STATE OF NEW JERSEY VS. THOMAS N. WALLER (18-04-0207 AND 18-04-0208, SOMERSET COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0688-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS N. WALLER,
Defendant-Appellant.
_________________________
Submitted May 10, 2021 – Decided June 11, 2021
Before Judges Rothstadt and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment Nos. 18-04-
0207 and 18-04-0208.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the briefs).
Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Lauren E. Bland, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Thomas N. Waller appeals from a September 20, 2019
judgment of conviction alleging various trial errors warranting reversal of his
conviction and ordering a new trial. We affirm.
Defendant committed two back-to-back home burglaries with co-
defendant Ras Lloyd. The men were apprehended during the second burglary,
and subsequently charged as co-defendants in separate indictments.
The facts are taken from the trial testimony. Around 9:45 on the morning
of February 21, 2018, Sergeant James Kimock of the Watchung Police
Department responded to a burglar alarm at a home located on Parlin Lane in
Watchung. Sergeant Tim Hale, also of the Watchung Police Department, arrived
at the home around the same time as Kimock. At the rear of the home, Kimock
noticed the French-style doors were ajar and the door screens were broken.
Based on the damage, Kimock and Hale concluded "there was some type of
forced entry," and the officers entered the home.
The French-style doors led to a bedroom. The officers noticed jewelry on
the bed, open drawers, and various items scattered throughout the bedroom.
They completed their search of the home, finding no one inside, and secured the
residence so the detectives could investigate the crime scene.
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Thereafter, Detective Sheriff Zaiton of the Watchung Police Department
arrived at the Parlin Lane home to take photographs. Zaiton observed the home,
and found it to be the same condition as reported by Hale and Kimock.
According to Zaiton, the bedroom was "ransacked."
Sergeant Brian Emerick of the Watchung Police Department assisted with
the investigation. While Zaiton was taking pictures, Emerick attempted to
obtain fingerprints but was unable to get "anything of good detail" and
concluded the burglar wore gloves. Emerick, who investigated "at least a dozen"
residential burglaries, explained gloves are commonly used in the commission
of a burglary.
Thomas Angell and his wife owned the Parlin Lane home. Angell was at
work when he received a notification on his cellphone that an alarm had been
triggered, indicating "the back bedroom door was open," and "the motion
detector had gone off in the bedroom." Angell called the police to report a
burglary.
Angell left work and met the police at his home. Upon entering the
bedroom, Angell noticed the bed was disheveled and a pillowcase was gone. He
then saw jewelry was missing from a small chest on the dresser and jewelry
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boxes in the bedroom closet. He estimated the value of the missing items was
in excess of $500.
Later that same day, just before ten o'clock in the morning, the dispatch
unit at the Warren Township Police Department received a report of a break-in
at a home on Blackthorn Road in Warren. Oliver Manosane, the owner of the
Blackthorn Road home, told the dispatcher his neighbor, William Campbell, saw
someone in the home. Through a doorbell camera, Manosane witnessed "[a]
black man with a clipboard at [his] front door," wearing a construction worker
shirt, claiming to be from "Clear View Energy," and an unknown black vehicle
parked in the driveway of his home. Thereafter, the camera went dark.1
Manosane, who was at work, called 9-1-1, drove home, and met the police
at the house. He noticed the front door "was cracked open about two feet" and
the door was damaged.
Manosane kept four firearms at his home and told the police about the
weapons. Three handguns were secured in safes throughout the house. The
remaining firearm, a shotgun, was hidden in an unlocked linen closet in the
1
Manosane installed two cameras at his home. One was installed near his front
doorbell and sent notifications to his cellphone when there was motion at the
door. The second was a live-feed camera located at the rear of the home.
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master bedroom against the wall behind a laundry hamper. Only Manosane and
his wife knew the location of that weapon. The shotgun had rarely been moved
from that closet since Manosane bought the home.
Shortly thereafter, Manosane witnessed the police pulling someone out of
a window in his home. The individual, later identified as Lloyd, was
handcuffed, and placed in a police car.
Upon entering the house, Manosane noted the interior had been ransacked.
The police found a gray pillowcase containing the shotgun. Manosane identified
the pillowcase as one normally kept on the bed in the master bedroom. In
addition, the police found Manosane's 2014 Lexus in the garage with the trunk
and both driver's side doors open. Inside the trunk, the police discovered a
fluorescent vest, clipboard, and baseball cap. None of these items belonged to
Manosane.
Detective Ross Portner of the Warren Township Police Department
reported to the Blackthorn Road home. He and Manosane's neighbor secured
the exterior of the home until additional officers arrived.
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Detective Jason Moberly of the Watchung Police Department responded
to the report of a burglary at the Blackthorn Road home. 2 Upon arrival, Moberly
was instructed to position himself on the left side of the home next to the garage
window. Seconds after getting into position, "the head of a black male popped
out of the window" roughly four feet from Moberly and he instantly "started
pulling [the man] out of the window." Moberly identified the man pulled from
the window as Lloyd.
After securing Lloyd in a police car, Moberly asked if there was anyone
else inside the home. Lloyd said "no." Disbelieving Lloyd's response, Moberly
joined other officers in conducting a room-by-room search of the home. As the
search continued, Moberly heard a commotion in the basement and saw an
individual being led up the stairs. Moberly identified defendant as the suspect
found in the basement of the Blackthorn Road home.
The next day, Moberly returned to the Blackthorn Road house to search
the suspects' vehicle which remained parked in the driveway of the home. The
search uncovered "a number of . . . clear plastic containers and a number of
pieces of jewelry." The owner of the Parlin Lane home identified several items
2
Moberly explained Warren and Watchung are neighboring municipalities and
officers from one municipality occasionally responded to emergencies in the
other municipality.
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found in the suspects' car as her missing jewelry. The police also found and
returned items taken from Manosane's home.
Patrol Officer David Zavistocki of the Warren Township Police
Department responded to the attempted burglary of the Blackthorn Road home.
As part of the room-by-room search of the home, Zavistocki entered the
basement with another officer. Zavistocki noticed someone hiding underneath
the basement stairs and instructed the individual to surrender.
Patrol Officer Thomas Clarke of the Warren Township Police Department
responded to the Blackthorn Road burglary. Clarke assisted in the search of the
home's interior. While searching the upstairs rooms, Clarke noticed "there was
a shotgun in a pillowcase tucked into the corner, as if somebody had moved it
and placed it there."
Detective Robert Dinsmore of the Warren Township Police Department
also responded to the reported burglary at the Blackthorn Road home. Dinsmore
was instructed to "set up" by the suspects' car in the driveway and "saw an
individual open the front door wearing [a] safety vest, hoodie." Dinsmore
instructed the individual to surrender, but the suspect retreated inside the home.
A short while later, Lloyd was taken into custody. However, Dinsmore did not
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recognize Lloyd as the individual attempting to exit the front door. Therefore,
the officers searched for other suspects inside the home.
After Lloyd and defendant were arrested and taken into custody, Dinsmore
and other officers inventoried items taken from the suspects. The inventoried
items from Lloyd included a set of blue rubber gloves, a Clear View Energy
identification badge, and $343. Defendant had $60 on his person. The suspects'
car was impounded and lawfully searched. Inside the car, the police found a
pillowcase, jewelry, and blue rubber gloves.
Forensic Detective Jeff Dockery from the Somerset County Prosecutor's
Office collected evidence and took photographs at the Blackthorn Road home.
Dockery recalled seeing a black car with the engine running in the driveway.
Dockery also saw a vehicle in the garage and seized a variety of evidence out of
the trunk of that vehicle, including an "orange vest, a clipboard, and a hat."
Manosane told Dockery none of the items found in the trunk of his car belonged
to him. Another officer told Dockery one of the suspects was seen wearing these
items.
Dockery photographed the home and found the master bedroom in
"disarray," explaining "drawers open, items all over the place, so it was,
obviously, most likely not in the state that it was left." He also observed a
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pillowcase with "the barrel of a firearm sticking out of it." In the pillowcase,
Dockery found "a bunch of valuable items."
Detective Mark Matthews, a ballistics expert with the Somerset County
Prosecutor's Office, testified at trial regarding the shotgun. Matthews received
the gun to "test fire[] it for operability" and concluded the gun "was operable as
received. Meaning it was capable of discharging . . . projectiles." Matthews
explained the firearm had a "pistol grip" and therefore could not legally be
considered a "shotgun" since it lacked a butt stock for use as a "shoulder-fired
weapon." He testified the weapon was a "12[-]gauge firearm" sometimes
referred to as a "non-shotgun-shotgun" since it used shotgun shells but did not
meet the definition of a shotgun. 3
Detective Jack Fuhrmann of the New Jersey State Police maintains the
State's firearms records. He explained to possess and carry a firearm in New
Jersey, an individual must meet certain qualifications. In April 2018, Fuhrmann
received a request from the Somerset Prosecutor's Office seeking firearms
information regarding defendant and Lloyd. In searching the State's database,
Fuhrmann explained neither defendant nor Lloyd "appl[ied] for or were granted
3
He further testified the firearm measured thirty inches in length and shotguns
are required to be twenty-six inches or longer.
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any application for a firearms ID card, pistol purchase permit, permit to carry,
or permit for an assault weapon."
On April 11, 2018, defendant and Lloyd were charged as co-defendants
under Indictment No. 18-04-0207 (Indictment No. 207) with third-degree
burglary, N.J.S.A. 2C:18-2(a)(1) (count one), and third-degree theft, N.J.S.A.
2C:20-3(a) (count two). The same day, defendant and Lloyd were also charged
under Indictment No. 18-04-0208 (Indictment No. 208) with third-degree
criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count one), second-degree burglary
while armed with a deadly weapon, N.J.S.A. 2C:18-2(a)(1) (count two), third-
degree theft of a firearm, N.J.S.A. 2C:20-3(a) and N.J.S.A. 2C:20-2(b)(2)(b)
(count three), third-degree unlawful possession of a shotgun, N.J.S.A. 2C:58-3
and N.J.S.A. 2C:39-5(c)(1) (count four), and third-degree attempted theft of a
motor vehicle, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-3(a) (count five). 4
On August 31, 2018, under Rule 3:15-1(a), the State moved to consolidate
the two indictments for trial, which a judge granted. A different judge presided
over the jury trial conducted between July 8 and July 18, 2019.
4
Lloyd was charged with a sixth count, third-degree hindering, apprehension,
or prosecution, N.J.S.A. 2C:29-3(a)(7).
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On July 12, 2019, mid-trial, defendant and Lloyd pleaded guilty to counts
one and two under Indictment No. 207 related to the burglary at the Parlin Lane
home.5 The State objected to defendant's mid-trial non-negotiated plea and
requested a limiting instruction be given to the jury and a stay of the trial. The
judge denied the State's applications. At the same time, defendant filed a motion
for a judgment of acquittal under Indictment No. 208, which the judge denied.
On July 17, 2019, the jury advised the judge it reached a partial verdict.
After discussing the matter with counsel, the judge instructed the jury on partial
verdicts and gave the jury the option of submitting the partial verdict or
deferring the verdict pending further deliberation. After the judge explained the
options, the jury decided to continue deliberating on all counts. The next day,
the jury returned guilty verdicts on counts one, two, and three but acquitted
defendant on counts four and five under Indictment No. 208.
Defendant was sentenced on September 6, 2019 in accordance with the
plea under Indictment No. 207 to five years in prison on each of counts one and
5
The judge allowed defendant to plead guilty to the first burglary at the Parlin
Lane home only after opening statements because the judge previously ruled
evidence regarding the first burglary was admissible at trial regarding the second
burglary at the Blackthorn Road home.
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two. The sentence imposed under this indictment ran concurrent to the sentence
imposed under Indictment No. 208.
After the jury found defendant guilty on counts one through three under
Indictment 208, the judge imposed the following sentence. On count one,
defendant was sentenced to four years in prison subject to an eighty-five percent
parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2., which was to run concurrent with sentence imposed on count two. On
count two, he was sentenced to eight years in prison subject to NERA. On count
three, defendant was sentenced to four years in prison subject to NERA, which
also ran concurrent to the sentences imposed on counts one and two.
On appeal, defendant raises the following arguments:
I.
THE TRIAL COURT ERRED WHEN IT GRANTED
THE STATE'S MOTION TO CONSOLIDATE THE
INDICTMENTS INTO A SINGLE TRIAL AND
WHEN IT HELD IT WOULD ALLOW THE STATE
TO PRESENT EVIDENCE OF THE FIRST
BURGLARY AT TRIAL EVEN IF
CONSOLIDATION WAS DENIED.
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II.
THE TRIAL COURT ERRED WHEN IT DENIED
DEFENDANT'S MOTION FOR JUDGMENT OF
ACQUITTAL.
III.
THE TRIAL COURT ERRED WHEN IT DENIED
DEFENDANT'S REQUEST THAT IT ACCEPT THE
JURY'S PARTIAL VERDICT.
IV.
AS THE JURY'S VERDICTS ON COUNTS TWO
AND FOUR WERE IRRATIONAL AND CAUSED A
MANIFESTLY UNFAIR RESULT, DEFENDANT IS
ENTITLED TO A NEW TRIAL.
V.
THE TRIAL COURT'S CUMULATIVE ERRORS
DENIED DEFENDANT A FAIR AND RELIABLE
TRIAL.
VI.
THE EIGHT-YEAR SENTENCE IMPOSED FOR
COUNT TWO UNDER INDICTMENT NO. 18-04-
00208-I AND THE FIVE-YEAR SENTENCE
IMPOSED FOR COUNT ONE UNDER
INDICTMENT NO. 18-04-00207-I, WERE
EXCESSIVE AND MANIFESTLY UNFAIR GIVEN
THE UNIQUE FACTS OF THIS CASE.
We first address defendant's argument the two indictments were
improperly consolidated into a single trial. We disagree.
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A trial court's decision to join offenses is discretionary and "entitled to
great deference on appeal." State v. Brown, 118 N.J. 595, 603 (1990). We only
reverse such a decision "if it constitutes an abuse of discretion." State v.
Weaver, 219 N.J. 131, 149 (2014).
Our Supreme Court recognized joinder of "similar or related offenses" is
preferred "[i]n the interests of [judicial] economy and efficiency." State v.
Coleman, 46 N.J. 16, 24 (1966). A trial court may order discretionary joinder
of two or more indictments for trial "if the offenses and the defendants . . . could
have been joined in a single indictment." R. 3:15-1(a). Two or more offenses
may be joined in a single indictment "if the offenses charged are of the same or
similar character or are based on the same act or transaction or on 2 or more acts
or transactions connected together or constituting parts of a common scheme or
plan." R. 3:7-6. "Notwithstanding the preference for joinder, Rule 3:15-2(b)
vests a trial court with discretion to order separate trials if joinder would
prejudice unfairly a defendant." State v. Chenique-Puey, 145 N.J. 334, 341
(1996). The "defendant bears the burden of demonstrating prejudice." State v.
Lado, 275 N.J. Super. 140, 149 (App. Div. 1994).
In determining whether joinder is prejudicial, the critical inquiry is
"whether, assuming the charges were tried separately, evidence of the offenses
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sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of
the remaining charges." Chenique-Puey, 145 N.J. at 341 (alterations in original)
(quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)). "If the evidence would be
admissible at both trials, then the trial court may consolidate the charges because
'a defendant will not suffer any more prejudice in a joint trial than he would in
separate trials.'" Ibid. (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App.
Div. 1983)).
According to defendant, "the sole purpose of consolidation was to increase
the likelihood of [his] conviction by showing he had a propensity to commit
criminal acts." Because he pleaded guilty to the burglary of the Parlin Lane
home under Indictment No. 207, defendant asserts evidence surrounding that
burglary should not have been admitted or considered in relation to Blackthorn
Road home burglary, arguing "evidence from the first burglary had no evidential
value other than to prove [he] committed a prior uncontested crime." Also, he
claims the judge failed to provide a limiting instruction to the jury to counteract
the possibility of the evidence being improperly considered for propensity.
The consolidation of the Parlin Lane burglary and Blackthorn Road
burglary was proper because the burglaries were part of the "same episode." See
State v. Gregory, 66 N.J. 510, 519 (1975) ("[D]efendant shall not be subject to
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separate trials for multiple offenses . . . where the offenses . . . are based on a
series of acts or omission motivated by a common purpose of plan which result
in the repeated commission of the same offense . . . ."). In deciding whether
offenses were sufficiently related, courts have considered the following factors:
[T]he nature of the offenses, the time and place of each
offense, whether the evidence supporting one charge is
necessary and/or sufficient to sustain a conviction
under another charge, whether one offense is an integral
part of the larger scheme, the intent of the accused, and
the consequences of the criminal standards
transgressed.
[State v. Williams, 172 N.J. 361, 371 (2002) (citing
State v. Best, 70 N.J. 56, 62-63 (1976)).]
Based on our review of the record, the burglaries happened one right after
the other—immediately after burglarizing the Parlin Lane home, defendant and
Lloyd drove to Blackthorn Road, a few miles away, and attempted to commit
another burglary using the same modus operandi. Defendant and Lloyd targeted
similar items from each home and used pillowcases retrieved from each home
to transport the stolen items. Further, items taken from the Parlin Lane home
were found at the Blackthorn Road home after defendant's arrest.
The judge acknowledged criminal propensity evidence was prohibited
under N.J.R.E. 404(b) but noted discussion of the Parlin Lane burglary was
necessary for the witnesses "to tell their story in a natural way." The judge
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further indicated any improper use of the evidence to show defendant's
propensity to commit crime would be counteracted by a limiting instruction if
necessary.6
Based on our review of the record, the judge correctly concluded evidence
related to the Parlin Lane home burglary was necessary to explain "in part . . .
how the police came to be at the [Blackthorn Road] residence, what they found
there and what its source was." See State v. Rose, 206 N.J. 141, 180 (2011)
(allowing evidence that "completes the story" for non-propensity purposes under
N.J.R.E. 404(b)). Further, the trial witnesses would have been significantly
hindered in offering testimony if they were unable to discuss the details lea ding
to the Blackthorn Road burglary and compare the two burglaries.
6
The judge gave the following limiting instruction to the jury:
The charge of burglary and theft as to Parlin Lane in
Watchung Borough have been resolved. So you will
not need to consider those charges nor will you be asked
to render a verdict on those charges.
Now your focus will be on the Blackthorn, Warren
Township burglary.
Now I caution you, you are not to speculate as to why
or how the Watchung charges were resolved . . . I am
telling you the Parlin, Watchung Borough charges have
been resolved, so not before you.
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We are satisfied defendant failed to demonstrate prejudice as a result of
consolidation of the two indictments into a single trial. The probative value of
the evidence concerning the burglary of the Parlin Lane home outweighed any
resulting prejudice and was necessary to give the jury "background evidence"
and "hear the full story of the crime." Rose, 206 N.J. at 181. Moreover, the
State used evidence of the Parlin Lane burglary to establish facts other than
defendant's propensity to commit criminal acts. Additionally, the judge gave
the jury a limiting instruction regarding the Parlin Lane burglary.
We next consider defendant's claim the trial judge erred in denying his
motion for a judgment of acquittal under Indictment No. 208 on count two,
second-degree burglary while armed with a deadly weapon, and count five,
attempted theft of a vehicle. He argues there was insufficient evidence presented
at trial to substantiate either of the charges because the facts did not establish :
(1) he was ever in the garage to be able to steal Manosane's car or (2) he
unlawfully possessed a firearm because the shotgun was actually a pistol and
not a shoulder-fired weapon. Further, defendant contends there was no evidence
he was ever on the second floor of the Blackthorn Road home or touched the
shotgun, and the jury's finding him not guilty on count four, possession of a
shotgun, established he did not attempt to steal the shotgun. Based on the
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tenuous connection of the State's evidence supporting these charges, defendant
argues the judge should have granted his motion for a judgment of acquittal. We
disagree.
We review the denial of a motion for a judgment of acquittal de novo,
applying the same standard as the trial judge in ruling on the motion. State v.
Jones, 242 N.J. 156, 168 (2020) (citing State v. Williams, 218 N.J. 576, 593-94
(2014)). "We must determine whether, based on the entirety of the evidence and
after giving the State the benefit of all its favorable testimony and all the
favorable inferences drawn from that testimony, a reasonable jury could find
guilt beyond a reasonable doubt." Williams, 218 at 594 (citing State v. Reyes,
50 N.J. 454, 458-59 (1967)). The reviewing court "must consider only the
existence of such evidence, not its 'worth, nature, or extent.'" State v. Brooks,
366 N.J. Super. 447, 453 (App. Div. 2004) (quoting State v. Kluber, 130 N.J.
Super. 336, 342 (App. Div. 1974)). We review "the State's evidence in its
entirety, be that evidence direct or circumstantial." Jones, 243 N.J. at 168
(quoting Reyes, 50 N.J. at 459).
Having reviewed the record, the trial evidence was sufficient for a jury to
find defendant guilty on counts two and five under Indictment No. 208.
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On count two, the State presented sufficient evidence for a reasonable jury
to conclude defendant was guilty of second-degree burglary based on the
removal of the weapon from its hidden location and placement of the gun in a
pillowcase. Although there was no direct evidence defendant handled the
shotgun, there was sufficient evidence he constructively possessed the shotgun.
"[A] person has constructive possession of 'an object when, although he lacks
physical or manual control, the circumstances permit a reasonable inference that
he has knowledge of its presence, and intends and has the capacity to exercise
physical control or dominion over it during a span of time.'" State v. Morrison,
188 N.J. 2, 14 (2006) (quoting State v. Spivey, 179 N.J. 229, 237 (2004)).
On count five, attempted theft of a vehicle, a reasonable jury could have
found defendant guilty based on accomplice liability. The State's evidence
established someone tampered with Manosane's car by opening the car's doors
and trunk. Also, items belonging to defendant or Lloyd were found inside the
car. Depending upon how the jury decided Lloyd's guilt regarding theft of
Manosane's car, the jury could find defendant guilty as well.7
7
Because the jury found defendant not guilty on count five under Indictment
No. 208, there was no prejudice as a result of the judge's denial of the motion
for acquittal as to that count.
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Here, the State presented evidence defendant and Lloyd entered the
Blackthorn Road home as accomplices with the intent to steal valuables after
doing the same at the Parlin Lane home. Defendant and Lloyd transported the
stolen property in pillowcases taken from each home. The gun from the
Blackthorn Road home was found in a pillowcase after being removed from its
location in the master bedroom linen closet. According all inferences in favor
of the State based on the evidence presented, the facts are consistent with
defendant's constructive and joint possession of the shotgun such that a jury
could find him guilty of second-degree burglary. Moreover, we agree with the
trial judge's rejection of defendant's argument there was a difference between
possession of a shotgun and possession of a firearm as "a distinction without a
difference."
We next review defendant's claim the judge erred in denying his request
to accept the jury's partial verdict on four of the six counts. According to
defendant, "[t]he jury clearly signaled that it had been unable to reach a verdict
on the more significant charge of second-degree burglary." He also contends
the jury's note to the judge "unambiguously indicated it had reached a verdict
on specific charges" for the judge to accept a partial verdict.
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Rule 3:19-1(a) sets forth the procedure for partial jury verdicts,
instructing:
If there are 2 or more counts of an indictment or 2 or
more defendants tried together, the jury may return a
verdict or verdicts with respect to a defendant or
defendants as to whom it has agreed, specifying the
counts of which it has agreed; the defendant or
defendants may be tried again on the count or counts as
to which it has not agreed.
Judges are accorded discretion in accepting a partial verdict provided a
partial verdict would not result in prejudice to the defendant. State v. Shomo,
129 N.J. 248, 257 (1992). A partial verdict may be appropriate in instances such
as:
[W]hen the jury has deliberated at length, when the
charges against a defendant are rooted in unrelated
facts, when the court has reason to be concerned that
juror may become ill before deliberations conclude,
when there is risk of taint to the jury's decision-making
process, or when the State has indicated its intention to
dismiss the unresolved counts.
[Id. at 257-58.]
If a jury returns an interim partial verdict, the trial judge "must ensure that
the jury intended its partial verdict to be final by specifically instructing the jury
regarding the verdict's finality." Id. at 258. A judge should offer "a 'neutral
explanation of the jury's options either to report the verdicts reached, or to defer
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reporting of all verdicts until the conclusion of deliberations.'" Ibid. (quoting
State v. DiLapi, 651 F.2d 140, 147 (2d Cir. 1981)). In instructing the jury, the
judge "should inform the jury unambiguously, before the court receives the
verdict, that its partial verdict will be treated in all respects as a final verdict,
not subject to reconsideration, even though the jury will continue deliberations
on other counts." Ibid. If a judge fails to instruct a jury on the finality of a
partial verdict, the defendant's right to a unanimous jury verdict could be tainted.
Ibid.Having reviewed the record, we are satisfied the judge followed the proper
procedure in instructing the jury after receipt of the jury's note on July 17, 2019.
The note read, "We have reached a verdict on four of the six charges. We have
failed to reach a verdict on the other two." Before soliciting counsels' positions
on the subject of the jury's note, the judge provided counsel with a copy of the
model charge on partial verdicts and stated:
[W]e don't know whether the partial verdicts that they
reference are on specific counts, referencing one or the
other defendant. In other words, we don't know
whether they are count specific or defendant specific
and, of course, we don't know which four they have
arrived at a verdict on and which two they have failed
to.
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The judge and counsel discussed the implications of a partial verdict and how to
proceed. Defense counsel told the judge:
I am not certain in many ways I'll defer to [the State,
co-defendant's counsel,] and yourself. In some ways it
feels that given some version of the Allen [v. United
States, 164 U.S. 492 (1896),] charges and some
indication that generally the law disfavors partial
verdicts . . . ultimately, you know, we appreciate your
efforts thus far might be the correct way to deal with it
and however you wish to deal with it, your Honor.
. . . [T]here was a fire alarm also today. They were only
out for half hour Monday and they did have a question
yesterday. So, potentially, it would be fantastic in a lot
of ways if you were able to resolve it one way or
another.
The judge reconstructed the duration of the jury's deliberation,
calculating, at maximum, the jury had been deliberating for eight and a half
hours. There was no indication from the note the jury was deadlocked. Based
on these facts, the judge decided to give the partial verdict instruction and
encourage the jurors to consider if they wanted to deliberate further or make the
partial verdict final. The judge instructed the jurors as follows:
I have discussed the note and the questions which
it raises. I have consulted with counsel on that and I
have the following advice for you.
You have indicated, ladies and gentlemen, that
you have reached a partial verdict. I want to instruct
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you and advise you of the consequences of what we call
a partial verdict.
If you decide to report a partial verdict, that is
report a verdict on four of six counts, that verdict will
be final. I will send you back in to continue
deliberation on the remaining two counts and await
your further advice on those two counts. But you will
not be able to revisit or reconsider the verdict on the
four counts, which you have reported. Okay. You will,
therefore, have the option after some discussion among
you outside my presence of returning a partial verdict,
which is I have just told you will be final, and then
you'll continue deliberations on the remaining two
counts or you can tell me we are going to continue
deliberations on all six counts.
The problem with partial verdicts is that they
have the potential to interfere with ongoing jury
deliberati[on] by prematurely freezing a jury's decision
on a partial verdict. You know evidence is intertwined
and the problem with the partial verdict is, it is final on
those four counts. No going back. No reconsideration.
So it could have the potential to distort the jury's
deliberative process.
What is most important, however, is that I cannot
and must guard against interfering with your
deliberations. They are yours. You are the judges of
facts. And I must preserve the jury's independen[ce] in
that deliberative process.
The judge then told the jurors to discuss how they wanted to proceed and,
depending on the decision, the judge would issue further instruction. Later that
day, the jury stated, "Thank you. We have decided to continue deliberation on
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all six charges." At ten o'clock the next morning, the jury delivered a unanimous
verdict on all counts.
We find no error in the judge's instruction to the jury regarding the verdict.
The judge was not required to accept the jury's partial verdict. He discussed the
partial verdict charge with counsel prior to instructing the jury and then issued
the model jury charge on partial verdicts consistent with Shomo. The judge
carefully explained to the jury, more than once, the decision whether to continue
deliberating was solely its own. Ultimately, the jury chose to continue
deliberating on all counts. Under these circumstances, there was no error in the
judge's instruction regarding the partial verdict.
We next consider defendant's argument the jury's guilty verdict on count
two, second-degree burglary while armed with a deadly weapon, and count
three, third-degree theft of a firearm, was inconsistent with the jury's not guilty
verdict on count four, third-degree unlawful possession of a shotgun. He
contends the verdicts were irrational and he was entitled to a new trial as a result.
We disagree.
Even if we agreed the verdicts were inconsistent, which we do not,
inconsistent verdicts are permissible in this State. State v. Grey, 147 N.J. 4, 11
(1996). "[I]nconsistent verdicts are acceptable and non-reviewable." State v.
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Banko, 182 N.J. 44, 53 (2004) (citing United States v. Powell, 469 U.S. 57(1984)). An inconsistent verdict will stand so "long as there is sufficient
evidence to permit a rational factfinder to find a defendant's guilt beyond a
reasonable doubt on the charges on which the defendant was convicted." State
v. Ellis, 299 N.J. Super. 440, 455-56 (App. Div. 1997).
Here, to the extent the verdicts were inconsistent, the jury's verdicts were
acceptable based on the State's evidence regarding defendant's guilt. 8 During
deliberations, the jury sent a note to the judge asking, "Why is 3 'theft of a
firearm' and 4 'possession of a shotgun'. Does it matter . . . ?" The jury's request
for clarification did not render the jury's verdict invalid. Moreover, defendant
never argued the jury instructions provided by the judge were inadequate or
confusing.
Here, the State provided evidence defendant and Lloyd were accomplices
who intended to burglarize the Blackthorn Road home and used a pillowcase to
steal the shotgun, which had been removed from its original location in a
8
Any inconsistency may be resolved based upon the language in counts three
and four. Count three referred to theft of a "firearm" while count four addressed
possession of a "shotgun." Because the weapon found in the pillowcase lacked
a butt stock associated with a typical shotgun, it did not meet the legal definition
of a shotgun. This may explain, in part, why the jury found defendant possessed
a "firearm" but not a "shotgun."
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bedroom closet of that home. Based on these facts, the jury had ample evidence
in the record to support a conviction for second-degree burglary and theft of a
firearm.
While defendant argues there were cumulative errors depriving him of a
fair trial, our review of the record finds no support for any errors committed by
the trial court. "[T]he theory of cumulative error will . . . not apply where no
error was prejudicial, and the trial was fair." State v. Weaver, 219 N.J. 131, 155
(2014) (citing State v. D'Ippolito, 22 N.J. 318, 325-26 (1956)). Having rejected
defendant's argument there was reversible error during the trial, we reject his
cumulative error argument. Defendant received a fair trial, the jury's verdict
was supported by the evidence, and a new trial is not warranted.
We also reject defendant's claim the sentence imposed was excessive and
manifestly unfair under the "unique facts of this case." Sentencing
determinations are reviewed for abuse of discretion, State v. Jones, 232 N.J. 308,
318 (2018). "[I]n accordance with a deferential standard," State v. Fuentes, 217
N.J. 57, 70 (2014), we do not substitute our own evaluation of the aggravating
and mitigating factors for that of the sentencing court. State v. Case, 220 N.J.
49, 65 (2014). We will affirm a trial judge's sentence where the judge's
evaluation of aggravating and mitigating factors was based on competent
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credible evidence in the record and the sentencing guidelines were followed.
State v. Roth, 95 N.J. 334, 365-66 (1984).
The judge found the presence of aggravating factors three (the risk of
committing another offense), six (prior criminal record and seriousness of
present offense), and nine (the need to deter). The judge explained, "Based upon
the consistency and pernicity of defendant's prior criminal record and his
engaging in criminal conduct, there is certainly a risk that [he] will commit
another offense and there is a compelling need to deter him and others from
violating the law." In reviewing the mitigating factors, the judge concluded only
mitigating factor six, willingness to compensate the victim, applied. As a result,
the judge concluded the aggravating factors outweighed the mitigating factor
and sentenced defendant within the range permissible under the sentencing
guidelines.
We are satisfied the judge engaged in a factored analysis and provided
adequate reasoning in support of that analysis. The judge was not required to
explicitly review and reject every individual factor asserted by defense counsel.
Defendant also claims the judge erred by stating on the record he was
convicted on count four. During the sentencing hearing, the judge mistakenly
stated defendant was found guilty on count four. Neither the State nor defense
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counsel correct this misstatement during the sentencing hearing. However, the
judgment of conviction (JOC) did not reflect the judge's misstatement.
While defendant contends this was a "material" mistake requiring a
remand, the JOC properly reflected the correct sentencing for counts one, two,
and three, and stated defendant was acquitted on counts four and five consistent
with the jury's verdict. Defendant fails to explain how the misstatement
adversely affected his sentence. Defendant was sentenced in accordance with
the sentencing guidelines and the judge's misstatement on the record was not
repeated in the filed JOC.
Affirmed.
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