STATE OF NEW JERSEY v. OSCAR PORTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4869-05T24869-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OSCAR PORTER,

Defendant-Appellant.

_______________________________

 

Argued: May 1, 2007 - Decided August 30, 2007

Before Judges Kestin, Graves and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, 04-12-3785.

Paul Casteleiro argued the cause for appellant.

Sara A. Friedman, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Ms. Friedman, of counsel and on the brief).

PER CURIAM

Defendant, Oscar Porter, was charged in a nine-count indictment with second-degree conspiracy, N.J.S.A. 2C:5-2, -4, and N.J.S.A. 2C:15-1 (first count); two instances of first-degree robbery, N.J.S.A. 2C:15-1 (second and fifth counts); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (third count); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (fourth count); felony-murder, N.J.S.A. 2C:11-3a(3) (sixth count); purposeful and knowing murder, N.J.S.A. 2C:11-3a(1),(2) (seventh count); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (eighth count); and second-degree possession of a handgun with purpose to use it unlawfully, N.J.S.A. 2C:39-4a (ninth count).

During a three-day trial, the testimony disclosed the existence of two victims, one who died from a gunshot wound to the head, and the other who was wounded and who testified as a witness for the State. Counts Two, Three, and Four dealt with the crimes allegedly committed on the surviving victim. Counts Five, Six, and Seven referred to the deceased victim. Counts One, Eight and Nine contained charges relating to both victims. The central issue in the trial was identification.

Jury deliberations began on the third day, June 14, 2005, at 12:14 p.m. On June 15, at 4:25 p.m., after informing the court that it could not reach a verdict on one of the counts, the jury announced it was prepared to report its verdicts on the remaining charges. The court took the verdicts in the order of the counts charged, the foreperson reporting guilty verdicts on Counts One, Two, Three, Four, Six, Eight, and Nine. The foreperson reported a not-guilty verdict on the first-degree robbery charge in Count Five and the jury's inability to reach a verdict on the murder charge in Count Seven.

The court then proceeded to poll the jury. The jurors signified unanimous agreement with the reported guilty verdicts on Counts One, Two, Three, and Four; and with the not-guilty verdict on Count Five. During the poll on Count Six, as the court reached the fourth juror to respond, Juror Number Six, the following colloquy occurred:

THE COURT: [Juror] Six.

JUROR: Yes. I'm sorry, I have to be honest.

[DEFENSE COUNSEL]: What did you say, judge?

THE COURT: You['re] saying no, this is not your verdict?

JUROR: No. I'm sorry, I have to be honest.

THE COURT: Okay. You're saying no[,] this is not your verdict. All right. You know what we're going to do, ladies and gentlemen, we're going to return tomorrow morning at 9 o'clock to resume deliberations in this case.

The jurors were then excused until the following morning.

When the matter resumed the next morning, the judge, out of the jury's presence, summarized for the record what had occurred during the rendering of the verdict the afternoon before, referring to State v. Milton, 178 N.J. 421 (2004); State v. Jenkins, 349 N.J. Super. 464 (App. Div. 2002); and State v. Millett, 272 N.J. Super. 68 (App. Div. 1994), and said: "As far as the Court's concerned, we received final verdicts on Count 1, 2, 3, 4, 5. We did not receive final verdicts on Counts 6 and 7. They need to be polled on Counts 8 and 9." The court continued: "it was apparent that [juror six] changed her mind, and she had a right to that because the verdict on Count 6 was not final until each juror gave their as[s]ent thereto."

The judge also commented on the "highly charged atmosphere [the day before] when we took this verdict[,]" noting that

when the initial verdict was announced in court as guilty on felony murder, . . . a member of the defendant's family ran out of the courtroom screaming and crying. Again, to add to the highly charged emotional atmosphere. * * * I think it did have an effect on what Juror Number 6 did, but . . . whether it did or didn't at that point in time at 4:35 in the afternoon, the Court decided to break the proceedings, and ask the jurors to come back today to continue in this matter.

He then described a ruling he had made:

I have indicated to my officers that there's not to be any members of the defendant's family or the victim's family in the courtroom this morning while I take the tally on the final two counts, and I have done that because of what occurred yesterday afternoon because it had the potential to [a]ffect the final votes on the polling of these jurors, and it could just as easily be the victim's family member who could run out and start carrying on, too. I'm doing it for security reasons.

The judge went on to detail his security concerns, including a shortage of sheriff's officers, concluding: "For all those reasons the Court cut short the proceedings, and quite frankly - and another reason the Court didn't know what to do."

Defense counsel then moved for a mistrial, stating that there was no way of knowing whether the difficulty announced by Juror Number Six bore only upon the sixth count charged or whether it related to Counts One through Five, as well. "We just can't be sure without discussing it in further detail with that juror what was meant. * * * I think it's somewhat inappropriate to talk to her about it. . . . [F]or that reason[,] I believe a mistrial is appropriate in this case." The prosecutor argued in response that the verdict had been flawlessly delivered as to the first five counts, and that the jury should be asked to continue deliberating on the remaining charges and report back on them. The court ruled: "There are final verdicts on Counts 1 through 5. Each juror was given the opportunity to say yes or no to show their final as[s]ent or non[-]as[s]ent to Counts 1 through 5. They all unequivocally unambiguously said yes on Counts 1 through 5."

Defense counsel noted that he had observed the preceding day that Juror Number Six "got more and more upset" as the polling on each of the first five verdicts proceeded, "[s]hook her head, and shook her head, and finally that's it and gave an answer." The judge stated:

She said yes on the first five counts, that's unequivocal, that's established in the record, and it's established she said yes on each of the first five counts. Not Counts 1 through 5[, e]ach one individually. When we got to Count 6, she said no. And I didn't see her shaking her head on either of the counts. I'll accept your representation, but, you know what, doesn't matter if she shook her head or not, she said yes.

Announcing, again, his reliance on Millet for the proposition that "each count of the indictment is regarded as if a separate indictment," and on Milton, the judge denied defense counsel's application for a stay to allow counsel to file an application with the Appellate Division.

You can appeal my decision. * * * [T]his Court went through no uncertain pains to make sure that no juror had been coerced . . . to agree to the verdict[,] that he or she was not fully assented. * * * I'm not going to send them in to resume deliberations on Count 6 and 7 because I think that would be an attempt by this court to coerce a verdict. They have already told us they were hung on 6. On 7[,] we have a hung jury right now, and for the court to have him go in and redeliberate on Count 6 and 7, I think would be viewed as being coerced. * * * I'm going to take the verdicts on Counts 8 and 9 and discharge them.

The jury returned to the courtroom and the polling on counts eight and nine proceeded. Juror Number Fourteen asserted dissent from the previously reported guilty verdict on count eight; and two jurors, Numbers Eleven and Fourteen, declared their dissent in respect of count nine. After the court announced at sidebar that "I'm going to discharge this jury now, and then after they're gone we'll decide where we're going with the result of the case[,]" defense counsel stated:

I most strenuously seek a repolling of Counts 1 through 5. This has shown us today absolutely positively no doubt that this verdict was not right. That this verdict is not proper. It is not unanimous. * * * [T]hey have shown us today this verdict isn't unanimous from [sic] any of these counts, and it would be an injustice to [defendant] to allow these people to leave this courtroom without being told what in God's name happened.

The court ruled: "I'm not going to repoll the jurors' final verdicts on Counts 1 through 5, and I'm going to discharge the jury." Counsel again requested a recess so he could "go to the Appellate Division and ask them the question." That application was denied.

The court proceeded to discharge the jury, noting "you have rendered final verdicts on five of the nine counts of the indictment. The court is declaring a mistrial on the other four counts of the indictment through a hung jury."

Sentencing on Counts One, Two, Three, and Four occurred on September 8, 2005. After noting the applicability of the No Early Release Act, N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A. 2C:43-6c, to each of the convictions, the court sentenced defendant to an aggregate prison term of forty years, with parole ineligibility for eighty-five percent of the term. The aggregate sentence was comprised of a twenty-year term for the first-degree robbery conviction into which the conspiracy conviction was merged; a consecutive twenty-year term for attempted murder; and a concurrent ten-year term for aggravated assault. A previous commitment to probation was terminated without improvement, and the court ordered appropriate monetary assessments pursuant to law.

This appeal is limited necessarily by the terms of the judgment of conviction. Defendant was convicted on Counts One, Two, Three, and Four. It is from those convictions that defendant appeals. He was acquitted on Count Five, and a mistrial was declared on Counts Six, Seven, Eight, and Nine.

On appeal, defendant raises the following issues:

POINT I THE CLOSING OF THE COURTROOM TO THE PUBLIC ON THE FINAL DAY OF THE TRIAL VIOLATED THE DEFENDANT'S RIGHT TO A PUBLIC TRIAL AND THE PUBLIC'S RIGHT TO ATTEND UNDER BOTH THE UNITED STATES AND NEW JERSEY CONSTITUTIONS MANDATING THE REVERSAL OF THE DEFENDANT'S CONVICTION.

POINT II THE DEFENDANT WAS DENIED HIS RIGHT TO A JURY TRIAL WHEN THE TRIAL COURT FAILED TO PROPERLY POLL THE JURY AND ACCEPTED THE VERDICTS ON COUNTS ONE THROUGH FOUR WITHOUT FURTHER INQUIRY OF JUROR NUMBER SIX.

POINT III THE TRIAL COURT IMPROPERLY CONSIDERED ELEMENTS OF THE OFFENSES AS AGGRAVATING FACTORS, CONSIDERED THE DEFENDANT GUILTY OF MURDER AND ABUSED ITS DISCRETION IN IMPOSING CONSECUTIVE MAXIMUM 20 YEAR TERM OF IMPRISONMENT ON THE DEFENDANT'S CONVICTIONS FOR ROBBERY AND ATTEMPTED MURDER.

POINT IV THE TRIAL COURT ERRED IN FAILING TO MERGE AGGRAVATED ASSAULT INTO EITHER ROBBERY WHILE ARMED OR ATTEMPTED MURDER.

Our analysis of the record, in the light of the written and oral arguments advanced by the parties and prevailing legal standards, discloses that none of the issues raised has sufficient merit to warrant a reversal of the convictions, and that the sentences imposed require modification in only one respect.

The trial judge was correct in ruling that the difficulties that occurred when the jury was polled on Count Six and thereafter had no bearing on the validity of the jury's verdict on Counts One through Five.

In Milton, supra, 178 N.J. 421, a three-count indictment was at issue: possession of a controlled dangerous substance (CDS), possession of the CDS with intent to distribute, and distribution or intent to distribute the CDS within 500 feet of public housing. The jury foreperson announced guilty verdicts as to all three counts. When the jury was polled, "[t]he poll on Count One was uneventful, with each juror clearly stating 'guilty.'" Id. at 427. One juror hesitated in response to the poll on Count Two, however; and, when the trial court inquired of that juror, she responded, following another hesitation and prompting by the court: "Um guilty. That was the verdict I gave." See id. at 427-28. The Supreme Court held, with three justices dissenting, that the trial court, in the circumstances developed, should not have accepted this response as a conclusive indication of the juror's vote, but should, rather, have inquired further, even to "interview[] the juror in camera to provide her an opportunity to explain her hesitation, unhampered by the pressure that may have undermined the deliberation process." Id. at 442. "[T]he circumstances required clarification." Id. at 440. The Court, therefore, reversed the conviction on Count Two. The Court also reversed the conviction on Count Three because of its factually overlapping relationship with Count Two. The matter was remanded for a new trial on Counts Two and Three, but the decision had no effect on the conviction for possession of CDS in Count One.

In a similar vein, in this matter, we discern no reason to disregard the verdict on the first five counts in this matter, validly rendered in every way, because of the problems that occurred when the jury was polled regarding subsequent counts. And, we see no relationship between the guilty verdicts, especially those on Counts Two, Three and Four, which bore upon defendant's conduct regarding the surviving victim, and the handling of charges relating to the deceased victim and, generally, to both victims that eventuated in the problems we have described. Cf. State V. Schmelz, 17 N.J. 227, 232-37 (1955); State v. Jenkins, 349 N.J. Super. 464, 474-76 (App. Div. 2002); State v. Millett, 272 N.J. Super. 68, 92-98 (App. Div. 1994).

We reject defendant's argument, based on Rugura v. Lau, 119 N.J. 276, 281 (1990), of a deficiency in the form of the questions asked by the court in polling the jury on Counts One through Five. In inquiring about Counts One and Two, the court stated the reported verdict and instructed: "Please state yes if this is your verdict[.] State no if this is not your verdict." This form of inquiry is proper. See ibid. To be sure, as to Counts Three and Four, the court incorrectly, see ibid., abbreviated its inquiry regarding Count Three: "have you reported the defendant guilty of attempted murder?" and in respect of Count Four: "have you reported the defendant guilty of aggravated assault?" These were deviations from accepted form, which "is intended to determine whether each juror still assents to the verdict[.]" Milton, supra, 178 N.J. at 441. In polling the jury on Counts Five and Six, however, the court reverted to the form of inquiry used in respect of Counts One and Two. The deviation from the appropriate form regarding Counts Three and Four is inconsequential, for the jury clearly knew from the form of inquiry as to Counts One and Two what information the court was seeking.

We need not address the issues relating to the closing of the courtroom on the morning the jury returned to complete delivery of the verdict. As we have observed, the only issues before us in this appeal bear upon the guilty verdicts on the first four counts. Since we have concluded there is no basis for a reversal of the convictions as to those charges, it is of no consequence whether or not the trial court's stated reasons for closing the courtroom to receive the completed verdicts on the remaining counts withstand scrutiny by the standards of State v. Cuccio, 350 N.J. Super. 248 (App. Div.), certif. denied, 174 N.J. 43 (2002).

Our review of the sentencing proceedings discloses no flaw warranting our intervention, except in one particular. In determining to impose maximum-term sentences on defendant, the judge expressly considered the requirements of State v. Natale (II), 184 N.J. 458, 492-96 (2005), decided a month earlier. The recitation of considerations, including the identification of aggravating and mitigating factors and the balancing that occurred, discloses nothing untoward or unwarranted, and we discern no misapplication of discretion in the selection of the prison terms ordered.

The court viewed the acts constituting an aggravated assault to have been essentially independent of and separate from those at the basis of the convictions for robbery and attempted murder, justifying a concurrent sentence for aggravated assault. See State v. Yarbough, 100 N.J. 627, 643-45 (1985). Yet, this observation was but a conclusory statement; no supporting rationale was given sufficient to overcome the general rule that an aggravated assault conviction should, in the absence of special circumstances found and articulated, merge into an attempted murder conviction arising from the same acts in respect of the same victim. See State v. Gilliam, 224 N.J. Super. 759, 764 (App. Div. 1988). See also State v. Russo, 243 N.J. Super. 383, 410-14 (App. Div. 1990). We note also that in State v. Mirault, 92 N.J. 492 (1983), the Supreme Court articulated a similar rule regarding the merger of first-degree robbery and second-degree aggravated assault. See id. at 501-06. Accordingly, the judgment of conviction must be modified to reflect a merger of the conviction on Count Four with the convictions on Counts Two and Three for first-degree robbery and attempted murder, respectively.

 
The convictions and sentences are affirmed, except that the separate, concurrent sentence for second-degree aggravated assault is vacated. The matter is remanded to the trial court for modification of the judgment to reflect a merger of the conviction on Count Four with the convictions on Counts Two and Three.

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A-4869-05T2

August 30, 2007