STATE OF NEW JERSEY v. JAMES MCDOWELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 
 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES MCDOWELL, a/k/a

SISA BUTU,

Defendant-Appellant.

_____________________________

January 27, 2017

 

Argued November 9, 2016 Decideda3848-14

Before Judges Yannotti, Fasciale, and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-12-2261.

Henry E. Klingeman argued the cause for appellant (Krovatin Klingeman L.L.C., attorneys; Mr. Klingeman and Ernesto Cerimele, on the brief).

Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, argued the cause for respondent (Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief; John J. Scaliti, on the brief).

PER CURIAM

A jury convicted defendant James McDowell of eight crimes related to sexual assaults of a female victim. On two of the convictions he was sentenced to consecutive terms of eighteen and ten years in prison. All of the other convictions were either merged or the sentences were run concurrently. The consecutive prison terms were subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and, thus, defendant is required to serve eighty-five percent of the twenty-eight years without eligibility for parole.

Defendant appeals his convictions arguing that the trial court committed reversible error in failing to ask open-ended questions during jury selection as required by New Jersey Supreme Court Administrative Directive #4-07. Defendant also argues that it was an error to impose consecutive sentences.

We hold that trial courts must ask open-ended questions as mandated by Directive #4-07. Here, however, we affirm the convictions because the jury voir dire was otherwise comprehensive and the error was harmless. We also affirm the consecutive sentences. We do, however, remand to correct the judgment of conviction (JOC) to reflect that the conviction for false imprisonment was a disorderly persons offense, not a fourth-degree crime.

I.

The facts were established at trial. Defendant and the victim, M.W.1, had known each other for a number of years. They met in 2005, and had a casual dating relationship for several months. During that time, they engaged in consensual sex several times.

Thereafter, defendant and M.W. stopped seeing each other, but they stayed in contact through emails and text messages. In 2010, defendant contacted M.W. and asked her to visit him at his home. On September 28, 2010, M.W. had an appointment near defendant's home and she arranged to meet him at approximately mid-day. Defendant and M.W. met, went out to lunch together, and then returned to defendant's home at approximately 2 p.m.

After defendant and M.W. had several alcoholic drinks, M.W. testified that defendant became aggressive and refused to let her leave. When M.W. attempted to leave, defendant took out a handgun, threatened M.W., and shot one round into the ceiling. Defendant then directed M.W. to take off her pants. Thereafter, defendant forced M.W. to perform several sexual acts and he penetrated M.W.'s vagina several times. Defendant also attempted to engage in other sexual acts, but either he or M.W. was unable to perform those acts. The sexual assaults occurred in the living room and bedroom in defendant's home at various times in the afternoon.

Eventually, at approximately 7:30 p.m., M.W. was able to escape from defendant's home and ran to a neighbor's home. The police were called and a special weapons and tactics (SWAT) team responded after learning that defendant had a gun. Defendant did not respond to the police's attempts to contact him, and later that evening the police launched oleoresin capsicum gas into defendant's home. At approximately 11:30 p.m., defendant came out and he was arrested.

A grand jury indicted defendant for fifteen crimes: one count of first-degree kidnapping, N.J.S.A. 2C:13-1(b); one count of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); one count of third-degree terroristic threats, N.J.S.A. 2C:12-3(a); four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) and (4); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); four counts of second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1, 2C:14-2(a)(3) and (4); and two counts of second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c)(1).

In preparation for jury selection, defense counsel submitted three proposed open-ended questions, which read

1. What obligations, if any, do you believe the defendant in a criminal case has?

2. Why do you think criminal cases require proof beyond a reasonable doubt?

3. In your own words, tell us what you think about the criminal justice system?

Defense counsel also asked the trial judge to add five supplemental questions to the standard voir dire questions asked to potential criminal jurors.

The attorneys and the trial judge discussed those proposed questions on the record prior to the start of jury selection. The trial judge stated that he believed defendant's proposed open-ended questions were covered by the standard questions. In response, defense counsel requested the judge to ask at least three other open-ended questions so that the jurors could be heard in their own words and the attorneys could assess if they had any potential biases. The trial judge, however, observed that in his experience jurors were "not bashful" about expressing their feelings.

Ultimately, the trial judge did not allow any open-ended questions. He did agree to add three supplemental yes or no questions to the standard voir dire questions. Thus, the potential jurors were given a written questionnaire containing twenty-nine questions, to which they were asked to respond either "yes" or "no." The potential jurors were also asked to verbally answer three supplemental questions and to provide biographical information about themselves.

During the selection process, the potential jurors were asked about any "yes" answers to the questions. Over 120 potential jurors were questioned and more than 100 were excused for cause. Ultimately, fifteen jurors, including three alternates, were selected to hear the case.

After hearing the evidence at trial, the jury convicted defendant on eight counts and acquitted him on the remaining seven counts. Specifically, on the count of kidnapping, defendant was convicted of the lesser charge of false imprisonment, N.J.S.A. 2C:13-3. He was also convicted of second-degree possession of a weapon for an unlawful purpose, third-degree terroristic threats, first-degree aggravated sexual assault, two counts of second-degree sexual assault, and two counts of second-degree attempted sexual assault.

Defendant moved for a new trial contending that he was denied a fair and impartial jury because the trial judge did not allow open-ended questions during jury selection. That motion was denied.

Defendant was then sentenced. On his conviction for first-degree aggravated sexual assault, defendant was sentenced to eighteen years in prison with an eighty-five percent period of parole ineligibility as prescribed by NERA. On one of the convictions for second-degree attempted sexual assault, defendant was sentenced to a consecutive ten years in prison with an eighty-five percent NERA period of parole ineligibility. The convictions for possession of a firearm for an unlawful purpose and one count of sexual assault were merged with the conviction for aggravated sexual assault, and all other sentences were run concurrently. Thus, defendant's aggregate sentence was twenty-eight years in prison, subject to NERA.

II.

On appeal, defendant makes two arguments: (1) the trial judge's refusal to ask open-ended questions during jury selection constituted reversible error; and (2) the consecutive sentences were improper. Specifically, defendant articulates his arguments as follows

I. SUPREME COURT DIRECTIVE #4-07 MAKES IT MANDATORY FOR TRIAL JUDGES TO ASK [OPEN-ENDED] VOIR DIRE QUESTIONS

II. IT WAS REVERSIBLE ERROR FOR [THE] JUDGE [] TO PROHIBIT COUNSEL FROM ASKING OPEN-ENDED VOIR DIRE QUESTIONS AT TRIAL

III. THE COURT VIOLATED THE PRINCIPLES OF STATE V. YARBOUGH2 IN SENTENCING [DEFENDANT] TO TWO CONSECUTIVE TERMS

A. Directive #4-07 and Open-Ended Questions

A criminal defendant is constitutionally entitled to a trial by an impartial jury. U.S. Const. amend. VI; N.J. Const. art. I, 10; Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S. Ct. 1507, 1522, 16 L. Ed. 2d 600, 620 (1966); State v. Fortin, 178 N.J. 540, 575 (2004). Historically, the scope and choice of questions used in jury voir dire rested with "the discretion of the trial court, limited only by the demands of fairness and justice." State v. Sullivan, 43 N.J. 209, 239 (1964), cert. denied, 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966).

In 2006, our Supreme Court established a special committee to study jury voir dire practices. After receiving the committee's report, the Court directed the Administrative Office of the Courts (AOC) to issue two directives addressing jury voir dires. See Administrative Directive #21-06, "Approved Jury Selection Standards, Including Model Voir Dire Questions" (Dec. 11, 2006), http://www.judiciary.state.nj.us/directive/2006/dir_21_06.pdf. and Administrative Directive #4-07, "Jury Selection Model Voir Dire Questions Promulgated by Directive #21-06 Revised Procedures and Questions" (May 16, 2007), http://www.judiciary.state.nj.us/directive/2007/dir_04_07.pdf. Directive #21-06 mandated certain procedures for jury selection. Among other things, that directive required trial judges to ask each individual juror a set of standard questions, as well as questions tailored to the individual case.

After Directive #21-06 was issued, trial judges reported that the requirement of individual questioning of jurors on every question was counterproductive and caused unnecessary delay. Thus, on May 16, 2007, the Supreme Court caused the AOC to issue Directive #4-07, which supplemented and modified Directive #21-06.

Directive #4-07 authorized trial judges to conduct voir dires without asking each question individually to each juror. Instead, the trial court must provide potential jurors with a printed copy of the questions. Directive #4-07 also required that each juror be asked at least three questions that required answers in narrative form. Specifically, Directive #4-07 states

In addition to the printed questions, the judge shall also inform the jurors in the box and the array that jurors will also be individually asked several questions that they will be required to answer in narrative form.

. . . .

The judge will then ask [the] juror each of the open-ended questions, to which a verbal response shall be given and for which appropriate follow up questions will be asked.

. . . .

Some open-ended questions must be posed verbally to each juror to elicit a verbal response. The purpose of this requirement is to ensure that jurors verbalize their answers, so the court, attorneys and litigants can better assess the jurors' attitudes and ascertain any possible bias or prejudice, not evident from a yes or no response, that might interfere with the ability of that juror to be fair and impartial. Open-ended questions also will provide an opportunity to assess a juror's reasoning ability and capacity to remember information, demeanor, forthrightness or hesitancy, body language, facial expressions, etc.

. . . .

The judge must ask at least three such questions, in addition to the biographical question and the two omnibus qualifying questions. This is a minimum number and judges are encouraged to ask more where such action would be appropriate.

The directives in #4-07 and #21-06 are mandatory and are binding on all trial courts. We had previously explained

[T]he Supreme Court . . . "has the power to promulgate rules of administration as well as practice and procedure" pursuant to the New Jersey Constitution. In addition, as Judge Stern (then sitting in the Law Division) noted, "the Chief Justice, as administrative head of the court system, can promulgate binding directives either directly or through the Administrative Director of the Courts." Thus, the [d]irective which includes its commentary, has the force of law.

[State v. Morales, 390 N.J. Super. 470, 472 (App. Div. 2007) (quoting State v. Linares, 192 N.J. Super. 391, 397 (Law Div. 1983)).]

Accordingly, under Directive #4-07, it is mandatory that at least three open-ended questions "must be posed verbally to each juror to elicit a verbal response."

Here, the trial judge did not ask any open-ended questions of the jurors. The judge stated that he believed such information was covered by the standard questions and, in his experience, jurors usually asked questions if they had any. Those views by the trial judge did not provide a justification for failing to ask at least three open-ended questions. Directive #4-07 makes clear that a trial judge cannot refuse to ask less than three open-ended questions of each juror.

Having determined that the trial court here erred, we turn to the question of whether that error warrants a reversal of defendant's convictions. Generally, some degree of harm must be shown; an error that is harmless will not warrant reversal of a trial. R. 2:10-2; see also State v. R.B., 183 N.J. 308, 334 (2005) ("A defendant is entitled to a fair trial but not a perfect one." (quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593, 604 (1953))).

B. Harmless Error

Rule 2:10-2 provides "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." State v. Reeds, 197 N.J. 280, 298 (2009); see also State v. Singleton, 211 N.J. 157, 182 (2012).

Constitutional errors, like other errors, are generally also subject to the harmless error analysis. State v. Camacho, 218 N.J. 533, 547 (2014). When a constitutional error has occurred, however, the burden shifts to the State to show that such error was harmless beyond a reasonable doubt. See State v. Slaughter, 219 N.J. 104, 118 (2014) (violation of defendant's confrontation rights was not harmless beyond a reasonable doubt); State v. Cabbell, 207 N.J. 311, 337-39 (2011) (denial of right to cross-examine witness was not harmless beyond a reasonable doubt).

In this case, we are not dealing with a constitutional error. Directive #4-07 arose from our Supreme Court's desire for uniform voir dire practices; the directive's mandates are not constitutionally required. Instead, as noted earlier, the Constitutions of both the United States and New Jersey guarantee a criminal defendant an impartial jury. See Skilling v. United States, 561 U.S. 358, 377, 130 S. Ct. 2896, 2912, 177 L. Ed. 2d 619, 641 (2010) ("The Sixth Amendment secures to criminal defendants the right to trial by an impartial jury."); State v. Winder, 200 N.J. 231, 252 (2009) ("Generally, a trial court's decisions regarding voir dire are not to be disturbed on appeal, except to correct an error that undermines the selection of an impartial jury.").

Moreover, failure to ask open-ended questions during jury voir dire is not a structural error. Structural errors exist "only in a very limited class of cases." Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 1549, 137 L. Ed. 2d 718, 728 (1997). "A structural error has [] been defined as a 'defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.'" State v. Purnell, 161 N.J. 44, 60 (1999) (quoting Johnson, supra, 520 U.S. at 468, 117 S. Ct. at 1549, 137 L. Ed. 2d at 728).

Our Supreme Court has explained that "a structural error affects the legitimacy of the entire trial, rather than an isolated error that occurs during a certain part of the trial process and does not contaminate the trial as a whole." Id. at 61. Thus, a structural error is a "structural defect[] in the constitution of the trial mechanism, which [defies] analysis by 'harmless-error' standards." Ibid. (alterations in original) (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265, 113 L. Ed. 2d 302, 331 (1991)).

Accordingly, here we apply the harmless error standard set forth in Rule 2:10-2. In doing so, we examine whether the trial court's failure to ask open-ended questions was of "such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. Using that standard, we have reviewed the jury voir dire conducted in this case and conclude that it was sufficiently comprehensive to ensure that an impartial jury was selected.

In this case, twelve jurors and three alternates were selected. All potential jurors were given a printed copy of twenty-nine questions, which consisted of the standard criminal voir dire questions. In addition, each juror was asked three supplemental questions. All potential jurors then answered those questions with yes or no responses and provided their biographical information. The trial judge individually questioned potential jurors on any yes response. During that process, defendant and his counsel had the opportunity to evaluate each of the potential jurors based on their biographical information and answers to the thirty-two questions.

During jury selection, over 110 potential jurors were excused for cause based on their answers to questions and follow up questioning. Accordingly, there were many instances where the potential jurors provided more than a yes or no response. Defendant, through counsel, elected to use five peremptory challenges and the state used two peremptory challenges.

All fifteen jurors selected to hear the case spoke during the selection process. Nine answered some questions with a "yes," and, thus, they were asked follow up questions that required them to articulate something more than a yes or no response. Six of the selected jurors did not respond with any yes answers, but each of them did provide biographical information about themselves. Thus, those six jurors also each spoke individually during the selection process. Two of the jurors who did not have any yes answers were selected as alternates. Thus, of the twelve jurors who deliberated, eight where individually questioned, and the other four all spoke and participated in the selection process.

The overall jury selection process was comprehensive. The trial court and counsel spent almost two full days conferring about the jury selection process and questioning potential jurors. Our review of the jury voir dire process in this case convinces us that the selected jury was an impartial jury. Thus, we conclude that the judge's failure to ask open-ended questions in this case was a harmless error.

C. The Consecutive Sentences

Appellate review of sentencing decisions is deferential and governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). "At the time of sentencing, the court must 'state reasons for imposing such sentence including . . . the factual basis supporting [its] finding of particular aggravating or mitigating factors affecting sentence.'" State v. Fuentes, 217 N.J. 57, 73 (2014) (quoting R. 3:21-4(g)). "The reviewing court must not substitute its judgment for that of the sentencing court." Id. at 70. Thus, an appellate court should affirm a sentence unless

(1) the sentence guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."

[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

In State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), our Supreme Court set forth guidelines to be considered when deciding whether to impose consecutive or concurrent sentences

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not

(a) the crimes and their objectives were predominately independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors; and

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense.

The Yarbough factors essentially focus upon "the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114 N.J. 169, 180 (1989)). The "no free crimes" guideline set forth in Yarbough leans toward the direction of consecutive sentences because the criminal code focuses on the crime, not the criminal. Ibid. (quoting Yarbough, supra, 100 N.J. at 643).

Defendant argues that the trial court improperly imposed consecutive sentences by ignoring the Supreme Court's holding in Yarbough and by failing to provide an adequate statement of reasons for running the sentences consecutively. We disagree.

Here, the trial court imposed consecutive sentences for the conviction of first-degree aggravated sexual assault and for one of the convictions of second-degree attempted sexual assault. In doing so, the trial court expressly identified and discussed the factors to be considered under Yarbough. The court reasoned that the two convictions were separate crimes. The first-degree aggravated sexual assault took place in the bedroom. The victim was then allowed to use the bathroom. When she returned to the living room, defendant ordered her on to a couch, laid on top of her, and demanded that she perform fellatio. The victim, however, could not perform the act.

We discern no error of law or abuse of discretion in the consecutive sentences. The sentencing court acted within its discretion in determining that the victim suffered separate and distinct assaults. Moreover, the court gave sufficient reasons for the consecutive sentences.

We also discern no abuse of discretion in the trial court's rejection of defendant's argument that his repeated sexual assaults were a single episode, separated only by what he has characterized as a "bathroom break." Cases applying the Yarbough guidelines make clear that the factors to be considered in imposing a consecutive sentence are fact-sensitive. State v. Miller, 205 N.J. 109, 129 (2011); State v. Cassady, 198 N.J. 165, 182 (2009). Here, analyzing the facts of this case, the trial court concluded that two of the assaults were distinct crimes.

The State has acknowledged that the sentence imposed for the conviction of false imprisonment is illegal. On the original charge of kidnapping, the jury found that defendant had committed the lesser-included crime of false imprisonment. The trial court treated that conviction as a fourth-degree crime and imposed a concurrent sentence of eighteen months in prison. False imprisonment, however, is a disorderly persons offense. N.J.S.A. 2C:13-3. Accordingly, we remand so that the JOC can be amended and corrected concerning the sentence for false imprisonment.

The convictions and sentences are affirmed, except for the sentence on the conviction for false imprisonment. The sentence on false imprisonment is remanded for correction. We do not retain jurisdiction.

1 To protect privacy interests, we use initials for the victim.

2 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).