STATE OF NEW JERSEY v. EMMANUEL PIERREVIL (09-01-0262, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4243-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EMMANUEL PIERREVIL,
Defendant-Appellant,
________________________
Submitted September 13, 2022 – Decided September 20, 2022
Before Judges Messano and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 09-01-0262.
Emmanuel Pierrevil, appellant pro se.
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Caitlinn Raimo,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Emmanuel Pierrevil appeals pro se from a January 14, 2020
order denying his motion for a new trial based on newly discovered evidence.
As he did before the motion judge, defendant contends he was denied a fair trial
because a deliberating juror failed to provide truthful answers during jury
selection. Defendant maintains had the juror advised the court her domestic
partner was the victim of a violent crime, his trial attorney would have sought
the juror's removal for cause or exercised a peremptory challenge. Because
defendant fails to meet the standards for granting a new trial, we affirm.
I.
In 2011, a jury convicted defendant and his co-defendant, Jameel Robbins,
of multiple counts charged in an Essex County indictment, including second-
degree carjacking, second-degree eluding, second-degree aggravated assault,
and weapons offenses. Defendant was sentenced to an aggregate forty-year
prison sentence, with a twenty-seven-year period of parole ineligibility. Both
defendants appealed; we issued a consolidated opinion affirming their
convictions and sentences. State v. Rollins, No. A-2468-11 (App. Div. Aug. 19,
2014). The Supreme Court denied certification. 220 N.J. 573 (2015). We
incorporate by reference the details of the carjacking, which were set forth at
length in our prior opinion. Rollins, No. A-2468-11 (slip op. at 7-9).
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Defendants thereafter separately filed timely petitions for post-conviction
relief (PCR), alleging ineffective assistance of their trial attorneys. The trial
court denied PCR, defendants appealed, and we issued a consolidated opinion
affirming the court's orders. State v. Pierrevil, No. 3198-15 (App. Div. Feb. 22,
2018). The Supreme Court denied certification. 236 N.J. 33 (2018).
Defendant then retained a private investigator, who interviewed the juror's
longtime domestic partner, Na-il Johnson. The details leading to Johnson's
interview are not contained in the record. We glean from the five-page transcript
of the December 28, 2018 recorded interview that Johnson somehow knew
Rollins. However, Johnson was not aware of defendants' trial until he read a
newspaper article following their convictions. At that point, the juror told
Johnson she had "presided over [defendants'] case," but did not disclose any
details. Johnson said while the trial was ongoing, the juror acknowledged "she
was on jury duty," but she "follow[ed] the rules" and "didn't particularly say
what was going on in [her] jury duty."
In essence, Johnson told the investigator he had been the victim of a
shooting and stabbing incident prior to defendants' trial; he was living in East
Orange with the juror at the time of the attack; and the juror was aware of the
incident. The investigator clearly conveyed the purpose of the interview was to
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determine whether the juror's failure to disclose Johnson had been a victim of a
violent crime "might [have] affect[ed] her judgment." Johnson replied, "I don't
know what her thinking was actually at that time."
In April 2019, defendant moved for a new trial, contending the juror failed
to disclose during voir dire that her domestic partner had been the victim of a
crime. Defendant annexed to his brief the transcript of Johnson's unsworn
statement to the private investigator. Defendant neither filed a sworn statement
in support of his claims nor the transcript of jury selection.1
On October 2, 2019, the same judge who tried the case and denied PCR,
issued a letter opinion denying defendant's motion. The judge concluded
1
Claiming he "misplaced the relevant jury selection transcripts," defendant
instead cited the questions contained in Administrative Directive #21-06:
Approved Jury Selection Standards, Including Model Voir Dire Questions,
which provided: "Have you or any family member or close friend ever been the
victim of a crime, whether it was reported to law enforcement or not? If yes,
was anyone arrested? How long ago was it? Where did it occur? Were you
satisfied with the outcome?" (Question 19). Admin Off. of the Cts.,
Administrative Directive #21-06, Approved Jury Selection Standards, Including
Model Voir Dire Questions 13 (December 11, 2006) (AOC Directive #21-06).
At the time of defendant's trial however, Question 19 had been revised to
eliminate all but the first question. See Admin. Off. of the Cts., Administrative
Directive #04-07, Model Voir Dire Questions Promulgated by Directive #21-06
– Revised Procedures and Questions 4 (May 16, 2007) (AOC Directive #04-07).
The motion judge apparently accepted defendant's representation that the juror
failed to disclose Johnson had been the victim of a crime, and the State does not
contend otherwise on appeal.
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defendant failed to satisfy the three-prong test for granting a new trial based on
newly discovered evidence set forth by our Supreme Court in State v. Carter, 85
N.J. 300, 314 (1981).
The following month, defendant filed another motion for a new trial based
on the same evidence, citing State v. Cooper, 151 N.J. 326 (1997), and State v.
Thompson, 142 N.J. Super. 274, 280 (App. Div. 1976). On January 14, 2020,
the judge issued a second letter opinion, again denying defendant's motion under
Carter; distinguishing the facts of the present matter from Thompson; and
finding, similar to the defendant in Cooper, defendant in the present case failed
to demonstrate "he would have exercised a preemptory strike at the time of trial"
or that the juror's "answer was a material misrepresentation." This appeal
followed.
On appeal, defendant raises the following point in his merits brief:
LEGAL ARGUMENT
DEFENDANT URGES THIS COURT TO REVERSE
AND REMAND THE LOWER COURT'S DECISIONS
DENYING TWO RESPECTIVE [PRO SE] MOTIONS
FOR A NEW TRIAL BASED ON NEWLY
DISCOVERED EVIDENCE, PARTICULARLY
WHEN THE CITED AUTHORITIES FULLY
SUPPORTED DEFENDANT'S CONTENTION THAT
A PROSPECTIVE JUROR'S UNTRUTHFUL
RESPONSES TO VOIR DIRE QUESTIONS
EFFECTIVELY DEPRIVED . . . DEFENDANT FROM
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SEEKING THE JUROR'S DISMISSAL FOR CAUSE;
OR, IN THE ALTERNATIVE, FROM UTILIZING A
PEREMPTORY CHALLENGE.
Defendant asserts an additional argument in his reply brief:
IN LIGHT OF THE PROCEDURAL POSTURE OF
THIS CASE[,] DEFENDANT URGES THIS MATTER
BE REMANDED TO THE LAW DIVISION FOR
ASSIGNMENT OF COUNSEL SO THAT A MORE
COMPLETE RECORD CAN BE ESTABLISHED.
We reject these contentions and affirm.
II.
"A motion for a new trial based on the ground of newly[]discovered
evidence may be made at any time." R. 3:20-2. In Carter, our Supreme Court
adopted a three-prong test for granting a new trial based on newly discovered
evidence. Under that test
to qualify as newly discovered evidence entitling a
party to a new trial, the new evidence must be: (1)
material to the issue and not merely cumulative or
impeaching or contradictory; (2) discovered since the
trial and not discoverable by reasonable diligence
beforehand; and (3) of the sort that would probably
change the jury's verdict if a new trial were granted.
[Carter, 85 N.J. at 314].
See also State v. Szemple, 247 N.J. 82, 99 (2021).
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"[A]ll three prongs of th[e] test must be satisfied before a defendant will
gain the relief of a new trial." State v. Ways, 180 N.J. 171, 187 (2004); see also
Carter, 85 N.J. at 314. The defendant bears the burden of establishing each
prong. See State v. Fortin, 464 N.J. Super. 193, 216 (App. Div. 2020), certif.
denied, 246 N.J. 50 (2021); see also State v. Smith, 29 N.J. 561, 573 (1959).
Under prong one, a defendant must show the evidence "ha[s] some bearing
on the claims being advanced" and includes "evidence that supports a defense,
such as alibi, third-party guilt, or a general denial of guilt." Ways, 180 N.J. at
188. To satisfy prong two, "the new evidence must have been discovered after
completion of trial and must not have been discoverable earlier through the
exercise of reasonable diligence." Id. at 192. Ordinarily, a defendant must "act
with reasonable dispatch in searching for evidence before the start of the trial."
Ibid. The court must then evaluate "the probable impact such evidence would
have on a jury verdict." Id. at 189. Thus, the inquiry under prong three is
"whether the evidence is 'of the sort that would probably change the jury's
verdict if a new trial were granted.'" Ibid. (quoting Carter, 85 N.J. at 314); see
also State v. Haines, 20 N.J. 438, 445 (1956).
Motions for a new trial based on newly discovered evidence "should be
granted with caution by a trial court since [they] disrupt[] the judicial process."
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State v. Conway, 193 N.J. Super. 133, 171 (App. Div. 1984). "We review a
motion for a new trial decision for an abuse of discretion." Fortin, 464 N.J.
Super. at 216.
As a general rule, "[w]hen a juror incorrectly omits information during
voir dire, the omission is presumed to have been prejudicial if it had the potential
to be prejudicial." Cooper, 151 N.J. at 349. In Cooper, however, the Court
explained "that rule is not as all-encompassing as it appears at first glance."
Ibid. Rather, the party must demonstrate "had he or she known of the omitted
information, he or she would have exercised a peremptory challenge to exclude
the juror." Ibid. The Court reasoned: "Absent an affirmative showing that a
litigant would have exercised a peremptory challenge to exclude a juror, the voir
dire omission is harmless." Id. at 350.
In the present matter, the motion judge found defendant failed to establish
the first and third Carter prongs. We agree.
As the judge correctly concluded, under the first prong, defendant failed
to demonstrate the juror's omission was "sufficiently material under the Carter
standard." Nor did defendant present any evidence supporting his general denial
of guilt under Ways. As to prong three, the judge found defendant failed to "put
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forth evidence to show that without [the juror]'s subjective answer, the jury
verdict would have been different."
For example, defendant did not show that because Johnson had been the
victim of a violent crime, the juror was unable to judge defendant's charges
based on the evidence adduced at trial. As noted, defendant did not produce the
jury selection transcript, relying instead on the AOC Directive for jury selection
voir dire. However, at least two other standard voir dire questions addressed
whether the prospective jurors could be fair and impartial. See AOC Directive
#04-07, Question 14 ("Based on what I have told you, is there anything about
this case or the nature of the claim itself, that would interfere with your ability
to be fair and impartial and to apply the law as instructed by the court?");
Question 26 ("Is there anything about this case, based on what I've told you, that
would interfere with your ability to be fair and impartial?").
Nor does the record contain a sworn statement from the juror as to the
impact of the crime against Johnson on her ability to judge defendant's charges.
The only evidence in the record alluding to the juror's ability to judge the case
fairly is Johnson's statement to the investigator that she "follow[ed] the rules."
Further, defendant has not affirmatively demonstrated his trial attorney would
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have exercised a peremptory challenge to exclude the juror. Absent from the
record is any sworn statement supporting his claim. See Cooper, 151 N.J at 351.
Moreover, defendant was "arrested as he tried to escape on foot" after the
car stolen by defendants at gunpoint crashed. Rollins, No. A-2468-11 (slip op.
at 8). Witnesses at the scene then saw defendant "toss a gun on top of a nearby
building." Ibid. On these facts, defendant has not shown the newly discovered
evidence had "the probable effect of raising a reasonable doubt as to [his] guilt."
Ways, 180 N.J. at 189.
Further, the cases cited by defendant are factually distinguishable from
the present matter. As the motion judge observed in Thompson, we reversed the
defendant's convictions where a juror failed to reveal he had served as a guard
in a correctional institution approximately twenty-five years earlier and at the
time of trial was serving on a municipal juvenile hearing board. 142 N.J. Super.
at 278. In State v. Williams, 190 N.J. Super. 111, 114 (App. Div. 1983), we
reversed the defendant's convictions where the juror failed to disclose her prior
criminal record. Unlike the jurors in Thompson and Williams, the juror in the
present case was not involved with the criminal justice system. Her failure to
inform the court that Johnson was a crime victim, without an affirmative
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showing that defendant would have sought her removal for cause or exercised a
peremptory challenge, did not warrant a new trial.
Lastly, an issue that is not addressed in a party's initial merits brief is
deemed to be waived. See State v. Amboy Nat. Bank, 447 N.J. Super. 142, 148,
n.1 (App. Div. 2016). It is improper for a party to raise an issue for the first
time in a reply brief or enlarge the main argument. See State v. Smith, 55 N.J.
476, 488 (1970). By failing to address the appointment of counsel in his initial
brief, defendant's point on reply is not properly before us.
Affirmed.
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