STATE OF NEW JERSEY VS. EDDIE ROBERSON (13-10-2585, ESSEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-2446-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDDIE ROBERSON,
Defendant-Appellant.
____________________________
Submitted December 10, 2018 – Decided December 26, 2018
Before Judges Messano, Fasciale and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 13-10-2585.
Joseph E. Krakora, Public Defender, attorney for
appellant (Molly O'Donnell Meng, Assistant Deputy
Public Defender, of counsel and on the brief).
Theodore N. Stephens, II, Acting Essex County
Prosecutor, attorney for respondent (Tiffany M. Russo,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from his convictions for first-degree murder, N.J.S.A.
2C:11-3(a)(1), (2); second-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a). The State produced evidence at the jury trial that defendant
shot an individual (the victim), who died shortly thereafter. The State's theory
was that defendant shot the victim because defendant did not want to honor a
Super Bowl bet that he and the victim made at a party shortly before the murder.
The State produced a witness who identified defendant as the victim's shooter
and claimed to have overheard a conversation about a football bet between
defendant and the victim at the party.
Defendant raises the following points on appeal:
POINT I
THE TRIAL [JUDGE]'S COERCIVE INSTRUCTION
TO CONTINUE DELIBERATIONS AFTER THE
JURY INDICATED THAT IT WAS AT AN IMPASSE
DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE
PROCESS AND A FAIR TRIAL.
POINT II
THE TRIAL [JUDGE] ERRED BY DENYING
DEFENDANT'S MOTION FOR A WADE[1]
HEARING TO TEST THE RELIABILITY OF A
CONCEDEDLY SUGGESTIVE SINGLE-PHOTO
1
United States v. Wade, 388 U.S. 218 (1967).
A-2446-16T1
2
SHOWUP CONDUCTED THREE DAYS AFTER
THE INCIDENT, WITHOUT PROPER
INSTRUCTIONS AND WITH IMPROPER
FEEDBACK FROM THE OFFICER.
POINT III
THE TRIAL [JUDGE] FURTHER ERRED BY
EXCLUDING THE VICTIM'S CELL PHONE
RECORDS AS INADMISSIBLE HEARSAY.
POINT IV
IF THE DEFENDANT'S CONVICTIONS ARE NOT
REVERSED, THIS MATTER MUST BE
REMANDED FOR RESENTENCING BECAUSE
THE TRIAL [JUDGE] EFFECTIVELY DENIED
DEFENDANT HIS [RIGHT] TO ALLOCUTE. (Not
raised below).
We affirm.
I.
Shortly after it began deliberating on a second day, the jury sent the judge
a note explaining – not that it was deadlocked – but rather that it was at an
impasse. The judge brought the jury out and said:
Now, it took us seven to eight day[s'] worth of
testimony to present the evidence in this case. We
entered into evidence approximately 250 exhibits.
Yesterday, to the best of my recollection, you
deliberated for approximately [thirty-five], [forty]
minutes after my final charge. This morning you went
into the jury room at approximately 9:35 [a.m.]. Within
[fifteen] minutes thereafter, I received a note that you
wanted to review a number of the disks. We came back
out, reviewed that testimony. It took approximately an
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hour or so. You went back. About [11:50 a.m.] or so I
received a note you were at an impasse.
Ladies and gentlemen, we expect a much better
effort in attempting to arrive at a conclusion of this case
than the effort you've given us so far with the indication
you're at an impasse. Okay?
So please return to the jury room, review all of
the evidence fairly and impartially, resume your
deliberations and give us a real effort to arrive at a just
and fair conclusion of this case. Okay?
Defense counsel objected properly to this charge and pointed out that,
"[g]enerally, when a jury indicates they are at an impasse the [c]ourt generally
instructs them to go back, reevaluate and see if they can continue to deliberate." 2
In response, the judge said that he would have given such a charge "[h]ad [the
jury] given an effort, a substantial effort . . . ." He continued, "[i]f they come
back again, and in my determination at that point they've given it a sufficient
effort and realistic effort, in light of the time it took to put on this case, I will
give that charge." At this point, the jury returned to deliberate and returned a
verdict in two hours.
2
Defense counsel did not object before the judge gave the charge. The judge
advised counsel that he was going to instruct the jurors to resume deliberations
because they were only deliberating for a few hours, and defense counsel
responded "[n]o comment."
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Our Supreme Court has not allowed "even subtle intrusions into the
neutral area of jury deliberations." State v. Czachor, 82 N.J. 392, 400 (1980).
Instead, the relevant model jury charge (the model jury charge) states:
It is your duty, as jurors, to consult with one
another and to deliberate with a view to reaching an
agreement, if you can do so without violence to
individual judgment. Each of you must decide the case
for yourself, but do so only after an impartial
consideration of the evidence with your fellow jurors.
In the course of your deliberations, do not hesitate to
re-examine your own views and change your opinion if
convinced it is erroneous but do not surrender your
honest conviction as to the weight or effect of evidence
solely because of the opinion of your fellow jurors, or
for the mere purpose of returning a verdict. You are not
partisans. You are judges – judges of the facts.
[Model Jury Charges (Criminal), "Judge's Instructions
on Further Jury Deliberations" (2013).]
In Allen v. United States, the trial judge gave a jury instruction that
"emphasized to the deadlocked jury that each juror 'should examine the question
. . . with a proper regard and deference to the opinions of each other . . . [and]
that they should listen, with a disposition to be convinced, to each other's
arguments.'" Czachor, 82 N.J. at 395 (alterations in original) (quoting Allen v.
United States, 164 U.S. 492, 501 (1896)). The judge also told the jury that "if
much the larger number were for conviction [or for acquittal], a dissenting juror
should consider whether his doubt was a reasonable one . . . [and] whether [the
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juror] might not reasonably doubt the correctness of a judgment which was not
concurred in by the majority." Id. at 395-96 (alterations in original) (quoting
Allen, 164 U.S. at 501).
But in the years since, our Supreme Court recognized that the Allen charge
has come under "severe criticism" and that,
[f]ault with the charge rests primarily on the grounds
that it is potentially coercive and inaccurate, that
appellate courts are ill-equipped to detect the existence
or gauge the extent of jury coercion or confusion, and
that the interest in avoiding the expense of mistrial is
outweighed by the substantial risk that the right to a fair
trial at the hands of an impartial jury is jeopardized by
its use.
[Id. at 397-98.]
The Court also explained:
It is fair to say that the typical Allen charge does
not simply remind jurors of their duty to cooperate in
collective deliberations. It has a rather different thrust.
The charge is intended to undo a jury deadlock. It tends
therefore to focus upon possibly the weakest links in
the chain locking the jury in disagreement, namely, the
minority holdouts on the jury. Hence, the charge
usually admonishes specifically and pointedly only
those in the minority to reconsider their beliefs in light
of the adverse position held by the majority. It also
exerts pressures upon jurors by casting indirectly upon
them a personal responsibility and sense of guilt for the
impasse. . . . The charge further intimates that the
dissenting jurors may not be acting properly or
conscientiously since another similar jury will be called
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upon in a new trial to perform the identical task and
presumably will achieve it, i.e., reach a unanimous
verdict on the same evidence.
[Id. at 398 (emphasis added).]
The Court held that "the Allen charge conveys both blunt and subtle pressure
upon the jury, pressure which is inconsistent with jury freedom and
responsibility. Such a charge does not permit jurors to deliberate objectively,
freely, and with an untrammeled mind." Id. at 402. Thus, the Court found that
"such a charge containing coercive features should not be given to a jury in the
trial of a criminal case." Ibid.
We consider two concerns when evaluating a judge's response to a jury's
inability to reach a unanimous verdict: "(1) whether the supplemental instruction
has the capacity to improperly influence the dissenting jurors to change their
votes; and (2) whether 'the weighty role that the judge plays in the dynamics of
the courtroom' improperly coerced the jury into returning a verdict." State v.
Dorsainvil, 435 N.J. Super. 449, 481 (App. Div. 2014) (quoting State v.
Figueroa, 190 N.J. 219, 238 (2007)). If the "difference of opinion between
members of the jury is clearly intractable, . . . then the jury is deadlocked and a
mistrial should be declared." State v. Ross, 218 N.J. 130, 145 (2014) (alterations
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in original) (quoting Figueroa, 190 N.J. at 237). Here, the jury indicated that it
was "at an impasse," but not that its different opinions were "intractable." Ibid."A judge has discretion to require further deliberations after a jury has
announced its inability to agree, but exercise of that discretion is not appropriate
'if the jury has reported a definite deadlock after a reasonable period of
deliberations.'" State v. Adim, 410 N.J. Super. 410, 423-24 (App. Div. 2009)
(citation omitted) (quoting Czachor, 82 N.J. at 407). Here, the judge gave the
instruction after the jurors deliberated for approximately two-and-a-half hours
following the eight-day trial. We conclude that the jury did not report a "definite
deadlock" after a "reasonable period." Thus, the judge had the discretion to
require further jury deliberations.
In doing so, the judge should have given the model jury charge. We
conclude, however, that the charge as given was harmless because it was not
coercive. Instead, it merely reminded the jury to take its responsibility seriously.
The judge did not tell any dissenting jurors to question their opinions or that
they should consider shifting their views to adhere to the majority. He did not
"admonish[] specifically and pointedly only those in the minority to reconsider
their beliefs in light of the adverse position held by the majority." Czachor, 82
N.J. at 398. As it was not akin to an Allen charge, the charge as given was not
A-2446-16T1
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unduly coercive and did not place pressure upon the jury. Thus, it was not a
violation of defendant's constitutional rights.
II.
We review the denial of a Wade hearing under the abuse of discretion
standard. State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div. 1985). A "trial
[judge]'s findings that photographic identification procedures were reliable
should not be disturbed if there is sufficient credible evidence in the record to
support the findings." State v. Adams, 194 N.J. 186, 203 (2008). If we find that
the judge should not have denied the motion for a Wade hearing, but the
identification procedure did not result in a "very substantial likelihood of
irreparable misidentification," the ruling will still be affirmed. State v. Cherry,
289 N.J. Super. 503, 517 (App. Div. 1995).
A bodega owner (the owner) told police that he made a Super Bowl bet
with defendant, whom he described as "a black guy" with short hair from the
area. He claimed that defendant did not pay him his winnings from the bet.
Police showed the owner a single-photo to confirm if defendant was the man
that the owner had referenced. Defendant moved for a Wade hearing to
determine the reliability of that identification, which the judge denied.
A-2446-16T1
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To be entitled to a Wade hearing, a defendant must proffer "some evidence
of impermissible suggestiveness." State v. Henderson, 208 N.J. 208, 238 (2011).
A defendant has the initial burden of showing that this could have led to a
mistaken identification. Id. at 288. If the judge finds that the procedure was
impermissibly suggestive, then he considers the reliability of the identification,
and the State has the burden of proving by clear and convincing evidence that
the identification "had a source independent of the police-conducted
identification procedures." Id. at 238 (quoting State v. Madison, 109 N.J. 223,
245 (1988)). "[T]he ultimate burden remains on the defendant to prove a very
substantial likelihood of irreparable misidentification." Id. at 289.
Defendant claims that the owner's identification was suggestive. He also
argues that the officer's "confirmatory feedback" after the owner had identified
defendant was suggestive. After the officer asked the owner if defendant was
"the guy" he made a Super Bowl bet with, he responded with "[y]es." The officer
then said, "[o]kay. One hundred percent this is the person."
The State argues that this is not a Wade issue as the photo presented to the
owner was intended to confirm the identity of the person that the owner was
referring to, and not to identify a stranger "based on his observations as involved
in any particular incident." The State further claims that this procedure was not
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a "show-up," as show-ups "are essentially single-person lineups: a single suspect
is presented to a witness to make an identification." Id. at 259.
Here, the evidence from the owner was reliable. He testified that he was
familiar with defendant and saw him on a regular basis in his bodega. He was
able to identify defendant from his photograph, irrespective of defendant's
different hairstyle in the picture, which he pointed out to the officer. The judge
also questioned whether this was even a Wade issue, as the owner was not an
eyewitness to the shooting or any interaction between defendant and the victim.
He also agreed that the photo was not shown to the owner as a witness to a
fleeting event. Thus, the judge did not abuse his discretion by den ying
defendant's motion for a Wade hearing, and the identification procedure did not
result in a "very substantial likelihood of irreparable misidentification." Cherry,
289 N.J. Super. at 517.
III.
A judge's evidentiary rulings are entitled to deference "unless there has
been an abuse of that discretion, i.e., there has been a clear error of judgment."
State v. Marrero, 148 N.J. 469, 484 (1997) (quoting State v. Koedatich, 112 N.J.
225, 313 (1988)). At the conclusion of the State's case, defense counsel moved
to admit text messages the victim received the day before his murder, as
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evidence of the police's purported failure to adequately investigate the case, and
potentially as evidence of third-party guilt. One text that the victim received
read: "Yo, do you think they would've shot us if we got out of the car or if they
had a better shot?" Another message from the same number read: "Or you just
think they had the piece to scare me?" An outgoing message sent a few minutes
later read: "Nah, you good." The judge denied the admission of the messages,
stating that the result, "intended or unintended," in admitting the messages
would be hearsay.
Hearsay is an out-of-court statement "offered in evidence to prove the
truth of the matter asserted." N.J.R.E. 801(c). Defendant argues that the text
messages were not offered to prove whether the individuals referenced in the
message had a gun to scare the declarant or whether they intended to shoot the
victim. Instead, he argues that they were offered to show that police had
information about a threat to the victim that was made less than twenty-four
hours before his death, and that police failed to take investigatory action.
Regarding the relevance of the statements, the judge said,
[t]he issue before the jury is not whether the State
did everything they could have or should have . . . in
their investigation in this case. The sole issue before
this jury is whether or not . . . [the State] . . . provided
the jury with sufficient credible evidence upon which a
rational jury could arrive at a decision of whether or not
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[defendant] has been proven guilty of this charge
beyond a reasonable doubt.
The relevancy of the messages was to prove that another individual, not
defendant, attempted to shoot the victim. The texts would be out-of-court
statements offered to prove the truth of the matter asserted, and thus
inadmissible hearsay. Based on our deferential standard of review, there has not
been an abuse of discretion or a "clear error of judgment" on the part of the judge
that would warrant the messages being admitted into evidence under one of the
hearsay exceptions.
IV.
The judge merged the possession of a weapon for an unlawful purpose
into the murder conviction and sentenced defendant to life in prison subject to
the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, concurrent to five years
in prison for the unlawful possession of a weapon. We review an imposition of
sentence under an abuse of discretion standard. State v. Jones, 232 N.J. 308,
318 (2018). Pursuant to Rule 3:21-4(b), "[b]efore imposing sentence the [judge]
shall address the defendant personally and ask the defendant if he . . . wishes to
make a statement in his . . . own behalf and to present any information in
mitigation of punishment." In doing so, he may answer personally or by his
attorney. Ibid.A-2446-16T1
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Defendant argues that the judge sentenced him without asking defendant
if he wanted to speak on his own behalf. The judge began to find aggravating
factors when the State asked if the judge was moving into the sentencing phase,
at which time the judge apologized and asked defense counsel if there was
"anything [he would] like to say" before the judge "[got] to sentencing."
Defense counsel stated that the judge "has already indicated a desire to sentence
[defendant] . . . not[]withstanding whatever [defense counsel's] arguments are."
The judge then inquired as to whether defendant wanted to add anything before
the judge imposed sentencing. The defendant said,
I would like to tell the family that I'm sorry for y'all
loss. But at the same time, I know that I'm still not the
one. You know, I'm the man that has been accused of
this conviction. But I do feel for y'all loss. I'm sorry
for y'all loss.
Regardless, the judge gave him the right to allocute, which defendant exercised.
Defendant was not silent. We therefore see no abuse of discretion.
In his pro se brief, defendant makes five new points, with conclusory
statements that lack any basis or support. He disputes the existence of a Super
Bowl bet with the victim that would have provided a motive for the murder, and
instead claims that the State fabricated this story with its witness. But an
independent witness – the owner – also testified to placing a Super Bowl bet
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with defendant, and seeing defendant angry about the results of the game shortly
before the shooting. The arguments in defendant's pro se brief lack sufficient
merit for any further discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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