STATE OF NEW JERSEY v. WILLIAM P. HANCOCK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3168-06T43168-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM P. HANCOCK,

Defendant-Appellant.

_______________________________________________

 

Submitted November 13, 2008 - Decided

Before Judges Cuff, Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-10-2224.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel and on the brief).

Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Peter J. Gallagher, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal, we consider, among other things, (1) whether the prosecutor's comments during summation improperly infringed on defendant's Fifth Amendment right to remain silent, (2) whether the trial judge erroneously failed to pose questions during voir dire regarding the Fifth Amendment right to remain silent, and (3) whether the trial judge correctly handled the peculiar circumstances that arose when the jury returned its verdict. We reject defendant's arguments and affirm.

Defendant was indicted and charged with a single count of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1). At the conclusion of a two-day trial, defendant was found guilty as charged; he was later sentenced to an eight-year prison term, with a four-year period of parole ineligibility.

Defendant appealed, presenting the following arguments in seeking reversal of the judgment of conviction:

I. THE STATE'S ARGUMENT THAT THE DEFENDANT IS GUILTY BECAUSE HE REMAINED SILENT VIOLATES THE DEFENDANT'S FIFTH AMENDMENT AND NEW JERSEY COMMON LAW RIGHT TO BE FREE FROM SELF-INCRIMINATION.

II. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO SHOW THAT ITS WITNESS HAD FIRST-HAND KNOWLEDGE OF THE FACTS (Not Raised Below).

III. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EXPERT OPINION EVIDENCE WITHOUT A PROPER FOUNDATION (Partially Raised Below).

IV. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO ASK THE DEFENDANT'S PROPOSED VOIR DIRE QUESTIONS PERTAINING TO THE PRIVILEGE AGAINST SELF-INCRIMINATION, MAKING IT IMPOSSIBLE TO SELECT A FAIR AND IMPARTIAL JURY.

V. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1, OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE . . . TO REQUIRE THE JURY TO RE-DELIBERATE AFTER THE COURT HAD ANSWERED A JURY QUESTION.

VI. THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ILLEGAL DETENTION OF THE DEFENDANT.

VII. THE SENTENCE IS EXCESSIVE

A. The Defendant Was Improperly Sentenced To An Extended Term.

B. The Trial Court Improperly Balanced The Aggravating And Mitigating Factors.

C. The Court Made Findings Of Fact To Enhance The Sentence.

We find insufficient merit in the arguments contained in Points II, III, VI and VII to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also reject defendant's other arguments for the following reasons.

I

Defendant contends that the prosecutor's summation improperly commented upon his Fifth Amendment right to remain silent. To put the argument in perspective, an understanding of the evidence is helpful.

At trial, the jury heard only three witnesses testify, all members of the Atlantic City Police Department. That testimony revealed that Officers Dooley and Detective Armstrong, with the use of binoculars, were conducting surveillance from a marked police vehicle in an area near Ocean Avenue. They observed that defendant would have brief conversations with various individuals, following which defendant and the other person would enter an alleyway, into which the officers could not see, emerge a "minute or so" later, and then part. They watched this process repeat itself three or four times within a twenty-minute period, following which they instructed Officer Ruzzo to conduct an investigatory stop. As Officer Ruzzo approached, defendant started to walk away while discarding something, which Officer Ruzzo retrieved and which was later identified as CDS. When Officer Ruzzo directed defendant to stop, he complied. A search of defendant did not uncover any additional CDS.

During her summation, the prosecutor made the following comments regarding the observations of defendant's course of conduct immediately prior to the investigatory stop:

And during a 20-minute time period, Officer Dooley and Detective Armstrong observed [defendant] engage in conversations with different people who approached him.

They went into an alleyway where they regrettably for us, they were out of view of these surveilling officers. But, they would come out a minute late[r] separately. And the unknown individuals -- there were three or four of them, we remember -- they left. [Defendant] stayed. And the pattern that was repeated again at least three, if not four times within 20 to 25 minutes without any reasonable explanation as to what was going on.

[Emphasis added.]

With that, defense counsel objected and requested a sidebar at which the following occurred:

[DEFENSE COUNSEL]: [T]he defendant doesn't have to provide any explanation for anything . . . . [The prosecutor] just alluded to [the fact] that [defendant] didn't provide an explanation, that there's no explanation. . . . [C]learly, I can ask for a mistrial but I don't [want] a mistrial. I want an instruction that he doesn't have to provide [an] explanation. The[] [State] ha[s] the burden of proof.

THE COURT: I'll make that clear when I do the charge.

[DEFENSE COUNSEL]: Thank you.

The prosecutor made no further similar comment, and defense counsel had no further objection regarding the prosecutor's summation.

In this appeal, defendant argues that the "clear implication" of the prosecutor's comment was that it invited the jury "to draw an adverse inference from the defendant's failure to come forward and to provide a lawful explanation for his conduct," and complains that the jury was not then instructed to disregard the prosecutor's comment.

Certainly, it is axiomatic that an accused may not be penalized for exercising the right to remain silent upon being confronted by police or thereafter, and that a prosecutor's reference to that silence "has a great capacity for prejudice and misleading of the jury." State v. Deatore, 70 N.J. 100, 117 (1976). But the prosecutor's comments could have been interpreted in more than one way. Although defendant argues that the reference was to defendant's silence, the comment could also have been reasonably interpreted as suggesting that the observations of the police provided no ostensible legal reason why defendant repeatedly walked into and out of the alleyway on repeated occasions. In other words, the prosecutor may not have been referring to defendant's failure to explain what he was doing, only that the circumstances did not suggest a legitimate reason for defendant's conduct.

It is noteworthy that defense counsel made a timely objection; however, he did not insist upon an immediate cautionary instruction. Instead, counsel was satisfied by the judge's indication that the jury would be adequately instructed during his charge at the end of the case on both the burden of proof and defendant's right to remain silent. We find no error in the judge's failure to immediately instruct the jury that no adverse inference should be drawn from defendant's silence upon being stopped by Officer Ruzzo or at any later time. Indeed, we discern from defense counsel's comments at sidebar that he preferred that the instruction wait until later for tactical reasons, such as a concern that an immediate instruction would have only highlighted defendant's silence. And we find no error in the instruction that the judge gave during his final charge on this point. We, thus, find no reversible error in the judge's decision to later instruct the jury on the subject, to which defendant consented.

II

In Point IV, defendant argues that the trial judge should have asked potential jurors whether they could follow his instruction that they could not draw an adverse inference if defendant elected not to testify. Defendant made that request, but the judge chose not to put that specific question to the jury because, as he later explained, defendant had not decided at the time whether he would testify. We agree with defendant that uncertainty about whether a defendant will testify is not a valid reason for failing to pose the question to potential jurors. Indeed, the voir dire questions recently developed for use in our criminal courts demonstrate how the question could be posed even when it is not known whether a defendant will testify:

A defendant in a criminal case has the absolute right to remain silent and has the absolute right not to testify. If a defendant chooses not to testify, the jury is prohibited from drawing any negative conclusions from that choice. The defendant is presumed innocent whether he testifies or not. Would any of you have any difficulty in following these principles?

[Model Jury Selection Questions (Criminal), 25, "Standard Jury Voir Dire" (2007).]

Although, at present, it would be erroneous for a judge to fail to pose this question during voir dire, the quoted standard was not adopted until after the trial in this action. We therefore conclude that the judge's failure to pose the question here did not constitute an abuse of discretion or reversible error. See State v. Papasavvas, 163 N.J. 565, 595 (2000) (holding that voir dire procedures fall traditionally within the trial judge's discretion and the judge's exercise of discretion will not ordinarily be disturbed on appeal). Our review of the entire voir dire reveals that it was otherwise thorough, probing and sufficiently searching to ensure the selection of an impartial jury. State v. Biegenwald, 106 N.J. 13, 29 (1987).

III

We lastly mention the circumstances that occurred during jury deliberations that form the basis for defendant's argument that his due process rights were infringed.

After deliberating for an indeterminate amount of time, the jury returned its verdict. The foreperson indicated in response to the trial judge's inquiry that the jury had found the defendant guilty and that the verdict was unanimous. The judge then polled the jury, during which a juror indicated she did not agree with the verdict. After a very brief discussion with counsel, the judge ascertained from the juror that she "still ha[d] questions in the back of [her] mind." The judge cut off any further discussion, declared that the verdict was not unanimous and directed the jury to return to its deliberations.

A short time later, the jury posed a question for the court; they wanted to know whether "the defendant [was] by himself when the police came around the corner to arrest him." The judge indicated on the record outside the presence of the jury that the parties had an agreement as to the content of the answer to be given the jury:

I believe there is an agreement that the record reflects that the way to answer that question would be that there is nothing in the record about observations by Officer Ruzzo when he came around the corner. But, his testimony was that upon approaching the defendant that the defendant was in fact alone.

With that, the judge directed the court officer to "[b]ring in the jury and I'll answer the question and then see if they want to take a short time for lunch." The court officer, however, advised that "they've got a verdict."

The judge then directed that the jury be brought into open court and he would determine "if they want me to answer the question or if they're satisfied that they have a verdict." When the jury returned, they followed took place:

THE COURT: . . . I had your question and I was prepared to answer your question. And now, I'm informed by the sheriff that you have a verdict. You do have a verdict?

THE FOREPERSON: Yes.

THE COURT: Is it unanimous?

THE FOREPERSON: Yes.

THE COURT: And do you not want me to answer the question or do you want me to answer the question?

THE FOREPERSON: I want you to answer the question for the person that's --

THE COURT: You want me to answer the question?

THE FOREPERSON: Yes.

The judge provided the answer upon which counsel had agreed and then the following took place:

THE COURT: Now, based on that answer, do you wish to go back and further deliberate? Do you wish to go back and further deliberate?

THE FOREPERSON: No, no.

THE COURT: No?

THE FOREPERSON: No, we've --

THE COURT: All right. You have a unanimous verdict?

THE FOREPERSON: Yes, I do.

The foreperson then declared that the jury unanimously found defendant guilty. The jury was again polled; this time, all the jurors indicated their agreement.

In this appeal, defendant argues that, after the jury's question was answered, the judge should have sent the jury back to deliberate further. We do not disagree that what defendant contends represents the better practice. The jurors should have been permitted to consider the response to their question -- and whether it altered the verdict they had unanimously reached prior to receiving the answer -- in secret. Cf., Wright v. Bernstein, 23 N.J. 284, 295 (1957). However, as appears from the dialogue quoted above, and in light of the fact that, when polled, no juror voiced any disagreement or uncertainty about the verdict, we have no cause to conclude that defendant was deprived of the jury's impartial deliberations on the issues presented.

Affirmed.

A note to this jury question states that "The defendant has the right to waive this question. The defendant's decision in that regard should be discussed during the voir dire conference." Ibid.

(continued)

(continued)

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A-3168-06T4

December 5, 2008