STATE OF NEW JERSEY v. PETER HENRIQUES

NOT FOR PUBLICATION WITHOUT THE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.

PETER HENRIQUES,

Defendant-Appellant.

____________________________________

September 14, 2015

Submitted November 20, 2013 Decided

Before Judges Fuentes, Simonelli and Fasciale.

On appeal from Superior Court of New Jersey,

Law Division, Cumberland County, Indictment No.

10-09-00472.

Joseph E. Krakora, Public Defender, attorney

for appellant (Michele A. Adubato, Designated

Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County

Prosecutor, attorney for respondent

(G. Harrison Walters, Assistant Prosecutor,

of counsel and on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

Defendant Peter Henriques was convicted after a jury trial, of one count aggravated manslaughter, N.J.S.A. 2C:11-4a(1), as a lesser included offense of murder, as defined under N.J.S.A. 2C:11-3(a)(1) and (2). This is the second time defendant has appealed his conviction related to this charge of murder. In the first appeal, we reversed defendant's conviction of murder and remanded for a new trial. State v. Peter Henriques, No. A-4786-01 (App. Div. Apr. 10, 2006). This time, after carefully reviewing the evidence presented by the State at defendant's second trial, we affirm.

I

Because of his age at the time he committed this offense, defendant was initially charged as a juvenile, subject to the jurisdiction of the Chancery Division, Family Part. After a probable cause hearing before the Family Part on December 12, 1997, the case was transferred to the Law Division, Criminal Part pursuant to N.J.S.A. 2A:4A-27, where a Cumberland County Grand Jury returned a one-count indictment against defendant, charging him with first degree murder under N.J.S.A. 2C:11-3(a)(1) or (2).

Defendant pleaded not guilty and was tried before a jury on March 16, 1998. He was convicted of murder and sentenced to serve a term of thirty years without parole. On direct appeal to this court, we determined the statements given by defendant to law enforcement investigators were "inadmissible fruits of an illegal arrest." Henriques, supra, No. A-4786-01, (slip op. at 22). We also held that the investigators intentionally separated defendant from his mother during their interrogation of defendant, rendering his inculpatory statements involuntary. Id. at 29-30. Relying on State ex rel. S.H., 61 N.J. 108, 115 (1972), we emphasized that

this juvenile was only sixteen, was a special education child and had had no prior involvement in the justice system. Moreover, defendant only waived his rights after being advised that his mother had already consented to his being interviewed alone and after being shown the Miranda1 card that she had executed. Under these facts, defendant's waiver can have very little weight, if any.

[Henriques, supra, No. A-4786-01, (slip op. at 33).]

Before the start of his second trial, defendant twice unsuccessfully moved before the trial court for a foreign jury or a change of venue. On September 1, 2010, a Cumberland County Grand Jury returned a one-count superseding indictment against defendant, again charging him with the first degree murder of Nielsa Mason, contrary to the provisions of N.J.S.A. 2C:11-3(a)(1) or (2). Defendant s second trial lasted twelve days, commencing on October 18, 2011 and ending on November 18, 2011. This time, the jury found him guilty of aggravated manslaughter, N.J.S.A. 2C:11-4a(1), as a lesser included offense of murder, as defined under N.J.S.A. 2C:11-3(a)(1) or (2). On January 9, 2012, the trial judge sentenced defendant to a term of fourteen years, six months, and twenty-seven days, which equaled the time that defendant had already served in prison.

We derive the following facts from the evidence presented to the jury at the second trial.

II

Defendant was sixteen years old on Monday April 28, 1997, the day the jury found he murdered his sixteen-year-old girlfriend Nielsa Mason. They were both sophomores at Cumberland Regional High School. Defendant was a member of the boys track team. Nielsa was a member of the girls track team. According to fellow students who knew them both, defendant and Nielsa were sexually intimate with each other at the time. A friend of Nielsa testified that on the day of her death, defendant gave Nielsa an "evil look" when she teased him as he passed by in the school hallway.

On November 3, 2011, as part of its case in chief, the State called a friend of defendant named Steven Fortune.2 He testified that on April 25, 1997, the Friday immediately preceding Nielsa's death, he saw defendant and Nielsa leaving the school's auxiliary gym between 3:00 p.m. and 5:00 p.m., after the school day had ended. Fortune also testified that defendant told him Nielsa "had performed oral sex on him and he was going to try to get her to do it again."

In 1997, Andrea Kuhar was employed as a mathematics teacher at the Cumberland Regional High School. She also coached the girls cross country team. Although she was no longer employed as a coach by the time this case was tried for the second time in 2011, she worked as a coach at the high school for approximately twenty-six years. According to Margaret Knudsen, the girl's assistant track coach, in 1997, the boys and girls track teams practiced between 3:00 p.m. and about 5:00 p.m. Each team had separate gender-specific locker rooms and showers facilities located within the school, near the gymnasium.

Margaret Knudsen testified that on the day of Nielsa's death, she saw and spoke to Nielsa during the regular school day and while the team was practicing. Knudsen described Nielsa's demeanor as "upset." Knudsen told her that she wanted to speak to her after practice. Knudsen did not see Nielsa alive again after this encounter during the team's practice. By contrast, other students who knew both defendant and Nielsa testified to seeing them together laughing and joking at around 5:30 p.m. that same day.

On Monday April 28, 1997, defendant and Nielsa practiced with their respective track teams between 3:00 p.m. and about 5:00 p.m. Rory Mingin, a graduate of Cumberland Regional High School, was working in a restaurant in Bridgeton in April 1997. On April 28, 1997, he finished work at "around 5:00 [p.m.], 5:15 [p.m.]." He went to a friend s house after work and spoke to him about playing basketball at the High School s gym. Mingin testified that after he left his friend s house, he "went home, got changed, picked up my brother and a couple of other people and went out to Cumberland Regional to play basketball." He arrived at the school at "about 6:15 [p.m.]."

According to Mingin, the gym where the basketball court was located was by the girls locker room. They spent about fifteen minutes trying to turn on the lights in the gym; he estimated they started playing at approximately 6:30 in the evening. As they were playing, Mingin saw a man he did not know come into the gym. He described him as "a tall, black male" approximately six feet tall wearing a long black coat. This man was also carrying a "bookbag." Mingin testified this man "asked for a ride to Gouldtown . . . [and] asked if we knew where Nielsa Mason was. . . ." Mingin specifically remembered the guy "kept asking for a ride to Gouldtown and where she was." Mingin testified he did not know who Nielsa Mason was at the time.

Nicholas Demianczuk was one of the men playing basketball with Mingin. At one point, Demianczuk left the basketball game to use the bathroom. This required him go to the boys locker room. As he opened the door to go inside the locker room, a person he later identified as defendant was coming out. Defendant asked him if he had seen Nielsa. Demianczuk, who was not a student at the time, told him he did not know any of the students. Although he had not seen defendant before that day, Demianczuk described defendant the same way Mingin had done earlier. "He had a black leather coat on, pretty long one . . . maybe three-quarter length or something like that. And a pair of dark pants, maybe brown, and a pair of dark boots."

After Demianczuk finished using the bathroom facilities, he decided to conduct a practical joke he used to do while he was a student. He "pulled a couple of shirts through some of the locker holes and tied them up in knots. It s something we used to do." As he was about to leave, "I just like happened . . . to look over . . . towards where . . . the shower [doorway] area is . . . that leads into the shower room. And I [saw] . . . a pair of legs . . . from the shin down . . . and showing the feet too." He surmised the rest of the body was behind a divider. Even with this limited view, Demianczuk could tell the person was African American, although he could not determine the gender. He walked out of the locker room, into the gym area, and continued playing basketball without reporting what he had seen to school officials or the police.

At around 5:45 p.m. Nielsa s father, Mr. Mason, arrived at the school to pick up and drive his daughter home. Unable to locate her, Mr. Mason walked through the school searching for her, meeting and talking to defendant and Nielsa s friend, Sherwood Collins along the way. Mr. Mason testified defendant appeared upset. He helped Nielsa's father look for her throughout the school. As time passed, Nielsa s mother called the New Jersey State Police and reported her daughter was missing.

Later that evening, Nielsa's mother received a call from Collins's girlfriend, Ryneka3 Woods, who told her Nielsa was dead. Woods told Mrs. Mason that Nielsa s body was in the boys locker room at the High School. Sometime later, Mrs. Mason received a similar telephone call from Collins. At some point thereafter, defendant called Mrs. Mason to tell her he had heard Nielsa was missing and offered to help find her.

At around 9:00 p.m., a school custodian found Nielsa s body in the shower area of the boys locker room. She was fully clothed, laying in a pool of blood; her head and face were lacerated. An autopsy revealed she suffered blunt force trauma to her head, neck, and upper body, and had died from manual strangulation. On a nearby shower wall, the police discovered three palm prints, one of which was later determined to have been made by defendant.

Law enforcement investigators first focused their attention on Sherwood Collins as a probable suspect. Investigators soon centered their investigation on defendant. Without obtaining an arrest warrant, police officers took defendant from his home and transported him to the police station, where they questioned him for hours, effectively denying him any contact with his parents. According to police investigators, defendant first confessed to having murdered Nielsa in a pre-interview statement, which was not audio recorded. He allegedly stated: "I didn't kill her because she was pregnant"; defendant claimed it was an unplanned act of rage and that he "just went off."

In a subsequent audiotaped statement, defendant repeated much of what he had purportedly told the interrogators during the pre-interview. However, defendant did not mention "rage" or going "off" in the audiotaped statement. The police interrogator s conduct in illegally arresting defendant and questioning a minor without his parents until he allegedly confessed formed the basis for this court s reversal of defendant's convictions following his first trial. The panel also noted

This case involved two possible suspects to the crime: defendant and Collins, and a "pitched credibility battle" as to which suspect was responsible for the crime. Thus, the most crucial issues before the jury were the interpretation of defendant's statements to the police, and whether the jury should credit Collins's alibi or his confessions to the crime. The police offered opinions on both of these issues. This should not recur during retrial.

[Henriques, supra, No. A-4786-01, (slip op. at 37).]

III

With this evidence and procedural history as backdrop, we now turn to review defendant s arguments. In this appeal, defendant raises the following arguments.

POINT I

THE DENIAL OF DEFENDANT'S NOTICE OF MOTION TO DISMISS THE INDICTMENT FOR FAILURE TO PRESENT EXCULPATORY EVIDENCE AND TO REMOVE POTENTIALLY BIASED GRAND JURORS WAS ERROR.

POINT II

THE PERVASIVENESS AND PREJUDICIAL NATURE OF THE PRE-TRIAL PUBLICITY MANDATED THAT DEFENDANT'S MOTION FOR CHANGE OF VENUE BE GRANTED.

POINT III

THE TESTIMONY OF FORMER STATE POLICE INVESTIGATOR BLAKES THAT THE CONFRONTATION OCCURRED IN AN UPRIGHT POSITION WAS IMPROPER OPINION TESTIMONY THAT SHOULD HAVE BEEN STRICKEN FROM THE RECORD.

POINT IV

IT WAS A GROSS ABUSE OF DISCRETION FOR THE COURT TO ALLOW THE TESTIMONY OF ANDREA KUHAR REGARDING WHERE ATHLETES WENT AFTER TRACK PRACTICE AS REBUTTAL EVIDENCE.

POINT V

THE ACTION OF A DELIBERATING JUROR IN DISCUSSING WITH THE OTHER JURORS HIS PERSONAL KNOWLEDGE OF THE CRIME SCENE DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT VI

THE DENIAL OF DEFENDANT'S MOTION FOR NEW TRIAL WAS ERRONEOUS.

POINT VII

THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below)

We are not persuaded by these arguments and therefore affirm. Defendant argues in Point I that the State failed to present exculpatory evidence to the grand jury requiring the dismissal of the indictment. We disagree. Our Supreme Court has recently reaffirmed the standard for deciding a motion to dismiss an indictment.

A trial court deciding a motion to dismiss an indictment determines whether, viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could reasonably believe that a crime occurred and that the defendant committed it. A court should not disturb an indictment if there is some evidence establishing each element of the crime to make out a prima facie case.

[State v. Saavadra, ___ N.J. ___, ___ (2015) (slip op. at 18) (citations omitted).]

Defendant raises two independent bases for dismissing the indictment. First, he argues the State withheld exculpatory evidence. Second, he claims the vicinage Assignment Judge erred when she failed to remove three potentially biased grand jurors from the panel. We do not find any merit in these arguments. We start our discussion by addressing the exculpatory evidence argument. A prosecutor "must present exculpatory evidence and may not mislead the grand jury by allowing the telling of a 'half-truth' or 'a distorted version of the facts.'" In re Loigman, 183 N.J. 133, 144 (2005) (quoting State v. Hogan, 144 N.J. 216, 236 (1996)). Accordingly, "a prosecutor has a duty to present 'evidence that is . . . so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused.'" State v. Toliver, 180 N.J. 164, 167-68 (2004) (quoting Hogan, supra, 144 N.J. at 236).

That being said, "a prosecutor's duty to present exculpatory evidence 'arises only if the evidence satisfies two requirements: it must directly negate guilt and must also be clearly exculpatory.'" State v. Reininger, 430 N.J. Super. 517, 531 (App. Div. 2013) certif. denied, 216 N.J 367 (2013) (quoting Hogan, supra, 144 N.J. at 237). "Only when the prosecuting attorney has actual knowledge of clearly exculpatory evidence that directly negates guilt must such evidence be presented to the grand jury." Hogan, supra, 144 N.J. at 238.

Here, the trial judge concluded dismissal of the indictment was not legally warranted because the disputed evidence concerning Collins did not directly negate defendant's guilt and was not clearly exculpatory. We agree. However, the State nevertheless elected to seek a superseding indictment and presented to the grand jurors exculpatory information concerning Collins. Specifically, the prosecutor informed the grand jurors of nurse Paul Swift's statement alleging Collins told him he was taken to the hospital "because he killed someone." The prosecutor also informed the grand jurors that Jerome Lane had given a statement indicating Collins said to him and others during a basketball game that he had killed Nielsa Mason.

The Grand Jury had this information when it returned a superseding Indictment against defendant on September 1, 2010, charging him with murdering Nielsa Mason. Defendant s remaining arguments on this issue are clearly without merit. R. 2:11-3(e)(2). We also adopt by reference the reasons expressed by the trial judge in denying defendant s motion to dismiss.

Defendant s second argument relates to the failure of the Assignment Judge to remove three potentially biased grand jurors from the panel. Under Rule 3:6-3(a)

When appropriate, the Assignment Judge shall inquire of potential grand jurors about such aspects of their background as may reveal possible bias or interest in a matter to come before the grand jury. The Assignment Judge shall instruct the grand jury that without the Assignment Judge's approval no grand juror shall participate in any matter in which that juror has a bias or a financial, proprietary, or personal interest; and if that juror wishes to participate, the juror shall forthwith so inform the prosecutor. The prosecutor shall forthwith inform the Assignment Judge, who shall determine, in camera, whether such bias or interest exists and whether it justifies excusal.

In State v. Murphy, 110 N.J. 20 (1988), the Supreme Court set out the general procedure to be followed when addressing the question of possible bias on the part of a grand juror, as well as the consequence that may result if the procedure is not followed

We believe that a prosecuting attorney has the obligation not only to note the existence of possible prejudice or bias on the part of a grand juror but to disclose such circumstances to the court and to afford the court the opportunity to preserve the impartiality of the grand jury proceedings. Accordingly, we now hold that, as an officer of the court, the prosecuting attorney has a responsibility to bring to the attention of the presiding judge any evidence of partiality or bias that could affect the impartial deliberations of a grand juror. We hold further that upon such a disclosure the court should determine whether such partiality or bias exists and whether it justifies excusal of the grand juror from the particular case being considered or from the panel.

. . . .

In the future . . . we shall require that violation of such procedures by a prosecuting attorney, in the face of evidence of grand juror bias or partiality, will result in dismissal of an indictment prior to trial.

[Id. at 33-36. (Internal citations omitted)]

Here, the prosecutor followed the procedure outlined in Murphy, and interviewed the grand jurors to detect any possible bias or lack of impartiality. Upon finding evidence of such possible lack of impartiality or bias, the prosecutor referred the juror to the Assignment Judge. The Assignment Judge thereafter questioned each grand juror directly, and independently determined whether the juror could remain on the grand jury panel.

The first grand juror disputed by defendant was interviewed by the prosecutor. The juror stated she remembered reading newspaper accounts of the crime thirteen years earlier. The juror also remembered that defendant had been charged with and tried for the crime. She had not seen or read any recent news accounts concerning the case and claimed she did not "even get a newspaper." The prosecutor referred this juror to the Assignment Judge who questioned her concerning her familiarity with the case. The juror reaffirmed that she had not been exposed to any recent news accounts of the case. She stated that her only awareness of the case and defendant's prior trial came from news accounts she had read thirteen years before she was called to serve on this grand jury. The juror assured the Assignment Judge that she had not yet formed an opinion in the case and that she could discharge her duties on the Grand Jury impartially. The Assignment Judge found this juror could be open-minded and was capable of arriving at a decision fairly and impartially.

At the subsequent hearing to adjudicate defendant's motion to dismiss the indictment, defendant claimed there was evidence showing that two grand jurors harbored a possible bias against him. The juror defendant claimed was possibly biased against him had been previously found acceptable by the Assignment Judge. In this light, the trial judge did not address this particular juror s presence on the grand jury when he denied defendant s motion to dismiss.

In this appeal, defendant argues the trial judge erred when he allowed this juror to remain on the grand jury panel. In support of this argument, defendant again claims the juror was familiar with the case and was aware defendant was previously tried for this offense. We discern no legal basis to disagree or interfere with the Assignment Judge s original ruling and adopt by reference the reasons expressed by the Assignment Judge in support of her decision not to remove this juror from the grand jury.

Defendant s arguments in Point II concerning the venue of the trial, Point III challenging the trial judge s evidential rulings concerning the scope of State Police detective Robin Blaker s testimony, and Point IV challenging certain aspects of Andrea Kuhar s testimony all lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

In Point V defendant argues that the trial court erred in denying his motion for a mistrial based on a juror's improper discussions with other jurors during deliberations. We disagree. We will begin our analysis of this issue by reaffirming that "[a] mistrial is an extraordinary remedy." State v. Goodman, 415 N.J. Super. 210, 234 (App. Div.), certif. denied, 205 N.J. 78 (2011). "Generally, a motion for a mistrial should be granted only in those situations which would otherwise result in a manifest injustice." State v. DiRienzo, 53 N.J. 360, 383 (1969). "The decision to grant or deny a motion for a mistrial is within the discretion of the trial judge." Goodman, supra, 415 N.J. Super. at 234-35. Our "scope of review of such a decision is limited to whether the trial court abused its discretion." Id. at 235. Mindful of these standards of review, we discern no legal basis to conclude the trial judge mistakenly exercised his discretionary authority in denying defendant s motion for a mistrial.

Defendant s argument is predicated on the following facts. On the third day of jury deliberations, Juror Number 12 informed the trial judge that Juror Number 3 had discussed his personal knowledge of the physical layout of the high school with the other jurors.4 Juror Number 3 was an assistant marching band director at the school. He was therefore familiar with its physical layout. After discussing the issue with the prosecutor and defense counsel, the judge decided to question the jurors directly concerning this matter.

In response to the judge s questions, Juror Number 3 indicated he only told his fellow jurors general information about the school's physical layout. The other jurors all concurred that Juror Number 3 had not told them anything that would influence their decisions in the case. Most importantly, a large diagram of the school's floor plan had been admitted into evidence and was available to the jury during its deliberations. Despite this safeguard, the trial judge conducted an extensive voir dire of the other jurors. In this light, the Judge concluded Juror Number 3's comments had not imparted any new information to the other jurors that was not independently before the jury in the form of this documentary evidence.

In an "inaudible" part of the transcript, defense counsel apparently moved for a mistrial, asserting the jury had been tainted by the information improperly provided to them by Juror Number 3. The judge denied defendant s motion for a mistrial, reasoning that his comprehensive inquiry had shown the jurors were already "aware of all [the] information" provided by Juror Number 3. Therefore, any possible prejudice could be cured by an appropriate curative instruction. Accordingly, the judge admonished the jurors as follows

I just wanted to impress upon everyone . . . [t]hat you're supposed to and you shall only judge this case solely based upon the evidence that you hear in this courtroom, and that you should not discuss any personal knowledge that you may have that are [sic] dealing with any issues outside of the courtroom.

Subsequently, defendant again moved for a new trial, arguing that the extraneous information provided by Juror Number 3 had tainted the jury. The judge denied the new trial motion.

We are satisfied the judge properly and adequately addressed the situation presented by Juror Number 3's extraneous information. Defendant s final arguments as reflected in Points VI and VII lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 The prosecutor confronted Fortune with a transcript of an audiotape statement he gave to law enforcement investigators on April 30, 1997, two days after Nielsa's death. In response to defense counsel's objection, the prosecutor proffered to the trial judge in a sidebar conference that she intended to use the statement to show the witness gave "contradictory information in his taped statement[.]"

3 Ryneka is also spelled as "Ranika" in the record.

4 The transcript of the trial judge's discussion of this matter, including the questions posed by the judge to the jury panel, has a number of inaudible gaps.