STATE OF NEW JERSEY v. TROY W. DONINI

NOT FOR PUBLICATION WITHOUT THE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-5093-15T3

STATE OF NEW JERSEY,

              Plaintiff-Respondent,

v.

TROY W. DONINI,

          Defendant-Appellant.
________________________________

              Argued January 11, 2018 – Decided January 25, 2018

              Before Judges Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Cumberland County, Indictment
              No. 14-12-0941.

              Michele E. Friedman, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Mark H. Friedman, Assistant Deputy Public
              Defender, of counsel and on the brief).

              Kim L. Barfield, Assistant Prosecutor, argued
              the cause for respondent (Jennifer Webb-McRae,
              Cumberland County Prosecutor, attorney; Kim L.
              Barfield, of counsel and on the brief).

PER CURIAM
       A Cumberland County grand jury charged defendant in a five-

count indictment with first-degree murder, 
N.J.S.A. 2C:11-3(a)(1)

(count one); second-degree possession of a weapon for an unlawful

purpose, 
N.J.S.A. 2C:39-4(a) (count two); first-degree conspiracy

to commit murder, 
N.J.S.A. 2C:5-2(a)(1) and (2), and 
N.J.S.A.

2C:11-3(a)(1)     (count   three);    first-degree        witness   tampering,


N.J.S.A. 2C:28-5(a) (count four); and fourth-degree aggravated

assault, 
N.J.S.A. 2C:12-1(b)(4) (count five).

       Following a multi-day trial, the jury convicted defendant on

count three, and found him not guilty of the remaining charges. 1

The judge sentenced defendant to twenty years in prison, subject

to the 85% parole ineligibility provisions of the No Early Release

Act,   
N.J.S.A.   2C:43-7.2,   with       a   five-year    period   of    parole

supervision upon release. The judge made this sentence consecutive

to a sentence defendant was then serving on an unrelated matter.

This appeal followed.

       On appeal, defendant raises the following contentions:

            POINT I

            THE TRIAL JUDGE DENIED DEFENDANT A FAIR TRIAL
            BY UNDULY LIMITING HIS RIGHT TO PEREMPTORILY
            CHALLENGE PROSPECTIVE JURORS WHEN A VACANCY
            WAS FILLED ON A JURY PANEL THAT HAD BEEN
            SELECTED BUT NOT YET SWORN.

1
   Defendant was tried with a co-defendant, who was charged in
counts one, two, and three of the indictment. The jury acquitted
the co-defendant of all three charges.

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          POINT II

          THE TRIAL COURT ERRED BY REFUSING TO INSTRUCT
          THE JURY THAT PRIOR INCONSISTENT STATEMENTS
          MADE BY THE STATE'S KEY WITNESS WERE
          ADMISSIBLE AS SUBSTANTIVE EVIDENCE.

          POINT III

          DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE
          AND UNDULY PUNITIVE.

     After   reviewing    the   record   in   light   of   the    contentions

advanced on appeal, we reverse and remand for further proceedings.

     In light of the nature of the arguments raised in this appeal,

a complete recitation of the facts developed at trial is not

necessary.   We begin with defendant's assertion in Point I that

the trial judge mistakenly limited his right to exercise peremptory

challenges in the selection of the jury.

     After fourteen jurors were accepted by the parties on the

first day of the trial, the judge determined they would not be

sworn until the next trial day and excused them.                 Prior to the

resumption of the trial, one of the jurors contacted the court and

stated she was ill.      The judge excused this juror.

     Thus, on the next trial date, the jury selection process was

scheduled to resume and a new group of prospective jurors was

brought to the courtroom for voir dire.               However, before the

selection process resumed, and over defendant's objection, the


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judge advised counsel that because there was only one seat left

to fill on the jury, and because the attorneys had previously

"agreed on all of the remaining jurors being jurors," the parties

could only exercise their remaining peremptory challenges on the

jurors placed in that final seat.    Thus, defendant was barred from

using his challenges to continue to shape the jury by excusing any

of the other thirteen jurors after the fourteenth juror was seated.

     This was obviously an error.      As then-judge Virginia Long

cogently observed over twenty-five years ago in State v. Nutter,


258 N.J. Super. 41, 60 (App. Div. 1992):

               The trial judge also erred in refusing
          to allow [the] defendant the opportunity to
          exercise peremptory challenges when, after
          [fourteen] jurors were chosen and accepted by
          both sides but not sworn, one juror announced
          that he could not be impartial. The excusal
          of that juror and his replacement essentially
          changed the complexion of the jury and
          warranted reopening of voir dire to the extent
          that either side had peremptory challenges
          available and for so long as either side was
          in a position to exercise a challenge for
          cause. This is an important point. The trial
          judge's action here could well have led us to
          the conclusion that [the] defendant's right
          to a fair and impartial jury was compromised.

     Contrary to the State's argument, the judge's mistake cannot

be considered harmless.   "[T]he denial of the right of peremptory

challenge . . . is 'prejudicial per se and harmful[.]'"    State v.

Thompson, 
142 N.J. Super. 274, 281 (App. Div. 1976) (quoting Wright


                                 4                           A-5093-15T3
v. Bernstein, 
23 N.J. 284, 294-95 (1957)).     Thus, "a party is not

required to make an affirmative showing that the denial of his [or

her] right to peremptory challenge had resulted in prejudice and

injury to his [or her] cause of action on the merits."         Wright,


23 N.J. at 295.

     Under   these   circumstances,   we   conclude   that   the     judge

mistakenly prevented defendant from using his remaining peremptory

challenges on any of the fourteen jurors seated in the jury box

before the selection process was fully completed and the jury was

sworn.    Therefore, we are constrained to reverse and remand this

matter for further proceedings.

     In light of our determination of this issue, we need not

address the remaining arguments presented by defendant.       However,

if the State proceeds with a new trial, we briefly address Point

II of defendant's brief.    There, defendant argues that the judge

mistakenly omitted a portion of Model Jury Charges (Criminal),

"Prior Contradictory Statements of Witnesses (Not Defendant)"

(approved May 23, 1994) (Model Charge) in his final charge to the

jury.    We agree.

     Kentrai Molock was the key witness for the State.         Under a

grant of immunity, Molock testified that defendant admitted to him

that he shot the victim because the victim owed defendant money

on a drug deal, and had sold defendant a car "that broke down the

                                  5                                A-5093-15T3
next day."     Molock also asserted that defendant was part of a

conversation Molock had with some gang members about killing the

victim.    However, when Molock first spoke to the police, he stated

that defendant and the victim "had no beef" at the time of the

murder.      He also failed to advise the police that defendant

admitted his involvement in the shooting or the meetings leading

up to it.

     It is well established that "[a]n apparently inconsistent

pretrial statement of a witness . . . is not limited to . . .

affecting the witness's credibility at trial.        The rule is clear

that such statements are [also] admissible for their substantive

content."     State v. Ramos, 
217 N.J. Super. 530, 538 (App. Div.

1987).     Here, Molock's initial statement that defendant "had no

beef" with the victim was clearly inconsistent with his later

testimony that defendant admitted shooting the victim because he

was angry with him.       Molock's failure to tell the police about

defendant's    involvement   was   also   inconsistent   with   his   later

testimony that defendant was an active participant in the planning

of the murder.

     Accordingly, defendant's attorney asked the judge to give the

Model     Charge   for   prior   contradictory   statements     given    by

witnesses.     This charge instructs jurors that they may consider

the witness's inconsistent statement "as substantive evidence or

                                    6                             A-5093-15T3
proof of the truth of the prior contradictory statement or omitted

statement."

     The judge denied defense counsel's request, and drastically

redacted the Model Charge to exclude any mention that Molock's

prior inconsistent statements or omissions could be treated as

substantive evidence and as proof of the truth of his initial

statement to the police.         The judge explained he was redacting the

Model Charge because Molock claimed he believed defendant would

kill him if he told the police the truth when he first met with

them.     However, the Model Charge specifically directs the judge

to advise the jury of any reasons a witness provides to explain

the prior inconsistent statement or omission, including that the

witness lied or omitted facts for "self protection," with the jury

thereafter determining the truth of the assertion.

     Therefore, the judge clearly erred in redacting the Model

Charge.    Because "'erroneous instructions on material points are

presumed    to'    possess     the   capacity     to   unfairly   prejudice   the

defendant," we are unable to conclude that this error was harmless

under the circumstances of this case.                  State v. Baum, 
224 N.J.
 147, 159 (2016) (quoting State v. Bunch, 
180 N.J. 534, 541-42

(2004)).      We also note that even if the mistake in limiting

defendant's       right   to   exercise       peremptory   challenges   did   not

require reversal, the cumulative effect of that error and the

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flawed jury instruction would provide further support for our

conclusion that defendant's conviction2 must be reversed.          State

v. Simms, 
224 N.J. 393, 407 (2016) (citing State v. Weaver, 
219 N.J. 131, 155 (2014) (discussing the duty of an appellate court

to   reverse   a   defendant's    conviction   "[w]hen   legal    errors

cumulatively render a trial unfair").

     Reversed and remanded.      We do not retain jurisdiction.




2
   Our conclusion that defendant's conviction must be reversed
makes it unnecessary to address defendant's contention in Point
III that the sentence the judge imposed was excessive.

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