STATE OF NEW JERSEY v. FRANCENE OPRIHORY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCENE OPRIHORY, a/k/a

OPRIHORY FRANCENE,

Defendant-Appellant.

_____________________________

May 7, 2014

Submitted February 26, 2014 Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 09-06-1072 and 12-01-0081.

Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Francene Oprihory appeals a judgment of conviction and sentence entered on an indictment charging her with two third-degree crimes committed against Bergen County Sheriff's Officers. The charges were aggravated assault by purposely, knowingly or recklessly causing bodily injury to Officer Christopher Olivo, N.J.S.A. 2C:12-1b(5)(h) (Count One), and resisting arrest by using physical force or violence against Officer Olivo or Officer Michael LaPlaca, N.J.S.A. 2C:29-2a(3)(a) (Count Two). The officers were assigned to court security when the incident occurred, and defendant was tried to a jury in the Bergen County Justice Complex. Although the foreperson announced a "Not guilty" verdict on Count One in open court and each juror acknowledged agreement with that verdict, the judge entered a judgment of conviction on both counts and sentenced defendant to concurrent four-year terms of imprisonment.

Defendant also appeals the sentence imposed on her guilty plea to a violation of probation. Defendant entered that plea on the day the foregoing judgment was entered. The factual basis for the violation of probation was the judgment of conviction for aggravated assault and resisting. The State has not submitted a brief in opposition to defendant's appeal. Defendant presents the following arguments for our consideration:

I. BECAUSE THE JURY RETURNED A VERDICT OF

NOT GUILTY ON COUNT ONE, THE COURT ERRED IN CONVICTING AND SENTENCING OPRIHORY FOR THIS OFFENSE.

II. THE TRIAL COURT ERRED IN REFUSING

DEFENSE COUNSEL'S REQUEST TO CHARGE THE JURY ON THE ISSUE OF CAUSATION, DEPRIVING OPRIHORY OF HER RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. 1, PARS. 1, 10.

III. OPRIHORY WAS DENIED A FAIR TRIAL WHEN

THE COURT ALLOWED THE PROSECUTOR TO PLAY CLIPS OF AN AUDIO RECORDING OF THE ALTERCATION FORTY-TWO TIMES BEFORE THE JURY.

IV. OPRIHORY'S TRIAL WAS TAINTED BY THE

ADMISSION OF IMPROPER 404(b) EVIDENCE DEPICTING HER AS A REPEAT CRIMINAL OFFENDER. (Not raised below).

V. THE CUMULATIVE IMPACT OF THE ERRORS

DENIED OPRIHORY A FAIR TRIAL. (Not raised below).

VI. THE TRIAL COURT ERRED IN FAILING TO

AWARD JAIL CREDITS FOR TIME OPRIHORY SPENT IN CUSTODY BETWEEN HER ARREST AND SENTENCE ON THE VIOLATION OF PROBATION. (Not raised below).

VII. THE TRIAL COURT CONSIDERED

INAPPROPRIATE AGGRAVATING FACTORS AND FAILED TO INCLUDE PROPER MITIGATING FACTORS IN HIS DELIBERATIVE PROCESS, REQUIRING A REMAND FOR RESENTENCING.

Because the jury found defendant not guilty of aggravated assault, we vacate that conviction and remand for issuance of a judgment of conviction reflecting a not guilty verdict. We reverse defendant's conviction for resisting arrest because of the admission of cumulative and irrelevant evidence, some of which tended to portray her as a bad person, repetitive replaying of defendant's inappropriate conduct in a courtroom that occurred prior to the alleged assault and resisting and the sounds emanating from the hallway where the alleged assault and resisting occurred. As a consequence of those dispositions, defendant's guilty plea to violating probation has no supporting factual basis. Accordingly, that plea must be vacated.

I

Our decision to direct entry of a "Not guilty" verdict on Count One does not turn on the facts of the case. It is based solely on the law and what transpired in the courtroom between the time the foreperson announced the "Not guilty" verdict and the time the judge accepted the verdict and discharged the jury.

In taking the verdict, the court clerk asked the foreperson: "On Count One, charging Francene Oprihory with attempting to cause or purposely, knowingly, or recklessly causing bodily injury to Sheriff's Officer Christopher Olivo, your verdict is?" The foreperson responded, "Not guilty." The official transcript of the event reflects that the foreperson said, "Not guilty," and the audio-video recording1 of the official court record, which defense counsel provided on appeal, plainly confirms that the foreperson said, "Not guilty."

The official transcript reports only the results of the court clerk's polling of the individual jurors on the "Not guilty" verdict, which immediately followed the foreperson's pronouncement of the verdict. The jurors were unanimous. But the audio-video recording of the official court record, which defense counsel provided on appeal, establishes that the court clerk polled the individual jurors by asking, "Do you agree or disagree?" The clerk posed that question once, and then queried the jurors by saying "Juror number 2?" "Juror number 3?" et cetera, until she had a response from each of the twelve jurors. Every juror said "Agree."

The court clerk went on to ask the foreperson for the jury's answer to two subordinate questions set forth on the verdict sheet pertaining to Count One. The first question was: "Did Francene Oprihory know that Christopher Olivo was a Sheriff's Officer acting in the performance of his duties while he was in uniform or exhibiting evidence of his authority, or purposefully committed [sic] the act because of his status as a Sheriff's Officer?" The foreperson answered "Yes."

Again the official transcript states only the results of the polling. But the audio-video recording establishes that the court clerk asked the first juror, "Do you agree or disagree?" and then elicited the responses of the individual jurors as she had in polling on the verdict. One juror said, "Yes"; the others all said, "Agree."

The second question was: "Did Sherrif's Officer Christopher [Olivo] suffer bodily injury?" The foreperson said, "Yes." Again the official transcript states only the results of the polling. The audio-video recording establishes that the court clerk did not ask a question, but asked for each juror's response by calling them by number for example, "Juror number 1?" All said, "Agree."

After the verdict on the second count, which was guilty, was taken in the same manner, the judge thanked the jurors for their service. Without restating the verdicts, the judge said: "At this time, the [j]ury is discharged with the thanks of the [c]ourt."

On the verdict sheet the foreperson presented to the judge when leaving the courtroom, there is no checkmark on the blank line following "Not Guilty" and there is a checkmark on the blank line following "Guilty." That discrepancy between the verdict on Count One as announced and the verdict as marked on the jury sheet came to light after the jurors left the courtroom, with the foreperson handing the verdict sheet to the judge as he passed. Defense counsel was the first to mention the verdict, which he did in responding to the prosecutor's motion to revoke defendant's bail.

The prosecutor had argued, "She's stand[ing] here now a convicted individual under these charges." During the course of the colloquy that followed, defense counsel said: "[W]hen I heard the Foreman first speak on Count One, I and I actually looked at Your Honor, I thought I thought he had said not guilty, and then we proceeded through the Counts " The judge interrupted and said, "Guilty." The prosecutor asked the judge, "That's what you have on the [verdict] sheet?" Defendant interjected, "He said not guilty." Defense counsel agreed, saying "that's what I thought I heard as well." The judge said, "This [is] the verdict sheet." The judge did not say what he heard.

Defendant said, "We all heard not guilty on the first one. He said not " The prosecutor told the judge he "wasn't sure" what he heard, but he noted that the judge had the verdict sheet and that the sheet directed the jurors to consider the subordinate questions "only if [they] find guilty . . . ." Again without indicating what he heard, the judge simply told the attorneys that he would make copies of the verdict sheet for their files and then concluded the proceeding. Curiously, the jury verdict on Count One was not mentioned or discussed at sentencing.

Well-settled law requires entry of a not guilty verdict on Count One, despite the clarity of the verdict sheet. "In the trial of a criminal cause, the ultimate responsibility for determining guilt or innocence reposes solely in the jury and cannot be preempted or dislodged by the court." State v. Simon, 79 N.J. 191, 199 (1979). "[A] jury in a criminal case has the paramount, exclusive and independent responsibility for making the final adjudication of guilt or innocence and cannot be compelled by the court to return a guilty verdict even though evidence of guilt is overwhelming." Ibid. A verdict must "be returned by the jury to the judge in open court." R. 1:8-9. In a criminal case, a judge may "only give effect to the verdict returned by the jury before it was discharged and dispersed." State v. Black, 380 N.J. Super. 581, 591 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006).

Without question, if the judge had noted the discrepancy between the verdict sheet and the verdict announced in court before he discharged the jury, action to clarify the verdict would have been permissible. That is so because a jury verdict is not final until it is accepted by the court and the jury is discharged. State v. Jenkins, 349 N.J. Super. 464, 475-76 (App. Div.), certif. denied, 174 N.J. 43 (2002).

But there is absolutely no precedent, at least none we have found, that would allow the judge to decide, as he apparently did, that the foreperson misspoke and the jurors who individually announced their agreement with his misstatement misheard. The judge's decision to rely on his assumptions about what happened was a patent and unauthorized usurpation of the jurors' individual and collective responsibility.

We recognize that this court has rejected a request to conform a judgment of conviction stating a guilty verdict with the transcript reflecting that the verdict announced was "Not guilty." Id. at 479. But our determination turned on the fact that there was an error in the transcription. Ibid. In this case there is no dispute that the transcription is accurate. Allowing a correction of an error in the transcription of a verdict announced in court is a far different thing than allowing a correction of what was said in open court. The difference perhaps too obvious to state is that one substitutes a judge's determination for the determination each of the jurors acknowledged as their collective verdict in court and the other gives effect to the verdict announced in court.

For all of the foregoing reasons, the judgment must be corrected to reflect a not guilty verdict.

II

We turn to consider the conviction on resisting arrest. The charge arose from an incident that occurred on August 4, 2011 inside and outside a courtroom in the Bergen County Justice Complex. That courtroom is on the fourth floor in the older portion of the building known as the "dome." There is a rotunda in the dome, and public entry to the courtroom is through a door across the hall from the railing circling the rotunda. Defendant was in the dome-courtroom on August 4 for a proceeding to which she was a party. Although that proceeding was adjourned, defendant remained in the courtroom's gallery. Her friend was the defendant in another case, and he was representing himself in a case being tried in that courtroom by a judge of the municipal court.

Officers Olivo and LaPlaca were assigned to court security duty in the dome-courtroom that day. The municipal court judge and the officers responsible for security in the courtroom testified at the criminal trial that resulted in defendant's conviction for resisting arrest. All of those witnesses said they knew defendant and her friend prior to August 4. The municipal court judge explained that he had heard about thirty matters involving defendant "and or" her friend who was on trial before him on August 4.

The incident at issue in the criminal trial occurred as Officer Olivo was escorting defendant from the dome-courtroom where her friend was on trial. Because defendant was making comments that were disrupting her friend's trial, the officer had directed defendant to be quiet. When she did not comply, he directed her to leave the courtroom, and when she ignored his direction to leave, he took her arm and lifted her from her seat.

Holding defendant's elbow, Officer Olivo tried to guide her to the door but she backed farther into the courtroom, until Officer LaPlaca blocked her path. Defendant then walked through the doorway with Officer Olivo still holding her arm and guiding her from behind. When she was through the door, he released her arm. Suddenly, and taking Officer Olivo by surprise, defendant came back at him and hit him in the collarbone with her elbow. The municipal prosecutor, who was in a place in the courtroom where he could see through the open doorway, described defendant's movement as a pivot. Other witnesses, who were not in a position to see outside, saw Officer Olivo recoil back into the courtroom, as if he were propelled back by force, and then lunge forward.

According to Officer Olivo's testimony, after defendant struck him, he told her she had assaulted him and was under arrest. Others in the courtroom who could not see what was going on heard what Olivo said and defendant's response. She cursed at Officer Olivo and told him that he had assaulted her.

Officer Olivo grabbed defendant's hands behind her back, but she pushed back and tried to push him over the balcony. Together, Officers LaPlaca and Olivo managed to take defendant to the floor. According to Officer Olivo, he did that "for her safety and [his]." As several witnesses explained the layout of the hallway, the railing separated those who used the hallway from open space that went from the first to the fourth floor. After the officers had put one handcuff on defendant and while she was lying on the floor, defendant was kicking, moving her arm, yelling and screaming. Officer Olivo told defendant to stop resisting and give him her other hand, but she kept it under her body.

Officer LaPlaca summoned for additional assistance, and three officers responded. With their help, defendant was taken into custody. There was evidence that both officers and defendant sustained injuries that required treatment.

The audio-recording equipment in that courtroom, which is installed and placed to make the official record of court proceedings, picked up some of the statements defendant made from the gallery before her ejectment and some sounds and statements that were made in the hallway after defendant's ejectment and during the scuffle. In addition to screaming and yelling after her ejectment, the recording captured, according to some of the witnesses who listened to the recording during their testimony, defendant's cursing, the cross-accusations of assault and Officer Olivo's demands for defendant to give him her hand.

Although the prosecutor repeatedly advised the jurors that it was difficult to hear what was being said, the recording was played and repeatedly replayed as the witnesses testified. Often, but not always, the prosecutor asked a witness if his or her recollection would be refreshed by hearing the audio recording. Upon receiving an affirmative answer, the audio recording was replayed, and the prosecutor then asked the witness if the witness had heard a particular statement on the recording or to repeat for the jurors what statements they were able to hear on the segment of the recording the prosecutor had just played.

There is no question that the officers' testimony about what occurred in the hallway provided ample evidence to support defendant's conviction for resisting. Despite the strength of the State's evidence, however, defendant was entitled to a fair trial. In this case, the effect of cumulative error warranted a new trial.

Where "the probable effect of the cumulative error was to render the underlying trial unfair," a defendant is entitled to "'a new trial before an impartial jury.'" State v. Wakefield, 190 N.J. 397, 538 (2007) (quoting State v. Orecchio, 16 N.J. 125, 129 (1954). Based on the aggregate impact of the evidentiary errors, we conclude defendant is entitled to a new trial on resisting.

Without question, evidence of defendant's disruptive and defiant behavior in the municipal court, before Officer Olivo told her to leave, provided relevant background and a necessary explanation for the officers' effort to remove defendant from the public courtroom. But a significant amount of cumulative evidence of that disruptive conduct was admitted. There was testimony about defendant's pre-ejectment behavior from several witnesses including the municipal judge, the municipal prosecutor and the officers. In addition, as discussed and described above, the audio recording was played multiple times during their testimonies and, in some instances, the witnesses were permitted to testify about what they heard on the recording when it was played.

All of that evidence was admitted in defendant's criminal trial without consideration of N.J.R.E. 403. That evidence rule provides for the exclusion of relevant evidence where its "probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." State v. Rose, 206 N.J. 141, 177 (2011) (quoting N.J.R.E. 403). In our view, the cumulative background evidence, which depicted defendant as a person refusing to follow courtroom decorum but was relevant to the charges at issue only as background and context, should have been limited pursuant to N.J.R.E. 403.

The municipal court judge and officers were also permitted to testify about knowing defendant from her frequent prior appearances in municipal court. That evidence was wholly irrelevant. As previously noted, the municipal court judge who was conducting the trial of defendant's friend, testified that he had heard about thirty matters involving defendant "and or" her friend. Unlike the evidence of defendant's disruptive behavior on August 4 that provided essential background and context for the charges at issue in this case, neither defendant's nor her friend's prior court appearances or their frequency had any tendency to prove any issue material to the case. N.J.R.E. 402. The only probative value was the capacity of that evidence to portray defendant and her frequent companion as persons with a propensity for engaging in conduct that required court appearances. That evidence should have been excluded pursuant to N.J.R.E. 402 because it was irrelevant.

That evidence also should have been excluded pursuant to N.J.R.E. 404(b) because of its capacity to suggest that defendant was a bad person and had a close friend of the same character. "The underlying danger of admitting" evidence suggestive of bad character and prior wrongful acts "is that the jury may convict the defendant because he is a bad person in general," not because of the evidence and the law. State v. Cofield, 127 N.J. 328, 336 (1992) (citation and internal quotation marks omitted). The risk of prejudice in this case was further exacerbated because the judge did not give the jury any instruction directing the jurors that this evidence could not be considered for the purpose prohibited by N.J.S.A. 404(b) defendant's propensity to violate the law.

Finally, the repeated playing of the recording of the sounds and statements emanating from the struggle in the hallway was prejudicial. That portion of the recording included screaming and yelling that was in sharp contrast to the proper decorum maintained by defendant during this trial. The manner in which the prosecutor used the audio to bolster the testimony of the witnesses as they testified was also improper. It is improper to use prejudicial other-crimes evidence to bolster witness testimony. State v. P.S., 202 N.J. 232, 256 (2010). The manner in which the prosecutor used the tapes, contemporaneous bolstering of the witnesses' account accompanied by sounds of the struggle, screaming and yelling seems equally improper.

In addition, the prosecutor used the audio recording to have the witnesses give impermissible lay opinion testimony on what they were able to hear from the recording. That lay opinion testimony invaded the province of the jurors, who had the responsibility to decide what they could hear a matter well within the ken of ordinary jurors in a manner similar to lay opinion testimony on the veracity of testimony. State v. McLean, 205 N.J. 438, 453 (2011).

In our view, the cumulative impact of the foregoing errors deprived defendant of her right to a fair trial. Accordingly, we reverse defendant's conviction for resisting and remand for a new trial on that charge.

Because we are remanding for a new trial on resisting, we direct that the proceeding be conducted in another vicinage. Throughout this trial, the jurors were protected by sheriff's officers from the same agency as the officers involved in this case as victims. The trial took place in the same Justice Complex that housed the scene of the crime. No explicit direction was given to avoid going to the rotunda area of the Justice Complex, where the dramatic drop from the fourth floor of the dome to the first floor below was repeatedly described.

For reasons too obvious to state related to public confidence in criminal trials, this case should have been tried in a vicinage not served by sheriff's officers who were co-workers of the victims and working to keep the jurors, the judge, the lawyers, litigants and any spectators secure. See generally State v. Dunne, 124 N.J. 303, 315 (1991) (discussing the importance of public confidence in criminal trials in connection with a defendant's request to waive a jury trial). We direct that any trial on remand be conducted elsewhere.

Reversed and remanded for further proceedings in conformity with this opinion. Specifically, the judgment of conviction must be amended to reflect an acquittal on Count One, charging aggravated assault; an order revoking defendant's guilty plea to a violation of probation must be entered; and further proceedings must be conducted on Count Two.

1 The camera is not focused on the jurors.