Date: 01-27-2017

Case Style:

Case Number: A-3848-14T1

Judge: Joseph L. Yannotti

Court: SUPERIOR COURT OF NEW JERSEY

Plaintiff's Attorney:

Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, argued the cause for respondent (Gurbir S. Grewal, Acting Bergen County Prosecutor

Defendant's Attorney:

Henry E. Klingeman

Description: A jury convicted defendant James McDowell of eight crimes
related to sexual assaults of a female victim. On two of the
convictions he was sentenced to consecutive terms of eighteen and
ten years in prison. All of the other convictions were either
merged or the sentences were run concurrently. The consecutive
prison terms were subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2, and, thus, defendant is required to serve
eighty-five percent of the twenty-eight years without eligibility
for parole.
Defendant appeals his convictions arguing that the trial
court committed reversible error in failing to ask open-ended
questions during jury selection as required by New Jersey Supreme
Court Administrative Directive #4-07. Defendant also argues that
it was an error to impose consecutive sentences.
We hold that trial courts must ask open-ended questions as
mandated by Directive #4-07. Here, however, we affirm the
convictions because the jury voir dire was otherwise comprehensive
and the error was harmless. We also affirm the consecutive
sentences. We do, however, remand to correct the judgment of
conviction (JOC) to reflect that the conviction for false
imprisonment was a disorderly persons offense, not a fourth-degree
crime.



3 A-3848-14T1


I.
The facts were established at trial. Defendant and the
victim, M.W.1, had known each other for a number of years. They
met in 2005, and had a casual dating relationship for several
months. During that time, they engaged in consensual sex several
times.
Thereafter, defendant and M.W. stopped seeing each other, but
they stayed in contact through emails and text messages. In 2010,
defendant contacted M.W. and asked her to visit him at his home.
On September 28, 2010, M.W. had an appointment near defendant's
home and she arranged to meet him at approximately mid-day.
Defendant and M.W. met, went out to lunch together, and then
returned to defendant's home at approximately 2 p.m.
After defendant and M.W. had several alcoholic drinks, M.W.
testified that defendant became aggressive and refused to let her
leave. When M.W. attempted to leave, defendant took out a handgun,
threatened M.W., and shot one round into the ceiling. Defendant
then directed M.W. to take off her pants. Thereafter, defendant
forced M.W. to perform several sexual acts and he penetrated M.W.'s
vagina several times. Defendant also attempted to engage in other
sexual acts, but either he or M.W. was unable to perform those
1 To protect privacy interests, we use initials for the victim.



4 A-3848-14T1


acts. The sexual assaults occurred in the living room and bedroom
in defendant's home at various times in the afternoon.
Eventually, at approximately 7:30 p.m., M.W. was able to
escape from defendant's home and ran to a neighbor's home. The
police were called and a special weapons and tactics (SWAT) team
responded after learning that defendant had a gun. Defendant did
not respond to the police's attempts to contact him, and later
that evening the police launched oleoresin capsicum gas into
defendant's home. At approximately 11:30 p.m., defendant came out
and he was arrested.
A grand jury indicted defendant for fifteen crimes: one count
of first-degree kidnapping, N.J.S.A. 2C:13-1(b); one count of
second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a); one count of third-degree terroristic
threats, N.J.S.A. 2C:12-3(a); four counts of first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) and (4); two
counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1);
four counts of second-degree attempted aggravated sexual assault,
N.J.S.A. 2C:5-1, 2C:14-2(a)(3) and (4); and two counts of second
degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A.
2C:14-2(c)(1).
In preparation for jury selection, defense counsel submitted
three proposed open-ended questions, which read:



5 A-3848-14T1


1. What obligations, if any, do you believe the defendant in a criminal case has?

2. Why do you think criminal cases require proof beyond a reasonable doubt?

3. In your own words, tell us what you think about the criminal justice system?

Defense counsel also asked the trial judge to add five supplemental
questions to the standard voir dire questions asked to potential
criminal jurors.
The attorneys and the trial judge discussed those proposed
questions on the record prior to the start of jury selection. The
trial judge stated that he believed defendant's proposed open
ended questions were covered by the standard questions. In
response, defense counsel requested the judge to ask at least
three other open-ended questions so that the jurors could be heard
in their own words and the attorneys could assess if they had any
potential biases. The trial judge, however, observed that in his
experience jurors were "not bashful" about expressing their
feelings.
Ultimately, the trial judge did not allow any open-ended
questions. He did agree to add three supplemental yes or no
questions to the standard voir dire questions. Thus, the potential
jurors were given a written questionnaire containing twenty-nine
questions, to which they were asked to respond either "yes" or



6 A-3848-14T1


"no." The potential jurors were also asked to verbally answer
three supplemental questions and to provide biographical
information about themselves.
During the selection process, the potential jurors were asked
about any "yes" answers to the questions. Over 120 potential
jurors were questioned and more than 100 were excused for cause.
Ultimately, fifteen jurors, including three alternates, were
selected to hear the case.
After hearing the evidence at trial, the jury convicted
defendant on eight counts and acquitted him on the remaining seven
counts. Specifically, on the count of kidnapping, defendant was
convicted of the lesser charge of false imprisonment, N.J.S.A.
2C:13-3. He was also convicted of second-degree possession of a
weapon for an unlawful purpose, third-degree terroristic threats,
first-degree aggravated sexual assault, two counts of second
degree sexual assault, and two counts of second-degree attempted
sexual assault.
Defendant moved for a new trial contending that he was denied
a fair and impartial jury because the trial judge did not allow
open-ended questions during jury selection. That motion was
denied.
Defendant was then sentenced. On his conviction for first
degree aggravated sexual assault, defendant was sentenced to



7 A-3848-14T1


eighteen years in prison with an eighty-five percent period of
parole ineligibility as prescribed by NERA. On one of the
convictions for second-degree attempted sexual assault, defendant
was sentenced to a consecutive ten years in prison with an eighty
five percent NERA period of parole ineligibility. The convictions
for possession of a firearm for an unlawful purpose and one count
of sexual assault were merged with the conviction for aggravated
sexual assault, and all other sentences were run concurrently.
Thus, defendant's aggregate sentence was twenty-eight years in
prison, subject to NERA.
II.
On appeal, defendant makes two arguments: (1) the trial
judge's refusal to ask open-ended questions during jury selection
constituted reversible error; and (2) the consecutive sentences
were improper. Specifically, defendant articulates his arguments
as follows:
I. SUPREME COURT DIRECTIVE #4-07 MAKES IT MANDATORY FOR TRIAL JUDGES TO ASK [OPEN-ENDED] VOIR DIRE QUESTIONS

II. IT WAS REVERSIBLE ERROR FOR [THE] JUDGE [] TO PROHIBIT COUNSEL FROM ASKING OPEN-ENDED VOIR DIRE QUESTIONS AT TRIAL




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III. THE COURT VIOLATED THE PRINCIPLES OF STATE V. YARBOUGH2 IN SENTENCING [DEFENDANT] TO TWO CONSECUTIVE TERMS

A. Directive #4-07 and Open-Ended Questions
A criminal defendant is constitutionally entitled to a trial
by an impartial jury. U.S. Const. amend. VI; N.J. Const. art. I,
¶ 10; Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S. Ct. 1507,
1522, 16 L. Ed. 2d 600, 620 (1966); State v. Fortin, 178 N.J. 540,
575 (2004). Historically, the scope and choice of questions used
in jury voir dire rested with "the discretion of the trial court,
limited only by the demands of fairness and justice." State v.
Sullivan, 43 N.J. 209, 239 (1964), cert. denied, 382 U.S. 990, 86
S. Ct. 564, 15 L. Ed. 2d 477 (1966).
In 2006, our Supreme Court established a special committee
to study jury voir dire practices. After receiving the committee's
report, the Court directed the Administrative Office of the Courts
(AOC) to issue two directives addressing jury voir dires. See
Administrative Directive #21-06, "Approved Jury Selection
Standards, Including Model Voir Dire Questions" (Dec. 11, 2006),
http://www.judiciary.state.nj.us/directive/2006/dir_21_06.pdf.
and Administrative Directive #4-07, "Jury Selection – Model Voir
Dire Questions Promulgated by Directive #21-06 – Revised
2 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L. Ed. 2d 308 (1986).



9 A-3848-14T1


Procedures and Questions" (May 16, 2007),
http://www.judiciary.state.nj.us/directive/2007/dir_04_07.pdf.
Directive #21-06 mandated certain procedures for jury selection.
Among other things, that directive required trial judges to ask
each individual juror a set of standard questions, as well as
questions tailored to the individual case.
After Directive #21-06 was issued, trial judges reported that
the requirement of individual questioning of jurors on every
question was counterproductive and caused unnecessary delay.
Thus, on May 16, 2007, the Supreme Court caused the AOC to issue
Directive #4-07, which supplemented and modified Directive #21
06.
Directive #4-07 authorized trial judges to conduct voir dires
without asking each question individually to each juror. Instead,
the trial court must provide potential jurors with a printed copy
of the questions. Directive #4-07 also required that each juror
be asked at least three questions that required answers in
narrative form. Specifically, Directive #4-07 states:
In addition to the printed questions, the judge shall also inform the jurors in the box and the array that jurors will also be individually asked several questions that they will be required to answer in narrative form.

. . . .




10 A-3848-14T1


The judge will then ask [the] juror each of the open-ended questions, to which a verbal response shall be given and for which appropriate follow up questions will be asked.

. . . .

Some open-ended questions must be posed verbally to each juror to elicit a verbal response. The purpose of this requirement is to ensure that jurors verbalize their answers, so the court, attorneys and litigants can better assess the jurors' attitudes and ascertain any possible bias or prejudice, not evident from a yes or no response, that might interfere with the ability of that juror to be fair and impartial. Open-ended questions also will provide an opportunity to assess a juror's reasoning ability and capacity to remember information, demeanor, forthrightness or hesitancy, body language, facial expressions, etc.

. . . .

The judge must ask at least three such questions, in addition to the biographical question and the two omnibus qualifying questions. This is a minimum number and judges are encouraged to ask more where such action would be appropriate.

The directives in #4-07 and #21-06 are mandatory and are
binding on all trial courts. We had previously explained:
[T]he Supreme Court . . . "has the power to promulgate rules of administration as well as practice and procedure" pursuant to the New Jersey Constitution. In addition, as Judge Stern (then sitting in the Law Division) noted, "the Chief Justice, as administrative head of the court system, can promulgate binding directives either directly or through the Administrative Director of the Courts."



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Thus, the [d]irective which includes its commentary, has the force of law.

[State v. Morales, 390 N.J. Super. 470, 472 (App. Div. 2007) (quoting State v. Linares, 192 N.J. Super. 391, 397 (Law Div. 1983)).]

Accordingly, under Directive #4-07, it is mandatory that at least
three open-ended questions "must be posed verbally to each juror
to elicit a verbal response."
Here, the trial judge did not ask any open-ended questions
of the jurors. The judge stated that he believed such information
was covered by the standard questions and, in his experience,
jurors usually asked questions if they had any. Those views by
the trial judge did not provide a justification for failing to ask
at least three open-ended questions. Directive #4-07 makes clear
that a trial judge cannot refuse to ask less than three open-ended
questions of each juror.
Having determined that the trial court here erred, we turn
to the question of whether that error warrants a reversal of
defendant's convictions. Generally, some degree of harm must be
shown; an error that is harmless will not warrant reversal of a
trial. R. 2:10-2; see also State v. R.B., 183 N.J. 308, 334 (2005)
("A defendant is entitled to a fair trial but not a perfect one."
(quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct.
481, 490, 97 L. Ed. 593, 604 (1953))).



12 A-3848-14T1


B. Harmless Error
Rule 2:10-2 provides "[a]ny error or omission shall be
disregarded by the appellate court unless it is of such a nature
as to have been clearly capable of producing an unjust result
. . . ." State v. Reeds, 197 N.J. 280, 298 (2009); see also State
v. Singleton, 211 N.J. 157, 182 (2012).
Constitutional errors, like other errors, are generally also
subject to the harmless error analysis. State v. Camacho, 218
N.J. 533, 547 (2014). When a constitutional error has occurred,
however, the burden shifts to the State to show that such error
was harmless beyond a reasonable doubt. See State v. Slaughter,
219 N.J. 104, 118 (2014) (violation of defendant's confrontation
rights was not harmless beyond a reasonable doubt); State v.
Cabbell, 207 N.J. 311, 337-39 (2011) (denial of right to cross
examine witness was not harmless beyond a reasonable doubt).
In this case, we are not dealing with a constitutional error.
Directive #4-07 arose from our Supreme Court's desire for uniform
voir dire practices; the directive's mandates are not
constitutionally required. Instead, as noted earlier, the
Constitutions of both the United States and New Jersey guarantee
a criminal defendant an impartial jury. See Skilling v. United
States, 561 U.S. 358, 377, 130 S. Ct. 2896, 2912, 177 L. Ed. 2d
619, 641 (2010) ("The Sixth Amendment secures to criminal



13 A-3848-14T1


defendants the right to trial by an impartial jury."); State v.
Winder, 200 N.J. 231, 252 (2009) ("Generally, 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.").
Moreover, failure to ask open-ended questions during jury
voir dire is not a structural error. Structural errors exist
"only in a very limited class of cases." Johnson v. United States,
520 U.S. 461, 468, 117 S. Ct. 1544, 1549, 137 L. Ed. 2d 718, 728
(1997). "A structural error has [] been defined as a 'defect
affecting the framework within which the trial proceeds, rather
than simply an error in the trial process itself.'" State v.
Purnell, 161 N.J. 44, 60 (1999) (quoting Johnson, supra, 520 U.S.
at 468, 117 S. Ct. at 1549, 137 L. Ed. 2d at 728).
Our Supreme Court has explained that "a structural error
affects the legitimacy of the entire trial, rather than an isolated
error that occurs during a certain part of the trial process and
does not contaminate the trial as a whole." Id. at 61. Thus, a
structural error is a "structural defect[] in the constitution of
the trial mechanism, which [defies] analysis by 'harmless-error'
standards." Ibid. (alterations in original) (quoting Arizona v.
Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265, 113 L. Ed.
2d 302, 331 (1991)).



14 A-3848-14T1


Accordingly, here we apply the harmless error standard set
forth in Rule 2:10-2. In doing so, we examine whether the trial
court's failure to ask open-ended questions was of "such a nature
as to have been clearly capable of producing an unjust result."
R. 2:10-2. Using that standard, we have reviewed the jury voir
dire conducted in this case and conclude that it was sufficiently
comprehensive to ensure that an impartial jury was selected.
In this case, twelve jurors and three alternates were
selected. All potential jurors were given a printed copy of
twenty-nine questions, which consisted of the standard criminal
voir dire questions. In addition, each juror was asked three
supplemental questions. All potential jurors then answered those
questions with yes or no responses and provided their biographical
information. The trial judge individually questioned potential
jurors on any yes response. During that process, defendant and
his counsel had the opportunity to evaluate each of the potential
jurors based on their biographical information and answers to the
thirty-two questions.
During jury selection, over 110 potential jurors were excused
for cause based on their answers to questions and follow up
questioning. Accordingly, there were many instances where the
potential jurors provided more than a yes or no response.



15 A-3848-14T1


Defendant, through counsel, elected to use five peremptory
challenges and the state used two peremptory challenges.
All fifteen jurors selected to hear the case spoke during the
selection process. Nine answered some questions with a "yes,"
and, thus, they were asked follow up questions that required them
to articulate something more than a yes or no response. Six of
the selected jurors did not respond with any yes answers, but each
of them did provide biographical information about themselves.
Thus, those six jurors also each spoke individually during the
selection process. Two of the jurors who did not have any yes
answers were selected as alternates. Thus, of the twelve jurors
who deliberated, eight where individually questioned, and the
other four all spoke and participated in the selection process.
The overall jury selection process was comprehensive. The
trial court and counsel spent almost two full days conferring
about the jury selection process and questioning potential jurors.
Our review of the jury voir dire process in this case convinces
us that the selected jury was an impartial jury. Thus, we conclude
that the judge's failure to ask open-ended questions in this case
was a harmless error.
C. The Consecutive Sentences
Appellate review of sentencing decisions is deferential and
governed by an abuse of discretion standard. State v. Blackmon,



16 A-3848-14T1


202 N.J. 283, 297 (2010). "At the time of sentencing, the court
must 'state reasons for imposing such sentence including . . .
the factual basis supporting [its] finding of particular
aggravating or mitigating factors affecting sentence.'" State v.
Fuentes, 217 N.J. 57, 73 (2014) (quoting R. 3:21-4(g)). "The
reviewing court must not substitute its judgment for that of the
sentencing court." Id. at 70. Thus, an appellate court should
affirm a sentence unless:
(1) the sentence guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."

[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

In State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert.
denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986),
our Supreme Court set forth guidelines to be considered when
deciding whether to impose consecutive or concurrent sentences:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;




17 A-3848-14T1


(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 predominately 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 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;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors; and

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense.

The Yarbough factors essentially focus upon "the nature and
number of offenses for which the defendant is being sentenced,
whether the offenses occurred at different times or places, and
whether they involve numerous or separate victims." State v.
Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114
N.J. 169, 180 (1989)). The "no free crimes" guideline set forth



18 A-3848-14T1


in Yarbough leans toward the direction of consecutive sentences
because the criminal code focuses on the crime, not the criminal.
Ibid. (quoting Yarbough, supra, 100 N.J. at 643).
Defendant argues that the trial court improperly imposed
consecutive sentences by ignoring the Supreme Court's holding in
Yarbough and by failing to provide an adequate statement of reasons
for running the sentences consecutively. We disagree.
Here, the trial court imposed consecutive sentences for the
conviction of first-degree aggravated sexual assault and for one
of the convictions of second-degree attempted sexual assault. In
doing so, the trial court expressly identified and discussed the
factors to be considered under Yarbough. The court reasoned that
the two convictions were separate crimes. The first-degree
aggravated sexual assault took place in the bedroom. The victim
was then allowed to use the bathroom. When she returned to the
living room, defendant ordered her on to a couch, laid on top of
her, and demanded that she perform fellatio. The victim, however,
could not perform the act.
We discern no error of law or abuse of discretion in the
consecutive sentences. The sentencing court acted within its
discretion in determining that the victim suffered separate and
distinct assaults. Moreover, the court gave sufficient reasons
for the consecutive sentences.



19 A-3848-14T1


We also discern no abuse of discretion in the trial court's
rejection of defendant's argument that his repeated sexual
assaults were a single episode, separated only by what he has
characterized as a "bathroom break." Cases applying the Yarbough
guidelines make clear that the factors to be considered in imposing
a consecutive sentence are fact-sensitive. State v. Miller, 205
N.J. 109, 129 (2011); State v. Cassady, 198 N.J. 165, 182 (2009).
Here, analyzing the facts of this case, the trial court concluded
that two of the assaults were distinct crimes.
The State has acknowledged that the sentence imposed for the
conviction of false imprisonment is illegal. On the original
charge of kidnapping, the jury found that defendant had committed
the lesser-included crime of false imprisonment. The trial court
treated that conviction as a fourth-degree crime and imposed a
concurrent sentence of eighteen months in prison. False
imprisonment, however, is a disorderly persons offense. N.J.S.A.
2C:13-3. Accordingly, we remand so that the JOC can be amended
and corrected concerning the sentence for false imprisonment.

Outcome: