STATE OF NEW JERSEY VS. ANTHONY C. RIDGEWAY (11-08-0713, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-1811-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY C. RIDGEWAY,
a/k/a ANTHONY RIDGEWAY,

Defendant-Appellant.

_________________________________

Submitted March 14, 2017 – Decided December 5, 2017

Before Judges Fisher, Leone, and Vernoia.

On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 11-08-0713.

Joseph E. Krakora, Public Defender, attorney
for appellant (Rochelle Watson, Assistant
Deputy Public Defender, of counsel and on the
brief).

Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Stephen
C. Sayer, Assistant Prosecutor, of counsel and
on the brief).

The opinion of the court was delivered by

LEONE, J.A.D.
 Defendant Anthony C. Ridgeway appeals his judgment of

conviction. We remand for a hearing on a juror's impartiality.

Subject to the outcome of that hearing, we affirm defendant's

convictions. We vacate the consecutive nature of the sentence and

remand for resentencing.

I.

Defendant was prosecuted for killing Tara Valentin in the wee

hours of September 24, 2010. She was found shot in the eye with

a small-caliber weapon at close range at her home in a Fairfield

Township trailer park.

At trial, the State called Terri Wright, who also lived at

the trailer park. She testified as follows. Around midnight she

saw defendant with a gun. She overheard him on his cell phone

trying to sell the gun around 2:00 a.m. He left but returned to

Wright's trailer and threw down the gun around 4:30 a.m. Wright

admitted to involvement with drugs, namely cocaine and marijuana.

She testified she had a couple beers that night, and admitted

using cocaine between defendant's departure time and his return.

The State also called co-defendant Matthew Allison, whose

phone records showed he was phoned by defendant around 3:30 a.m.

He testified as follows. Defendant phoned Allison and told Allison

he purchased a .22 caliber gun and asked if Allison could help

2 A-1811-14T3
sell it. After they unsuccessfully tried to sell the gun over the

phone, they tried to sell it to Valentin, a drug dealer. Defendant

showed the gun to her. Allison said Valentin "got ignorant with

us" and said something like "[g]et it out of my face" or "I don't

want that piece of shit."

Allison testified that as he and defendant walked away, they

decided to go back and take Valentin's drugs and money because

they had been insulted by her. Allison testified that they decided

that defendant "was going to just point the gun at her and

[Allison] was going to go in a bedroom and take the drugs."

Allison testified he and defendant entered Valentin's

trailer, where Valentin was lying on the couch. Defendant pointed

the gun at her and said: "I want everything. I want all the

drugs." Valentin stood up and went to grab the gun. She barely

touched the barrel when defendant tried to pull the gun back and

it fired. Allison grabbed some pills he saw on the coffee table,

and broke the window so it would look like a break-in. Allison

and defendant ran back to defendant's trailer.

The State also called Rodger Barrick, defendant's uncle, who

testified that on the afternoon of September 24, defendant arrived

at the house of Barrick's girlfriend, asked to stay the night, and

told Barrick he accidentally shot a person when the person "kicked

the gun," causing it to go off. That evening, the police found

3 A-1811-14T3
defendant in the attic of the house and arrested him. Barrick

testified he was "a drinking man," he drank some beers when

defendant confessed to him, and he drank "[q]uite a bit" that day

or the night before.

A jury acquitted defendant of first-degree felony murder, but

found him guilty of first-degree aggravated manslaughter, N.J.S.A.

2C:11-4(a)(1); first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1)

and (2); second-degree burglary, N.J.S.A. 2C:18-2(b)(1); second-

degree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(a); second-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(b); and second-degree certain persons not to have

firearms, N.J.S.A. 2C:39-7(b). The trial court imposed an

aggregate prison sentence of forty-six years with 85% to be served

without parole under the No Early Relief Act (NERA), N.J.S.A.

2C:43-7.2.

Defendant appeals his June 19, 2014 judgment of conviction.

He argues:

POINT I - DEFENDANT WAS DEPRIVED OF HIS RIGHT
TO A FAIR TRIAL BECAUSE THE TRIAL COURT FAILED
TO ENSURE THAT JURORS EXPOSED TO COMPROMISING
(sic) MATERIAL, IN TWO SEPARATE INCIDENTS,
COULD DELIBERATE IMPARTIALLY.

A. WHERE THE PROSECUTOR'S CASE AGENT
OFFERED A JUROR A PARKING SPOT IN THE
PROSECUTOR'S LOT, AND THEN HAD A FOLLOW-
UP CONVERSATION WITH THE JUROR DURING A

4 A-1811-14T3
 TRIAL RECESS, THE TRIAL COURT WAS REMISS
IN FAILING TO VOIR DIRE THE JUROR.

B. THE TRIAL COURT FAILED TO CONDUCT AN
ADEQUATELY PROBING VOIR DIRE TO ENSURE
THE JURY'S IMPARTIALITY AFTER TWO JURORS
WITNESSED THE DEFENDANT'S AND THE
VICTIM'S FAMILY IN A VOLATILE
CONFRONTATION BEFORE THE FINAL DAY OF
DELIBERATION.

POINT II - THE TRIAL COURT ERRED IN FAILING
TO GIVE A THIRD CIRCUIT MODEL INSTRUCTION ON
THE "CREDIBILITY OF WITNESSES – TESTIMONY OF
ADDICT OR SUBSTANCE ABUSER," WHERE DEFENSE
COUNSEL REQUESTED THE INSTRUCTION AND TWO OF
THE CRITICAL WITNESSES ADMITTED TO BEING
IMPAIRED WHEN THE RELEVANT EVENTS TOOK PLACE.

POINT III- DEFENDANT'S AGGREGATE SENTENCE OF
46 YEAR'S IMPRISONMENT SUBJECT TO NERA,
CONSISTING OF TWO CONSECUTIVE SENTENCES IN
VIOLATION OF STATE V. YARBOUGH, IS MANIFESTLY
EXCESSIVE.

II.

Defendant raises two claims that the jury was tainted. "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. R.D., 169 N.J. 551, 557 (2001) (quoting N.J. Const. art. I, ¶

10, and citing U.S. Const. amend. VI). A defendant has "the right

to have the jury decide the case based solely on the evidence

presented at trial, free from the taint of outside influences and

extraneous matters." Ibid.

5 A-1811-14T3
 "Once a hearing is conducted, '[a] new trial will be granted

where jury misconduct or intrusion of irregular influences into

the jury deliberation "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."'" State v. McGuire, 419 N.J.

Super. 88, 154 (App. Div. 2011) (citation omitted). "'[I]f the

irregular matter has that tendency on the face of it, a new trial

should be granted without further inquiry as to its actual effect.

The test is not whether the irregular matter actually influenced

the result, but whether it had the capacity of doing so.'" R.D.,

supra, 169 N.J. at 558 (citation omitted).

A.

Defendant's first claim involves contact between Detective

Dominic Patitucci of the Cumberland County Prosecutor's Office and

an elderly man who later became a juror. According to Patitucci,

in late February 2014, Patitucci saw an older gentleman having

some distress walking down a hallway in the courthouse. The man

was holding onto the handrail, walking very slowly and using his

cane. Patitucci approached him and asked if he was okay. The

issue of parking came up, and Patitucci told him "our office is

pretty vacant next door" and offered him a place to park.

Patitucci told him to tell the female monitoring the lot it was

okay for him to park there.

6 A-1811-14T3
 Jury selection occurred on March 5-6, and the elderly man was

selected as juror #11. It appears Patitucci was not present for

jury selection.1

On March 11, trial began with opening statements. Patitucci

was now in the courtroom as the case agent sitting at counsel

table assisting the prosecutor. According to Patitucci, during

the lunch break the juror "made eye contact like, hey, thanks.

And I was like, yeah, everything good?" The juror thanked

Patitucci, but said he was not using the parking lot Patitucci had

offered. Instead, he said he was parking at the regular parking

garage and another juror was picking him up and driving him to the

courthouse door.

During the break, defense counsel raised "a secondary issue,"

namely that he had seen Patitucci talking with juror #11 about

parking, and that "Patitucci was forthcoming" to defense counsel

and confirmed they were discussing parking. Defense counsel, who

had only overheard the conversation in passing, believed juror #11

and another juror were using the prosecutor's parking lot.

The trial court noted that in jury selection juror #11 had

asked the court for parking accommodations, that the request had

1
The prosecutor advised the potential jurors that "during the
course of this trial, there'll be a detective sitting with me and
assisting" named Patitucci.

7 A-1811-14T3
"slipped my mind," and that the prosecutor's lot was not marked

as such. The court asked defense counsel what he wanted the court

to ask the juror. Defense counsel replied: "I don't even know if

there's anything to ask him, Judge. Actually, I would just move

to have him struck." When the court later said it did not "see

any questions that would be asked," defense counsel reiterated:

"I don't know necessarily that there's anything to question him

about."

The trial court then had Patitucci take the witness stand,

and Patitucci related the hallway encounter two weeks before and

the contact during the break that day. The court confirmed the

original encounter was before the elderly man was a juror. The

court ascertained that the juror had not parked in the prosecutor's

lot and that the contact during the break was just to let Patitucci

know that. The court concluded it was "[m]uch ado about nothing,"

and did not "see any reason to disturb the matter further." The

court added that "it sounds like the juror is more aware of his

responsibilities then we give him credit for, in that he did not

actually utilize [the lot], if he became aware that that was the

Prosecutor's parking lot," but "made other arrangements, which

restores our faith in the jury system."

The trial court told Patitucci that contact with the juror

about parking "has to stop" and was "not going to be permitted any

8 A-1811-14T3
further." The court made clear any parking arrangements for the

juror would be made through the Sheriff's Department. The court

proposed, without objection, to ask the juror at the end of the

day what his arrangements were and if he needed other parking

assistance from the Sheriff's Department.

As the jury was being discharged for the day, the trial court

reminded juror #11 of his prior request to the court for

accommodation for parking. The juror said that he had made

arrangements and that one of the jurors was driving him over from

the garage. The court praised such cooperation among jurors, and

added that if the juror needed any other parking arrangement, he

could talk to the sheriff's officer. The court then reiterated

to all the jurors that "no one is permitted to talk to you outside

the courtroom," that "if anyone attempts to approach you or talk

to you, don't tell that to any other juror" but just to court

staff, and that they should not talk about the case with anyone.

On appeal, defendant concedes "the juror did not ultimately

take advantage of the complimentary parking spot." Defendant

argues that "the trial court was remiss in failing to voir dire

the juror."

We agree the court should have questioned juror #11 about

Patitucci's offer. Even though the juror declined the offer, he

still may have felt gratitude toward Patitucci, who as case agent

9 A-1811-14T3
would be sitting next to the prosecutor. Questioning the juror

would have determined what the juror felt and whether he could set

his feelings aside and decide the case without bias toward either

side. As the juror had just spoken about the offer to Patitucci,

there was no danger that questioning would remind him of an offer

he had forgotten.

"[I]f during the course of the trial it becomes apparent that

a juror may have been exposed to extraneous information, the trial

court must act swiftly to overcome any potential bias and to expose

factors impinging on the juror's impartiality." R.D., supra, 169

N.J. at 557–58. "The court is obliged to interrogate the juror,

in the presence of counsel, to determine if there is a taint[.]"

Id. at 558 (citation omitted). "It is the duty of the court to

ask probing questions to protect the impartiality of the jury."

Id. at 563.

However, defendant never requested the trial court voir dire

juror #11. To the contrary, defense counsel repeatedly told the

trial court he could not think of "anything to question him about."

Instead, defendant moved to strike juror #11 when he believed the

juror was parking in the prosecutor's lot. After Patitucci related

the juror declined the offer, defendant requested no other relief.

At the very least, defendant must show it was plain error to

forego a voir dire he never requested. State v. Winder, 200 N.J.

10 A-1811-14T3
231, 252 (2009); see, e.g., R.D., supra, 169 N.J. at 554 (finding

no plain error for not questioning a juror about extraneous

knowledge). "Under that [plain error] standard, defendant has the

burden of proving that the error was clear and obvious and that

it affected his substantial rights." State v. Morton, 155 N.J.

383, 421 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149

L. Ed. 2d 306 (2001); accord United States v. Olano, 507 U.S. 725,

734, 113 S. Ct. 1770, 1778, 123 L. Ed. 2d 508 (1993). He must

show the omission was "clearly capable of producing an unjust

result." R. 2:10-2.

Defendant cannot show a basis for a new trial at this time.

The situation here is unlike the circumstances in the cases cited

by defendant. This case did not involve a juror who had prejudged

a capital case, State v. Loftin, 191 N.J. 172, 192 (2007), a

racially-biased juror, State v. Tyler, 176 N.J. 171, 182 (2003),

or a juror who knew the victim and the lead witness and knew about

the crime, State v. Wormley, 305 N.J. Super. 57, 68-70 (App. Div.

1997). This is not a case where the jury heard extraneous

assertions of the defendant's guilt, State v. Grant, 254 N.J.

Super. 571, 584-86 (App. Div. 1992), or highly inflammatory facts

about the defendant's prior crimes, State v. Fortin, 178 N.J. 540,

576 (2004). Nor is this a case where the two key prosecution

witnesses in a capital case were sheriffs charged with safekeeping

11 A-1811-14T3
the jurors who had "a continuous and intimate association [with

them] throughout a three-day trial." Turner v. Louisiana, 379

U.S. 466, 473, 85 S. Ct. 546, 550, 13 L. Ed. 2d 424, 429 (1965).

This case also did not involve an attempt to influence a

sitting juror on how to decide the case. Cf. Remmer v. United

States, 347 U.S. 227, 228-30, 74 S. Ct. 450, 450-52, 98 L. Ed.

654, 655-56 (1954) (remanding for a post-trial hearing where a

person told a juror during trial "that he could profit by bringing

in a verdict favorable to the petitioner"). In Remmer, the Supreme

Court indicated that such a "private communication, contact, or

tampering, directly or indirectly, with a juror during a trial

about the matter pending before the jury is, for obvious reasons,

deemed presumptively prejudicial." Id. at 229, 74 S. Ct. at 451,

98 L. Ed. at 656 (emphasis added); accord State v. Scherzer, 301

N.J. Super. 363, 487 (App. Div.), certif. denied, 151 N.J. 466

(1997).

"There may be cases where an intrusion should be presumed

prejudicial," but this is not one of them, because it was not

about the matter pending before the jury. United States v. Olano,

507 U.S. 725, 739-41, 113 S. Ct. 1770, 1780-81, 123 L. Ed. 2d 508,

522-24 (1993) (declining to apply the Remmer presumption of

prejudice to the improper presence during jury deliberations of

alternate jurors); see Smith v. Phillips, 455 U.S. 209, 215-17,

12 A-1811-14T3
102 S. Ct. 940, 945-46, 71 L. Ed. 2d 78, 85-86 (1982)

(distinguishing Remmer's "attempted bribe, which it characterized

as 'presumptively prejudicial,'" from "allegations of implied

juror bias" which a defendant must prove).2

Here, "[t]here was no suggestion of outside influence, racial

prejudice, media exposure, or any of the other sorts of irregular

influences sufficient to create a potential for prejudice."

Scherzer, supra, 301 N.J. Super. at 495-96. Moreover, "[t]his is

a plain-error case, and it is [defendant] who must persuade the

appellate court that the deviation . . . was prejudicial." Olano,

supra, 507 U.S. at 741, 113 S. Ct. at 1781, 123 L. Ed. 2d at 524;

see Morton, supra, 155 N.J. at 421.

The conversation two weeks before trial was an innocuous

discussion about parking. See McGuire, supra, 419 N.J. Super. at

155. When Patitucci offered parking assistance to the elderly

man, the man was not a juror, and neither person had any

discernable reason to believe the other person would participate

in defendant's future trial.

2
Indeed, "questions have arisen concerning the ongoing viability
of the Remmer 'presumption.'" State v. Harris, 181 N.J. 391, 506
(2004); see, e.g., United States v. Sylvester, 143 F.3d 923, 934
(5th Cir. 1998) (holding "the Remmer presumption of prejudice
cannot survive Phillips and Olano").

13 A-1811-14T3
 On the first day of trial, they had "a brief encounter" which

confirmed the man had declined Patitucci's offer of parking. See

Turner, supra, 379 U.S. at 473, 85 S. Ct. at 550, 13 L. Ed. 2d at

429. The trial court's instructions did not clearly proscribe it.

The court told jurors not to talk about "the case," and to report

if "anyone should attempt to discuss the case with you," but the

juror and Patitucci did not talk about the case. The court told

jurors not to speak with "any of the attorneys, the witnesses, or

the defendant," but Patitucci did not fall in those categories and

was not on the witness list read to the jurors. Those same

limitations were implicit in the court's instruction to report

"[i]f anyone should approach you or anyone attempt to talk to

you," and explicit in the instruction right before the lunch break:

"do not have anyone contact you about this case. If someone

attempts to contact you, please let me know." Thus, the juror did

not clearly violate the court's limited instructions.

This case is unlike the Iowa case on which defendant relies,

State v. Carey, 165 N.W.2d 27 (Iowa 1969). There, during trial

jurors were given free coffee in the jury room with a sign stating

"coffee will be furnished in the jury room by the county clerk and

the county attorney." Id. at 28. The bailiff testified that she

purchased the coffee, that the county attorney intended to

reimburse her for it, and that the sign was placed without

14 A-1811-14T3
knowledge of the county attorney. Ibid. The Iowa Supreme Court

did not believe "any juror here was corrupted for the price of a

cup of coffee, but was concerned with the "appearance" to the

jurors and to the public, that the prosecutor intentionally gave

a gift to sitting jurors. Id. at 29-30. "The effect upon the

jurors and upon any member of the public . . . was the same as if

it" was "an intentional attempt to secure favor with those persons

who were even then in the process of passing upon . . . guilt or

innocence." Id. at 30.

By contrast, Patitucci's offer of parking assistance did not

have that appearance. Most importantly, when Patitucci offered

parking assistance to the elderly man, the man was not a sitting

juror, trial and jury selection had not even commenced, and neither

had any idea that the man would become a juror in defendant's

trial. Moreover, unlike the sign in Carey, Patitucci did not seek

credit for the prosecutor. See State v. Lampman, 342 N.W.2d 77,

80 (Iowa Ct. App. 1982) (distinguishing Carey where the jurors got

coffee from the prosecutor's office where donations were

accepted). Indeed, as the trial court noted, there was no evidence

the elderly man knew this unknown detective was offering parking

in the prosecutor's lot; the man also did not know Patitucci was

the prosecutor's case agent until trial began. See also State v.

Le Grand, 442 N.W.2d 614, 616 (Iowa Ct. App. 1989) (distinguishing

15 A-1811-14T3
Carey where jurors received transportation assistance from

sheriffs who were not witnesses and did not discuss the case with

the jurors). In any event, Carey did "not decide whether [the

offer] alone, without more, would be sufficient to require a new

trial," Carey, supra, 165 N.W.2d at 30, so defendant "read[s] more

into Carey than [the Iowa Supreme Court] intended," State v.

Cullen, 357 N.W.2d 24, 28 (Iowa 1984).

We also find guidance from the United States Supreme Court's

decision in Phillips, supra. In Phillips, a juror "submitted

during the trial an application for employment as a major felony

investigator in the District Attorney's Office." 455 U.S. at 209,

212, 102 S. Ct. at 943, 71 L. Ed. 2d at 83. When that information

was revealed to the defense after trial, the trial court held a

hearing at which the juror testified; it found the juror was not

prejudiced and was able to consider the guilt or innocence of the

defendant solely on the evidence. Id. at 213-14, 102 S. Ct. at

944, 71 L. Ed. 2d at 84.

The United States Supreme Court emphasized "that the remedy

for allegations of juror partiality is a hearing in which the

defendant has the opportunity to prove actual bias." Id. at 215,

102 S. Ct. at 945, 71 L. Ed. 2d at 85. The Court stressed "that

due process does not require a new trial every time a juror has

been placed in a potentially compromising situation. Were that

16 A-1811-14T3
the rule, few trials would be constitutionally acceptable." Id.

at 217, 102 S. Ct. at 946, 71 L. Ed. 2d at 86. The Court observed

"it is virtually impossible to shield jurors from every contact

or influence that might theoretically affect their vote," and held

determinations of "the effect of such occurrences . . . may

properly be made at a hearing like that ordered in Remmer and held

in this case." Ibid.

The reasoning of the United States Supreme Court in Smith has

been adopted by our Supreme Court and this court. E.g., R.D.,

supra, 169 N.J. at 559; McGuire, supra, 419 N.J. Super. at 154;

State v. Dreher, 302 N.J. Super. 408, 501 (App. Div. 1997). We

have followed Smith and held a "post-conviction hearing conducted

by the [trial] court [i]s adequate to determine that the juror was

not biased and the verdict was based exclusively on the evidence."

State v. Bisaccia, 319 N.J. Super. 1, 17 (App. Div. 1999).

Under the circumstances here, while the trial court "erred

in not conducting" further voir dire of Juror #11, "[w]e believe

that the interests of justice will best be served by now having

the trial judge conduct the hearing" as opposed to "automatically

[granting] a new trial." See State v. Kelly, 61 N.J. 283, 294

(1972); see, e.g., State v. Stubbs, 433 N.J. Super. 273, 289 (App.

Div. 2013); State v. Scott, 398 N.J. Super. 142, 154 (App. Div.

2006).

17 A-1811-14T3
 The trial court shall hold the hearing at which Juror #11 is

questioned within thirty-five days, and make findings promptly

thereafter on the facts concerning the communications between

Patitucci and juror #11, the effect of those communications on

juror #11, and what if anything juror #11 conveyed to the other

jurors concerning those communications. Defendant shall have "the

opportunity to prove actual bias" on the part of Juror #11 or any

juror due to the communications. Phillips, supra, 455 U.S. at

215, 102 S. Ct. at 945, 71 L. Ed. 2d at 85. "That determination

requires the trial court to consider the gravity of the extraneous

information in relation to the case, the demeanor and credibility

of the juror or jurors who were exposed to the extraneous

information, and the overall impact of the matter on the fairness

of the proceedings." R.D., supra, 169 N.J. at 559.3

B.

After the first day of jury deliberations, there was a

confrontation between members of the families of the victim and

defendant in front of the courthouse. Two jurors witnessed it

3
If juror #11 cannot be found or is otherwise unable to testify
about the communications, the court shall make findings on the
timing and nature of the juror's unavailability, and on whether
defense counsel's statements that he could not think of anything
to question the juror about caused the court to forego questioning
the juror prior to his unavailability. See State v. Jenkins, 178
N.J. 347, 359 (2004).

18 A-1811-14T3
while waiting for their rides, and reported it to the trial court.

The court conducted a voir dire of the two jurors.

Juror #4 informed the trial court that she witnessed the

"confrontation," that the family members were "cursing" each other

and "acting disrespecting," and that she felt "uncomfortable."

She told the court that she could continue to serve as a juror:

"Oh, yes. That does not bother me. It was not directed at me."

Juror #6 also witnessed the confrontation, that it consisted of

"a girl and a dude" exchanging "not friendly eye contact," and

saying "uh-huh" and "yeah" to each other, a verbal altercation,

and that no one else reacted. Juror #6 said he "got disturbed,"

but "could understand" that "they both kind of went a little

overboard," and that it was not directed at him. He felt he could

still deliberate in the case, and he had no other concerns. Both

jurors said they did not discuss the confrontation with any other

jurors.

The trial court found that neither juror "expressed anything

that [would] . . . impact . . . on their ability to deliberate"

and that no further questioning was required. The court found

that juror #4 "indicated that she clearly could separate" the

families' emotional reactions from "her obligations as a juror,"

and that juror #6's "words were of the same ilk." The court found

the confrontation did not have "any effect on either of their

19 A-1811-14T3
abilities to deliberate." The court instructed the two jurors not

to speak to the other jurors about the confrontation, assured them

security had been increased, ordered the family members involved

in the confrontation removed from the courthouse, and warned the

remaining family members against any future incidents.

On appeal, defendant argues the trial court failed to conduct

an adequately probing voir dire of jurors #4 and #6. However, at

trial defendant never suggested additional voir dire was needed

of those jurors. When the trial court proposed questioning them,

defense counsel said "I have no problem with the voir dire as we

discussed" and he had "[n]othing at this time" to add. Defense

counsel asked juror #4 a question, and did not criticize the voir

dire. At the conclusion of the voir dire of the two jurors,

defense counsel stated: "We've heard their questioning. That's

fine. But I think both of them were pretty clear" that they saw

discord between the families. Defendant objected to the two jurors

continuing to deliberate, but never asked that they be questioned

further. Thus, defendant must show plain error.

Even if defendant now "would have preferred further inquiry

of the [two] juror[s]," "the trial court's failure to do so did

not constitute plain error." R.D., supra, 169 N.J. at 563.

Defendant does not show that further inquiry would have produced

a different outcome. He hypothesizes the jurors may have heard

20 A-1811-14T3
information about the case, but the two jurors said the feuding

family members were merely cursing, disrespecting, and saying

"'uh-huh, yeah' to each other." Defendant argues the jurors could

have identified the feuding family members, but the court properly

relied on the sheriff's officer who witnessed the confrontation

to make such identifications, rather than put that burden on the

jurors.

Moreover, "[u]nder R.D., the overarching relevant inquiry is

not whether the trial court committed error, but whether it abused

its discretion." State v. Wakefield, 190 N.J. 397, 496 (2007).

"That is so because '[a]pplication of that standard respects the

trial court's unique perspective [and appellate courts]

traditionally have accorded trial courts deference in exercising

control over matters pertaining to the jury.'" Id. at 497 (quoting

R.D., supra, 169 N.J. at 559-60). "Ultimately, the trial court

is in the best position to determine whether the jury has been

tainted." R.D., supra, 169 N.J. at 559 (citation omitted).

"That determination requires the trial court to consider the

gravity of the extraneous information in relation to the case, the

demeanor and credibility of the juror or jurors who were exposed

to the extraneous information, and the overall impact of the matter

on the fairness of the proceedings." Ibid. Here, the trial

court's questioning elicited both jurors' description of what they

21 A-1811-14T3
saw and heard, its impact on them, their belief they still could

fairly deliberate, and their assurance they had not discussed the

confrontation with the other jurors. The court did not abuse its

discretion in finding no "further action has to be taken with

regard to those two jurors."

"The appellate standard for reviewing a voir dire procedure

is whether, despite the trial court's efforts, there still existed

a 'realistic likelihood of prejudice.'" State v. Harvey, 151 N.J.

117, 211 (1997) (citation omitted). We agree with the trial court

that there was no realistic likelihood of prejudice from the

confrontation. In a murder trial, it is unsurprising that there

is animosity between the family of the defendant and the family

of the victim. "The outburst contained no factual information

that could have influenced the jury." State v. Wilson, 335 N.J.

Super. 359, 368-69 (App. Div. 1999) (finding the jury could

disregard "an emotional outburst by the victim's mother" who

"suddenly screamed and began sobbing"), aff’d o.b., 165 N.J. 657,

659 (2000). After voir dire, the trial court found both jurors

could impartially deliberate despite witnessing the confrontation.

"[A]n appellate court should show appropriate deference to the

trial court's assessment of 'matters of credibility, judgment and

discretion which should not ordinarily be disturbed on appeal.'"

Harvey, supra, 151 N.J. at 211 (citation omitted).

22 A-1811-14T3
 The trial court also found "no indication that any of this

information was passed to any of the other jurors." The court

asked counsel if there was a need to question the other jurors.

Defense counsel, who left the courthouse before the confrontation

and did not hear anything, noted that alternate juror #7 left at

the same time so "I don't think that's an issue." Counsel added

that juror #3 may not have gone "out the door the same time as

me," but counsel could not say juror #3 saw the confrontation, and

admitted he "might have the wrong number." The court concluded

it was "not going to involve the other jurors now, because neither

of the jurors who did report it indicated any other juror was

present. And no other jurors reported anything," which they would

have to do under the court's prior instructions. The sheriff's

officer similarly said only jurors #4 and #6 witnessed the

confrontation.

"[T]he decision to voir dire individually the other members

of the jury best remains a matter for the sound discretion of the

trial court. No per se rule should obtain." R.D., supra, 169

N.J. at 561. "[T]he court's own thorough inquiry of the

[questioned] juror should answer the question whether additional

voir dire is necessary to assure that impermissible tainting of

the other jurors did not occur." Ibid. Moreover, it may "be more

23 A-1811-14T3
harmful to voir dire the remaining jurors because, in asking

questions, inappropriate information could be imparted." Ibid.

Here, multiple sources stated that only jurors #4 and #6 saw

the confrontation, and defendant presented no evidence to the

contrary. The confrontation happened after the jury had dispersed

for the evening, and the court questioned jurors #4 and #6 first

thing the next morning, so they had little or "no opportunity to

communicate impermissible information to [their] fellow jurors,"

and they "denied communicating [their] knowledge to other jurors."

Id. at 562. Given the court's instructions to all jurors to report

such incidents and not to communicate about the case, and the

instruction's effectiveness as demonstrated by jurors #4 and #6,

the court could assume the other jurors would have reported if

they had seen or heard anything. Ibid.; see State v. T.J.M., 220

N.J. 220, 237 (2015) ("We act on the belief and expectation that

jurors will follow the instructions given them by the court.").

Thus, as in R.D., supra, "[t]he trial court did not abuse its

discretion in not questioning the remaining jurors." 169 N.J. at

562.

III.

At the jury charge conference, defense counsel said "we

requested — we offered a Third Circuit model jury charge in regards

to witnesses with drug issues." The trial court found it did not

24 A-1811-14T3
have a copy of the Third Circuit instruction, and defense counsel

responded "Judge, I will get you another copy[.]" The court

replied: "If you want to submit that, I'll consider it but I don't

have anything to consider yet because I don't have it. Get it to

me tomorrow, Counsel." Defense counsel said he would email it,

but defendant has not shown that he ever provided the Third Circuit

instruction to the trial judge nor did his attorney ever mention

it again. At the final jury charge conference, when the court

asked for any further objections to the charge, defense counsel

replied, "[n]othing from me." After the court gave its charge,

it asked if counsel had any questions, and defense counsel said

"no" and made no objection.

A party seeking an instruction must "make requests to charge

in a format suitable for ready preparation and submission to the

jury," and provide copies. R. 1:8-7(b). As defendant did not

supply a copy of the Third Circuit instruction or request a final

ruling, it was not error for the court not to rule on that

instruction. "The court's failure to rule explicitly on each

request will not be reversible error if the party did not request

a ruling and was not prejudiced by the omission." Pressler &

Verniero, Current N.J. Court Rules, comment 3.2 on R. 1:8-7 (2018).

Moreover, "if a party submitting a request to charge fails to

object to its omission from the charge as given, review on appeal

25 A-1811-14T3
will be subject to the plain error standard." Ibid. (citing

Dynasty, Inc. v. Princeton Ins. Co., 165 N.J. 1, 17-18 (2000));

see R. 1:7-2, 2:10-2.

Defendant cannot show plain error. Neither the Third

Circuit's instruction nor its "care and caution" requirement have

been accepted by the New Jersey courts. An error is "'plain'"

only if "the error is clear under current law." Olano, supra, 507

U.S. at 734, 113 S. Ct. at 1777, 123 L. Ed. 2d at 519.

In any event, defendant cannot show prejudice. The

instruction provides that if a witness was using drugs, addicted

to drugs, or abusing alcohol when the events took place, his or

her testimony "must be considered with care and caution," and "may

be less believable, because of the effect the [drugs or alcohol]

may have on [his or her] ability to perceive, remember, or relate

the events in question," but that the jury "may give it whatever

weight if any, [it] find[s] it deserves."

However, the trial court's instructions adequately covered

this area. The trial court instructed the jury with a tailored

version of the New Jersey Model Criminal Jury Charge on credibility

of witnesses.4 The court instructed that "in determining the

credibility of witnesses," the jury could consider "the witness's

4
Model Jury Charge (Criminal), Criminal Final Charge – Credibility
of Witnesses (revised February 24, 2003).

26 A-1811-14T3
power of discernment," "his or her ability to reason, observe,

recollect, or relate," "and any or all other matters in the

evidence which may serve to support or discredit his or her

testimony." The court also instructed the jury that it should

"weigh the testimony of each witness and then determine the weight

to be given to it." Those instructions were sufficient to allow

the jury to consider the effect of Wright's prior drug use and

Barrick's alcohol consumption on their ability to perceive,

remember, and relate the facts, and to weigh their testimony

accordingly. Indeed, defense counsel argued to the jury not to

"put a lot of faith in the words of someone who is an admitted

crack user."

Further, regarding the key part of Barrick's testimony

relating defendant's oral statements, the court instructed the

jury that it should "receive, weigh and consider this evidence

with caution," citing the "risk of misunderstanding by the hearer

or the ability of the hearer to recall accurately the words used

by the Defendant." The court also instructed the jury to consider

Wright's prior convictions "in determining the credibility or

believability of the witness'[s] testimony."

Thus, the general instructions regarding credibility of

witnesses were sufficient to charge the jury. The court's failure

to give the requested Third Circuit instruction was not plain

27 A-1811-14T3
error. See State v. Swint, 328 N.J. Super. 236, 259 (App. Div.

2000) (finding no error where the court failed to give specific

instructions because the court gave the general charge on

credibility).

IV.

Finally, defendant challenges his sentence. "Appellate

review of sentencing is deferential, and appellate courts are

cautioned not to substitute their judgment for those of our

sentencing courts." State v. Case, 220 N.J. 49, 65 (2014).

Disturbing a sentence is permissible in only three situations:

"(1) the trial court failed to follow the sentencing guidelines,

(2) the aggravating and mitigating factors found by the trial

court are not supported by the record, or (3) application of the

guidelines renders a specific sentence clearly unreasonable."

State v. Carey, 168 N.J. 413, 430 (2001). We must hew to our

deferential standard of review.

The court sentenced defendant to twenty-eight years in prison

for aggravated manslaughter. The court also sentenced defendant

to eighteen years in prison for armed robbery, and nine years in

prison for burglary, to run concurrently with each other but

consecutively to the manslaughter sentence. All those sentences

were subject to NERA's 85% parole ineligibility. The court merged

the possession of a weapon for an unlawful purpose charge into the

28 A-1811-14T3
robbery conviction, and sentenced defendant to nine years in prison

for unlawful possession of a weapon with four-and-one-half years

of parole ineligibility, and nine years in prison for certain

persons not to have weapons with five years of parole

ineligibility, both to run concurrent with the manslaughter

sentence.

First, defendant argues the trial court erred in imposing

consecutive sentences. Our Supreme Court has adopted "criteria

as general sentencing guidelines for concurrent or consecutive-

sentencing decisions." State v. Yarbough, 100 N.J. 627, 644

(1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed.

2d 308 (1986). The Court listed the following relevant criteria:

(1) there can be no free crimes in a system
for which the punishment shall fit the
crime;

. . . .

(3) some reasons to be considered by the
sentencing court should include facts
relating to the crimes, including whether
or not

(a) the crimes and their
objectives were predominantly
independent of each other;

(b) the crimes involved separate
acts of violence or threats of
violence;

(c) the crimes were committed at
different times or separate

29 A-1811-14T3
 places, rather than being
committed so closely in time
and place as to indicate a
single period of aberrant
behavior;

(d) any of the crimes involved
multiple victims; [and]

(e) the convictions for which the
sentences are to be imposed are
numerous[.]

[Ibid.]5

The trial court here considered the Yarbough factors, and

acknowledged that most favored concurrent sentences. The

aggravated manslaughter, burglary, and robbery all occurred in the

matter of a few minutes and all in Valentin's home. Defendant and

Allison entered Valentin's home with the objective of taking her

drugs and money by threatening her with the gun. There was no

indication of an independent objective to kill Valentin. The only

threat and act of violence was defendant pointing the gun at

5
Yarbough, supra, originally had a sixth guideline, namely "there
should be an overall outer limit on the cumulation of consecutive
sentences for multiple offenses not to exceed the sum of the
longest terms (including an extended term, if eligible) that could
be imposed for the two most serious offenses." 106 N.J. at 644.
After Yarbough, "the Legislature amended N.J.S.A. 2C:44-5a to
provide that '[t]here shall be no overall outer limit on the
cumulation of consecutive sentences,' thereby eliminating
guideline number six." Carey, supra, 168 N.J. at 423 (quoting L.
1993, c. 223, § 1).

30 A-1811-14T3
Valentin and firing the shot that killed her. The court

acknowledged that all of the crimes "involved the same victim."

However, Yarbough's third guideline "should be applied

qualitatively, not quantitatively." Carey, supra, 168 N.J. at

427. Accordingly, "a sentencing court may impose consecutive

sentences even though a majority of the Yarbough factors support

concurrent sentences." Id. at 427–28 (citing State v. Perry, 124

N.J. 128, 177 (1991) (finding consecutive sentences proper even

though four of Yarbough's five factors favored concurrent

sentences)).

Defendant argued the Yarbough factors unanimously weigh in

favor of concurrent sentences. However, "[t]he fifth factor –

'whether there are numerous convictions' – provides some support

for consecutive sentences because defendant's [six] convictions"

fall within "the 'numerous' range." Carey, supra, 168 N.J. at 424

(finding four convictions approached the "numerous" range).

Moreover, the trial court referenced Yarbough's guidance that

there are to be no free crimes, which "tilts in the direction of

consecutive sentences because the Code focuses on the crime, not

the criminal." Id. at 423.

Defendant alternatively argues that a remand is necessary to

allow the court to consider the Yarbough factors without its

31 A-1811-14T3
misapprehension about the relevance of the jury's acquittal on the

felony murder charges." We agree.

The trial court focused on the effect of the jury's decision

to decline to convict defendant of felony murder and to convict

him of the lesser offense of aggravated manslaughter. The court

queried whether "the jury separate[d] the homicide from the

underlying offenses." The court stated that "[h]ad the jury

convicted the defendant of felony murder, the underlying offenses

of robbery and burglary would . . . merge into felony murder. But

the jury's verdict speaks to a different result." The court

concluded that defendant's "aggravated manslaughter is . . .

separate and distinct from the offenses of robbery and burglary."

Although the jury's verdict reduced the maximum term

available for the homicide while removing the basis for merger of

robbery and burglary, those legal consequences do not alter the

inquiry under Yarbough, which focuses on the "facts relating to

the crimes, including whether or not . . . the crimes and their

objectives were predominantly independent of each other." Id. at

644 (emphasis added); see Carey, supra, 168 N.J. at 433. Here,

the facts prevent such a conclusion.

As the trial court noted, the facts indicated defendant

"cause[d] the death of" Valentin "in the course of" "the commission

of, or the attempt to commit," burglary and robbery, and thus

32 A-1811-14T3
committed felony murder. N.J.S.A. 2C:11-3(a)(3). "[E]ven if the

jury found that defendant fired the gun recklessly without

intending to shoot the victim, it still would have been required

to find him guilty of felony murder." State v. Pennington, 273

N.J. Super. 289, 299 (App. Div. 1994) (citation omitted). The

jury's unexplained decision to convict him instead of aggravated

manslaughter did not change the facts.6

Our Supreme Court has stated the governing principles. "We

accept inconsistent verdicts in our criminal justice system,

understanding that jury verdicts may result from lenity,

compromise, or even mistake. We therefore must resist the

temptation to speculate on how the jury arrived at a verdict."

State v. Goodwin, 224 N.J. 102, 116 (2016) (citations omitted).

"Our jurisprudence does not allow us to conjecture" or to "attempt

to reconcile the counts on which the jury returned a verdict of

guilty and not guilty." State v. Muhammad, 182 N.J. 551, 578

(2005).

The trial court inappropriately considered the effect of the

jury's acquittal of felony murder in finding the aggravated

manslaughter conviction to be predominantly independent of the

burglary and robbery. Therefore, we vacate the consecutive nature

6
The trial court did not assert the mens rea for aggravated
manslaughter made it independent of robbery and burglary.

33 A-1811-14T3
of the sentences on the burglary and robbery counts and remand for

consideration whether any of defendant's sentences should be

imposed consecutively. We express no opinion on whether

consecutive sentences can be imposed on the robbery or burglary

convictions on some other basis.7

Defendant also argues the aggravating factors found here do

not support the individual sentences near the top of the range,

which he contends are manifestly excessive. We disagree.

The trial court's finding of aggravating factors three, six,

and nine was supported by the evidence. Defendant does not dispute

that his juvenile record consists of eleven adjudications for

burglary, conspiracy to commit robbery, and other offenses, and

three violations of juvenile probation. As an adult, his record

included three indictable convictions for burglary and defiant

trespass, thirteen disorderly person convictions, one violation

of probation, and one parole violation. Defendant's prior criminal

7
See State v. Koskovich, 168 N.J. 448, 533 (2001) (finding "the
robberies and killings were not so intertwined that the court
should have imposed concurrent sentences"); State v. Mejia, 141
N.J. 475, 504 (1995) (finding that "[a]lthough the victim in both
[the murder and robbery] offenses was the same, the crimes were
separate"); see also State v. Walker, 322 N.J. Super. 535, 540,
557 (App. Div.), certif. denied, 162 N.J. 489 (1999); State v.
Adams, 320 N.J. Super. 360, 370 (App. Div.), certif. denied, 161
N.J. 333 (1999).

34 A-1811-14T3
record, and current offense justified finding these aggravating

factors.

Defendant argues the trial court erred in assessing these

aggravating factors as they all related to "one aspect" of his

background. However,

implicit in a sentencing court's assessment
of [aggravating factors 3, 6, and 9] is a
qualitative assessment that we want and expect
the court to make. A court's findings
assessing the seriousness of a criminal
record, the predictive assessment of chances
of recidivism, and the need to deter the
defendant and others from criminal activity,
do all relate to recidivism, but also involve
determinations that go beyond the simple
finding of a criminal history and include an
evaluation and judgment about the individual
in light of his or her history.

[State v. Thomas, 188 N.J. 137, 153 (2006).]

Thus, the trial court properly found not only that defendant

had an extensive criminal history, but also that his repeated

failure to conform his conduct to the law over the course of his

lifetime despite numerous terms of incarceration and probation

provided ample support for the court's finding that he was likely

to reoffend and needed to be specifically deterred. The court

properly gave substantial weight to all three aggravating factors,

which substantially outweighed the non-existent mitigating

factors. Given those findings, the court's sentences on the

individual counts were not manifestly excessive.

35 A-1811-14T3
 We remand for a hearing on juror #11. The trial court shall

conduct the hearing within thirty-five days of the date of this

opinion and shall issue its oral or written opinion making the

requisite findings promptly thereafter. The parties shall file

simultaneous briefs in this court twenty-one days after the court

issues its opinion, which defendant shall supply to this court.

We retain jurisdiction, and will consider the effect of those

findings on the convictions and issue a supplemental opinion.

To avoid delay and premature proceedings, any resentencing

based on our vacating of the consecutive nature of the sentences

for robbery and burglary shall await issuance of our supplemental

opinion.

Vacated in part, and remanded. We retain jurisdiction.

36 A-1811-14T3