STATE OF NEW JERSEY VS. MARC GALLUCCI STATE OF NEW JERSEY VS. STEPHANIE R. TYLKA (12-09-1393, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-3609-13T2
A-5239-13T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARC GALLUCCI,
Defendant-Appellant.
________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEPHANIE R. TYLKA,
Defendant-Appellant.
________________________________
Argued December 5, 2016 – Decided July 10, 2017
Before Judges Sabatino, Nugent and Currier.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment No. 12-09-1393.
Lauren S. Michaels, Assistant Deputy Public
Defender, argued the cause for appellant Marc
Gallucci (Joseph E. Krakora, Public Defender,
attorney; Ms. Michaels, of counsel and on the
brief.)
Michael A. Priarone, Designated Counsel,
argued the cause for appellant Stephanie R.
Tylka (Joseph E. Krakora, Public Defender,
attorney; Mr. Priarone, on the brief.)
David M. Liston, Assistant Prosecutor, argued
the cause for respondents (Andrew C. Carey,
Middlesex County Prosecutor, attorney; Mr.
Liston, on the brief.)
PER CURIAM
A jury found defendants Marc Gallucci and Stephanie R. Tylka
guilty of the aggravated assault of Tylka's former paramour.1 The
trial judge sentenced Gallucci to a five-year prison term and
Tylka to a five-year probationary term. Defendants filed separate
appeals from their respective judgments of conviction.2
In his appeal, Gallucci contends the trial judge committed
three errors. First, the judge unduly restricted evidence of the
victim's past violent behavior toward Tylka and improperly
instructed the jury on the victim's prior bad acts. Second, the
judge failed to give a Clawans3 charge, sua sponte, concerning two
1
The jury found another co-defendant, Gallucci's daughter, guilty
of aggravated assault. The jury acquitted a fourth co-defendant.
In this opinion, we refer to Gallucci and Tylka, collectively, as
"defendants"; and Gallucci's daughter and the fourth alleged
participant in the crimes as the "co-defendants."
2
These two appeals were argued back-to-back. We have consolidated
them for purposes of this opinion.
3
State v. Clawans, 38 N.J. 162 (1962).
2 A-3609-13T2
people the State did not call as witnesses. Third, the judge
mishandled an issue with a juror. In addition to these alleged
errors, Gallucci contends the prosecutor committed misconduct in
his summation. Lastly, Gallucci contends the cumulative effect
of the court's and prosecutor's missteps deprived him of a fair
trial.
Tylka makes the same arguments as Gallucci concerning the
victim's prior violent behavior and the court's alleged
mishandling of an issue involving a juror. She also contends the
trial court erroneously admitted into evidence the content of
certain text messages and a 911 call; failed to give a curative
instruction, sua sponte, when the victim testified she and others
were selling controlled dangerous substances; and improperly
excused a juror. Like Gallucci, Tylka contends the prosecutor
committed misconduct during his summation, and the cumulative
prejudice resulting from the multiple errors deprived her of a
fair trial. Unlike Gallucci, Tylka challenges her sentence as
excessive.
Following oral argument on appeal, Gallucci filed a motion
to adopt certain arguments Tylka had raised, which he had not. We
granted the motion. In a supplemental brief, Gallucci contends
the State's improper argument in summation concerning Tylka's pre-
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arrest silence, to disprove self-defense, violated his right to
due process and a fair trial.
For the reasons that follow, we affirm the judgments of
conviction in their entirety. We remand for the sole purpose of
correcting a clerical error in Gallucci's judgment of conviction.
I.
A.
In September 2012, defendants and co-defendants were charged
in a Middlesex County grand jury indictment with second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1). In the same
indictment, Gallucci was charged with third-degree witness
tampering, N.J.S.A. 2C:28-5(a), and Tylka was charged with fourth-
degree knowingly placing a 911 call without the purpose of
reporting the need for 911 service, N.J.S.A. 2C:33-3(e).
Tylka filed a pre-trial motion seeking the court's permission
to admit six prior bad acts of domestic violence she alleged the
victim, her ex-boyfriend, had committed against her. Gallucci
joined in the motion, arguing the victim's history of domestic
violence supported his claim of defense of others, namely, Tylka.
The court granted the motions, but cautioned that the prior acts
had to be established at trial by competent evidence and had to
be "short and sweet."
4 A-3609-13T2
In December 2013, the case proceeded to trial. Jury selection
began on December 3, and the jury returned its verdict on December
23. The jury found defendants, as well as a co-defendant,
Gallucci's daughter, guilty of the lesser-included offense of
third-degree aggravated assault. The jury found another co-
defendant not guilty. The jury acquitted Gallucci of witness
tampering and Tylka of making an unnecessary 911 call.
The court sentenced Gallucci to a five-year prison term with
two and one-half years of parole ineligibility and imposed
appropriate penalties and assessments.4 The trial judge sentenced
Tylka to a five-year probationary term conditioned on serving 364
days in county jail, which the court suspended. The court also
imposed appropriate penalties and sanctions. These appeals
followed.
B.
The State's proofs included, in addition to the testimony of
law enforcement officers, the testimony of several lay witnesses.
4
The judgment of conviction states, correctly, that Gallucci was
convicted of aggravated assault, N.J.S.A. 2C:12-1(d)(7), but
incorrectly designates this offense as a crime of the second-
degree instead of the third-degree. See N.J.S.A. 2C:12-1
("[a]ggravated assault . . . under paragraphs (2), (7), (9) and
(10) of subsection b. of this section is a crime of the third-
degree").
5 A-3609-13T2
The lay witnesses included the victim; the person who hosted the
informal gathering (the hostess) where the assault occurred; the
hostess's upstairs neighbor (the text messenger), who sent text
messages to Tylka; and the hostess's longtime friend, who called
911 and reported the assault.
The assault occurred on July 4, 2012, shortly before midnight.
The investigation leading to the arrest of defendants continued
past midnight into July 5, 2012. According to the victim, until
shortly before the July 4 incident, he and Tylka had been in a
seven or eight-year relationship. For the six or seven years
preceding the incident, they lived together in an apartment in
South Amboy. During the year preceding the assault, their
relationship deteriorated.
Sometime in 2011, Tylka obtained a restraining order, which
prohibited the victim from having contact with her. According to
the victim, however, within the week following the issuance of the
order, Tylka told him she "had it dropped." He believed her, so
he moved back into the South Amboy residence. Nonetheless, the
relationship continued to be "on and off" until it ended on July
4, 2012. By "on and off," the victim meant that Tylka would
repeatedly break up with him and then "bring [him] back" shortly
thereafter.
6 A-3609-13T2
The victim testified he knew Gallucci and the other co-
defendants because they were friends of his neighbors, who lived
in the same complex. His relationship with Gallucci and the others
had been friendly until shortly before they assaulted him.
A few weeks before the assault, Tylka told the victim she was
seeing Gallucci. From that point, the victim and Tylka separated,
but the victim continued to live with Tylka as a tenant. Upset
about Tylka seeing Gallucci, the victim had a confrontation with
Gallucci on the evening of July 3, 2012.
On July 3, upon arriving home from work at approximately 7:00
p.m., the victim found Tylka, Gallucci, and the two co-defendants
in front of his South Amboy residence. They were gathered around
his porch "doing their pills and dealing drugs in front of the
house."5 The victim told Gallucci: "you got to get the f-away
from my house. This can't happen in front of it because it's a
school zone and all this." A heated verbal exchange ensued.
During the exchange, the victim made vulgar remarks about Tylka's
comparative sexual performance with him and Gallucci. The victim
made the remarks within earshot of Gallucci's granddaughter.
5
None of the defendants objected to the admission of the victim's
remarks. During cross-examination, one co-defendant questioned
the victim about whether he reported the drug activity to the
police.
7 A-3609-13T2
Gallucci told the victim,, "I'll kick your ass." The victim
replied, "come on, let's go in the back yard." Nothing happened.
Gallucci told the victim, "you're going to get yours." The group
left in Tylka's vehicle.
The next evening, July 4, the victim returned home from work
at approximately 7:00 p.m., showered, went into town, and bought
two beers and a half-pint of vodka. Later that night, he went to
the residence of the hostess, where she and her friends had
gathered to socialize before watching fireworks. During what the
victim estimated to be an hour or two between his arrival and the
assault, he consumed the two beers and the vodka while sitting on
the hostess's porch. The hostess, her family, and her friends
were socializing. By his own account, the victim was "buzzed" and
intoxicated. According to the hostess, the victim's speech was
noticeably slurred.
One of the hostess's upstairs neighbors, the text messenger,
was also Tylka's girlfriend. The text messenger spent some time
on or near the hostess's porch with the others. According to the
victim, at one point the text messenger used her phone and then
went upstairs.
Police recovered texts the text messenger sent to Tylka on
July 4 at 10:54, 11:02, 11:06, and 11:51 p.m. The first stated,
8 A-3609-13T2
"[the victim is] chilling with [the hostess] downstairs."6 The
last stated, "He all over her on porch. LOL." On July 5 at 12:22
a.m., the text messenger texted Tylka, "Yo, that's X-r-a-z-y girl."
The victim testified that approximately five minutes after
the text messenger returned upstairs, Tylka's car skidded to a
halt at the curb in front of the residence. Defendants and co-
defendants came "flying out of the car." As they ran toward the
victim, he yelled to the hostess, who had gone inside, to call the
police. The victim claimed that in self-defense he threw a punch
at Gallucci, who was leading the charge. Someone behind the victim
"drop-kicked" him in his lower back and he fell to the ground.
After he fell, the assailants kicked him repeatedly and "beat the
crap" out of him.
The victim was certain Gallucci's daughter was the person who
"drop-kicked" him. The victim also knew all the defendants were
kicking him because he "could see right around me." He saw
"numerous boots and sneakers" kicking him. Tylka "threw the last
kick." The beating lasted for about five minutes, during which
the victim heard Gallucci say, "Oh you like to say something in
front [of] my granddaughter."
6
Although the victim's name was misspelled, no one disputed the
texts concerned the victim.
9 A-3609-13T2
The beating ended when defendants and co-defendants returned
to the car. The victim was able to spit a mouth full of blood on
the car before they drove off.7 The next thing he recalled was
waking up in the hospital.
The victim sustained a significant injury as a result of the
beating. He underwent emergency surgery for a right eye laceration
through the eyelid and tear duct. A doctor described in detail
the surgery he performed to repair the lacerations. Although the
doctor opined the lacerations had healed "pretty well," the victim
testified he continued to have follow-up visits with the doctor;
he had pain in his eye "[e]very day"; and he still experienced
headaches. The victim claimed his vision was bad in his right
eye.8
During extensive cross-examination, defendants and co-
defendants elicited the history of domestic violence involving the
victim and Tylka. The first incident occurred on September 20,
2009, when the victim and Tylka argued and police were called to
7
The victim testified the distance from the hostess's front porch
to the street was approximately five feet.
8
Photographs were taken "all around [the victim's] head, his
multiple injuries," and "his chest area where he had some big
bruising." There was also bruising on both sides of the victim's
abdomen as well as scrapes and scratches on his hands and knees.
10 A-3609-13T2
their residence. Two years later, on September 30, 2011, the
victim was drinking, shoved a curio cabinet, and broke some glass.
Tylka filed a complaint. Ultimately, a final restraining order
(FRO) was issued against the victim, an order that remained in
effect through the July 4, 2012 assault. The victim violated the
FRO. While in the county jail, he wrote a letter to a neighbor
and asked the neighbor to give the letter's second page to Tylka.
In the letter, he told Tylka, "I don't care what you said to police
that I said, 'better watch your back.' It's your ass, . . . you
know I did not say that." By writing the letter to Tylka, the
victim violated the FRO and served time in jail for the violation.
Less than two months after the July 4, 2012 assault, the
victim was again charged with violating the restraining order.
Lastly, on January 17, 2013, the victim telephoned Tylka, "not
knowing it was her number," and said, "we're on the way. The boys
are on the way."
Tylka attempted to elicit from various witnesses information
about domestic violence incidents involving her and the victim.
Through cross-examination of a State's witness, South Amboy police
officer James Charmello, Tylka established the officer responded
to a report of domestic violence on April 23, 2012. Officer
Charmello testified the incident stemmed from an argument between
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the victim and Tylka. Officer Charmello also testified that when
the April 2012 incident occurred, there was an active temporary
restraining order (TRO) against the victim.
When Tylka's attorney asked Officer Charmello to read the
basis for the TRO, the court sustained an objection. Defense
counsel could not articulate an evidentiary basis for having the
officer read the hearsay contained in the TRO. He argued, "I
think the jury's entitled to know what the basis is." He also
said the officer was "a gentleman who prepares these all the time";
even though the officer had not personally prepared the TRO at
issue. When the court sustained the prosecutor's objection to
defense counsel eliciting the hearsay information from Officer
Charmello, defense counsel did not respond by citing to a rule of
evidence. Rather, he continued to insist the jury was "entitled
to know why it was issued."
The attorney later apologized to the court: "Judge, . . . I
apologize about before. I realize that . . . witness was not the
proper witness to discuss . . . the restraining order with. I
subpoenaed those witnesses." During the ensuing colloquy, defense
counsel again apologized: "I am apologizing, Judge, because I
didn't bring it in through the proper witness." Counsel apologized
a third time: "I just wanted to say, . . . I apologize. It was
12 A-3609-13T2
not the right witness. When the right witness comes, we'll deal
with it."9
The hostess testified for the State. Although the assault
took place in front of her residence, she did not see how it
started because she had gone into her house. Her longtime friend,
the 911 caller, walked out of the house, and the hostess heard her
yell. The hostess walked out and saw the victim on the sidewalk.
One of the assailants was smashing his head into the concrete.
The hostess turned and pushed her children back into the house.
She, too, retreated inside the house, where she remained until the
assailants were gone and the police arrived. During this time,
the hostess's longtime friend called the police. When the hostess
went outside a second time, the victim was lying "longways" at the
bottom of her stairs on the sidewalk. His head was covered in
blood and his face appeared to be damaged.
The State played the recording of the hostess's longtime
friend's 911 call. The transcript reads:
Officer: 911, where's your emergency?
Female: [Gives Address].
Officer: What is the problem . . .?
9
In her case in chief, Tylka presented the testimony of two
officers who testified to three incidents involving domestic
violence and the FRO.
13 A-3609-13T2
Female: Five guys beating one guy . . .
they're going to kill him . . . .
there's blood everywhere. . . you
gotta send an ambulance.
Officer: [Announces location], fight in
progress, [repeats location].
Female: Oh my God . . .
Officer: [Repeats address].
Female: . . . he's dead.
Officer: [repeats address] three
individuals on one . . .
Female: Five . . .
Officer: [Repeats address]
Female: Five guys.
Second Officer: Received.
. . . .
Officer: Just relax. Just
relax, police officers
will be there in a
second . . . .
Female: Yes, the cops are here . . .
. . . .
The first officer to arrive was South Amboy Sergeant Richard
Wojaczyk. Three women on the porch pointed to the victim, who was
lying on the ground and appeared to be badly beaten. His face was
14 A-3609-13T2
starting to swell, his head had numerous open cuts, and his right
eye seemed to be swelling very quickly. The sergeant began
rendering first aid until a first aid squad arrived. The squad
members attended to the victim and drove him to a medical center.
Sergeant Wojaczyk and other officers learned the identity of
certain suspects as well as the make and model of Tylka's car.
Officers did not find the car at Tylka's residence, but later
located it across the street from Gallucci's daughter's home. The
officers knocked on the daughter's door and rang the bell for
approximately ten to twenty minutes, but no one answered. The
officers knew someone was in the residence because they could see
a silhouette walking back-and-forth in front of a window. They
eventually left the home and the area at approximately 2:00 a.m.
Tylka called the South Amboy police station at approximately
3:00 a.m. After verifying she had reached South Amboy, she told
Sergeant Wojaczyk, who by then was staffing the desk:
Before, I noticed some people outside. I have
a restraining order against [the victim]. . .
They seemed to look like they had an
altercation. I got in my car. It was with a
couple of black guys. I got in my car, I
left. I went to Sayreville and I had been
there since. I want to go home now and I want
to make sure I don't have any problems . . .
15 A-3609-13T2
Tylka also told the sergeant she heard the victim was in the
hospital, and "[the police] are looking for me and I don't know
why." When the sergeant told Tylka to come down and clear things
up, Tylka declined. She said she did not want to get in trouble
for something she did not do and that she intended to get a lawyer.
Later in the morning of July 5, at approximately 4:18 a.m.,
patrol officers stopped Tylka, who was driving her car, and
arrested her and Gallucci, her passenger. The arresting officers
observed no injuries to either defendant. Following her arrest,
Tylka consented to a police search of her car. The officers took
samples of blood splatter from different locations on the vehicle.
An officer swabbed the victim's cheek for DNA evidence. The State
established through forensic evidence and expert testimony that
the blood splatter came from the victim.
Tylka called two witnesses in her defense: the officers who
responded to her complaints of domestic violence on September 30,
2011, August 13, 2012, and January 18, 2013. The officers
testified to the details of their involvement, according to their
incident reports.
Following the foregoing testimony, the court inquired as to
whether Tylka would testify. Her attorney said he first needed
an advance ruling. Tylka intended to testify about the domestic
16 A-3609-13T2
violence incident that led to the restraining order, but not about
the assault. For that reason, her attorney made an application
to bar any reference or cross-examination to her statements
regarding the assault because she would not be testifying as to
those events. Specifically, defense counsel informed the court:
"Now if you limited cross just to that very narrow direct, you
know, I'd like to get a ruling on that. If you're going to open
it up to everything, then I know how to advise my client."
An exchange followed between the court and defense counsel
about the basis of the court's previous ruling during Officer
Charmello's testimony. Nonetheless, in reply to counsel's
inquiry, the court stated: "So if you want to get into this, I am
opening up cross-examination because this is what you are trying
to do, you are trying to sneak this in." Counsel objected to the
characterization. After an additional exchange, the court said,
"the answer is no. [I]f she testifies, that's opened to
everything." Counsel thanked the court, stating, "that's what I
wanted to clarify."
Neither Tylka, Gallucci's daughter, nor Gallucci testified.
The fourth co-defendant testified and denied he was present during
the assault. He claimed he stayed home that night. The jury
found him not guilty. As previously noted, the jury found
17 A-3609-13T2
Gallucci, Tylka, and Gallucci's daughter guilty of third-degree
aggravated assault.
II.
On appeal, Gallucci raises the following points:
I. THE TRIAL JUDGE IMPROPERLY PRECLUDED
DEFENSE COUNSEL FROM OFFERING EVIDENCE THAT
[THE VICTIM] HAD BEHAVED VIOLENTLY TOWARD
TYLKA, AND THREATENED TO HARM HER AND ANYONE
SHE DATED. THE JUDGE'S 404(B) INSTRUCTION WAS
ALSO INCOMPLETE.
II. THE TRIAL COURT ERRED BY NOT ISSUING A
CLAWANS INSTRUCTION AFTER THE STATE FAILED TO
CALL EYEWITNESSES [THE TEXT MESSENGER AND THE
911 CALLER] TO TESTIFY AT TRIAL. (Not Raised
Below).
III. THE PROSECUTOR IMPROPERLY BOLSTERED [THE
911 CALLER'S] 911 CALL BY TELLING THE JURY IN
SUMMATION THAT PRESENT-SENSE IMPRESSIONS AND
EXCITED UTTERANCES ARE MORE RELIABLE, AND ALSO
CAPITALIZED ON THE COURT’S FAULTY 404(B)
RULING TO ARGUE THAT THERE WAS NO EVIDENCE
THAT [THE VICTIM] HAD PHYSICALLY ABUSED TYLKA.
(NOT RAISED BELOW).
a. The prosecutor's discussion in
summation regarding the reliability of
present-sense impressions and excited
utterances improperly bolstered [the 911
caller's] 911 call.
b. the prosecutor misled the jury by
arguing that there was not prior violence
between [the victim] and Tylka, contrary
to evidence that was excluded at trial.
c. the prosecutorial misconduct was
plain error.
18 A-3609-13T2
IV. THE TRIAL COURT ERRED IN FAILING TO VOIR
DIRE, OR EVEN ADMONISH, THE JURORS WHO
VIOLATED THEIR OATH BY DISCLOSING
DELIBERATIONS AND BULLYING JUROR NO. 1, AND
IN FAILING TO INSTRUCT THE JURY THAT JUROR NO.
1 WAS NOT REQUIRED TO CHANGE HIS MIND IN ORDER
TO ACHIEVE UNANIMITY. THIS ERROR WAS
COMPOUNDED BY THE JUDGE REPEATEDLY QUESTIONING
ONLY JUROR NO. 1 ABOUT HIS ABILITY TO BE FAIR
AND IMPARTIAL, AND INSTRUCTING HIM TO
"COMPARTMENTALIZE" HIS LIFE EXPERIENCE.
(PARTIALLY RAISED BELOW).
V. THE CUMULATIVE EFFECT OF THE
AFOREMENTIONED ERRORS DENIED GALLUCCI A FAIR
TRIAL.
Tylka raises these points:
I. THE TRIAL COURT ERRED IN ADMITTING [THE
911 CALLER] 911 CALL AND [THE TEXT
MESSENGER'S] TEXT MESSAGES INTO EVIDENCE OVER
DEFENDANT'S OBJECTIONS THAT THE 911 CALL AND
MS. WYATT'S TEXT MESSAGES WERE HEARSAY
STATEMENTS WHICH DEFENDANT WAS UNABLE TO
SUBJECT TO CROSS-EXAMINATION BECAUSE [THE 911
CALLER] AND [THE TEXT MESSENGER] DID NOT
TESTIFY AT TRIAL.
II. THE ASSISTANT PROSECUTOR IMPROPERLY
COMMENTED ON MS. TYLKA'S SILENCE ON THE ISSUE
OF SELF DEFENSE IN HER 911 CALL TO POLICE ON
THE NIGHT OF HER ARREST.
III. THE TRIAL COURT ERRED IN CIRCUMSCRIBING
DEFENDANT'S PROOFS OF [THE VICTIM'S] VIOLENT
PROPENSITIES AND THE ASSISTANT PROSECUTOR TOOK
IMPROPER ADVANTAGE OF THE ERROR BY SUGGESTING
IN SUMMATION THAT THERE WAS NO EVIDENCE THAT
[THE VICTIM] WAS ABUSIVE AND VIOLENT TOWARDS
MS. TYLKA.
19 A-3609-13T2
IV. THE TRIAL COURT IMPROPERLY INSTRUCTED AN
INDIVIDUAL JUROR REGARDING ISSUES RAISED IN
DELIBERATION AND INSTRUCTED HIM TO
"COMPARTMENTALIZE" HIS LIFE EXPERIENCE AND
INCORRECTLY INSTRUCTED THE ENTIRE JURY ON
THEIR FURTHER DELIBERATIONS. (NOT RAISED
BELOW).
V. THE TRIAL COURT ERRED IN FAILING TO
INSTRUCT THE JURY TO DISREGARD [THE VICTIM'S]
TESTIMONY THAT MS. TYLKA HAD BEEN SELLING
PILLS IN A SCHOOL ZONE. (NOT RAISED BELOW).
VI. THE TRIAL COURT'S ERRONEOUS EXCUSAL OF
[A] JUROR . . . DENIED DEFENDANT HER RIGHT TO
TRIAL BY AN IMPARTIAL JURY AND REQUIRES THAT
DEFENDANT BE ACCORDED A NEW TRIAL.
VII. CUMULATIVE ERROR DEPRIVED DEFENDANT OF A
FAIR TRIAL AND REQUIRES THAT DEFENDANT'S
CONVICTION AND SENTENCE BE REVERSED.
VIII. DEFENDANT'S SENTENCE TO FIVE YEARS
PROBATION WITH A SUSPENDED TERM OF 364 DAYS
IN THE COUNTY JAIL WAS EXCESSIVE AND BASED ON
THE COURT'S ERRONEOUS REJECTION OF FACTOR 8
(CIRCUMSTANCES UNLIKELY TO RECUR) AND
UNSUPPORTED FINDING OF AGGRAVATING FACTOR 6
(EXTENT OF DEFENDANT'S PRIOR RECORD).
We begin our discussion with defendants' contentions
concerning the victim's prior bad acts. Gallucci contends in his
first point, and Tylka in her third, that the trial court precluded
defendants from offering certain evidence the victim had behaved
violently toward Tylka, and unduly circumscribed the presentation
of other such evidence. Gallucci adds that the trial court's
instruction concerning the victim's prior bad acts was incomplete.
20 A-3609-13T2
Tylka adds that the prosecutor improperly commented in summation
that there was no evidence the victim was abusive and violent
towards Tylka. We find no merit in these arguments.
"[A] trial court's evidentiary rulings are 'entitled to
deference absent a showing of an abuse of discretion, i.e., there
has been a clear error of judgment.'" State v. Brown, 170 N.J.
138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484
(1997)). Here, defendants' contentions have no factual support.
Defendants cite the attempt to elicit the contents of a TRO through
Officer Charmello as support for their argument. They overlook
the reason the court sustained the State's objection as well as
defense counsel's own acknowledgment he attempted to elicit the
testimony through an improper witness. Later, Tylka presented the
testimony of two police officers who related what Tylka told them
about certain domestic violence incidents.
Gallucci's contention the court unduly restricted Tylka from
testifying about prior acts of domestic violence is entirely devoid
of merit. Tylka wanted to testify about prior acts of domestic
violence but avoid cross-examination about the incident. Her
attorney asked the court for a preliminary ruling on the issue.
Although the trial court made some statements about Tylka's motive
and intent in requesting the ruling, the court ultimately ruled
21 A-3609-13T2
Tylka would be subject to cross-examination on the assault. She
declined to testify.
Tylka's dilemma was understandable, but not one calling for
judicial relief. "It is generally accepted that one who provokes
or initiates an assault cannot escape criminal liability by
invoking self-defense as a defense to a prosecution arising from
the injury done to another. The right to self-defense is only
available to one who is without fault." State v. Rivers, 252 N.J.
Super. 142, 149 (App. Div. 1991) (citation omitted). It would
have conceivably been difficult for Tylka to explain how she acted
in self-defense when she, Gallucci, and others decided, near
midnight, to drive to the hostess's residence where they had not
been invited, exit the car, charge the victim, and pummel him so
severely he required hospitalization and surgery. In any event,
the record reflects that Tylka declined to testify after the court
ruled she would be subject to cross-examination about the assault.
The trial court did not abuse its discretion in so ruling. State
v. Weaver, 219 N.J. 131, 149 (2014).
We also find unavailing Gallucci's argument that the trial
court's instruction to the jury concerning the domestic violence
incidents was incomplete. Defendants approved both the content
and placement of the instruction before it was given, and neither
22 A-3609-13T2
defendant objected to the instruction after it was given. 10 We
find no error in the court's instruction.
Lastly, we reject defendants' arguments that the prosecutor
misled the jury by arguing there was no prior violence between the
victim and Tylka, "contrary to evidence that was excluded at
trial." Defendants offered no competent evidence at trial that
the victim had repeatedly assaulted Tylka. When Tylka declined
to testify, she made no specific proffer of the details of her
proposed testimony. Thus, contrary to defendants' assertions,
there was no undisputed, excluded evidence that the victim had
physically abused Tylka.
Moreover, in his closing remarks, Tylka's attorney told the
jury, "[the victim] is a guy that Marc Gallucci knows wants to
fight him. [Marc] knows that [the victim] likes to beat up
Stephanie Tylka. Marc knows these two facts and that's what makes
it reasonable for him to use force." No evidence presented during
the lengthy trial established directly or by reasonable inference
either that the victim liked to beat up Tylka or that Gallucci
10
We also note, as to Gallucci, our Supreme Court's caution that
"[o]nly when the defendant has actual knowledge of the specific
acts to which a witness testifies is specific-acts testimony
probative of the defendant's reasonable belief." State v.
Jenewicz, 193 N.J. 440, 463 (2008) (citation omitted).
23 A-3609-13T2
knew the victim liked to beat up Tylka. The prosecutor's pointing
out that no evidence established that the victim had been
physically violent was a fair comment in light of defense
misconduct in asserting facts having no basis in the record.
III.
A.
In Tylka's first point, she argues the trial court committed
reversible error by admitting the content of the hostess's longtime
friend's 911 call to the police, and by admitting the content of
the text messages the text messenger sent to her. In his third
point, Gallucci argues the prosecutor's closing remarks
emphasizing the reliability of present sense impressions and
excited utterances improperly bolstered the content of the 911
call.
Preliminarily, we reject Tylka's contention that introduction
of the 911 calls violated her Sixth Amendment right to confront
witnesses. The principles embodied in the Sixth Amendment's
Confrontation Clause preclude the admission against a defendant
of "[t]estimonial statements of witnesses absent from trial,"
unless "the declarant is unavailable, and only where the defendant
has had a prior opportunity to cross-examine." Crawford v.
Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d
24 A-3609-13T2
177, 197 (2004). "Testimonial" statements often include those
made during structured police interrogation. Id. at 69, 124 S.
Ct. at 1374, 158 L. Ed. 2d at 203. Nonetheless:
Statements are nontestimonial when made in the
course of police interrogation under
circumstances objectively indicating that the
primary purpose of the interrogation is to
enable police assistance to meet an ongoing
emergency. They are testimonial when the
circumstances objectively indicate that there
is no such ongoing emergency, and that the
primary purpose of the interrogation is to
establish or prove past events potentially
relevant to later criminal prosecution.
[Davis v. Washington, 547 U.S. 813, 822, 126
S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237
(2006).]
Generally, "at least the initial interrogation conducted in
connection with a 911 call, is ordinarily not designed primarily
to 'establis[h] or prov[e]' some past fact, but to describe current
circumstances requiring police assistance." Id. at 827, 126 S.
Ct. at 2276, 165 L. Ed. 2d at 240 (alterations in original). That
is particularly so when "any reasonable listener would recognize
[the 911 caller] was facing an ongoing emergency." Ibid. If,
when viewed objectively, the nature of the colloquy between the
911 caller and the person called is such "that the elicited
statements [are] necessary to be able to resolve the present
25 A-3609-13T2
emergency, rather than simply to learn . . . what had happened in
the past," the content of the call is not testimonial. Ibid.
Such is the case here. Any reasonable listener would
recognize the hostess's longtime friend, who placed the 911 call,
was facing an ongoing emergency. The call's sole purpose was to
describe present facts requiring police assistance, as in Davis.
Moreover, the 911 dispatcher's questions were intended to elicit
information needed to dispatch police to the scene and inform them
of the circumstances. Nothing in the dispatcher's questions
suggests he was asking questions to learn what had happened in the
past to preserve testimony for trial.11
Similarly, we reject Tylka's contention that the content of
the 911 call was inadmissible under New Jersey's evidence rules.
The trial court did not make a specific ruling as to which hearsay
exception applied to the 911 call. Rather, the trial court
appeared to have been satisfied that the content of the call was
admissible once the recording of the call was authenticated.
11
Our Supreme Court has interpreted the New Jersey Constitution's
Confrontation Clause, N.J. Const., Art. I, ¶ 10, consistently with
the United States Supreme Court's interpretation of the Sixth
Amendment's Confrontation Clause. State ex rel. A.R., 447 N.J.
Super. 485, 506 n.9 (App. Div. 2016) (citing State v. Roach, 219
N.J. 58, 74 (2014); State v. Cabbell, 207 N.J. 311, 328 n.11
(2011)), certif. granted, ____ N.J. ____ (2017).
26 A-3609-13T2
Nonetheless, "[w]e are free to affirm the trial court's decision
on grounds different from those relied upon by the trial court."
State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011) (citing
Isko v. Planning Bd. of Livington, 51 N.J. 162, 175 (1968) (noting
"[i]t is a commonplace of appellate review that if the order of
the lower tribunal is valid, the fact that it was predicated upon
an incorrect basis will not stand in the way of its affirmance")).
The State contends the record establishes the 911 caller's
statement was admissible either as a present sense impression or
an excited utterance. We agree. A present sense impression is
"[a] statement of observation, description or explanation of an
event or condition made while or immediately after the declarant
was perceiving the event or condition and without opportunity to
deliberate or fabricate." N.J.R.E. 803(c)(1). An excited
utterance is "[a] statement relating to a startling event or
condition made while the declarant was under the stress of
excitement caused by the event or condition and without opportunity
to deliberate or fabricate." N.J.R.E. 803(c)(2).
Here, the hostess's testimony and the content of the 911
statements, which could be heard on the call's recording,
established the elements of both hearsay exceptions. These
27 A-3609-13T2
exceptions apply "[w]hether or not the declarant is available as
a witness[.]" N.J.R.E. 803(c).
Tylka argues that the hostess's longtime friend "was no longer
in a position to observe what was occurring" when she made the 911
call. Tylka cites the hostess's testimony that her longtime friend
was in the house when she was talking during the 911 call. That
fact, in and of itself, does not negate the longtime friend's
ability to peer outside at what was going on.
Tylka further speculates that the hostess's longtime friend
was reciting "events previously observed by or described to her
rather [than] a contemporaneous description of what was
occurring." Nothing in the record, however, supports Tylka's
supposition that the longtime friend was reporting events related
to her by others. To the contrary, the evidence establishes there
was insufficient time for this to have occurred. Moreover, even
if the longtime friend were not reporting events she was
contemporaneously witnessing, the present sense impression hearsay
exception applies when the statement is "of an event or condition
made . . . immediately after the declarant was perceiving the
event or condition and without opportunity to deliberate or
fabricate." N.J.R.E. 803(c)(1). The record amply established the
elements of this hearsay exception.
28 A-3609-13T2
Even if the present sense impression hearsay exception is
inapplicable, the hostess's longtime friend's 911 statements were
admissible as an excited utterance. The severe beating of the
victim qualified as a startling event and it is readily apparent
from the content of the 911 recorded statements that the longtime
friend remained under the excitement caused by the beating. The
hostess's testimony made clear her friend placed the 911 call
without opportunity to deliberate or fabricate. Defendants
offered no evidence to the contrary.
Gallucci argues in his third point that the prosecutor engaged
in misconduct when he emphasized in summation the reliability of
present sense impressions and excited utterances. The prosecutor
stated:
Now this 911 call - - we beat a path to sidebar
many times during this. A lot of the
objections that were made were hearsay
objections and a lot of those were sustained.
A 911 call actually is an exception to the -
- it can be played as an exception to the
hearsay rule, a present sense impression, and
what that means is that this information being
provided by the police contemporaneous with
the incident. There's no time that would
allow somebody to fabricate, to think about
what was going on and - - and maybe say
something that wasn't true. And when you
listen to this one call, when you hear the
emotion in the woman's voice who’s talking to
the police, you can tell that this is ongoing
at the time that she's speaking to the police.
29 A-3609-13T2
Okay? She's not feigning her - - her horror
as to what happens here. In fact a number of
times she says, he's dead, they're going to
kill him.
Immediately after making these comments, the prosecutor
emphasized the 911 caller had identified herself and then made
statements during the call entirely consistent with the victim's
version of how the assailants attacked him.
Although we find no impropriety in the prosecutor emphasizing
that present sense impressions and excited utterances are
reliable, the prosecutor's explanation to the jury of hearsay and
the basis for the court's admitting the statements was
inappropriate. The prosecutor is entitled to wide latitude in his
summation provided "he stays within the evidence and the legitimate
inferences therefrom[.]" State v. Wakefield, 190 N.J. 397, 457
(2007) (citations omitted). Objections made during trial, sidebar
discussions, and the basis of a court's rulings are not evidence.
The prosecutor had no business commenting on such legal matters
in summation, particularly the basis of the trial court's rulings
on evidence. Such comments tend to suggest the evidence should
perhaps be given greater weight than other evidence in view of the
trial court's sanctioning its admissibility.
30 A-3609-13T2
Nonetheless, the prosecutor's remarks in this case were not
"so egregious that [they] deprived . . . defendant of a fair
trial[.]" State v. Smith, 212 N.J. 365, 404 (2012) (quoting State
v. Frost, 158 N.J. 76, 83 (1999)). The fleeting remarks were made
during the course of a lengthy trial. Defendants lodged no
objection to the remarks. Such an omission generally signifies
that the remarks were not prejudicial. State v. Ramseur, 106 N.J.
123, 323 (1987), cert. denied, sub nom., Ramseur v. Beyer, 508
U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993). Moreover,
in its charge to the jury, the court instructed that its rulings
on the admissibility of evidence were not evidence, an expression
of the merits of the case, or an indication evidence should be
accepted by the jury. In addition, the court instructed the jury
the comments the attorneys made in their closing arguments were
not evidence. Considering all these circumstances, we cannot
conclude the prosecutor's improper remarks "substantially
prejudiced defendant's fundamental right to have a jury fairly
evaluate the merits of his defense." State v. Smith, 167 N.J.
158, 181-82 (2001).
B.
We are also unpersuaded by Tylka's argument concerning the
text messages. The text messages were not testimonial and did not
31 A-3609-13T2
violate the Sixth Amendment's Confrontation Clause. "Statements
made to someone who is not principally charged with uncovering and
prosecuting criminal behavior are significantly less likely to be
testimonial than statements given to law enforcement officers."
Ohio v. Clark, ____ U.S. ____, ____, 135 S. Ct. 2173, 2182, 192
L. Ed. 2d 306, 317 (2015). Moreover, the text messages were not
hearsay because they were not "offered in evidence to prove the
truth of the matter asserted[,]" N.J.R.E. 801(c), but rather to
show how defendants knew where the victim was located, and perhaps
what prompted their actions.
Tylka argues the text messenger's opinion that Tylka had done
something "X r a z y" left the jury to speculate about the
messenger's intention in sending the message. Additionally, Tylka
contends the assistant prosecutor's argument concerning the last
text suggested it was substantive evidence of her guilt.
The text messenger's intention in sending the sixth text had
little, if any, probative value. To the extent the text could be
interpreted to demonstrate, substantively, Tylka's presence and
participation in the assault, its admission was harmless. R.
2:10-2. Those facts were established by independent evidence and
Tylka never denied them. Rather, she asserted self-defense. In
32 A-3609-13T2
view of these considerations, her argument the sixth text message
was unduly prejudicial is meritless.
IV.
Tylka next contends "the assistant prosecutor improperly
commented on [her] silence on the issue of self[-]defense in her
911 call to police on the night of her arrest." Tylka asserts
"[h]er call was not an attempt to give an account of what occurred,
[rather,] she was seeking clarification of whether or not she was
wanted for questioning."
Tylka's argument takes the prosecutor's remarks out of
context, mischaracterizes his summation as a comment on her
silence, and misstates that her call was not an attempt to give
an account of what occurred, but rather an attempt to clarify
whether she was wanted for questioning.
It is true the prosecutor commented on Tylka's failure to
mention self-defense during the 911 call. The prosecutor said,
among other things:
The funny thing is, we don't hear that in this
phone call. We don't hear anything about
self[-]defense in this phone call. We hear a
denial of any involvement at all. And this
isn't the police questioning her. This is a
phone call made to the police. This is
initiated by Ms. Tylka. This is of her own
accord and that is what she tells the police.
. . . [a]nd then she goes on, before I noticed
33 A-3609-13T2
some people outside, I have a restraining
order against [the victim]. They seem to look
like they had an altercation, I got in my car,
it was with a couple of black guys, I got in
my car and left, I went to Sayreville and I've
been there since, I want to go home now and I
want to make sure I don't have any problems.
[(Emphasis added)].
After emphasizing that defendants claimed they acted in self-
defense and the victim was the aggressor, the prosecutor continued:
But this is what she said. It seemed to look
like they had an altercation. Right? Not
her. Seemingly she's throwing in [the victim]
because she talks about the restraining order
against [him], but, you know, in this way that
it reads, the only conclusion that you can
reasonably draw listening to this – and,
again, you don't have to accept – you have it
to listen to yourselves. But the only
conclusion that you can draw from this is that
. . . Ms. Tylka was reporting to the police
four hours after the incident and [the victim]
had an altercation with two black guys. I
would suggest that is very inconsistent with
the claim of self[-]defense, that is, you need
to defend yourself, if you need to use force
against someone else and someone else is using
unlawful force, you are, in a sense, a victim,
and if you had the right and the need to use
self[-]defense, you would proclaim as loudly
as possible[.]
In Anderson v. Charles, 447 U.S. 404, 405-06, 100 S. Ct.
2180, 2180-81, 65 L. Ed. 2d 222, 224-25 (1980), at trial, the
prosecutor cross-examined the defendant with a prior inconsistent
statement. The Court held that the prohibition against cross-
34 A-3609-13T2
examining a defendant on post-Miranda12 silence "does not apply to
cross-examination that merely inquires into prior inconsistent
statements." Id. at 408, 100 S. Ct. at 2182, 65 L. Ed. 2d at 226.
The Court determined the cross-examination "ma[de] no unfair use
of silence, because a defendant who voluntarily speaks after
receiving Miranda warnings has not been induced to remain silent.
As to the subject matter of the statements, the defendant has not
remained silent at all." Ibid. (citations omitted). Explaining
that "two inconsistent descriptions of events may be said to
involve 'silence' insofar as it omits facts included in the other
version[,]" the Court declined to adopt such a "formalistic
understanding of 'silence[.]'" Id. at 409, 100 S. Ct. at 2182,
65 L. Ed. 2d at 227.
In State v. Tucker, 190 N.J. 183, 189 (2007), our Supreme
Court stated, "[w]e are in accord with the reasoning in Anderson.
A defendant's right to remain silent is not violated when the
State cross-examines a defendant on differences between a post-
Miranda statement and testimony at trial." Our Supreme Court
explained:
[w]hen a defendant agrees to give a statement,
he or she does not remain silent, but has
12
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
35 A-3609-13T2
spoken. Thus, we conclude that it is not an
infringement of a defendant's right to remain
silent for the State to point out differences
in the defendant's testimony at trial and his
or her statements that were freely given.
[Ibid. (citations omitted).]
In Tucker, though defendant neither testified nor presented
witnesses, the Court found the fact the defendant did not testify
inconsequential.
Although the present case does not
involve inconsistencies between a statement
and defendant's testimony at trial, it does
involve inconsistencies in several statements
that were freely given and admitted into
evidence. We find no meaningful distinction
between the two situations that would justify
a different result. In both instances, a
defendant has waived the right to remain
silent and freely spoken.
[Id. at 190.]
Here, the prosecutor did not comment on Tylka's silence.
Rather, he commented on a statement in which Tylka blamed the
victim's beating on two black men. We find no legally significant
distinction between this situation and that in Tucker. By
commenting on a statement Tylka volunteered to police during a
36 A-3609-13T2
telephone call she initiated, the prosecutor did not violate
Tylka's right to remain silent.13
V.
Defendants next contend – in their respective fourth points
— the court mishandled a situation involving a juror. During
deliberations, the jury sent the following note regarding Juror
No. 1:
Please discuss with Juror [No. 1]. He
has a personal experience of being assaulted
by a group of individuals and feels [the
victim] got what he desires [sic]. [Juror No.
1] also has members of his family with a
history of drinking. We think that [Juror No.
1] was not honest with you during the initial
jury interview. We are requesting the
alternate juror.
Following a discussion with counsel, in which defendants'
attorneys said they preferred the jurors continue deliberating,
the court conducted the following colloquy with Juror No. 1:
The Court: What happened is . . . we
received a note from one of the jurors that
indicated that there's some stuff that went
on in your background that might be impacting
in some way, and I don't know, you know, when
you're deliberating. Okay. So my question
to you is really kind of simple. Can you be
fair? Can you be objective in deciding the
case.
13
For the same reason, we find Gallucci's supplemental argument
— the State's improper comment on Tylka's silence violated his
right to due process — to be without merit.
37 A-3609-13T2
Juror No. 1: Absolutely. Sure.
The Court: Can you put aside any personal
experiences that might in any way impact on
this case, and decide the case based upon the
facts and the law as [the trial judge] has
given you?14 Can you do that?
Juror No. 1: Yes. But life experiences
played a part in decision making.
The Court: [A]bsolutely. But what you
have to do is compartmentalize . . . and say
here's the law. And [the trial judge] has
given it to you. Here's the facts. We don't
have any set of facts that . . . talk about,
for lack of a better way of putting it so, you
know, somebody deserving anything, or somebody
putting them self in a bad position. The issue
is simply put, if there's self-defense, great.
You look at the law. If there's not, that's
also fine. You look at the law. And if you
have any questions, Judge Mulvihill has sent
in instructions on the law. Right?
Juror No. 1: Uh-huh.
The Court: And regardless of your
personal feelings, follow the law and apply
the law to the facts as you find those facts
to be. A simple question. Can you do it?
Juror No. 1: Can I? Yes. But two
reasonable people equally informed some would
disagree. And . . . . I'm entitled to my
opinion - -
The Court: You are.
14
The trial judge was temporarily unavailable. Another judge was
sitting in for him during deliberations.
38 A-3609-13T2
Juror No. 1: - - as far as the other eleven.
The Court: You absolutely are. But the
question is, can you listen to everybody else,
and don't give up something you believe simply
to agree with them; I don't want you to do
that, but listen objectively, and if you
remain firm in your conviction, then you
continue believing whatever it is you believe,
but can you be fair and objective[,] period?
Juror No. 1: I thought I've been fair and
objective.
The Court: Okay. Awesome. Then go
downstairs. Okay. You know what, why don't
you go . . . in one of the other rooms. Let
me ask the lawyers if they have anything that
they want to ask you?
Juror No. 1: Sure.
After excusing Juror No. 1, the court stated it would do the
"read back" the jury had requested and "simply explain to them to
listen to one another and be objective in their analysis and do
no more than that." Before the court was able to address the
jury, Juror No. 1 requested to speak with the judge again. Juror
No. 1 requested that the court replace him with an alternate. The
following colloquy then took place:
The Court: Listen. Listen. Our jury
system is such that we expect there to be
deliberations. And sometimes I will tell you,
. . . there are heated deliberations. I've
been in cases where, you know, I've sent a
sheriff's officer in to say, hey, calm down,
folks. I mean, the question is, can you be
fair and objective?
39 A-3609-13T2
Juror No. 1: That's my problem I am fair and
objective and that . . .
The Court: Well, listen. Listen. If you
can be fair and objective, then I'm going to
ask you to stay. Okay. I cannot permit jurors
to be bullied. I cannot permit jurors to be,
you know, intimidated into not sitting. And
the bottom line is, when everybody comes back,
I'll explain that everybody is entitled to
their opinion and should have their opinion.
All I ask each of you to do, and that includes
you and everybody else, be fair and open-
minded enough so if what somebody says makes
sense to you, well, then take it as something
that makes sense. And if it alters your
opinion, great. If it doesn't, then that's
also fine.
Juror No. 1: Right.
The Court: And you'll notice I'm doing
nothing about - - and I'm not - - not talking
about deliberations. I'm not telling you
whether anybody is right or wrong. All I want
is a fair, open-minded discussion. And if you
folks can't agree, I'm good with that.
Juror No. 1: I would feel more comfortable
if the alternate would take my spot.
The Court: Well, I can't release you
simply because you feel uncomfortable. Okay.
If you're telling me you can't be fair, you
can't be impartial, I can talk to counsel
about that. But I - -
Juror No. 1: My problem is I would be fair
and impartial.
The Court: Well, - -
40 A-3609-13T2
Juror No. 1: That's my problem.
The Court: I cannot release you at this
time.
Juror No. 1: Okay.
The Court: Okay. I understand the
difficulty. All I ask you to be is honest and
open. And, you know, as I said, listen to the
other folks. And I trust that they will listen
to you, and you'll be objective in your
analysis. Okay. I can't ask for anymore.
Juror No. 1: Right.
The Court: During the voir dire
questioning you were asked a number of
questions, for example. Were you truthful
during those - -
Juror No. 1: Yes.
The Court: - - those answers?
Juror No. 1: Absolutely.
The Court: All right. Then - - then I
don't really see that there's an issue. All
right. So let me send you downstairs. Don't
talk about the case. We'll call you back.
All right?
When the jury returned for the read back, the judge instructed
the jury it must "be fair and open-minded, be open to other
people's positions, so that each of you can hear the positions of
the others." The court reiterated to the jury to keep an open
mind and to "not advocate[] for a position."
41 A-3609-13T2
Gallucci contends for the first time on appeal the trial
court committed several errors: it failed to admonish the jurors
who wrote the note for disclosing information about their
deliberations; it failed to give the entire model jury charge on
further deliberations stating that jurors should not change their
opinion simply to return a unanimous verdict; and it coerced Juror
No. 1 by telling him to compartmentalize his life experiences.
Tylka makes essentially the same arguments. We disagree with the
contentions and with the assertions that these alleged errors
require a new trial.
First, there is no evidence that after sending the note
concerning Juror No. 1 to the judge, the jurors disclosed anything
further about their deliberations. Gallucci demonstrates no
prejudice resulting from the court's failure to admonish the jury.
Next, Gallucci's concern that Juror No. 1 may have been
bullied into changing his mind about the verdict – because the
trial court did not instruct the jury as a whole they should not
change their opinions simply to return a unanimous verdict – is
unwarranted speculation. The court emphasized to Juror No. 1 not
only that he was entitled to his opinion, but he was not to "give
up something you believe simply to agree with them; I don't want
you to do that, but listen objectively and if you remain firm in
42 A-3609-13T2
your conviction then you continue believing whatever it is you
believe." In view of the court's instruction to Juror No. 1, it
is difficult to discern how Juror No. 1 would have been unaware
that he should not vote with the other jurors simply to reach a
verdict.
Gallucci argues the court erred by telling Juror No. 1 to
compartmentalize his life experience. The argument is without
sufficient merit to warrant discussion. R. 2:11-3(e)(2).
The trial court was required to balance delicate interests
when the situation arose with Juror No. 1. "Any inquiry to
determine whether a deliberating juror should be removed and
replaced with an alternate must be carefully circumscribed to
protect the confidentiality of jury communications." State v.
Musa, 222 N.J. 554, 568 (2015) (citation omitted). Moreover,
"[t]rial courts do not have unbridled discretion to reconstitute
deliberating juries in the face of a jury crisis. On the contrary,
the removal rule may be used only in limited circumstances." State
v. Hightower, 146 N.J. 239, 253 (1996). "[T]he essence of jury
deliberations is the joint or collective exchange of views among
individual jurors. It is therefore necessary to structure a
process and create an environment so that the mutual or collective
nature of the jury's deliberations is preserved and remains intact
43 A-3609-13T2
until final determination is reached." State v. Corsaro, 107 N.J.
339, 349 (1987).
Here, the trial court carefully struck the balance between
these competing considerations. We find no error in the manner
in which the court exercised its discretion.
VI.
Defendant Tylka's and defendant Gallucci's remaining
arguments concerning the trial are without sufficient merit to
warrant extended discussion in a written opinion. R. 2:11-3(e)(2).
We add only the following comments.
In his second point, Gallucci argues the court should have
given a Clawans charge concerning the hostess's longtime friend
and the text messenger, even though none was requested. The
argument is devoid of merit. Because Gallucci did not raise the
issue at trial, the trial court had no opportunity to analyze
whether the charge should have been given. State v. Hill, 199
N.J. 545, 560 (2009). The trial court's involvement is critical.
Id. at 561. For that reason, rarely, if ever, will such an
argument be grounds for reversal on appeal. Moreover, as Hill
instructs, adverse witness instructions are now generally
disfavored. Id. at 566.
44 A-3609-13T2
In any event, it is not apparent from the record that either
of the witnesses at issue was available to testify. In fact, the
record suggests otherwise. There was evidence the hostess's
longtime friend, who made the 911 call, was in another state and
severely ill. A co-defendant's attorney, who wanted to have the
text messenger testify, was unable to locate the text messenger.
Considering all these circumstances, the court's not giving, sua
sponte, an adverse inference charge, was not error, let alone
plain error. R. 2:10-2; State v. Macon, 57 N.J. 325, 335-36
(1971).
In her fifth point, Tylka contends the court should have
instructed the jury, sua sponte, to disregard the victim's comment
that she and others were selling drugs in front of her residence.
The omission, if error, was not plain error. R. 2:10-2. One
defendant cross-examined the victim on the issue, albeit briefly.
Defendant's claims of self-defense and defense of another were
relatively weak, given the strong evidence they were the aggressors
and the extent of the beating. More significantly, the allegation
about dealing drugs involved criminal activity unrelated in any
respect to either the crimes with which defendants were charged
or the defense of self-defense. Thus, we cannot conclude the
omission to give a curative instruction, particularly in the
45 A-3609-13T2
absence of a request to do so, was clearly capable of producing
an unjust result. Ibid.
In her sixth point, Tylka contends that during jury selection,
before the jury was sworn, the trial court abused its discretion
by excusing a juror. The court excused the juror for two reasons:
first, the juror volunteered that his grandfather was in-home
hospice, and if he passed, the juror would have to attend the
services. During the sidebar conference in which the juror
disclosed the issue concerning his grandfather, the judge pressed
him on whether he faced an economic hardship because he would not
be paid for overtime. After the court pressed the issue and asked
a leading question, "wouldn't that be like a hardship for you,"
the juror replied, "[y]eah, I guess it would." The court excused
the juror for both reasons.
We can discern from the record no abuse of the trial court's
sound discretion in dismissing the juror due to his grandfather's
condition. Tylka does not articulate how the court abused its
discretion by excusing the juror due to his grandfather's
condition. We find no such error. State v. Mance, 300 N.J. Super.
37, 55 (App. Div. 1997).
Although Tylka does not explain how excusing a juror due to
a relative's possible impending death is an abuse of discretion,
46 A-3609-13T2
she contends the court coerced the juror into saying he had a
financial hardship. We disagree. "When the issue of financial
hardship is brought into focus at an early stage of a criminal
proceeding, the balancing of interests allows greater flexibility
favoring the prospective juror[.]" State v. Williams, 171 N.J.
151, 164-65 (2002) (citations omitted). In any event, given
defendant's inability to articulate any cognizable argument
concerning the trial court's excusing the juror due to his
grandfather's illness, any error in the exercise of the court's
discretion in excusing the juror on the alternate ground was
harmless beyond a reasonable doubt. R. 2:10-2.
VII.
In her eighth and final point, Tylka contends her five-year
probationary sentence, with a suspended term of 364 days in the
county jail, is excessive. Our review of the record reveals the
court's findings of aggravating and mitigating factors are
supported by the record, and the court followed the sentencing
guidelines in New Jersey's Code of Criminal Justice. The sentence
does not "shock the judicial conscience" in light of the facts of
the case. State v. Roth, 95 N.J. 334, 364-65 (1984). Accordingly,
we find no basis for reversing the trial court's sentencing
discretion.
47 A-3609-13T2
Defendants' convictions and sentences are affirmed. The
matter is remanded to correct Gallucci's judgment of conviction.
48 A-3609-13T2