STATE OF NEW JERSEY v. PAULO J. RODRIGUES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4557-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAULO J. RODRIGUES,

Defendant-Appellant.

__________________________________

November 13, 2013

Argued September 23, 2013 Decided

Before Judges Yannotti, Ashrafi and Leone.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment

No. 10-12-1751.

Jeffrey D. Catrambone argued the cause for

appellant (Sciarra & Catrambone, L.L.C.,

attorneys; Matthew R. Curran, of counsel

and on the brief).

Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor,

argued the cause for respondent (Andrew C.

Carey, Acting Middlesex County Prosecutor,

attorney; Ms. Hulett, of counsel and on the

brief).

PER CURIAM

Defendant Paulo Rodrigues appeals from his conviction by a jury on criminal charges arising from two years of anonymous harassment of a woman he had dated. At his trial, defendant did not dispute that the woman was subjected to extremely offensive and threatening communications. The issue was whether the police correctly identified him as the offender. We can find no valid ground to set aside the jury's determination that defendant was the offender, and also no other trial error leading to reversal of his conviction.

The victim testified at the trial that she and defendant grew up in the same neighborhood and had been good friends. In the fall of 2005, they began a romantic relationship at a time when the victim's marriage was breaking up. Her husband left the marital home about that time and moved into the home of another woman. Defendant and the victim then dated for about two years. The victim ended the relationship in the latter part of 2007. In her mind, the relationship ended amicably, and she continued to communicate with defendant.

In February 2008, the victim began receiving anonymous threatening messages on her cell phone. She changed her cell number within a few days and did not give the new number to defendant until several weeks later. In the intervening weeks, she received a number of harassing calls at her place of employment. The victim did not recognize the voice on the calls. At the time of the incidents, she told the police it sounded like a female voice. At defendant's trial, she testified it sounded like a robot. In 2008, the victim also received threatening emails that said she was being watched and would be raped or killed. The only person that the victim could imagine might be responsible was her ex-husband's girlfriend, but she had no specific reason to suspect her.

In August 2008, the victim moved to a different residence. For a brief time, the harassment stopped, but in December 2008, she received more threatening emails. By the beginning of 2009, threatening and vulgar letters about her had been sent to her neighbors as well as her place of employment.

In the middle of 2009, the victim briefly resumed dating defendant. During the approximate two-month duration of the renewed relationship, the victim did not receive any harassing communications. In about October 2009, the victim again ended the relationship with defendant. Unlike the first breakup, this time defendant expressed anger. There were no further open communications between the two. In December 2009, the victim began receiving harassing and threatening communications again.

In March and April 2010, the victim received a multitude of harassing phone calls and emails, most of which originated from a pre-paid cell phone with a 908 area code number. From June to August 2010, she received many more harassing phone calls and emails, almost all of which originated from a pre-paid phone with a 732 area code number. The police attempted to learn the identity of the person who had purchased the two pre-paid phones, initially to no avail.

Most of the harassing phone calls and emails contained threats of violence and very vulgar disparagement of the victim, but no clues as to who might be the offender. However, some of the communications contained private information about the victim that she had revealed to only a select few family members and close friends. The circle of people with relevant knowledge included defendant and her ex-husband. At the trial, the victim testified about the nature of the private information and explained that she would not have revealed it to co-workers or casual acquaintances.

In July and August 2010, the 732 number was used eight times to make false 911 emergency calls of a fire at the victim's residence, and on one of the occasions, at the nearby home of her sister where the victim was then visiting. These false reports were "text to land-line" messages; so the dispatcher only heard a computer-generated voice. For each false alarm, the local volunteer fire department was dispatched, often in the middle of the night, only to find no fire or emergency. The false alarms not only disrupted the victim's life and peace but also that of her neighbors.

Finally, in August 2010, the police received information that led to defendant's arrest. They subpoenaed and obtained records from Virgin Mobile USA, the company that had sold the pre-paid phones used to make harassing communications. A phone-card that was used to replenish the minutes on the 732 number was purchased at an Office Depot store in Totowa on August 15, 2010. The store manager retrieved a sales receipt from the store's records and identified a portion of a surveillance video recording that he matched with the purchase of the phone-card. On September 3, 2010, the police accompanied the victim to the Totowa Office Depot so that she could view the surveillance video. To her surprise and shock, the victim immediately recognized defendant as the person making the purchase. The police obtained an arrest warrant for defendant on the same day, and the local police in his home town executed the warrant that night. When making the arrest, the police did not attempt to search defendant's residence to see if the phones or phone-card could be found there. They did not apply for a search warrant.

After defendant's September 3, 2010 arrest, the victim received no more harassing communications. Defendant remained incarcerated from September 3 to 14, 2010, and then was released on bail. However, from September 7 to 13, there was activity on the 732 number. A police witness at the trial surmised that the four calls listed for the 732 number during the time that defendant was in custody may have been incoming calls, perhaps going to voicemail.

A Middlesex County grand jury returned a ten-count indictment against defendant, all designated as third-degree charges. The indictment charged eight counts of making false public alarms on specific dates in July and August 2010, N.J.S.A. 2C:33-3; one count of making terroristic threats from February 2008 through September 3, 2010, N.J.S.A. 2C:12-3(a); and one count of stalking during the same time period, N.J.S.A. 2C:12-10(b).1 Defendant declined an opportunity to apply for enrollment in the Pretrial Intervention program pursuant to N.J.S.A. 2C:43-12 to -14 and Rule 3:28. He asserted his innocence and stood trial in February 2012.

The prosecution presented the testimony of the victim, the Office Depot store manager, and three police investigators. Defendant elected not to testify and did not present any other witnesses in the defense case. His attorney argued to the jury that defendant had been wrongly accused, in particular, that discrepancies in the surveillance tape and related evidence showed that he did not buy the phone-card that was used to make the harassing communications. Defense counsel also pointed to allegedly inadequate police investigation of the victim's ex-husband and his girlfriend as the suspected offenders.

Immediately before the closing arguments of counsel, but without their knowledge, a juror spoke to a sheriff's officer who was escorting the jury and expressed confusion about the phone numbers discussed during the testimony. Other jurors seemed to agree. The juror wanted the officer to convey the jury's confusion to the trial judge. After the closing arguments, the trial judge received a note from the sheriff's officer reporting the juror's comments. The trial judge consulted with counsel and then took brief testimony from the officer. With the agreement of both attorneys, the trial judge did not conduct a voir dire of the jurors but instead instructed the jury that it would have to rely on its own recollection and assessment of the evidence and that it should not deliberate toward a verdict until all the presentations had been completed.

The jury deliberated over three days. It requested and heard readback of testimony. On the third day, it reported a deadlock to the judge. In response, the judge instructed the jury, and it then deliberated further and returned a verdict of guilty on all ten charges.

Defendant was sentenced on each count to concurrent terms of five years probation, with conditions that he serve 364 days in jail, undergo mental health counseling, and pay restitution and other statutory penalties totaling $4,320. The sentence also restrained defendant from any contact with the victim.

On appeal, defendant argues:

POINT I

THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT THE JURY'S VERDICT AND, AS SUCH, RODRIGUES IS ENTITLED TO A NEW TRIAL.

POINT II

THE TRIAL COURT FAILED TO ADEQUATELY INVESTIGATE JUROR MISCONDUCT AND, AS SUCH, RODRIGUES IS ENTITLED TO A NEW TRIAL.

POINT III

DEFENDANT RODRIGUES IS ENTITLED TO A NEW TRIAL AS THE JURY'S VERDICT WAS THE PRODUCT OF DEFENSE COUNSEL'S INEFFECTIVE ASSISTANCE OF COUNSEL.

By his argument under Point I, defendant seeks a new trial. We understand his contention to be that the verdict was against the weight of the evidence. However, he did not preserve that issue for appeal by moving for a new trial on that ground before the trial court, as required by Rule 2:10-1. Nevertheless, we will consider his argument on the merits in the interest of justice. See, e.g., State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997); State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied 134 N.J. 476 (1993).

A trial court may set aside a jury verdict as against the weight of the evidence only if a manifest denial of justice clearly and convincingly appears, considering the jury's opportunity to assess the credibility of witnesses. R. 3:20-1. The question is whether the totality of the State's evidence, giving the State the benefit of all favorable inferences, supports a rational jury's finding of guilt beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). "[C]ourts must view the totality of evidence, be it direct or circumstantial, in a light most favorable to the State." State v. Perez, 177 N.J. 540, 549 (2003).

Defendant asserts the evidence contradicted that he was the purchaser of the Virgin Mobile phone-card on August 15, 2010. He does not deny that he was the person depicted in the Office Depot surveillance video, but he argues the recording did not show he purchased a phone-card. At most, he contends, it showed he purchased an unidentified small item. He also argues that the time shown on the surveillance video, 5:29 p.m., did not coincide with the time printed on the store receipt for sale of the phone-card, 5:13 p.m. Additionally, he argues that the Virgin Mobile record indicated the phone-card was activated at 3:06 p.m. on August 15, 2010, which was more than two hours before defendant was at the Office Depot purchasing an item. Finally, he argues that the police never found the prepaid phone or phone-card that would have established who the caller was, and that the Totowa store was in the general area where the victim's ex-husband and his girlfriend lived. He argues that all these discrepancies and gaps in the evidence created at least a reasonable doubt that he was the person who made the harassing communications.

The State's case, however, was not entirely based on the purchase of the phone-card on August 15. Although that evidence was crucial, the State also relied on strong circumstantial evidence pointing to defendant as the person who had both the motive and the knowledge to make the harassing communications. The harassment occurred shortly after and during the time periods when the victim had stopped dating defendant. She was not subjected to harassment before February 2008, and it ended after defendant's arrest on September 3, 2010. The harassment did not occur during the approximately two months that defendant and the victim were again dating in the fall of 2009. It resumed with greater vehemence soon after the second breakup.

Most important, the offender had to be someone close to the victim because of knowledge of certain private information about her. While the ex-husband, and by extension his girlfriend, were privy to that information, there was no correlation between the time periods of the harassment and any theoretical animosity between the victim and her ex-husband or his girlfriend. Also, the victim testified that her divorce was not contentious.

The State had explanations for the discrepancies and gaps in the August 15 evidence, some of which the jury heard and some of which it did not because the court sustained a hearsay objection by defense counsel. Regarding the time discrepancy between the surveillance video and the sales receipt, the store manager testified that he had not checked the accuracy of the time designation on the video recording. He testified that he correlated the sales receipt to the video because another receipt immediately preceding the sale of the phone-card was for a chair, and the surveillance video showed a customer purchasing a chair immediately before defendant was shown making a cash purchase of a small item. Regarding the two-hour time discrepancy between the activation of the phone-card and the time of its purchase as shown on the sales receipt, the State attempted to but was not permitted to present hearsay evidence about whether Virgin Mobile's records reflected Pacific time. There was no evidence either way on the time zone shown in the Virgin Mobile records, and each attorney argued to the jury regarding the significance of that evidence or the lack of that evidence.

While it is true that the State did not positively identify defendant by voice, eyewitness testimony, or evidence showing that he possessed a phone or phone-card used to harass the victim, it presented other evidence from which the jury ultimately concluded beyond a reasonable doubt that defendant was the person who made the harassing communications. We do not find reason in this record to disturb the jury's determination.

Next, defendant argues that plain error occurred in the trial court's response to juror misconduct when a juror spoke to a sheriff's officer and thus revealed that jurors had discussed the case before deliberations began.

The last witness to testify was a prosecutor's office employee who covered at length and with some complexity the phone records for the 732 and 908 numbers from which the harassing communications originated. It appears that the jurors' confusion may have been with reference to that testimony, and the Virgin Mobile records the witness discussed.

After the judge learned of the juror's comment, the prosecutor and defense counsel requested that the sheriff's officer be questioned on the record. The officer testified that, while the jury was waiting in the lobby to be returned to the courtroom, a juror said to him that the jurors had not received a clear explanation of what phone number belonged to whom. The officer testified further that some jurors seemed to agree with that comment and that all jurors were likely to have heard the conversation. After the officer completed his testimony, both attorneys agreed with the judge that voir dire of individual jurors was not required, and that it would be adequate for the judge to instruct the jury about its proper function in assessing the evidence. The jury then entered the courtroom to hear the judge's final jury charge. The judge began by reminding the jurors that they would have to evaluate the evidence that was actually presented and that they were not to discuss the case until deliberations had officially begun.

Defendant now contends that he is entitled to a new trial because the court failed to make a probing inquiry into jury misconduct. He argues the judge should have questioned each juror individually because it was likely that the jury was prematurely discussing the evidence in the case. We are not persuaded by this argument.

The trial judge handled the matter appropriately and with agreement of all counsel. Generally, in cases involving mid-trial allegations of jury misconduct, the court "must make a probing inquiry into the possible prejudice caused by any jury irregularity." State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div.), certif. denied, 151 N.J. 466 (1997). The procedure for responding to premature jury deliberations is no different from other potential jury misconduct. State v. McLaughlin, 310 N.J. Super. 242, 256 (App. Div.), certif. denied, 156 N.J. 381 (1998). The trial court must "first determine whether the alleged improper conduct has the capacity to prejudice the defendant," and if so, the court should conduct voir dire to determine the level of exposure to impropriety, and whether the juror's impartiality has been affected. Ibid. (citing Scherzer, supra, 301 N.J. Super. at 487). "[T]he appropriate course of action upon a showing of premature deliberations is a matter left to the trial court's broad discretion." Ibid.

Initially, we question whether the juror's comments to the officer were evidence of jury misconduct that might have affected defendant's right to a fair trial. Especially because the jurors' alleged internal communications were not known to counsel and so did not affect any presentation of evidence or closing arguments, defendant has not shown how he might have been prejudiced by the jurors expressing confusion about the evidence. If their saying they were confused can be viewed as evidence of premature deliberation, it was not so indicative of jury misconduct that further voir dire was clearly necessitated.

More to the point for purposes of this appeal, counsel agreed that no questioning of the jurors was warranted. Defense counsel may have decided as a matter of strategy that individual voir dire of the jurors might hurt defendant's interests. Questioning jurors might suggest to them that their confusion about the phone records was misplaced. On the other hand, confusion in the jury room might lead to a finding of reasonable doubt. Defense counsel did not make an obviously poor strategic decision in foregoing voir dire of the jury.

The trial court's decision that an instruction to the jury would suffice to address potential premature deliberations was not clearly capable of producing an unjust result. See R. 2:10-2. It was not plain error. See State v. Macon, 57 N.J. 325, 333-41 (1971).

Finally, defendant argues that his trial attorney performed deficiently because he neglected to point to evidence that the "pin number" for the phone-card referenced in the Virgin Mobile records was different from the partial pin number shown on the Office Depot sales receipt.

Claims of ineffective assistance of counsel are typically not reviewed on direct appeal. State v. McDonald, 211 N.J. 4, 30 (2012); see also State v. Hess, 207 N.J. 123, 145 (2011) ("[W]e routinely decline to entertain ineffective-assistance-of-counsel claims on direct appeal because those claims involve allegations and evidence that lie outside the trial record." (internal quotation marks omitted)); State v. Preciose, 129 N.J. 451, 460 (1992) ("Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record.").

Only when the ineffective assistance claim can be determined on the trial record alone is it appropriate to dispose of the issue on direct appeal. State v. Castagna, 187 N.J. 293, 313 (2006). This is not such a case. In particular, the State points to evidence that the number on the sales receipt does not reflect the pin number for the actual phone-card. Defendant's claim of ineffective assistance of counsel is not ripe for review on direct appeal.

A

1 The stalking charge may have been mistakenly charged as a third-degree crime in the indictment and so listed in the judgment of conviction. N.J.S.A. 2C:12-10(b) grades the crime of stalking, without additional elements, as a fourth-degree offense.