SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3638-92T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT BISACCIA,
Defendant-Appellant.
________________________________
A-3697-92T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY PROTO,
Defendant-Appellant.
________________________________
A-3865-92T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SAMUEL LOUIS CORSARO,
Defendant-Appellant.
________________________________
A-5439-92T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LOUIS FULCO,
Defendant-Appellant.
A-5441-92T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHARLES MUCCIGROSSO,
Defendant-Appellant.
_________________________________
A-5448-92T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NICHOLAS DESTEFANO,
Defendant-Appellant.
_________________________________________________________________
Argued and Submitted January 13, 1999 - Decided March 2,
1999
Before Judges Stern, Braithwaite and Wecker.
On appeal from the Superior Court of New Jersey,
Law Division, Essex County.
Charles H. Landesman, Designated Counsel, argued
the cause for appellant Robert Bisaccia (Ivelisse
Torres, Public Defender, attorney; Mr. Landesman,
on the brief).
Alan Zegas argued the cause for appellants Anthony
Proto and Samuel Louis Corsaro (Mr. Zegas, attorney;
Weissbard and Wiewiorka, former attorneys; Harvey
Weissbard, on the brief).
Mark E. Tabakman, Designated Counsel, argued the
cause for appellant Charles Muccigrosso (Ivelisse
Torres, Public Defender, attorney; Mr. Tabakman, on
the brief).
Ivelisse Torres, Public Defender, attorney for
appellants Louis Fulco and Nicholas DeStefano
(Michael C. Kazer, Designated Counsel, on the
brief for appellant Fulco; Jeffrey L. Weinstein,
Designated Counsel, on the brief for appellant
DeStefano).
Robert E. Bonpietro, Deputy Attorney General, argued
the cause for respondent in the argued cases (Peter
Verniero, Attorney General, attorney; Mr. Bonpietro,
on the briefs).
Peter Verniero, Attorney General, attorney for
respondent in the submitted cases (Robert E.
Bonpietro, Deputy Attorney General, on the briefs).
The opinion of the court was delivered by
STERN, P.J.A.D.
The six appellants ("defendants") were indicted with ten
other individuals and two corporations in a seventy-count
indictment, the last fifty-one of which were severed for purposes
of trial. The six appellants and defendant Casiere were jointly
tried on the first nineteen counts of the indictment.See footnote 1 Count
one charged defendants with conspiracy to commit racketeering,
N.J.S.A. 2C:41-2d and 2C:5-2. Count two charged all six with
racketeering, N.J.S.A. 2C:41-2b, -2c. Count three charged
Bisaccia as a leader of organized crime, N.J.S.A. 2C:5-2g. Count
four charged the defendants except Proto with conspiracy
involving the hijacking of a trailer load of cigarettes, N.J.S.A.
2C:5-2. Counts five and six charged the same defendants with
robbery, N.J.S.A. 2C:15-1 and 2C:2-6, and kidnapping the driver,
N.J.S.A. 2C:13-1b and 2C:2-6, while count seven charged Fulco and
Muccigrosso with receipt of the stolen cigarettes, N.J.S.A.
2C:20-7 and 2C:2-6. Count eight charged Bisaccia and DeStefano
with conspiracy to commit theft by extortion, N.J.S.A. 2C:5-2,
and count nine charged them with the substantive crime, N.J.S.A.
2C:20-5a and 2C:2-6. Count ten charged Bisaccia and Corsaro with
conspiracy to commit arson and burglary of the Attorney General's
office in Fairfield, N.J.S.A. 2C:5-2, and count eleven charged
them with conspiracy to rob the Coin Depository Corp. in
Elizabeth, N.J.S.A. 2C:5-2. Counts twelve and thirteen charged
Bisaccia and Corsaro with conspiracy to commit extortion,
N.J.S.A. 2C:5-2, and the substantive theft by extortion relating
to J & M Pest Control, N.J.S.A. 2C:20-5a, -5g; 2C:2-6. Count
fourteen charged Bisaccia, Corsaro and Proto with conspiracy to
commit theft by extortion with respect to the use of waste
dumpsters owned by the Savino Companies, N.J.S.A. 2C:5-2, and
count fifteen charged Bisaccia, Corsaro and Proto with the
substantive offense, N.J.S.A. 2C:20-5a, -5g; 2C:2-6. Counts
sixteen and seventeen charged them with conspiracy to commit
theft, N.J.S.A. 2C:5-2, and theft from the Savino Companies,
N.J.S.A. 2C:20-3a; 2C:2-6. Count eighteen charged Bisaccia,
Corsaro and Proto with a conspiracy involving commercial bribery
of Ross Esporrin, an employee of Keithley Construction Corp.,
with respect to the use of the Savino dumpsters, N.J.S.A. 2C:5-2,
and count nineteen charged them with the substantive crime of
commercial bribery, N.J.S.A. 2C:21-10c, -10d; 2C:2-6.
Counts one and two were dismissed during trial as to Fulco
and Muccigrosso. Counts four, five and six were dismissed as to
all defendants insofar as the cigarette hijacking crimes included
an armed robbery and kidnapping. Bisaccia, Corsaro and Proto
were found guilty of the racketeering conspiracy and
racketeering. Bisaccia was found guilty on count three as a
leader of organized crime. All defendants except Proto who was
not charged in count four were found guilty of the conspiracy to
receive the hijacked cigarettes . Fulco and Muccigrosso were
found guilty on count seven with regard to receiving stolen
cigarettes. Corsaro was found guilty on count ten, the
conspiracy with regard to the Attorney General's office.
Bisaccia, Corsaro and Proto were found guilty of counts fourteen,
sixteen, seventeen, eighteen and nineteen concerning the theft
from the Savino Companies and commercial bribery of Esporrin.
Bisaccia received a sentence aggregating forty years with
twenty years before parole eligibility. Corsaro received an
aggregate sentence of twenty-six years with thirteen years before
parole eligibility. Fulco was sentenced to ten years
imprisonment with five years before parole eligibility. Proto
was sentenced to terms aggregating sixteen years with eight years
before parole eligibility. DeStefano was sentenced to seven
years imprisonment, and Muccigrosso received concurrent sentences
aggregating seventeen years with eight-and-one-half years before
parole eligibility.
Jury selection commenced on March 2, 1992, and the trial commenced on June 11, 1992. The case was submitted to the jury on March 3, 1993.
On February 9, 1993, shortly before summations were to begin, the trial judge received a letter from M.C., a juror who had been excused during the trial because of his exposure to newspaper accounts regarding defendant Muccigrosso. On February 11, 1993, the trial judge interviewed M.C. outside the presence of the jury. According to M.C., the jurors regularly discussed newspaper reports about the trial, but M.C. could only name two jurors who initiated such discussions. M.C. also claimed that there were "always [news]papers in the [jury] room." On February 20, 1993, the judge found M.C.'s allegation of rampant juror misconduct to be "inherently and expressly unreliable, untrustworthy and lacking any credible ring of truth whatsoever." Thus, the judge declined to voir dire the jury regarding M.C.'s allegations.
In the interim, following a report that a juror's car was shot at on the evening of February 16, 1993, the State moved on February 17, 1993, to have the jury sequestered. After granting the motion, the trial judge discharged the juror whose car was shot at and met with the remaining jurors in chambers, outside the presence of defendants and counsel, to discuss the sequestration. At the meeting, juror number 8, M.B., told the judge that he could not "make a fair decision here." The judge made no inquiry as to M.B.'s comment and advised M.B. that he would remain on the jury. At a subsequent meeting the next morning attended by the judge, jury and Court Administrator, M.B. again addressed the judge on the same subject. The record reflects the following exchange:
[M.B.]: As I was trying to say to you yesterday, your Honor, you know, I haven't been to court in some time, I have been on the job, when you are on the job you hear things you don't want to hear, and like I said, I want to make a fair decision, but--
THE COURT: Our purpose in meeting here now
is not to go into the merits of the case,
that is not our purpose, the purpose of this
meeting deals with the problems that arise
out of sequestration. Those are the
problems.
[M.B.]: Could I meet with you at another
time, you and the seven lawyers, then?
THE COURT: We will reserve on that.See footnote 2
At the February 18, 1993 meeting, two jurors also voiced
concern about being followed by a man who, according to one of
the jurors, was "always in the courtroom." According to the
other juror, the man had "approached [him] in the car wash,"
about two weeks earlier and asked him was "this your kid." The
juror reported that he "walked away from" the man.
The transcript of the February 18, 1993 meeting was made
available to all counsel the next day. While the proceedings on
February 19, 1993, were thereafter devoted to argument regarding
former juror M.C., defense counsel also asked to be heard
regarding the previous day's in camera meeting between the judge
and jury and specifically regarding the "[M.B.] issue." The
judge declined to hear argument at that time, saying that he
would entertain argument on the M.C. matter and would address the
M.B. matter in the future.
The next day, Saturday, February 20, 1993, the court
announced its decision denying further jury inquiry regarding
M.C.'s letter and ordered defense counsel to begin summations.
Defense counsel moved for a mistrial on the grounds of the
judge's February 18, 1993 meeting with the jurors and M.B.'s
statement that he could not be fair and wanted to speak to the
judge. The judge refused to hear the motion that day. During
the course of this discussion, the judge for the first time told
defense counsel about his prior meeting with the jurors on
February 17, 1993, and told them that he would make the
transcript available to them. Despite defendants' arguments that
they were not prepared to present their summations on that day,
the summations commenced on February 20, 1993.
During the next few days, at breaks in the summations,
defense counsel continued to move for a voir dire of juror M.B.
and to be heard on other issues regarding the meetings. The
judge stated that he would hear these motions after summations
were completed. At the conclusion of the prosecutor's summation
on March 1, 1993, defense counsel argued that the entire jury
should be interrogated regarding the meetings of February 17 and
18, 1993, or, in the alternative, that a mistrial should be
declared. The statements of M.B. during the meetings was one of
the grounds for these motions. Particularly in light of the fact
that defendant Fulco had endeavored in open court on February 20,
1993 to question M.B. directly as to why he could not be fair,
the prosecutor conceded in his argument that M.B. should be
interviewed. According to the prosecutor:
Obviously, if [M.B.] said that he could
[not] be fair, he probably -- not probably,
he should be interrogated in [sic] especially
in light that Mr. Fulco jumped on that
Saturday and yelled right at him, [M.B.],
come forward. He should be inquired as to
whether or not those actions by Mr. Fulco had
any -- play any part in his ability to be
fair ....
The judge denied the application to question M.B. The judge
stated that he had previously conducted three interrogations of
the jury regarding their exposure to mid-trial publicity, and had
frequently instructed the jury not to discuss the case with
anyone. He presumed the jurors followed his instructions. With
regard to M.B., the judge held:
the Court is of the sound view that an
insufficient foundation has been established
to warrant any further investigation. To
entertain a voir dire of this juror and other
jurors, based on this colloquy [between the
judge and M.B.], would, in my judgment, be
one -- an application which is unfounded and
without any merit.
The judge stated that it was apparent to him based on M.B.'s
demeanor, that M.B.'s statements "were motivated [by] nothing
other than an attempt to gain the sympathy of the Court relative
to the need for his continued confinement as a sequestered
juror." He emphasized that M.B. only claimed he could not be
fair after he learned that he was to be sequestered.
Subsequently, the State suggested that because of
defendants' objections to M.B., he should be "designated as the
alternate juror." Defendants objected; they believed that M.B.
should be removed from the jury altogether and had possibly
tainted the entire jury. The judge denied both requests and the
alternate was selected "by random" drawing.
On the second day of deliberations, March 4, 1993, the jury
sent out the following note to the trial judge at 3:07 p.m.: "we,
the jurors, are at a standstill. Juror Number 8 and 9 have
determined a certain verdict and [are] not willing to discuss any
matter with any of us. We feel that we need someone to intervene
so that we can continue our deliberation. Thank you." Most
counsel requested that the judge instruct the jury to continue
its deliberations. Bisaccia's counsel moved for a mistrial. The
judge denied the mistrial motion because he did not believe that
the note showed that the jury could not be fair and impartial.
However, he reminded the jurors of their obligation to deliberate
with each other.
At 6:05 p.m. the same day, the jury sent another note to the
judge:
[W]e have a juror that is in fear of his
life. He feels he cannot render a fair
decision. We have tried numerous attempts at
deliberating, to no avail. We would like to
know if at all possible the alternate can
take his place.
Also, we would like to adjourn for
today. Thank you.
The record does not reveal the identity of the juror. The
attorneys for defendants Fulco and DeStefano asked that a
mistrial be declared on the basis that the juror's remark had
"tainted" the entire jury. The other defense counsel requested
that the jury be instructed that it must continue to deliberate.
In addition, Bisaccia's attorney asked that the jury be
interrogated. The prosecutor recommended that the juror in
question "be excused from service" because he had indicated that
he could not render a verdict based on the evidence.
The judge denied the mistrial motion and the motion to
dismiss the juror. He reasoned that the juror's refusal to
deliberate was "nothing other than an attempt by a juror to avoid
the responsibility of deliberation; to avoid the unpleasantries
of sequestration; to attempt to get off the jury ...." Instead,
he instructed the jury:
Now, I'd like -- I'm going to say
something to the jury and I'd like all of you
to listen to me. Each one of you has taken
an oath in this case at the very beginning.
Part of that oath is if the occasion warrants
deliberations, to deliberate in accordance
with the Court's instruction. Deliberate in
accordance with the evidence in this case.
Plus, I indicated to you yesterday, your
verdict cannot be true unless it is strictly
and solely in accordance with the evidence.
You have a responsibility now and a duty to
deliberate. ... And I instruct you to
continue with your deliberations and you will
continue in accordance with the manner that
I've instructed you.
Among other things, defendants argue that the trial judge improperly failed to voir dire juror M.B. after he reported that he could no longer be "fair." They also argue that the judge abused his discretion by refusing to conduct a voir dire when the jurors reported that one juror was in "fear of his life." They also argue that a mistrial should have been granted. We agree that the judge improperly declined to make necessary inquiries on these subjects.
The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants "the right to ... trial by an impartial jury." State v. Williams, 93 N.J. 39, 60 (1983); State v. Scherzer, 301 N.J. Super. 363, 486 (App. Div.), certif. denied, 151 N.J. 466 (1997). Thus, "a defendant is entitled to a jury that is free of outside influences and will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself." Williams, supra, 93 N.J. at 60. As a result, the trial judge must take action to assure that the jurors have not become prejudiced as a result of facts which "could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge." Scherzer, supra, 301 N.J. Super. at 486 (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)). "The test is `not whether the irregular matter actually influenced the result but whether it had the capacity of doing so.'" Scherzer, supra, 301 N.J. Super. at 486 (quoting Panko, supra, 7 N.J. at 61).
In State v. Bey, 112 N.J. 45, 74-92 (1988), a capital murder case, our Supreme Court emphasized the need for determining whether jurors were exposed to prejudicial outside influences. There the Court held that the trial court's refusal to voir dire the jury about newspaper articles concerning defendant violated defendant's right to a fair trial and required reversal. Id. at 81. It concluded that where there is a realistic possibility that prejudicial information reached the jurors, the court should conduct a voir dire to determine whether any exposure occurred and, where it occurred, to determine what was learned and whether the jurors remained capable of fulfilling their duties in an impartial manner. Id. at 86-87. The Court made clear that:
The procedure of questioning an impaneled jury when prejudicial publicity threatens the fairness and integrity of a defendant's trial should not be invoked begrudgingly. While we do not mean to suggest that any publicity relating to the defendant or the proceedings will automatically require that the jury be polled, a court might properly choose to err on the side of caution when ruling on such motions. The procedure is prophylactic in nature, designed to uncover potential prejudice to extremely significant constitutional rights that might otherwise go wholly undetected, and to do so at a time when corrective measures remain possible, that is, before ordering a new trial has become the only option. Hence the polling procedure operates to safeguard the rights of the accused and vindicate societal interests in the fair and efficient administration of the criminal justice system. Further, ... the mid-trial voir dire imposes a minimal burden on the court system.
Id. at 89-90 (citations omitted).
Bey, supra, deals with the need to voir dire the jury
concerning publicity where it is unclear whether the jury has
been exposed to mid-trial publicity. See also State v. Harris,
156 N.J. 122, 150-54 (1998). However, where, as here, there is
the possibility of actual juror taint or exposure to extraneous
influences (including jury misconduct and "comments made to
jurors by outside sources"), the judge must voir dire that juror
and, in appropriate circumstances, the remaining jurors. State
v. Scherzer, supra, 301 N.J. Super. at 486-91 (where the judge's
conduct of jury inquiries was found to be adequate).
In State v. Wormley,
305 N.J. Super. 57, 68-70 (App. Div.
1997), certif. denied,
154 N.J. 607 (1998), at a lunch break
during the first day of trial, a juror told the judge that she
knew the State's primary witness and was familiar with the
circumstances of the crime. Id. at 68. The juror denied that
she had revealed her knowledge to the other jurors. Id. at 69.
The judge excused the juror without questioning the other jurors.
Id. On appeal following conviction, we held that the judge's
failure to make inquiry of the remaining jurors was reversible
error, even though the judge was not asked to voir dire them.
Id. We reasoned that even though the dismissed juror denied
conveying her knowledge to the other jurors, "there was a strong
likelihood that, even indirectly or unintentionally, she may well
have." Id. at 70.
In State v. Scherzer, supra, we recently summed up the law
in this area:
The thrust of the New Jersey and federal
cases on mid-trial allegations of jury
misconduct is that the trial judge must make
a probing inquiry into the possible prejudice
caused by any jury irregularity, relying on
his or her own objective evaluation of the
potential for prejudice rather than on the
jurors' subjective evaluation of their own
impartiality. Although the trial judge has
discretion in the way to investigate
allegations of jury misconduct, an adequate
inquiry on the record is necessary for the
purposes of appellate review.
Id. at 487-88 (citation omitted; emphasis
added).
Stated differently,
[W]hen a circumstance arises suggesting that
a juror may in fact be tainted. ... the trial
court, upon being apprised of such a
circumstance, is obliged to interrogate the
juror in the presence of counsel and to
determine if there is a taint and if so, if
any other jurors have been infected thereby.
Pressler, Current N.J. Court Rules, comment 2
on R. 1:16-1 (1999).
We conclude that the trial judge should have questioned M.B.
about his statements that he could no longer be fair,
particularly after indicating that during the trial's recess he
had heard things he did not want to hear. M.B.'s statement
revealed that he may have been exposed to outside information.
The jury had recently come back from an almost month long break
in the trial. It was at least possible that M.B. may have been
exposed to prejudicial information during that time and may have
shared that information with other jurors. Moreover, while the
judge understood M.B.'s statements may be read to be a mere
reaction to sequestration or an effort to get out of jury duty,
which in itself required further inquiry, there were other
inferences warranting development. Without the judge questioning
M.B. about what he meant by his statements, we have no way of
knowing what his exposure may have been or how prejudicial that
exposure was. As the Court stated in Bey, supra, 112 N.J. at 89-90, without a voir dire, "potential prejudice to extremely
significant constitutional rights ... might otherwise go wholly
undetected." The prior voir dire referred to by the judge as a
basis for not interviewing M.B. on this occasion all occurred
before the January 1993 break and the indication that during the
break he may have heard something unduly prejudicial to at least
one of the parties.
The failure to interview M.B. takes on added significance in
light of the juror notes received by the judge during
deliberations. While a judge cannot make inquiry into the
deliberative process as such, or the mental processes by which a
juror reaches his or her decision, State v. LaFera,
42 N.J. 97,
106 (1964), State v. Kociolek,
20 N.J. 92, 100 (1955) (involving
post-verdict applications), the fact that the jurors reported
that M.B. (juror number 8) at first declined to deliberate and
that a juror, perhaps M.B., was "in fear of his life," required
at least inquiry into whether one or more jurors were concerned
about extraneous matters other than the evidence and law as
charged by the judge. See State v. Valenzuela,
136 N.J. 458
(1994); LaFera, supra; Kociolek, supra; State v. Vergillo,
261 N.J. Super. 648, 655-56 (App. Div.), certif. denied,
133 N.J. 433
(1993) (inquiry required of distraught juror who sought to talk
with judge).
New Jersey courts have permitted and, indeed, have required
voir dire inquiry of jurors, even while deliberating, about the
possibility and impact of outside or non-evidentiary extraneous
considerations or influences affecting the ability of a juror to
be fair and impartial. See State v. Hightower,
146 N.J. 239,
248-49, 265-67 (1996); State v. Grant,
254 N.J. Super. 571, 580-87 (App. Div. 1992).See footnote 3 See also Valenzuela, supra (requiring
the court to determine why a juror was unable to continue
deliberating); Vergillo, supra (requiring voir dire of distraught
juror).
The issue now before us, therefore, is the remedy to be
employed when there is doubt about the integrity of the
deliberative process, there is an indication that at least one
juror may have been affected by outside influences, and the trial
judge conducted no inquiry to ascertain whether there were such
influences and the reasons therefor.
In State v. Reevey, 159 N.J. Super. 130 (App. Div.), certif. denied, 79 N.J. 471 (1978), defendant alleged at trial that one of the jurors was sleeping during summations and instructions. The trial judge took no action. We held this was error, stating that "at the very least under the circumstances of this case the trial judge should have conducted a hearing and questioned this juror as to whether she was in fact dozing or sleeping, or whether she was listening to the summations and the charge but merely had her eyes closed." Id. at 134. We, therefore, remanded to the trial court with instructions to hold a hearing concerning the allegation that the juror was sleeping during trial. Id. at 135.
Other appellate courts have also remanded for a hearing following conviction when the trial court had failed to investigate an allegation of juror misconduct or other juror irregularity. In Remmer v. United States, 347 U.S. 227, 228-30, 74 S. Ct. 450, 451, 98 L. Ed. 654, 655-56 (1954), the United States Supreme Court held that the trial court erred in failing to hold a hearing on an allegation that an unnamed person had offered a juror money in exchange for a favorable verdict. The Court stated that such contact or tampering with a juror was presumptively prejudicial but not "conclusive." 347 U.S. at 229, 74 S. Ct. at 451, 98 L. Ed. at 656. The Government was, therefore, permitted to establish, after a hearing, that such contact with the juror was "harmless to the defendant," id. at 229, 74 S. Ct. at 451-52, 98 L. Ed. at 656, and the Court remanded to the trial court for such a hearing.
As the United States Supreme Court later said in a case in which a juror submitted a job application to the prosecutor's office and the prosecutor did not reveal same during the course of trial:
[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable. The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Such determinations may properly be made at a hearing like that ordered in Remmer and held in this case.
Smith v. Phillips,
455 U.S. 209, 217,
102 S.
Ct. 940, 946,
71 L. Ed.2d 78, 86 (1982)
(footnote omitted).
The Supreme Court therefore concluded in Smith that the post-conviction hearing conducted by the state court was adequate to
determine that the juror was not biased and the verdict was based
exclusively on the evidence. See United States v. Herndon,
156 F.3d 629, 637 (6th Cir. 1998) ("remand[ing] the case for a Remmer
hearing in which Herndon will have an opportunity to prove actual
bias" based on "extraneous" influence on juror).
In United States v. Angulo,
4 F.3d 843, 846 (9th Cir. 1993),
one juror reported that she received a threatening telephone call
in the course of trial and discussed the call with the rest of
the jury. The trial judge dismissed the juror who had received
the call but refused to question the remaining jurors about
possible bias. Id. On appeal, the Ninth Circuit found "the
potential for bias is so strong that the judge was obliged at a
minimum to hold a hearing," id. at 847, and remanded to the
district court "to hold an evidentiary hearing to determine
whether the jurors who knew of the threat were able to act
impartially and without bias." Id. at 848. The court added that
"[t]he government will be required to show that the threatening
telephone call was harmless beyond a reasonable doubt to
defendants. ... If the government cannot make that showing, a new
trial should be ordered." Id. at 848 (citation omitted). See
also United States v. Barrett,
703 F.2d 1076, 1082-83 (9th Cir.
1983).
We recognize that there are problems inherent with a remand
almost six years after the verdict. Whether or not M.B. was the
juror in "fear," that juror will have to be identified and the
impact and effect of what was said to the other jurors will have
to be considered in assessing whether defendants received a fair
trial. However, the issues now before us were raised during
trial and not as a result of post-conviction revelations, see R.
1:16-1; State v. Koedatich,
112 N.J. 225, 286-90 (1988); State v.
Athorn,
46 N.J. 247, cert. denied,
384 U.S. 962,
86 S. Ct. 1589,
16 L. Ed.2d 674 (1966), and the fact that six years have passed
since the verdict was rendered does not by itself prohibit the
inquiry. In State v. Marshall,
148 N.J. 89, cert. denied, __
U.S. __,
118 S. Ct. 140,
139 L. Ed.2d 88 (1997), our Supreme
Court denied defendant's request for a post-conviction inquiry
regarding the existence of extraneous influences on the jury
verdict. The Court did so in the absence of sufficient "showing"
of such influence and not because seven years had passed since
the verdict. 148 N.J. at 280.
Our Supreme Court has recently reminded us that, in order to
"promote the finality of jury verdicts" and "aid the deliberative
process itself, allowing each juror the freedom to discuss his or
her thoughts," generally "we ought not reconvene the jury that
convicted ... [a] defendant." State v. Harris,
156 N.J. 122, 154
(1998). There the issue dealt with the trial court's failure to
poll the jury about mid-trial publicity because of its
presumption that the jury would follow its prior instructions not
to read anything about the case. Id. at 152. But, independent
of the difference between media publicity and whatever gave rise
to the juror's concerns in this case, the Harris Court also
recognized that jurors can be questioned after trial in
"extraordinary" circumstances "when there is a strong
representation that a defendant may have been harmed by juror
misconduct." Id. at 154 (citing State v. Koedatich, supra)
(which referred to the "extraordinary procedure" based on a
"strong showing," 112 N.J. at 291-92). While here there is no
indication a juror disregarded instructions concerning discussing
the case or reading about it, the record reflects the real
possibility that the juror deliberations were affected by an
outside influence. Therefore, the failure to voir dire in the
circumstances presented to the trial judge calls for the
"extraordinary procedure," Harris, 156 N.J. at 154, of a remand
to interview the jurors.
In State v. Miller,
875 P.2d 788 (Ariz. 1994), a dismissed
alternate juror left a note on the windshield of one of the
remaining jurors, which said either "[h]e's guilty" or "[m]y vote
is guilty." Id. at 790. The trial court refused the defense
request to take testimony or question the sitting jurors. Ibid.
The Arizona Supreme Court held that the trial court abused its
discretion in failing to hold an evidentiary hearing. Id. The
Court recognized the difficulty of ordering a hearing on this
issue almost four years after the original trial, stating:
The arguments against ordering a hearing at
this late date are understandable. Memories
fade with time. Assuming the jurors can be
reassembled, testimony obtained now might be
suspect, and its reliability subject to
challenge. Moreover, the judge who saw the
witnesses and heard the case on its merits
has long since retired. Ordering a hearing
now will leave another judge who had no
involvement in the trial with the difficult
task of determining whether the communication
prejudiced the verdict.
Id. at 790.
In these circumstances, the court remanded to the trial court "to
determine whether a hearing at this late date is feasible. If
so, the judge is to proceed with the hearing and make appropriate
findings consistent with this opinion. If not, the judge must
set aside the verdict and order a new trial." Id. at 793.
Accordingly, the Miller court held that "[o]n the remand ..., the
trial judge must award a new trial unless the state can prove
beyond a reasonable doubt that the contact did not impact the
verdict." Id. at 793; see also Remmer v. United States, supra,
347 U.S. at 229, 74 S. Ct. at 451, 98 L. Ed.
2d at 656; United
States v. Angulo, supra, 4 F.
3d at 848.
Here, the trial judge is still on the bench, and we are
satisfied that the mere passage of time should not by itself
preclude a remand. We, therefore, conclude that a remand is
required for proceedings similar to those in Miller, and that
unless the State demonstrates that the jury was not tainted (see
Remmer, supra, 347 U.S. at 229, 74 S. Ct. at 451, 98 L. Ed.
2d at
656; State v. Miller, supra, 875 P.
2d at 792, n.2), and that the
deliberating jury rendered a decision based exclusively on the
evidence, free of taint by improper or extraneous influences,
State v. Miller, supra, 875 P.
2d at 793, "the trial judge must
award a new trial." Ibid.
If the trial judge grants a new trial, only three other issues raised on this appeal need be addressed by us. Most of the others will become moot by virtue of the new trial and the additional proceedings which can be conducted in advance thereof, or will turn on the actual developments at the new trial. Similarly, issues of severance will have to be reconsidered by the trial judge in light of the acquittals of those not convicted on counts one and two and the charges remaining against them. In essence, we find no basis to preclude retrial on all charges on which the defendants were convicted as we reject the assertions by individual defendants of evidentiary insufficiency of specific counts. State v. Reyes, 50 N.J. 454, 459 (1967); State v. Ball, 268 N.J. Super. 72, 133 (App. Div. 1993), aff'd, 141 N.J. 142 (1995), cert. denied sub nom. Mocco v. New Jersey, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed.2d 731 (1996).
There are three discrete legal issues, however, which we feel should be settled before another lengthy trial is conducted.
We reject defendants' contention that conspiracy cannot provide a basis, or "predicate act," for racketeering. In this respect we agree with the trial judge's careful analysis, and interpret N.J.S.A. 2C:41-1(a)(1) to include a conspiracy. Federal courts have so interpreted 18 U.S.C.A. §1961(1)(A), see, e.g., United States v. Echeverri, 854 F.2d 638, 648-49 (3d Cir. 1988); United States v. Benevento, 836 F.2d 60, 72 (2d Cir. 1987), cert. denied, 486 U.S. 1043, 108 S. Ct. 2035, 100 L. Ed.2d 620 (1988); United States v. Manzella, 782 F.2d 533, 537 (5th Cir.), cert. denied, 476 U.S. 1123, 106 S. Ct. 1991, 90 L. Ed.2d 672 (1986), and our statute was designed to "cover a broader spectrum of behavior" than the "pattern of racketeering activity" prohibited by the federal RICO Act. See State v. Ball, 141 N.J. 142, 167 (1995), cert. denied sub nom. Mocco v. New Jersey, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed.2d 731 (1996). Moreover, our statute, N.J.S.A. 2C:41-1a(2), incorporates the federal statute which, by case law, has been interpreted to include conspiracies.
We agree with the trial judge that Judge Donald S. Coburn's role as Essex County Prosecutor in defending the appeal of defendants Bisaccia and Corsaro from a prior conviction and in defending their subsequent federal habeas corpus petition in that matter does not require suppression of the wiretaps he authorized in the subsequent investigation resulting in this indictment.See footnote 4 This investigation did not commence while Judge Coburn was still a prosecutor, nor was it conducted by his former office, see State v. Tucker, 264 N.J. Super. 549, 555 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994); State v. McNamara, 212 N.J. Super. 102, 108-09 (App. Div. 1986), certif. denied, 108 N.J. 210 (1987), and we need not decide if Judge Coburn would be disqualified if he were still County Prosecutor when this investigation commenced or had direct involvement in the prior prosecutions. See Notice to the Bar, "Recusal Policy of the Chief Justice," 134 N.J.L.J. 1030 (September 3, 1996).
Defendant Corsaro had been under investigation for cigarette tax violations and was arrested (and may have been arraigned) for receiving stolen cigarettes before approval was obtained for consensual interceptions by Nicholas DiSabatino of conversations he had with Corsaro. He had counsel at the time. The trial judge ruled that the recordings were not admissible against Corsaro "relative to the theft of the cigarette charge," but were admissible "with respect to other offenses which were uncovered during the conversations between DiSabatino and Corsaro." We agree with the trial judge that recordings of uncounselled statements with respect to unrelated crimes or offenses for which defendant has not been arrested or charged need not be suppressed.See footnote 5 See United States v. Kidd, 12 F.3d 30 (4th Cir. 1993), cert. denied, 511 U.S. 1059, 114 S. Ct. 1629, 128 L. Ed.2d 352 (1994); United States v. Mitcheltree, 940 F.2d 1329, 1342-43 (10th Cir. 1991); United States v. Giovanelli, 747 F. Supp. 875, 885-86 (S.D.N.Y. 1989) (confidential informant's recording of defendant on trial for State offenses admissible with respect to later charged federal racketeering charges; defendant had not been charged with racketeering when recordings were made); United States v. Napolitano, 552 F. Supp. 465, 480-81 (S.D.N.Y. 1982) (defendant's statements recorded by informant after indictment and conviction on various charges admissible in RICO prosecution when the statements were made before defendant was charged in RICO prosecution);See footnote 6 see also State v. Tucker, 137 N.J. 259, 277-78 (1994), cert. denied, 513 U.S. 1090, 115 S. Ct. 751, 130 L. Ed.2d 651 (1995). We add that while RPC 4.2 has been interpreted and amended since the interceptions in question, it remains clear that it applies in the criminal context only after adversarial proceedings have begun by arrest, complaint or indictment on the charges which are the subject of the communication. The holding of State v. CIBA-GEIGY Corp., 247 N.J. Super. 314, 320-21, 325 (App. Div. 1991), appeal dismissed, 130 N.J. 585 (1992), superseded by In re Opinion 668, 134 N.J. 294 (1993), to this effect has been noted with approval in the commentary to the Report of the Committee which recommended the 1996 amendments to RPC 1.13 and RPC 4.2. See Report of Special Committee on RPC 4.2, 145 N.J.L.J. 318 (1996).See footnote 7 See also State v. P.Z., 152 N.J. 86, 116 n.6 (1997).
If the trial judge denies a new trial, the defendants may seek to have the appeal reinstated, and we will further consider all the issues raised. Defendants shall also order a transcript of the remand proceedings, and the parties shall advise the Clerk within thirty days of the trial court's order if they desire to file supplemental briefs directed to the remand proceedings.
The matter is remanded to the Law Division for further proceedings consistent with this opinion.
Footnote: 1Casiere was acquitted of all charges and is not referred to herein. Footnote: 2A recess had been taken in January due to the health of defendant Proto. Footnote: 3In Grant one voir dire occurred during deliberations when a juror indicated she could not be "fair" and one occurred after trial when a juror reported that another juror advised the panel of her husband's professional opinion about the significance of some evidence. Footnote: 4See State v. Stefanelli, 78 N.J. 418 (1979); Bisaccia v. Attorney General, 623 F.2d 307 (3d Cir. 1980). Footnote: 5The State acknowledges that the ruling would not permit use of the recordings as "evidence against defendant [Corsaro] on the count of conspiracy to commit receiving stolen property, nor on the corresponding predicate acts for racketeering and conspiracy to commit racketeering." Footnote: 6No attorney could ethically counsel defendant with respect to ongoing crimes. See, e.g., In re Nackson, 114 N.J. 527 (1989). Footnote: 7State v. CIBA-GEIGY, supra, 247 N.J. Super. at 316, also noted "the general proposition under existing New Jersey law that evidence obtained in violation of a disciplinary rule need not be suppressed."