STATE OF NEW JERSEY v. ALAMEEN F. ADAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0727-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALAMEEN F. ADAMS,

Defendant-Appellant.

_______________________________

March 26, 2013

Submitted March 4, 2013 - Decided

Before Judges Parrillo and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-07-01735.

Joseph K. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Alameen Adams was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1(a) (count 1); first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count 2); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count 3); second-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b) (count 4); and second-degree possession of a weapon (handgun) for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count 5). After denying defendant's motion for a new trial, and appropriate mergers, the judge sentenced him on the murder conviction to a thirty-five-year state prison term with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to concurrent fifteen-year and seven-year terms on the robbery and weapons offenses, respectively. Defendant appeals and we affirm.

According to the State's proofs, on March 24, 2010, Michael Potts, a drug addict, tried to purchase marijuana from his friend Abdul Simpkins on South Harrison Street in East Orange. Simpkins did not have any marijuana to sell but told Potts that he could get it for him. At this time, defendant, who appeared intoxicated, approached the two men and began conversing with Simpkins out of Potts's earshot. Simpkins then told Potts that he would ask his supplier, Ian Morris, who lived at 235 South Harrison Street, to sell Potts drugs.

After the three men arrived at the apartment building where Morris lived, Potts followed defendant through an alleyway on the right side of the building and stood near the back door as defendant entered the complex with Morris, the back door shutting behind them.

Potts waited outside but when Morris did not immediately return, he tried to open the locked door and then left to get takeout food at a nearby restaurant. Potts took his meal to an apartment up the street to see if he could buy marijuana from another one of his friends. When he arrived, Potts saw Simpkins, Simpkins' brother, Bernard, and Chris Arroyo inside and asked if he could buy some marijuana. Some ten minutes later, defendant, still appearing "like he was high," entered and announced "I bodied him[,]" meaning that he had just killed someone. Potts also observed a noticeable bulge in defendant's stomach area, as if he were hiding something.

Meanwhile, around 6:00 p.m., Blessing Burrows returned to her apartment at 235 South Harrison. Shelby Young, who was staying with another resident of the building at the time, let her into the building. As she ascended the rear staircase to her apartment, she saw the body of her neighbor, Morris, lying prone across the stairway. She ran downstairs toward Young, who told her to call 9-1-1, as he went to see if he could render aid to Morris. Instead, he found Morris' lifeless body with a single gunshot wound to the right side of his head. Next to him were two clear bags of suspected marijuana, two cell phones, a digital scale and a book bag with a strong order of marijuana. Earlier that evening, Young had heard a "loud bang," but thought it was just a door slamming.

Upon their arrival at 6:27 p.m., police confirmed Morris' death. Although no shell casing was found, a subsequent autopsy revealed a single bullet lodged in Morris's brain, which was likely shot from a .32 caliber handgun. There was no stippling around the wound, suggesting that the gun was likely fired from a distance of more than one and one-half feet away.

Police then went to Morris's apartment where they found his friend, Kelly Weekes, who said she had overheard Morris on the phone shortly after she arrived at his apartment around 3:20 p.m. talking about "making a sale" at the "back door." Morris then left the apartment, telling Weekes he had some "business downstairs," and would be back shortly. Morris never returned and Weekes remained in the apartment until the police arrived about one and one-half hours later.

Police also retrieved footage from the four surveillance cameras that were installed on the first floor of the building. The rear camera showed that Morris had exited the back door around 5:46 p.m. Defendant was standing outside the apartment in view of the camera. After Morris directed defendant inside, the back door shut behind them around 5:47 p.m. The video showed Potts attempting to open the locked door, then walking away from the building after being unable to open it. The surveillance cameras located in the front of the apartment captured defendant exiting the front staircase and the front main door around 5:56 p.m. As defendant was walking out of the front main entrance, he saw the surveillance camera, furtively lowered his head and put his hand down over his pockets.

On appeal, defendant raises the following issues:

I. A REMAND IS NECESSARY TO CONDUCT A "PROBING INQUIRY" INTO WHETHER JUROR NUMBER EIGHT, WHILE SEATED IN THE HALLWAY OUTSIDE THE COURTROOM, OVERHEARD DEFENSE COUNSEL DISCUSSING DEFENSE STRATEGY.

II. THE COURT ERRED IN ITS FAILURE TO SUA SPONTE CHARGE THE JURY WITH THE DEFENSE OF VOLUNTARY INTOXICATION, WHICH WAS CLEARLY SUPPORTED BY THE RECORD. (Not Raised Below).

We deem neither of these issues to be of merit.

I

On July 20, 2011, forty days after the guilty verdicts were returned and immediately before sentencing, defendant belatedly moved for a new trial, or, in the alternative, a voir dire to evaluate whether juror number eight overheard defense counsel's discussion with an associate about possible trial strategy and whether additional jurors may have been tainted thereby. Specifically, although defense counsel was uncertain when the incident occurred or even what was said, he nevertheless claimed that while conversing with his associate on a bench in the hallway outside the courtroom, juror number eight was sitting on another bench down the hallway, approximately 200 to 300 feet away, and may have overheard them.

The trial court denied defendant's motion. The court found that the distance between the two benches juror eight and defense counsel were sitting on was "very great" as it spanned the entire width of the building 200 to 300 feet and therefore it would have been "extremely difficult" for juror eight to have heard defense counsel's discussion with his associate on the opposite side of the courthouse. Further, defendant did not establish that juror taint existed, as counsel failed to recall the substance of the conversation. The trial court was "highly confident" that the jury was not subjected to improper influence because it had been cautioned not to have extraneous contact on numerous occasions and was also asked to report any improper contact, but no juror had done so. The court also denied the motion on the basis that defendant failed to timely file the motion for a new trial pursuant to Rule 3:20-2. We find no reason to disturb this result.

As the trial court held, defendant's motion for a new trial was filed well beyond the ten-day time limitation of Rule 3:20-2. This temporal restriction may not be relaxed or enlarged by either of the parties or the court. R. 1:3-4(c). Nor has defendant shown that an injustice would result from such a prohibition. See R. 1:1-2.

In any event, there was no error in declining to conduct a post-verdict jury interrogation. Rule 1:16-1 governs post-trial juror interrogation and provides:

Except by leave of court granted on good cause shown, no attorney or party shall directly, or through any investigator or other person acting for the attorney interview, examine, or question any grand or petit juror with respect to any matter relating to the case.

Such a procedure is "extraordinary," invoked only where a defendant makes a "strong showing" of harm by "jury misconduct." State v. Koedatich, 112 N.J. 225, 289-90 (1988), cert. denied, 488 U.S. 1017, 104 S. Ct. 813, 102 L. Ed. 2d 803 (1989); State v. Athorn, 46 N.J. 247, 250, cert. denied, 384 U.S. 962, 86 S. Ct. 1589, 16 L. Ed. 2d 674 (1966). A "bald accusation" that jurors considered extraneous information or some outside influence tainted the jury is simply not enough to reconvene a jury that convicted a defendant. State v. Harris, 181 N.J. 391, 503-04 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

We review a trial court's determination whether to conduct a post-verdict juror interview against the abuse of discretion standard. State v. R.D., 169 N.J. 551, 559 (2001). We accord "respect" to the trial court's "unique perspective." Ibid.

Here, there was no abuse of that discretion because defendant has not carried his heavy burden. Most significant, defense counsel did not even remember the substance of his hallway conversation with his associate and apparently did not think the incident worthy of reporting until forty days after the jury's verdict. Nor could defendant demonstrate that the conversation was likely overheard by the juror sitting approximately 200 to 300 feet away, at the other end of the courthouse. Indeed, the judge, who was in the best position to evaluate defendant's claim as he was familiar with the layout of the courthouse, concluded that the juror could not have discerned the content of the hallway discussion from that distance in that particular setting.

Moreover, the judge repeatedly cautioned the jury against exposure to extraneous evidence and outside influences, and instructed them not to discuss such information if it came to their attention and to report any such instances to the court. None of the jurors ever approached the court with any concerns for his or her impartiality or knowledge of extraneous information. We of course presume the jury faithfully followed these instructions, State v. Manley, 54 N.J. 259, 270 (1969), and defendant has offered no reason for us to find otherwise. Under the circumstances, then, the denial of defendant's belated post-verdict motion for a new trial or, in the alternative, to interview a juror, was not an abuse of the trial court's discretion.

II

Defendant next contends, for the first time on appeal, that the court should have sua sponte charged the jury on the defense of voluntary intoxication based on the testimony of a witness who said defendant appeared drunk and/or high before and after the shooting. We disagree.

Voluntary intoxication may be a defense to a crime which requires a purposeful or knowing mental state. N.J.S.A. 2C:2-8(a); State v. Mauricio, 117 N.J. 402, 418 (1990); State v. Cameron, 104 N.J. 42, 52-53 (1986). Under N.J.S.A. 2C:2-8(e)(2), self-induced intoxication is "intoxication caused by substances which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime." A jury issue of voluntary intoxication only arises if there is a rational basis to conclude that defendant's "faculties" were so "prostrated" that he was incapable of forming an intent to commit the crime. Mauricio, supra, 117 N.J. at 418-19; Cameron, supra, 104 N.J. at 54. On this score, simply labeling the defendant as "drunk" or "intoxicated" without other evidence of impairment is not sufficient to establish "prostration." Mauricio, supra, 117 N.J. at 419; Cameron, supra, 104 N.J. at 56. Rather, a showing of an "extremely high level of intoxication" is required before it may qualify as a defense. State v. R.T., 411 N.J. Super. 35, 50 (App. Div. 2009), aff'd, 205 N.J. 493 (2011).

In the absence of a defense request for such an instruction, the evidence must "clearly indicate" the appropriateness of that charge, that is, "the need for the charge must jump off the proverbial page." State v. R.T., 205 N.J. 493, 509-10 (2011) (internal quotation marks omitted). Here, the facts did not provide a rational basis to suggest, much less clearly indicate, that defendant "suffered a prostration of faculties" sufficient to negate the State's proof that defendant acted with purpose to commit the offenses charged. There was no proof that defendant even consumed alcohol during the relevant time period, much less proof of his level of intoxication during the commission of the offenses. The lone remark of a witness that defendant "appeared" intoxicated when confessing to his friends that he had "bodied" his victim simply does not establish a prostration of faculties that rendered him incapable of forming the requisite mental state for the crimes charged. On the contrary, the evidence showed defendant acted with purpose in entering the building, executing his plan, furtively exiting the scene, concealing evidence, and ultimately boasting of his crimes to his friends. Under the circumstances, we discern no rational basis for a charge on voluntary intoxication even if requested, and certainly no duty on the part of the judge to sua sponte render such an instruction.