STATE OF NEW JERSEY v. LEE JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5330-06T45330-06T4

A-6330-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEE JOHNSON, a/k/a

DUVAL JOHNSON,

Defendant-Appellant.

___________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RODNEY JOHNSON,

Defendant-Appellant.

___________________________________

 

Submitted September 30, 2009 - Decided

Before Judges Fuentes, Gilroy and Simonelli.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Indictment No.

05-03-0305.

Yvonne Smith Segars, Public Defender, attorney

for appellant Lee Johnson A-5330-06 (Jay L.

Wilensky, Assistant Deputy Public Defender, of

counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney

for appellant Rodney Johnson A-6330-06 (Michael C.

Kazer, Designated Counsel, of counsel and on the

brief).

Edward J. DeFazio, Hudson County Prosecutor,

attorney for respondent (Nidara Y. Rourk, Assistant

Prosecutor, on the briefs).

Appellants Lee Johnson and Rodney Johnson filed

pro se supplemental briefs.

PER CURIAM

On February 8, 2005, a Hudson County grand jury indicted defendant Rodney Johnson, charging him with: conspiracy to commit armed robbery in the first degree, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2); causing the death of another during the commission of an armed robbery (felony murder), N.J.S.A. 2C:11-3a(3); three counts of first degree armed robbery, N.J.S.A. 2C:15-1; five counts of attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; five counts of second degree aggravated assault, N.J.S.A. 2C:12-1b(1); five counts of second degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2); three counts of third degree assault against a police officer, N.J.S.A. 2C:12-1b(5)(a); third degree knowing possession of a handgun without a permit, N.J.S.A. 2C:39-5b; second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; fourth degree knowing possession of a defaced firearm, N.J.S.A. 2C:39-3d; and second degree possession of a firearm by a person previously convicted of one or more of the offenses listed in N.J.S.A. 2C:39-7b.

That same grand jury indicted defendant Lee Johnson on the following charges: second degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2); causing the death of another during the commission of armed robbery (felony murder), N.J.S.A. 2C:11-3a(3); three counts of first degree armed robbery, N.J.S.A. 2C:15-1; three counts of first degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; three counts of second degree aggravated assault, N.J.S.A. 2C:12-1b(1); three counts of second degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2); third degree assault against a police officer, N.J.S.A. 2C:12-1b(5)(a); third degree knowing possession of a handgun without a permit, N.J.S.A. 2C:39-5b; second degree possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4a; fourth degree knowing possession of a defaced firearm, N.J.S.A. 2C:39-3d; second degree possession of a weapon by a person who has been previously convicted of one or more of the crimes listed in N.J.S.A. 2C:39-7b; and third degree giving false information to law enforcement for the purpose of hindering apprehension, prosecution, conviction, or punishment, N.J.S.A. 2C:29-3b(4).

Defendants were tried together before the same jury. Rodney Johnson was convicted of the following crimes: second degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2); murder during the commission of an armed robbery (felony murder), N.J.S.A. 2C:11-3a(3); two counts of first degree armed robbery, N.J.S.A. 2C:15-1; third degree knowing possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and second degree knowing possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a.

Lee Johnson was convicted of the following crimes: conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2); causing the death of another during the commission of an armed robbery (felony murder), N.J.S.A. 2C:11-3a(3); first degree armed robbery, N.J.S.A. 2C:15-1; attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; aggravated assault, N.J.S.A. 2C:12-1b(2); aggravated assault against a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a); knowing possession of a handgun without a permit, N.J.S.A. 2C:39-5b; possession of a handgun with an unlawful purpose, N.J.S.A. 2C:39-4a; knowing possession of a defaced firearm, N.J.S.A. 2C:39-3d; and giving false information to law enforcement in order to hinder apprehension, prosecution, conviction, or punishment, N.J.S.A. 2C:29-3b(4).

The court sentenced both defendants to aggregate terms of life imprisonment, with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run consecutive to sentences they are serving on unrelated matters. The court also imposed the required fines and penalties.

Based on the evidence presented before the trial court, and mindful of prevailing legal standards, we affirm.

I

On November 12, 2004, at approximately eleven o'clock in the evening, two men, subsequently identified as defendants, robbed the United Fried Chicken store located on the corner of Martin Luther King Drive (MLK) and Stegman Street in Jersey City. Several people were inside the store at the time, including David Ransom and his cousin James Ransom. David identified defendant Lee Johnson as one of the persons inside the store when he arrived. According to David, Lee was "acting rowdy" and pointing a handgun at a security camera located inside the store.

At one point, Lee and various other individuals left the store. As David and James waited for their food order, Lee and Rodney re-entered the store and demanded that the patrons turn over their wallets. David testified that Lee wore a tan jacket and brandished a handgun.

David threw his wallet onto the floor as directed. Rodney, who was wearing a hooded sweatshirt with "Pepe" on the back and "dark denim with red and white stitching," recovered the wallet. According to David, when Lee made a comment to James Ransom about being "the big dog" in the neighborhood, Rodney began "sucker punching" David in the face. David attempted to block the blows from striking his face. At this point, David heard what sounded like shots being fired; when he turned, he saw Lee shoot his cousin James. Both defendants then "sped out" of the store. After they left, David heard more shots, this time coming from outside the store. James Ransom was subsequently pronounced dead; his death was ruled a homicide.

On cross-examination, David admitted that he did not actually see a gun in Rodney's hand. Moreover, despite not having any doubt that Lee and Rodney had been in the fried chicken store that evening, David conceded that the first time he had positively identified either of the defendants was at the time of trial. In fact, he could not recall whether he gave the police a taped statement after the incident.

Defense counsel then played for the jury a portion of the taped statement David gave to the police on November 13, 2004. On the tape, David identified one shooter as a man in a tan jacket and a second individual who had "[d]reds." By way of explanation for these memory mishaps, David claimed that he was emotionally distraught when he was at the police station after the shooting.

Robert A. Hennigar manages the Closed Circuit Television Unit of the Jersey City Police Department. At the time of this incident, closed circuit television cameras (CCTC) were located in the vicinity of the store where the robbery and shooting had occurred; these cameras were operational on the evening of the incident. According to Hennigar, one camera was installed at the intersection of MLK Drive and Dwight Street and another camera was located at the intersection of MLK Drive and Stegman Street.

The morning after the incident, Hennigar became aware that portions of the robbery had been recorded by both cameras. Hennigar "removed the original VHS tapes that recorded the incident and placed them into evidence and then subsequently [gave] copies [of the tapes] to the homicide unit and the south detectives." He later copied the tapes onto a compact disc and printed his name on the bottom of it with the case identification information. These tapes were admitted by the trial court for the limited purpose of supporting and corroborating the testimony of several police officer witnesses. Portions of the tapes were played as particular police officers testified concerning what he observed when he arrived at the crime scene.

Jersey City Detective Victor Smith was working off-duty in uniform at a nearby recreational center when a woman reported that shots had been fired at the fried chicken store. As he walked towards the corner of MLK Drive and Stegman Street, Smith reported the alleged shooting to the appropriate precinct.

As he neared the store, Smith heard the sound of gunshots and saw simultaneous flashes from the store's window. He confirmed via radio that shots were being fired and requested immediate backup. When he was approximately fifteen feet away from the store, Smith saw defendants leaving the store and "brandishing weapons." By the time Smith arrived, "the gunshots had stopped;" it was at this point that Smith saw a man he recognized as Jamal Roach "just laying there lifeless" in the doorway of the store.

What occurred next can best be characterized as the real-life equivalent of a fictional police drama. According to Smith, Rodney Johnson began shooting at him "at almost point blank range;" Lee Johnson, who "had a gun in his hand as well," also fired at Smith. Rodney then ran across the street and began exchanging gunfire with Smith "for probably forty seconds or more." At this point, another Jersey City police unit arrived and engaged in gunfire with Rodney. Smith estimated that by the time Rodney fled the scene running toward Dwight Street, Rodney had fired "more than seven or eight shots at me and I had fired more than seven or eight shots back at him." In the midst of this harrowing chaos, Smith lost track of Lee Johnson's whereabouts.

As other officers were dispatched to pursue and apprehend Rodney and Lee Johnson, Smith and fellow officers Scott Rogers and Eddie Nieves went inside the store to assess the situation and protect the crime scene. Once inside, Smith saw James laying on the floor and bleeding from his mouth and head; David was also on the floor, crying and "very upset[.]"

According to Rogers, Roach, who was "laying right in front of the doorway," told him he had been shot in the leg. Rogers "briefly checked [James] for a pulse," but he "was in an apparently lifeless condition." Rogers also noted several shell casings surrounding James. The prosecutor played the Composite CD while Rogers testified and directed Rogers to demonstrate his course of action by referring to the scene displayed on the CD.

Officer Christopher Baker testified that as he and Officer Brian Glasser approached the store in response to Smith's radio call they heard shots being fired. According to Baker, he saw an African-American man with dreadlocks and wearing a black jacket, later identified as Rodney Johnson, step over a body laying in the doorway of the store. As he stepped out of the marked police car, he saw that Rodney "backed up a little bit" and began shooting at Smith. Baker then "immediately drew [his] weapon and [ ] discharged a round at him." Rodney continued firing at Smith and thereafter at Baker and Glasser.

While he was attempting to take cover from the gunfire, Baker saw a second African-American man wearing a dark jacket raise a handgun in Smith's direction; that individual was later identified as Lee Johnson. Baker fired two rounds at Lee, and the second round struck him in the area of his lower torso. Lee "flipped over himself and fell"; he then got up and started to walk eastbound on Stegman Street.

When the shooting between Rodney and Smith stopped, Rodney ran south on MLK Drive towards Dwight Street while shooting in the officers' direction. Pursuant to Smith's instructions, Baker and Glasser began to chase Rodney. From a distance of approximately four to five car lengths, Baker observed Rodney "discard a black object to the ground and then continue walking[.]" That object was later identified as David's wallet.

Baker also observed Rodney toss a second black object over a fence; Glasser went to recover this object while Baker continued chasing Rodney. Eventually, other officers arrived at the scene and took Rodney into custody. The prosecutor played a portion of the Composite CD to assist Baker in demonstrating the events he described in his testimony. Although Baker positively identified the jackets that both defendants were wearing, he conceded that the CD did not show Rodney stopping while he was being pursued. Glasser's testimony corroborated Baker's version of the events.

The State's account of the circumstances of Rodney Johnson's arrest came from the testimony of Officer Christopher Monaghan. According to Monaghan, while on duty on the night in question, he heard radio reports of shots being fired. As he and his partner, Officer Mark Minervini, were driving towards the scene of the incident, he heard a "radio transmission[] of a foot pursuit going south on MLK Drive now going west on Dwight" Street. Heading towards Dwight Street and Bergen Avenue, Monaghan "observed a black male standing on the . . . northeast corner of Dwight and Bergen" and "heard transmissions from officers that were coming west on Dwight that that's him on the corner."

This individual, later identified as Rodney Johnson, was the only person on the street. Monaghan and Minervini stepped out of their marked police vehicle, drew their weapons, and ordered Rodney to show his hands. Instead of doing so, however, Rodney "nonchalantly just walked across Bergen Avenue to the other side never taking his hands out of his pockets" and informed the officers that he was "just here to see [his] son . . . in front of the building." Monaghan walked across the street and, because the suspect had refused to show the officers his hands, Monaghan "kicked the individual in his chest, put [his] service weapon away" and "turned him over on his stomach and [] started to pat him down."

Rodney was then transported to the Jersey City Medical Center where he was treated for a gunshot wound. The State and both defendants stipulated that "in [the] early morning hours of November 13, 2004[,] Rodney Johnson was treated at the Jersey City Medical Center for a gunshot wound. He was treated and released after stitches were applied."

In a fenced-in backyard nearby, Officer Carlos Lugo found the handgun tossed by Rodney as he was being pursued by the police. Officer Minervini stayed at the scene of the incident to assist the other officers in recovering items which they observed Rodney discard during the pursuit. On Dwight Street near Bergen Avenue, Minervini "observed a wallet next to a chain link fence." He noted that "[i]t didn't look like it had been out there for long because it was raining and the wallet was dry." He picked up the wallet, placed it in a bag and "secured it on [his] person." The wallet contained an identification card in the name of decedent James Ransom.

The State also presented evidence that two handguns, matching the ballistic characteristics of the weapons used by defendants, were recovered. Specifically, the police recovered a black forty caliber Baretta handgun from the fenced-in yard; seven shell casings were also recovered inside the fried chicken store next to the victim's body. The police also found a loaded Glock 17 nine millimeter handgun laying in the street on the southeast corner of Stegman Street.

At approximately 2:00 a.m. on November 13, 2004, City of Newark Detective Richard Warren received a phone call from central command advising him that Beth Israel Hospital in Newark had reported that "[a] person just arrived at the hospital and [] was a victim of a gunshot injury." At the hospital, Warren interviewed the individual who identified himself as Duval Williams. He told Warren that while walking home from the bus "he was approached by two unknown black males and somehow they started asking him questions." He alleged that a verbal altercation ensued and that one of the males "pulled out a gun . . . and he was shot in the back area or the buttocks area as he was fleeing from the two individuals."

Warren also interviewed Lola Williams, the woman who had brought "Duval Williams" to the hospital and identified herself as his girlfriend, "Lola Powell." According to Warren, Ms. Williams said that they had been at Duval's grandmother's house before he was shot. When Warren went to the scene of the purported incident, he did not find any evidence to support Duval's version of events. When Warren went to the address where Duval's grandmother allegedly lived, a man answered the door, identified himself as Duval's uncle, and said that Duval's last name was Johnson, not Williams. Both the uncle and grandmother denied that Duval lived at the house and neither could remember the last time that they had seen him. When Warren re-interviewed Lola Williams, she admitted that Lee Johnson, a/k/a Duval Williams, had been shot in Jersey City.

Jersey City Detective Kevin Wilder testified that he collected the clothing worn by Rodney and Lee Johnson when they were both hospitalized and received treatment for gunshot wounds. Wilder collected a "red, black, white and yellow warm [-]up jacket" and a "red, white and blue warm[-]up jacket" from the Jersey City Medical Center both of which were taken from Rodney Johnson.

Lee was treated for his wounds at Newark Beth Israel Hospital Medical Center. Wilder collected from this medical facility the following items of clothing worn by Lee when he was admitted to the hospital under the name "Duval Williams": a pair of brown boots, a white thermal long sleeve shirt, a grey hooded sweatshirt, a pair of black and blue gym shorts, boxer shorts, and a pair of blue jeans with a black and white leather belt. Wilder confirmed that Lee was not wearing a jacket when he first reported for treatment of his gunshot wound.

On November 13, 2004, Jersey City Detective Timothy Kaminski received a phone call from a woman who resided across the street from the fried chicken store, claiming to have found certain suspicious items on her property. When Kaminski reported to the property he saw "two jackets and some drug paraphernalia on the ground which were hanging on the fence of the property." Kaminski described the items of clothing as brown Carhart jackets, "one with a hood, one without." Officer Smith identified one of the jackets as the one worn by Lee during the incident.

The State also presented expert testimony concerning James's manner of death and identification of the handguns and spent shell casings recovered from the scene. According to the State's firearm expert, the handgun Glock model 17 recovered by the police on the street next to the fried chicken store was the weapon used to kill James. This handgun also matched two spent casings found on the floor of the store. The expert also opined that the third bullet removed from James's body was fired from the forty caliber Baretta, the weapon recovered by the police from the fenced-in yard. The same Baretta also discharged five of the spent casings found inside the store.

The State called Jersey City Detective Calvin Hart to testify about his efforts to interview Jamal Roach and Charles Porter. According to Hart, by the time he arrived at the scene of the incident, Roach, the individual who had been shot and was laying in the doorway, had been transported to Jersey City Medical Center. When Hart attempted to speak to Roach at the hospital, he was "uncooperative" and "evasive."

Hart had a similar experience when he attempted to interview Porter. According to Hart, when Porter was shot in the store, he "ran up the street to a friend's house and a friend called the ambulance at that time." Detectives at the scene were able to locate him from both "a trail of blood" in the store and "the phone call to the Medical Center." Hart testified that Porter too was "[e]vasive, like [he] didn't really want to be involved."

By the time the cases against the Johnson brothers came to trial, Roach was serving a four-year sentence on an unrelated matter. Counsel for Rodney Johnson called Roach to testify as one of the victims of the shooting. According to Roach, while he was in the fried chicken store, "two people came in, told everybody to lay down and started shooting." He described one of the men as a short "light skinned" African-American man with dreadlocks; he described the other assailant as a tall "brown skinned" African-American man with dreadlocks.

Roach testified that the "light skinned" man shot him twice. According to Roach, however, Lee and Rodney were not the men who shot him. In fact, Roach testified that Rodney was laying on the floor next to him during the robbery. On cross-examination, Roach conceded that in the statement he gave to the police three hours after the incident, he told the officer who interviewed him that he could not describe the individuals who shot him.

Porter was called as a witness by the attorney who represented Lee Johnson. According to Porter, while inside the store, he saw "five or six guys" come in "with dreds intending to rob the chicken spot;" one of the men ordered "everybody [to] get down." Because he "refused" to lay down, one of the men shot him and "took off after that[.]" Porter confirmed that he told the responding officers that the shooter wore a "green army fatigue jacket." Similar to Roach's account of events, Porter testified that neither Lee nor Rodney Johnson were among the shooters.

After being advised of their rights on the record, both defendants decided not to testify.

II

Defendant Rodney Johnson now appeals and, through his assigned counsel, raises the following arguments:

POINT I

THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE REPEATED PLAYING OF THE COMPOSITE POLICE SURVEILLANCE TAPE DURING TRIAL PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below)

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED HARMFUL ERROR BY FAILING TO RECOGNIZE THE PREJUDICIAL IMPACT THAT PERMITTING THE VICTIM'S SISTERS TO REMAIN IN THE COURTROOM HAD ON THE JURY.

POINT III

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BECAUSE OF A VIOLATION OF THE SEQUESTRATION ORDER.

POINT IV

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED WHEN THE PROSECUTOR ELICITED TESTIMONY FROM WHICH THE JURY COULD INFER THAT THE DEFENDANT WAS A "BAD PERSON." (Not Raised Below)

POINT V

THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSES OF MANSLAUGHTER AND AGGRAVATED MANSLAUGHTER ON COUNT TWO. (Not Raised Below)

POINT VI

THE AGGREGATE BASE CUSTODIAL SENTENCE OF LIFE PLUS 25 YEARS WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION.

A. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING BASE CUSTODIAL TERMS ON THE DEFENDANT'S CONVICTIONS THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM BASE TERMS.

B. THE DEFENDANT'S CONVICTIONS FOR ROBBERY ON COUNTS FOUR AND FIVE SHOULD HAVE BEEN MERGED.

C. THE TRIAL COURT ABUSED IT'S DISCRETION IN RUNNING THE SENTENCES IMPOSED ON COUNTS TWO AND FIVE CONSECUTIVE TO EACH OTHER.

Defendant Rodney Johnson's pro se supplemental brief raises the following arguments:

POINT I

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A PUBLIC TRIAL AND DUE PROCESS IN VIOLATION OF THE U.S. CONST., AMEND. VI AND XIV; N.J. CONST. (1947), ART. 1, PAR. 10, WHEN THE TRIAL COURT SUA SPONTE CLOSED THE COURTROOM DURING JURY SELECTION. (Not Raised Below)

POINT II

THE FAILURE OF THE TRIAL COURT TO ADEQUATELY APPRAISE [sic] THE JURY OF THE NECESSITY OF RETURNING A SEPARATE VERDICT AS TO EACH DEFENDANT IN THE TRIAL OF TWO BROTHERS WAS ERRONEOUS AND PREJUDICIAL, NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10. (Not Raised Below)

POINT III

THE TRIAL COURT'S JURY CHARGE AS TO CIRCUMSTANTIAL EVIDENCE WAS HIGHLY PREJUDICIAL, NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10. (Not Raised Below)

POINT IV

THE TRIAL COURT'S JURY CHARGE CONCERNING THE DEFENDANT'S EXERCISE OF HIS RIGHT NOT TO TESTIFY WAS BIASED AND PREJUDICIAL, NECESSITATING REVERSAL. U.S. CONST., AMEND. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 10. (Not Raised Below)

Defendant Lee Johnson, through his assigned counsel, raises the following arguments in support of his appeal:

POINT I

THE TRIAL COURT ERRED IN REFUSING TO DECLARE A MISTRIAL FOLLOWING TWO HIGHLY PREJUDICIAL IRREGULARITIES OCCURRING CLOSELY IN TIME. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10.

A. A KEY STATE'S WITNESS WAS EVIDENTLY COACHED DURING HIS TESTIMONY, AND THE COURT FAILED TO HOLD A HEARING OR CONDUCT INDIVIDUAL JUROR VOIR DIRE.

B. THE COURT ALSO ERRED IN DENYING A MISTRIAL FOLLOWING A PARTICULARLY HEATED SPECTATOR OUTBURST.

C. THE INCIDENTS IN COMBINATION NECESSITATED THE GRANT OF A MISTRIAL.

POINT II

BECAUSE THE STATED [sic] FAILED TO DEMONSTRATE CHAIN OF CUSTODY OF THE GUN PURPORTEDLY USED BY THE DEFENDANT, ITS ADMISSION CONSTITUTED REVERSIBLE ERROR. U.S. CONST., AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. 1, PARS. 1, 10.

POINT III

THE FAILURE OF THE TRIAL COURT TO ADEQUATELY APPRISE THE JURY OF THE NECESSITY OF RETURNING A SEPARATE VERDICT AS TO EACH DEFENDANT IN THE TRIAL OF TWO BROTHERS WAS ERRONEOUS AND PREJUDICIAL NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR 10. (Not Raised Below)

POINT IV

THE TRIAL COURT'S JURY CHARGE AS TO CIRCUMSTANTIAL EVIDENCE WAS HIGHLY PREJUDITIAL, NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; N.J.CONST. (1947), ART. 1, PAR. 10 (Not Raised Below)

POINT V

THE TRIAL COURT'S JURY CHARGE CONCERNING THE DEFENDANT'S EXERCISE OF HIS RIGHT NOT TO TESTIFY WAS BIASED AND PREJUDICIAL, NECESSITATING REVERSAL. U.S. CONST., AMENDS VI, XIV; N.J. CONST. (1947), ART. 1 PAR. 10 (Not Raised Below)

POINT VI

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

In defendant Lee Johnson's supplemental brief, the following arguments are raised:

POINT I

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A PUBLIC TRIAL AND DUE PROCESS IN VIOLATION OF THE U.S. CONST., AMEND. VI AND XIV; N.J. CONST. (1947), ART. 1, PAR. 10 WHEN THE TRIAL COURT SUA SPONTE CLOSED THE COURTROOM DURING JURY SELECTION. (Not Raised Below)

POINT II

THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE REPEATED PLAYING OF THE COMPOSITE POLICE SURVEILLANCE TAPE DURING TRIAL PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below)

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED HARMFUL ERROR BY FAILING TO RECOGNIZE THE PREJUDICIAL IMPACT THAT PERMITTING THE VICTIM'S SISTERS TO REMAIN IN THE COURTROOM HAD ON THE JURY.

POINT IV

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED WHEN THE PROSECUTOR ELICITED TESTIMONY FROM WHICH THE JURY COULD INFER THAT THE DEFENDANT WAS A "BAD PERSON." (Not Raised Below)

We are satisfied that none of the arguments raised by defendants warrant an outright reversal of their respective convictions. Despite this, we are compelled to comment on the trial court's decision to remove the public from the courtroom at the commencement of jury selection. Defendant Rodney Johnson argues in Point I of his supplemental pro se brief that the trial court's instructions in this regard violated his right to a public trial as guaranteed by the Sixth Amendment of the Constitution of the United States and Article 1, Paragraph 10 of the New Jersey Constitution. Before commenting on the rest of the arguments raised by defendants, we are compelled to address this threshold issue.

At the start of the trial, but before any prospective jurors had arrived in the courtroom, the trial judge made the following announcement to all present:

Alright, ladies and gentlemen, let me just explain something to you. I see that there are five people here who have come to view this trial and you're welcome here and you know that you've been here before and you're always welcome.

The only problem is I have a very small courtroom and I'm trying to call up as many jurors as I can and what's going to happen is I'm going to end up filling these boxes and they're going to be standing up there and I just don't have room for you and I can't do anything where I'm keeping you -- I have to keep you separate from these jurors and there's no way I can do it in a courtroom this small.

So I apologize to you but I'd like you to leave if you would please, at least until we get you know through some of the jurors and obviously anything that happens during the case you'll be welcome -- you know you'll come back in and you know once we have the fourteen in the box, you're free to come and go as you please. But I just don't have the room. I just don't have the physical room.

You see that I only have four rows and I have two defendants and I need -- I'm calling up seventy jurors and it's not really -- probably not even enough but that's all I can fit here and I can't fit that many if I have you guys, okay? So you know obviously you can stay in the hallway but the only thing is if you would stay down towards the other end, I -- it's very important that you not mingle with these jurors in any way.

You certainly -- we don't want that to happen, it's not permitted and you certainly don't want anybody saying anything about you and you know that you were there, you were talking to somebody or anything like that. So you'll end up riding up and down the elevators with the jurors and stuff like that. You can't talk to them, okay?

So thanks very much, I really appreciate it but I'm going to need all those seats.

[(Emphasis added.)]

We will review these instructions in the context of the following analytical framework.

The constitutional guarantee to a public trial, as expressed in both the federal and State constitutions, applies to all phases of the trial, including jury selection. Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984); State v. Cuccio, 350 N.J. Super. 248, 260 (App. Div.), certif. denied, 174 N.J. 43 (2002). If a defendant is denied the right to a public trial, the error is deemed "structural," which mandates reversal of the conviction without a showing that the defendant was prejudiced by the denial. Neder v. United States, 527 U.S. 1, 7-9, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35, 45-46 (1999); Waller v. Georgia, 467 U.S. 39, 49-50, 104 S. Ct. 2210, 2217, 81 L. Ed. 2d 31, 40-41 (1984).

That being said, the right to a public trial is not absolute. The trial judge retains the authority to impose "reasonable and, as circumstances may dictate, well-considered limitations on access to a trial in order to prevent situations which might impede the progress or fairness of the trial, as long as basic rights involved are not unduly infringed." Cuccio supra, 350 N.J. Super. at 266.

In Cuccio, the trial judge removed from the courtroom all members of the defendant's and victim's family, including the defendant's brother who was a lawyer and had been assisting defense counsel in the case, and "all spectators." Id. at 265. The judge in Cuccio gave as reasons for the removal: (1) the possibility of spectators and family members mingling with potential jurors; and (2) not enough seats to accommodate the public and the number of jurors on the panel. Ibid.

Over the defendant's strong objections, jury voir dire began and continued until the jury was selected, outside the presence of all of the defendant's and the victim's family members. Id. at 258. The process to select the jury took more than a day. Ibid. The trial judge denied the defendant's motion for mistrial. Ibid. Against these facts, we reversed the defendant's conviction, holding that the measures taken by the trial court violated the defendant's right to a public trial. Id. at 265. With respect to the trial court's concerns about the possibility of jurors mingling with spectators and the problem associated with the size of the courtroom, we made the following observations:

At the time the judge ordered the exclusion, there was nothing in the record to suggest a likelihood that the families or other spectators were likely to make improper remarks within the hearing of the jurors. Moreover, it seems that reasonable alternatives to closure were available. For example, the judge could have instructed the families and other spectators not to mingle with the potential jurors or say anything concerning the case that might be overheard by them. If the problem was primarily one of sufficient seating, additional chairs could have been brought into the courtroom so that at least some members of defendant's family and the victim's family could observe the jury selection process. The judge's concern regarding the families or other spectators mingling with the prospective jurors could also have been addressed by an order requiring observers to be segregated from prospective jurors, such as by keeping some of the prospective jurors in other parts of the courthouse until they were needed in the courtroom. The judge might even have arranged for temporary use of a larger courtroom for jury selection, and then moved the balance of the trial back to his own courtroom.

[Cuccio, supra, 350 N.J. Super. at 265-66.]

We recently had occasion to revisit this issue in State v. Venable, ____ N.J. Super. _____ (App. Div. 2010) (slip op. at 5), where the trial court ordered that, for security reasons, "individuals" from either the "victim's family" or the "defendants' family" be removed from the courtroom during jury selection. In rejecting the defendant's argument that these restrictions violated his right to a public trial, we noted:

First, there is no evidence that any members of the victim's or defendants' families were in the courthouse and desired to attend jury selection. Thus, there is no basis for a finding that any specific person was excluded from the jury selection stage of the trial. Second, neither defendant objected to the court's statement that members of the victim's and defendants' families would not be allowed in the courtroom during jury selection. As a result, the court did not have an opportunity to explore whether there were other measures available, short of total exclusion of family members, for preserving the security of the courtroom during jury selection.

[Ibid.]

Here, the trial judge's instructions were apparently directed at "five people who [had] come to view this trial." Addressing this group directly, the judge informed them that due to the small size of the courtroom, the number of prospective jurors expected, and the need to keep the public "separate" from the prospective jurors, they would have to leave the courtroom. Another key factor here is the duration of the exclusion. In this respect, the trial judge advised the five spectators that they would have to leave the courtroom "at least until we get . . . through some of the jurors . . . [Y]ou'll come back in . . . once we have the fourteen in the box, you're free to come and go as you please."

From these words we infer that the judge intended to limit the duration of the exclusion to the time it took for the voir dire process to excuse a sufficient number of prospective jurors to free up enough space in the courtroom to accommodate the five members of the public. Although we are unable to ascertain how much time transpired before the members of the public were able to return, we are satisfied that such period of time was constitutionally insignificant.

As we noted in Venable, although the right to a public trial is constitutionally guaranteed, "this does not mean that any exclusion of persons from the courtroom during the course of trial proceedings, no matter how brief or insignificant, automatically constitutes a denial of the right to a public trial that necessitates a new trial." Venable, supra, ____ N.J. Super. at _____ (slip op. at 7). In certain circumstances, the temporary exclusion of the public from a criminal trial may be too "trivial" to warrant the reversal of an otherwise proper conviction. Ibid.

As we explained in Venable, the term "trivial" is not synonymous to, or the functional equivalent of, the concept of harmless error. Id. at ____ (slip op. 8). Rather, in determining whether a particular violation of the right to a public trial may be considered "trivial," a reviewing court "looks . . . to whether the actions of the court and the effect that they had on the conduct of the trial deprived the defendant -- whether otherwise innocent or guilty -- of the protections conferred by the Sixth Amendment." Ibid. (quoting Peterson v. Williams, 85 F.3d 39, 42 (2d Cir.), cert. denied, 519 U.S. 878, 117 S. Ct. 202, 136 L. Ed. 2d 138 (1996)).

Here, the temporary exclusion of members of the public was limited in both scope and duration, and there was no objection by defense counsel at the time the court gave the order. We are thus satisfied that the circumstances presented here are more in line with the situation we confronted in Venable than in Cuccio.

We next turn our attention to two incidents that occurred during the trial. Defendants argue that the prejudice caused by these incidents was of such magnitude that the trial court committed reversible error in denying their applications for a mistrial. We disagree.

The first of these incidents occurred during David Ransom's testimony. The court decided to take a short recess while counsel for Rodney Johnson was cross-examining David Ransom. Counsel alleged that the witness's father, who was not part of the court's sequestration order, spoke to the witness in a hallway outside the courtroom while the trial was in recess.

According to Rodney's defense counsel, the father advised David "that if [he] got confused, just make sure that [he told] the court and th[e] jury that those are definitely the two boys who killed [James]." David denied the allegations in response to the trial judge's questions about the matter. Defense counsel did not call David's father as a witness.

The second incident occurred while Officer Rogers was testifying about the circumstances of James's death. Two women seated in the spectator area of the courtroom, later identified as James's sisters, made a clearly audible, though indiscernible, comment. The court immediately instructed them to leave the courtroom, prompting one of the women to yell out: "I hope that mother fucker die[s] . . . I'll kill those fuckers." The trial judge gave the following instructions to the jurors: "I'm going to excuse you. Obviously emotional testimony, you'll ignore the outbursts, okay? And they should not influence you in any way in your decision in this case. But please step out for a moment, okay?"

Defendants moved for a mistrial; Rodney's counsel argued that the motion "goes [] beyond just the outburst in the courtroom. It ties in perfectly with what happened out in the hallway before we came back from the break with [David]." Counsel asserted that the comments made by members of the victim's family in the presence of the jury had the capacity "to inflame" the jurors and prejudice defendants as the men who caused this pain. Coupled with "the vulgarity and the nastiness . . . directed at our clients," in defense counsel's opinion, the only remedy was to declare a mistrial.

Counsel emphasized that:

[W]e do not have just one isolated incident and if that was in and of itself I probably would not be asking for a mistrial but within the last hour we've had two significant things happen regarding this trial. We got a father coaching his son and then we have a family member of the victim speak out and basically almost threaten our clients.

The State argued that the incidents were two separate and distinct events, subject to remediation with an appropriate curative instruction from the court.

The trial court declined to address, at that time, the incident involving David Ransom's testimony. With respect to the conduct of decedent's sisters, the judge characterized the event as a "very unfortunate outburst." However, the judge concluded that she had "already instructed the jury not to pay any mind to it." The judge also indicated that she would repeat the curative instruction concerning the incident as part of her general charge to the jury at the end of the case. When the jurors returned to the courtroom, the judge again instructed them to disregard the outburst and "not be governed by prejudice, sympathy or emotions."

"[A] mistrial should be granted 'only in those situations which would otherwise result in manifest injustice.'" State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005) (quoting State v. DiRienzo, 53 N.J. 360, 383 (1969)). "Furthermore, '[t]he granting of a mistrial is within the sound discretion of the trial judge.'" Ibid. (quoting DiRienzo, supra, 53 N.J. at 383). Thus, a trial court's denial of a mistrial is not disturbed absent an abuse of discretion or "unless 'manifest injustice would . . . result." Ibid. (quoting State v. LaBrutto, 114 N.J. 187, 207 (1989)).

Mindful of these legal principles, we are satisfied that the trial judge did not err in denying defendants' applications for a mistrial. As to David Ransom's testimony, the judge noted that, at the time the alleged improper contact occurred, the witness had completed his testimony concerning the events in question and had positively identified the defendants as the culprits. Despite any alleged attempt by his father to influence his testimony, there was nothing inconsistent about his testimony after the recess. The witness reaffirmed his identification of defendants as the men who shot James.

The judge also properly responded to the outburst caused by decedent's sisters; the individuals were removed from the courtroom, the jury received an immediate curative instruction to disregard the incident, and the jury was removed from the courtroom directly after the instruction to allow counsel to protect the record by placing any objections or applications before the court for disposition. Under these circumstances, we discern no error in the judge's tacit decision to forgo questioning each juror separately to determine whether he or she was still capable of judging the evidence presented fairly and impartially. State v. Wilson, 335 N.J. Super. 359, 368-69 (App. Div. 1999), aff'd, 165 N.J. 657 (2000).

The rest of defendants' arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

Defendant Lee Johnson is also known as Duval Johnson.

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2

A-5330-06T4

April 9, 2010