she asserted that another inmate had passed her "something" while the officers were searching the dormitory for a missing razor.

On cross-examination, Rhee stated that she did not recall the name of the person who handed her the "balloon." She conceded that when she was caught with the "balloon" she never told the corrections officers about the other inmate who purportedly gave the "balloon" to her. She also conceded that she never let the prosecutor or the judge know that another inmate had given the heroin to her. Rhee admitted that she had a drug problem and previously had been convicted of various offenses including possession of heroin.

In this appeal, defendant raises the following arguments for our consideration:

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL AFTER A JUROR COMMUNICATED WITH SOMEONE OUTSIDE OF THE JURY AND THEN ATTEMPTED TO MISLEAD THE COURT.

II. DEFENDANT WAS DENIED A FAIR TRIAL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL AND A REVERSAL IS REQUIRED (NOT RAISED BELOW).

A. DEFENSE COUNSEL DID NOT OBJECT TO THE PROSECUTOR'S REMARKS DURING HER SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED.

B. DEFENSE COUNSEL SHOULD NOT HAVE STIPULATED TO THE CONTENTS OF THE PACKAGE BEING HEROIN WHICH WAS ONLY FIELD TESTED BY THE CORRECTIONS OFFICER AT THE SCENE.

IV. THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.

V. THE SENTENCE IMPOSED ON THE DEFENDANT IS UNCONSTITUTIONAL IN THAT IT EXCEEDS THE MAXIMUM SENTENCE AUTHORIZED BY THE JURY'S VERDICT.

II.

Defendant first argues that the trial judge erred in denying his motion for a mistrial after a juror was discharged because he had communicated with someone outside the jury.

The following facts inform our decision on this issue. While the jury was deliberating, the judge received a note from a juror stating that Juror No. 9 had made a phone call and asked questions about the amount of drugs found when Rhee was searched. The judge questioned Juror No. 9. He denied making such a call and telling the other jurors about it. The judge questioned the foreperson of the jury, and she said that Juror No. 9 stated that he called someone and asked questions about the case. According to the foreperson, Juror No. 9 did not say who he called, nor did he say what he learned during the call.

The judge also questioned the juror who wrote the note. She stated that Juror No. 9 told the other jurors that he made a phone call and had asked about the amount of drugs involved in the case. According to this juror, Juror No. 9 said that he wanted to find out the effect that the amount of heroin would have on an individual. The judge questioned the other members of the jury and they confirmed that Juror No. 9 reported that he made the call and asked questions about the amount of drugs that were found.

The judge dismissed Juror No. 9 and replaced him with an alternate. The judge then instructed the jurors that they were to disregard anything that Juror No. 9 may have told them about the phone call. The judge told the jurors that the case involved the alleged possession and distribution of heroin, and the amount of drugs involved had no bearing upon the jury's determinations. The jurors additionally were instructed to begin their "deliberations anew . . . for the benefit of the new juror."

Defendant moved for a mistrial, arguing that the actions of Juror No. 9 may have tainted the jury. The judge denied the motion. The judge stated that the other eleven jurors knew "right away" that the actions of Juror No. 9 were improper. This indicated that the jurors had taken their responsibilities seriously and understood that the case must be decided based on the evidence presented at trial. The judge added that he had instructed the jurors to disregard anything that Juror No. 9 may have said about his phone call and the jurors understood his instructions. The judge concluded that a mistrial was not warranted in the circumstances and continuation of the trial would not result in a manifest injustice.

After the jury returned its verdict, Juror No. 9 was brought before the judge so that the judge could determine whether he was guilty of contempt. Juror No. 9 admitted that he had called his son, mentioned that he was on jury duty, and said that it was a drug case. The juror asserted that he did not say anything about the call until the amount of the drugs was mentioned during the jury's deliberations. At that point, he commented that he made a phone call. He was immediately interrupted by another juror who said that he was not permitted to make any phone calls. Juror No. 9 insisted that he had not discussed the case during the phone call. Juror No. 9 stated that about an hour and a half later, he told the other jurors that he could not reach a decision in the case. He claimed that the vote was 11-1 and there was a lot of animosity in the jury room.

Defendant argues that the jury was tainted and the judge erred by denying his motion for a mistrial. Defendant maintains that there was hostility in the jury room and it was directed at Juror No. 9. Defendant contends that the other jurors used the phone call as a pretext to "rid themselves" of Juror No. 9. We disagree.

Here, the record fully supports the judge's determination that Juror No. 9 had acted in contravention of the judge's clear instruction that the jurors were not to discuss the case with anyone outside the jury room. In our view, the juror's actions, and his lack of candor when questioned by the judge, warranted his removal from the jury. Moreover, R. 1:8-2(d)(1) permitted the substitution of an alternate for Juror No. 9 in these circumstances. The rule provides in pertinent part that

[i]f the alternate jurors are not discharged and if at any time after submission of the case to the jury, a juror dies or is discharged by the court because of illness or other inability to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged.

The juror's failure to abide by the judge's instruction constituted an "inability to continue" under R. 1:8-2(d)(1).

We reject defendant's contention that the removal of Juror No. 9 was "driven by the deliberative process." State v. Jenkins, 182 N.J. 112, 130 (2004). Although Juror No. 9 endeavored to absolve himself of contempt by asserting that the other jurors reported the call to the judge because he did not agree with them, the statements by the other jurors made clear that the jurors acted out of a concern that Juror No. 9 had violated the judge's instruction. Thus, the record establishes that Juror No. 9 was unable to continue for reasons that "were personal to [him]." Id. at 130.

We also find no merit in defendant's contention that a mistrial was required in these circumstances. There is no indication that the jury's fact-finding had proceeded to such a point that an alternate juror could not "play a meaningful role in the deliberations." Id. at 132 (quoting from State v. Corsaro, 107 N.J. 339, 352 (1987)). Moreover, the judge instructed the jurors to begin their deliberations anew. We must presume that the jurors followed the judge's instruction. State v. Nelson, 155 N.J. 487, 510 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999).

III.

We turn to defendant' contention that he was denied the effective assistance of counsel.

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain relief based on a claim of ineffective assistance of counsel, defendant must show that his counsel was deficient, and that counsel's deficient performance prejudiced his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52.

Defendant contends that his counsel erred by failing to object to the following statements made by the prosecutor during her summation:

Take all the evidence, all the facts, accept the reasonable, [and] reject the unreasonable. Accept who is credible and reject who is not credible. That is your duty. That is your job. I submit if you take all the evidence use your common sense, look at the pictures, look at the size of the drugs, take all three, which together is overwhelming evidence, take it back to the jury room with you and I'm going to ask you to ask yourselves one final question, go through the five or seven questions, keep that in mind, one final question to ask if we can't control the distribution of drugs in the jail where can we?

I ask you to use your common sense. I ask you to really think this over. Think about what you would do in a situation, what common people do in a situation and find the defendant guilty.

Defendant argues that the prosecutor improperly personalized the facts, made an emotional argument, and stated her belief in his guilt based on matters not in evidence. We are satisfied, however, that when considered in light of the record as a whole, including the overwhelming evidence of defendant's guilt, the prosecutor's remarks did not deprive defendant of a fair trial. Consequently, defense counsel's failure to object to the prosecutor's statements does not rise to the level of the ineffective assistance of counsel.

Defendant additionally contends that defense counsel erred by stipulating that the "balloon" found on Rhee contained heroin. Defendant asserts that there were a "myriad of questions" regarding this evidence that should have been explored by counsel.

We defer consideration of this claim because it involves "allegations and evidence that lie outside the trial record." State v. Loftin, 287 N.J. Super. 76, 110 (App. Div.), certif. denied, 144 N.J. 175 (1996). See also State v. Preciose, 129 N.J. 451, 460 (1992) (noting the court's general policy against entertaining claims of ineffective assistance of counsel on direct appeal).

Based on the record before us, we cannot determine whether defense counsel erred in stipulating that the substance was heroin. We cannot determine whether counsel's action was in furtherance of some trial strategy, nor can we determine whether there were any reasonable grounds to contest the State's assertion that the substance was heroin. Defendant may raise this claim in a petition for post-conviction relief.

IV.

Defendant argues that the sentence imposed here is manifestly excessive. He additionally contends that the sentence was imposed in contravention of his rights under the Sixth and Fourteenth Amendments to the United States Constitution, as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 468-69, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

In this matter, the judge granted the State's motion to sentence defendant to an extended term pursuant to N.J.S.A. 2C:44-3a because defendant is a persistent offender. It is undisputed that defendant was eligible for sentencing as a persistent offender. The State asserts, however, that defendant should be re-sentenced pursuant to State v. Pierce, 188 N.J. 155, 169 (2006). Therefore, we will vacate the sentence imposed and remand to the trial court for re-sentencing.

Affirmed in part, vacated in part, and remanded for re-sentencing. We do not retain jurisdiction.

 

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A-1078-05T4

March 12, 2007