STATE OF NEW JERSEY VS. ORAINE D. BROWN (19-06-1656, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-4524-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ORAINE D. BROWN,
Defendant-Appellant.
________________________
Submitted September 28, 2021 – Decided October 12, 2021
Before Judges Currier and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 19-06-1656.
Law Offices of Jef Henninger, attorneys for appellant
(Jef Henninger, on the briefs).
Theodore N. Stephens, II, Acting Essex County
Prosecutor, attorney for respondent (Stephen A.
Pogany, Special Deputy Attorney General/Acting
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Oraine Brown appeals his conviction and sentence to five
years' imprisonment with a forty-two-month term of parole ineligibility pursuant
to the Graves Act, N.J.S.A. 2C:43-6. He argues the trial court erred in denying
his motion for judgment of acquittal, and further erred in not conducting a post -
verdict voir dire of a juror. We disagree as to both points, and we affirm for the
reasons set forth below.
After a trial, defendant was convicted of second-degree weapons charges,
N.J.S.A. 2C:39-5(b). Subsequent to trial but before the July 31, 2020
sentencing, defendant filed a timely motion for judgment of acquittal pursuant
to Rule 3:18-2. Just days before sentencing, on July 22, a court employee
received a short email from a source purporting to be juror number twelve from
defendant's trial. The email stated that the writer wished to "communicate to
[the trial court] prior to the [sentencing] hearing that [they] have come to regret
[their] verdict."
At sentencing, the trial court denied the motion for acquittal. The court
also noted that it had reviewed the July 22 email and found its content
insufficient to justify further inquiry. After disposing of these matters, the court
sentenced defendant.
Defendant appeals, making the following arguments:
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I. THE TRIAL COURT ERRED WHEN DENYING
MR. BROWN'S MOTION FOR JUDGMENT OF
ACQUITTAL BECAUSE DISCOVERY WAS
IMPROPERLY EXTENDED IN THIS CASE
CAUSING A DELAY IN PROSECUTION WHICH
PROVIDED THE STATE WITH AN UNFAIR
ADVANTAGE AT TRIAL.
II. MR. BROWN'S SENTENCE SHOULD BE
REVERSED DUE TO THE LACK OF A JUDICIAL
INQUIRY REGARDING THE EMAIL SENT PRIOR
TO SENTENCING FROM JUROR NUMER 12 TO A
NJ COURT EMPLOYEE EXPRESSING JUROR
NUMBER 12'S REGRET OF THE VERDICT IN THIS
CASE (Not Raised Below).
In his first point, defendant argues that his right to a speedy trial was
violated when the trial court adjourned, over defendant's initial objection, t he
January 6, 2020 trial date to February 10 at the request of the State. We disagree.
It is well-settled that "[t]he right to a speedy trial is guaranteed by the
Sixth Amendment to the United States Constitution and imposed on the states
by the Due Process Clause of the Fourteenth Amendment." State v. Tsetsekas,
411 N.J. Super. 1, 8 (App. Div. 2009) (citing Klopfer v. North Carolina, 386
U.S. 213, 222-23 (1967)). "The constitutional right . . . attaches upon
defendant's arrest." Ibid. (alteration in the original) (quoting State v. Fulford,
349 N.J. Super. 183, 190 (App. Div. 2002)). Since it is the State's duty to
promptly bring a case to trial, "[a]s a matter of fundamental fairness," the State
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must avoid "excessive delay in completing a prosecution[,]" or risk violating
"defendant's constitutional right to speedy trial." Ibid.The four-part test to determine if a defendant's speedy-trial right has been
violated was announced in Barker v. Wingo, 407 U.S. 514, 530-33 (1972) and
adopted by our Supreme Court in State v. Szima, 70 N.J. 196, 200-01 (1976).
The test requires "[c]ourts [to] consider and balance the '[l]ength of delay, the
reason for the delay, the defendant's assertion of his right, and prejudice to the
defendant.'" Tsetsekas, 411 N.J. Super. at 8 (quoting Barker, 407 U.S. at 530).
"No single factor is a necessary or sufficient condition to the finding of a
deprivation of the right to a speedy trial." Id. at 10 (citing Barker, 407 U.S. at
533). Courts are required to analyze each interrelated factor "in light of the
relevant circumstances of each particular case." Ibid. We will not overturn a
trial judge's decision whether a defendant was deprived of due process on
speedy-trial grounds unless the judge's ruling was clearly erroneous. State v.
Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977).
The trial court reviewed the procedural history of the case under the four
Barker factors. The court found that a trial postponement of thirty-four days
was not undue delay where the State sought the adjournment to provide
defendant new discovery, including a fingerprint analysis of the subject
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handgun. The court next found no prejudice in the short delay, as defendant
"was not subject to pre-trial incarceration[,] and he was free to handle his
personal affairs."1 Finally, the judge noted that the new discovery contained
evidence beneficial to defendant, as it showed no fingerprints were recovered
on the handgun.
We turn to defendant's second point, that the email purportedly sent from
juror number twelve warranted a "reversal of [his] sentence." We treat this
argument, not raised below, as a motion to seek leave for a post-verdict
interrogation of the juror pursuant to Rule 1:16-1.
Appellate courts will not consider questions or issues not properly
presented to the trial court, unless the question raised on appeal goes to the
jurisdiction of the trial court or concerns matters of great public concern. State
v. Robinson, 200 N.J. 1, 20 (2009) (citing Nieder v. Royal Indem. Ins. Co., 62
N.J. 229, 234 (1973)). Here, the email was sent after defendant's motion for
judgment of acquittal had been filed and nine days before the motion hearing
was scheduled. Although defendant did not file the appropriate motion for
1
Although not addressed by the trial court in its July 31 decision before
sentencing, the record shows defendant asserted his speedy trial right in a timely
fashion by objecting to the State's adjournment request on January 6 before a
different judge.
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consideration, the trial court nevertheless reviewed the email and found that its
statement was insufficient to "investigate the thought processes which induced
a particular juror to join in a verdict." State v. Athorn, 46 N.J. 247, 253 (1966).
Calling back a jury for questioning following discharge is an
"extraordinary procedure," to be utilized "only upon a strong showing that a
litigant may have been harmed by jury misconduct." Davis v. Husain, 220 N.J.
270, 279 (2014) (citations omitted). No such strong showing exists here. The
email, at best, represents an unspecified expression of regret, assuming the
author of the email is actually juror number twelve. Its contents allege no "event
or occurrence injected into the deliberation in which the capacity for prejudice
inheres." State v. Loftin, 146 N.J. 295, 381 (1996) (citation omitted). The trial
court found the email was "insufficient" to order a post-verdict interrogation of
juror number twelve, or any juror from the panel. We discern no basis in the
record to disturb the trial court's conclusion.
Affirmed.
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