STATE OF NEW JERSEY VS. LEO T. LITTLE, JR. (16-08-2314, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-4146-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEO T. LITTLE, JR., a/k/a
JAMES SMITH, and JOHN
SMITH,

Defendant-Appellant.
____________________________

Submitted December 11, 2019 – Decided February 5, 2020

Before Judges Koblitz, Whipple, and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 16-08-2314.

Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Adam David Klein, Deputy Attorney
General, of counsel and on the brief).

PER CURIAM
 Defendant Leo T. Little Jr., appeals from a March 9, 2018 judgment of

conviction entered after a jury found him guilty of aggravated assault, N.J.S.A.

2C:12-1(b)(4); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a)(1); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1); and certain

persons not to have weapons, N.J.S.A. 2C:39-7(b)(1). Because we find error in

the jury voir dire, we reverse and remand for a new trial.

On May 26, 2016, A.R. was driving her cab in Camden. B.R.

accompanied her for safety purposes. While parked, A.R.'s car was side-swiped

by a green Buick Century.

A.R. and B.R. exited the car to assess the damage, and defendant stepped

out of the passenger side of the Buick. B.R. told defendant he would have to

pay for the damage. According to B.R., defendant was irate, and defendant

began "talking to [him] on the side of [his] face" as B.R. was taking pictures of

the damage. B.R. told defendant he was going to call the police to obtain a

police report. As B.R. began to dial his phone, defendant yelled, "Oh, you're

going to call the cops? Oh, you['re] calling the cops? You're calling the cops?"

After the police were called, defendant left, stating he was going to go get money

for B.R.

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 When he returned, defendant had what B.R. identified to be a black

Beretta handgun in his waistband. Defendant cocked the gun and waved it at

A.R. and B.R., saying, "move the car," "move that shit, move that shit." B.R.

knew defendant was wielding a Beretta because he grew up around weapons, his

parents had firearms licenses, and his friend owned a smaller Beretta firearm.

A.R. also recognized the object as a black gun.

When the police arrived, A.R. shouted out, "He has a gun!" Defendant

ran down the street, and a responding officer saw him holding his waistband. A

police officer chased defendant to a row home where a crowd of twelve -to-

fifteen people were gathered. Defendant ran up the steps and dropped an object

next to a column on the porch. A female picked up the object and left the area.

Defendant eluded capture, and police never recovered the gun.

Defendant left the Buick behind when he fled. Inside the glove box, police

found several traffic summonses issued to defendant. On June 21, 2016, police

pulled over a speeding green Buick Century in Camden. Defendant was

identified as the driver and was arrested and subsequently convicted by a jury.

During jury voir dire, defense counsel objected to the use of the following

question:

The law does not require that the State recover a gun
even though the defendant has been charged with

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 weapons-related offenses. If the State does not produce
the physical firearm allegedly used in this case, would
this affect your ability as a juror?

Defense counsel argued the question injected advocacy into jury selection,

because whether the State could prove defendant possessed a gun went to the

merits of its case. The trial judge overruled the objection, noting the question

could reveal potential jurors who would be unwilling to convict a defendant

based on circumstantial and testimonial evidence.

The question was asked but confused some potential jurors. For example,

one potential juror responded, "You mean there's no proof -- that there was a

weapon or something? Or -- what do you mean? . . . I don't know. That's kind

of weird." Another potential juror asked the judge to repeat the question and

replied it would affect his ability to impartially consider the evidence because,

"You try to prove . . . this person is guilty and then one of the [pieces of]

evidence could be the gun, and you cannot provide the . . . evidence . . . . I think

. . . I wouldn't say this person is guilty." At one point, the trial judge attempted

to clarify the question, explaining,

the State alleges . . . that they have witnesses who said
that this is what happened, and that they saw a gun, but
they don't have . . . an actual gun to produce, and the
law doesn't require that they have an actual gun to prove
this as a prima facie case in terms of making out their
basic case. So the question is if that's how this case is

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 presented would that affect your ability to be fair and
impartial as a juror?

Defense counsel renewed his objection, and the trial judge revised the

question as follows:

The law does not require that the State produce a gun at
trial even though the defendant has been charged with
weapons offenses. If the State did not recover and does
not produce the gun allegedly used in this case, but
presents evidence in the form of testimony, how will
this affect your ability as a juror?

Still, the revised question caused some potential jurors to hesitate. One juror

responded, "I would think if you're telling me that's evidence enough and you're

telling me just to judge the facts, that's what I'll do. I can be objective." Another

juror answered, "Well, the whole thing is about the gun. . . . So if they don't

have a gun, they can't prove that he did it." One juror was confused, stating,

"I'm a little uncertain of that. I'm not sure how to answer that one."

The State struck some jurors who affirmatively answered the above

questions, or who expressed confusion or hesitated in response to the question.

However, despite objecting, defense counsel did not request any particular

relief.

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 A second trial before the same jury was held on the certain persons charge.

Defendant stipulated to his prior conviction, and the jury returned a guilty

verdict.

The judge sentenced defendant to a fifteen-year aggregate sentence with

a seven-and-one-half year parole ineligibility period. This appeal followed.

Defendant raises the following issues on appeal:

POINT I

THE IMPERMISSIBLE INDOCTRINATION OF THE
JURY DURING VOIR DIRE DEPRIVED
[DEFENDANT] OF HIS RIGHT TO FAIR TRIAL[]
WITH AN IMPARTIAL JURY.

POINT II

THE IMPROPER JURY CHARGE ON CERTAIN
PERSONS DEPRIVED [DEFENDANT] OF A FAIR
TRIAL BECAUSE THE COURT TOLD THE JURY
THAT [DEFENDANT] HAD BEEN CONVICTED OF
POSSESSION OF A CONTROLLED DANGEROUS
SUBSTANCE WITHIN 1000 FEET OF A SCHOOL
EVEN THOUGH [DEFENDANT] STIPULATED TO
THE PREDICATE OFFENSE, AND AS A RESULT
HIS CERTAIN PERSONS CONVICTION MUST BE
REVERSED.

POINT III

THE PROSECUTOR'S PATTERN OF MISCONDUCT
AND OVERREACHING DEPRIVED [DEFENDANT]
OF HIS RIGHT TO A FAIR TRIAL.

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 A. The Introduction into Evidence of a Real Gun
as a Replica Deprived [Defendant] of his Right to
a Fair Trial.

B. The State's Unnecessary and Prejudicial
Introduction of [N.J.R.E.] 404(b) Evidence
Violated [Defendant's] Right to a Fair Trial. (Not
raised below)

C. The Prosecutor's Improper, Irrelevant
Injection of Fear of Retaliation into This Case
Necessarily Had the Capacity to Lead to an
Unjust Result. (Not raised below)

D. Improprieties in the Prosecutor's Closing
Argument Deprived [Defendant] of His Right to
a Fair Trial and Led to an Unjust Result.
(Partially Raised Below)

E. The Prosecutor's Arguments During the
Certain Persons Trial that the Jury Already Found
that [Defendant] Possessed a Firearm Led
Directly to an Unjust Result. (Not raised below)

F. Conclusion.

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION BY
IMPOSING A CONSECUTIVE SENTENCE ON
CERTAIN PERSONS.

POINT V

THE TRIAL COURT ABUSED ITS DISCRETION BY
IMPOSING A MANIFESTLY EXCESSIVE
SENTENCE.

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 Defendant argues the missing gun voir dire question impermissibly

"indoctrinated" potential jurors. In effect, potential jurors were asked to gi ve

their views on their understanding of the criminal law before hearing the

evidence. According to defendant, the question primed the jury to find

defendant guilty despite the missing gun. Defendant relies on State v. Manley,

54 N.J. 259 (1969) and State v. Kelly, 118 N.J. Super. 38 (App. Div. 1972), to

argue that it was error for the trial judge to question potential jurors on legal

principles before the presentation of evidence. As a result, defendant contends

the prosecutor's use of strikes aided in creating a potentially biased jury. We

agree.

"Voir dire procedures and standards are traditionally within the broad

discretionary powers vested in the trial court and 'its exercise of discretion will

ordinarily not be disturbed on appeal.'" State v. Papasavvas, 163 N.J. 565, 595

(2000) (quoting State v. Jackson, 43 N.J. 148, 160 (1964)). "'The purpose of

voir dire is to ensure an impartial jury' by detecting jurors who cannot fairly

decide a matter because of partiality or bias." State v. O'Brien, 377 N.J. Super.

389, 412 (App. Div. 2004) (quoting State v. Martini, 131 N.J. 176, 210 (1993)),

aff'd in part, rev'd in part on other grounds, 183 N.J. 376 (2005).

"[T]here is no particular litany required for the jury voir
dire," and the court is not obligated "to ask any

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 particular question or indulge the defendant's requests
absolutely." Appellate review is generally limited to
determining whether "the overall scope and quality of
the voir dire was sufficiently thorough and probing to
assure the selection of an impartial jury."

[Id. at 412–13 (alteration in original) (first quoting
State v. Lumumba, 253 N.J. Super. 375, 393–94 (App.
Div. 1992), then quoting State v. Biegenwald, 106 N.J.
13, 29 (1987)).]

"While . . . the trial judge possesses 'broad discretionary powers in conducting

voir dire . . .[,]' our Supreme Court has also indicated that it will not 'hesitate[]

to correct mistakes that undermine the very foundation of a fair trial —the

selection of an impartial jury.'" State v. Tinnes, 379 N.J. Super. 179, 184 (App.

Div. 2005) (quoting State v. Fortin, 178 N.J. 540, 575 (2004)).

"Whether or not to inquire of prospective jurors about attitudes concerning

substantive defenses or other rules of law which may become implicated in a

trial or in the charge is within the discretion of the trial court." State v. Murray,

240 N.J. Super. 378, 393 (App. Div. 1990). "Questions on subjects covered in

the court's charge should be rarely allowed." Ibid. But, "[g]enerally, a trial

court's decisions regarding voir dire are not to be disturbed on appeal, except to

correct an error that undermines the selection of an impartial jury." State v.

Winder, 200 N.J. 231, 252 (2009).

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 In Manley, our Supreme Court shifted the responsibility for conducting

jury voir dire from lawyers to judges. 54 N.J. at 280. The intent was to promote

efficiency in securing "a fair and impartial jury" and to forego lawyers' "efforts

to indoctrinate, to persuade, to instruct by favorable explanation of legal

principles . . . and the facts and the relation of one to the other . . . ." Id. at 280–

81. "It means also a prohibition of the hypothetical question intended and so

framed as to commit or to pledge jurors to a point of view or a result before they

have heard any evidence, argument of counsel or instructions of the court." Id.

at 281.

The defendant in Manley was charged with murder and sought to question

the jury on their view of his prior assault convictions. Id. at 263–64. However,

when jury voir dire was conducted, it was not yet known whether the defendant

would testify. Id. at 264. Thus, the trial judge declined to ask potential jurors

about their views on a person's criminal past to avoid influencing the jury. Ibid.

The defendant did ultimately testify, and on appeal claimed he should have been

allowed to question potential jurors about his prior crimes. Id. at 265. Our

Supreme Court held the trial court did not abuse its discretion, because the

decision prevented the defendant from experiencing unnecessary prejudice in

the event he did not testify. Id. at 271. The Manley Court then crafted a court

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rule that steered jury voir dire away from an advocacy-based approach by

reducing questions intended to identify jurors who would be sympathetic to a

particular argument. Id. at 280–81.

In Kelly, the defendant wanted to ask potential jurors about their views on

the insanity defense. 118 N.J. Super. at 46. The trial court declined to do so,

and this court affirmed the decision, because asking the question runs the risk

of committing jurors to a particular viewpoint without hearing expert testimony

or evidence. Id. at 49. In order to conduct an efficient jury selection, questions

about jurors' views on the law or substantive defenses should be avoided,

particularly if the legal rule will be covered in the court's charge. Id. at 51.

Manley and Kelly prohibit advocacy-based jury voir dire questions

intended to commit potential jurors to a point or view or outcome before they

have heard the evidence. However, this does not exclude the use of context -

specific questions in order to ferret out bias among the jury pool. In State v.

Moore, our Supreme Court explained

voir dire acts as a discovery tool. It is like a
conversation in which the parties are trying to reveal
the source of any such attitudes without manipulation
or delay of the trial. However, in order for that
discovery procedure to be effective, potential jurors
need to have some basic comprehension about what
their legal duties as jurors will be.

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 [122 N.J. 420, 446 (1991).]

The defendant in Moore sought to ask potential jurors what their reaction

would be to hearing the defendant was accused of murdering a pregnant woman

and a young child. Ibid. The trial court refused to ask the question because it

would force the potential jurors to speculate on how their verdict might b e

impacted by the disturbing details of the case. Ibid. However, our Supreme

Court reversed the trial court because this type of question, while context-based,

was helpful to determine jurors whose judgment may be clouded by the facts of

the case. Id. at 447. To limit voir dire to generic questions about potential

jurors' ability to follow the law, as a general matter, was an "overread[ing]" of

Manley, "which was not to eliminate judicial inquiry into juror biases in the

context of the case but rather 'to limit more stringently the conduct and scope of

the voir dire.'" Ibid. (quoting Manley, 54 N.J. at 280). Indeed, it was appropriate

to ask potential jurors about whether the facts of a case would affect their

impartiality because "that is the purpose of voir dire: to see if there are biases or

predispositions in the 'particular case' that is before the court." Id. at 448; see

also State v. Biegenwald, 126 N.J. at 33 ("Regrettably, we perceive from the

records in many of the cases coming before us that the trial courts have read

Manley . . . to limit voir dire to the bare minimum necessary to qualify a juror.").

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 Here, defendant contends the voir dire question primed the jury to ignore

the fact that the State did not recover the gun but still find defendant guilty.

Although the trial judge was within his discretion to fashion context-specific

questions to determine whether any in the particular jury pool might ignore his

charge, the question caused several jurors to reveal they would only convict

defendant of possessing a firearm with tangible proof of the gun. Those jurors

were then dismissed by the State, which potentially resulted in a jury biased

toward the State's argument.

Because we reverse defendant's conviction and remand for a new trial, we

need not address defendant's remaining arguments.

Reversed. We do not retain jurisdiction.

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