STATE OF NEW JERSEY v. JAMES MCDOWELL, a/k/a SISA BUTU

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.



. . . .









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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."







11 A-3848-14T1





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.