After a jury convicted
him of second-degree conspiracy to commit robbery [in violation of New Jersey Statutes Annotated] §§ 2C:5–2 and 2C:15–1,
second-degree robbery [in violation of New Jersey Statutes Annotated] § 2C:15–1
and two counts of third-degree receiving stolen property [in violation of New
Jersey Statutes Annotated] § 2C:20–7”, Jose M. Feliciano appealed. State
v. Feliciano, 2014 WL 1577768 (Superior Court of New Jersey – Appellate Division 2014). After he was convicted,
the trial judge
sentenced
[him] on the robbery conviction to a ten-year term subject to the eighty-five
percent parole bar of the No Early Release Act (NERA), [New Jersey Statutes Annotated §] 2C:43–7.2; a consecutive
five-year term on one count of receiving stolen property; and a concurrent
five-year term on the other.
State v. Feliciano, supra.
The court began its
analysis of the issue Feliciano raised on appeal by explaining that Feliciano’s
convictions arose from “two separate episodes two weeks apart, on August 1,
2008 and August 14, 2008, involving other co-defendants as well.” State v.
Feliciano, supra. The August 1
episode
concerned
a robbery of a driver waiting in line at a gas station; the latter, the
discovery by police of a stolen automobile and a stolen handgun. One of [Feliciano’s]
two cohorts was charged with a separate robbery, on August 12, 2008, that
ultimately resulted in [Feliciano’s] arrest.
According to the
State's proofs, on August 1, 2008, at around 4:00 p.m., A.A. was waiting in
line to get gas at the Pyramid Gas Station in Belleville when a grey or silver
Toyota Corolla with four young persons inside pulled up alongside his car. One
of the occupants exited the Toyota and started walking to the gas station
office; however, the driver, later identified as [Feliciano], yelled at him to
get back in the car. The Toyota then pulled out of the station, circled around,
came back into the station from another entrance, and stopped in front of
A.A.'s car, which had by then pulled up to the pump.
A man, later
identified as Isaih Torian, got out of the Toyota, came around to A.A.'s open
window, pointed a gun into the window, and demanded his wallet. When A.A. complied, Torian demanded his car keys, which the
victim handed over. Torian ran back to the Toyota and the car drove off.
State
v. Feliciano, supra.
On August 14, 2008, Feliciano was arrested in
On August 14, 2008, Feliciano was arrested in
a stolen Nissan Maxima
along with [Jamil] Gerena and Torian. Earlier that day, Belleville police
detective John McAloon and three other police officers in unmarked vehicles set
up surveillance in Newark, down the street from [Feliciano’s] house, in the
hope of arresting the individuals who were currently in possession of the car.
When the officers first spotted the vehicle, which had been recently reported
stolen in Belleville, it was empty. After a short time, defendant, Torian and
Gerena left [Feliciano’s] home and entered the Nissan Maxima.
The officers then
moved in. Detective McAloon had his emergency lights on but did not activate
his siren. The stolen Nissan kept driving and upon McAloon's approach,
accelerated and struck his car, resulting in injuries to the detective's knee
and back.
After
the collision, McAloon approached the Nissan and observed [Feliciano] in the
driver's seat, Torian in the front passenger seat and Gerena in the rear seat
behind the driver. He also noticed the airbags had been deployed and saw a
silver revolver on the floor on the front seat passenger side. All three men
were eventually charged with possession of the weapon.
State v. Feliciano, supra. In a
footnote, the court explains that A.A, the victim in the August 1 crime, was
later “shown two photo arrays and identified [Feliciano] as the driver of the
grey Toyota and co-defendant Torian as the person who approached him with the
gun and robbed him.” State v. Feliciano, supra.
The opinion then
explains that at
police headquarters, Torian agreed to cooperate
with the investigation after being advised of his Miranda rights. He led the police to a Newark street where the
silver Toyota Corolla used in the Pyramid gas station robbery and the
carjacking was parked. Torian admitted that he and defendant had stolen the
Toyota and then robbed A.A. at the gas station. Torian also admitted that he
and Gerena stole the Nissan Maxima.
State v. Feliciano, supra.
Feliciano, “who
testified [at trial] on his own behalf, denied any involvement in the August 1,
2008 A.A. robbery and also denied possession of the handgun found in the Nissan
Maxima, but admitted stealing the vehicle with Torian on the morning of August
14, 2008.” State v. Feliciano, supra. He was, as noted above, convicted and
sentenced and then appealed.
On appeal, Feliciano
argued, among other things, that the trial judge erred in denying his motion
for a mistrial “because of comments the prosecutor made on his Facebook
page.” State v. Feliciano, supra. The opinion explains how this issue arose:
At
the beginning of the second week of trial, defense counsel moved for a mistrial
based on Facebook postings made by the trial prosecutor. Specifically, the
prosecutor posted, `Trial finally starting today. Can't wait till (sic) its
(sic) over.’ One of the prosecutor's Facebook friends responded `Guilty!’ The prosecutor
continued posting:
`I
finally have some time and energy to update everyone. It's a 2 defendant crime
spree including robberies, carjackings, car thefts, guns, other stolen cars,
aggravated assaults, and a testifying “flipped” co-defendant. Also had to fly a
witness from Ohio. It's going [ ] nicely. Finishing up next week. Thanks for
the good luck wishes.’
State v. Feliciano, supra.
When Feliciano’s
lawyer and the prosecutor were arguing over whether Feliciano’s motion for a
mistrial should be granted,
the
prosecutor represented that the Facebook privacy settings on the account are
set to where only friends can see his posts; that several Facebook friends are
defense attorneys and members of the Public Defender's Office; and that one of
the Facebook friends was co-defendant's counsel.
State v. Feliciano, supra.
The opinion explains
that
[f]inding
no evidence that any juror read the postings or even had access to the
prosecutor's Facebook page, the judge denied the mistrial motion. Immediately thereafter, the judge extensively and
comprehensively admonished the jury against doing independent research on the
case or any of its participants.
State v. Feliciano, supra. In a
footnote, the court says “defense counsel acknowledged that there was no
indication that any member of the jury read the prosecutor's posts.” State
v. Feliciano, supra.
As to the judge’s
admonishing the jury, he gave the jurors the following instructions:
`I
must instruct you not to read any newspaper articles, search for or research
information relating to this case, including any participants in the trial
through any means, including electronic means and any social network. Do not do
any research on the internet, in libraries, in the newspapers or [in] any other
manner, or conduct any investigation about this case. Do not visit or view any
place discussed in this case, and do not use any internet maps or Google Earth
or any other program or device to search for or view any place discussed in the
testimony.
Also,
do not research any information about this case, the law or, again, the people
involved, including the parties, the witnesses, the lawyers, the Judge, or the
Court personnel. Additionally, do not read any news articles or articles in
print or on the internet or any blog about this case.’
State v. Feliciano, supra. He also
asked the jurors to report violations of his instructions by their fellow jurors,
if they discovered such conduct. State v.
Feliciano, supra. This instruction
to some extent repeated instructions he had given earlier, warning jurors not
to rely on “technology” in reaching their verdict but to base their decision
solely on “`the evidence that you get in this courtroom.’” State v. Feliciano, supra.
The appellate court
then took up Feliciano’s argument that the prosecutor’s comments on his
Facebook page deprived him of “his right to a fair trial by an impartial
jury.” State v. Feliciano, supra. It began by noting that
[i]t
is axiomatic that a defendant in a criminal trial has a constitutional right to
be fairly tried by an impartial jury. State v. Williams, 93 N.J. 39 (New Jersey Supreme Court 1983); U.S. Constitution Amendment VI. . . . In other words, `a defendant is entitled to a jury
that is free of outside influences and will decide the case according to the
evidence and arguments presented in court in the course of the criminal trial itself.’
State v. Williams, supra. Trial courts must take strong measures to
ensure a jury free from extra-judicial, extraneous information. State v. Williams, supra.
State v. Feliciano, supra.
As to the latter
issue, the appellate court explained that, therefore,
when presented with a post-empanelment motion to
question the jury about exposure to trial publicity, the trial court should
analyze the merits of counsel's proffer through a two-part inquiry. State
v. Bey, 112 N.J. 45
(New Jersey Supreme Court 1988). `The court should first examine the
information disseminated to determine if it has the capacity to prejudice the
defendant.’ State v. Bey, supra.
`If
the court is satisfied that the published information has the capacity to
prejudice the defendant, it should [then] determine if there is a realistic
possibility that such information may have reached one or more of the jurors.’ State v. Bey, supra. It is only
where the court concludes there is a realistic possibility that information
with the capacity to prejudice defendant's right to a fair trial may have
reached members of the jury, that it should conduct a voir dire to
determine whether any exposure has occurred. State v. Bey, supra.
State v. Feliciano, supra.
Unfortunately for Feliciano, this court found he
had not satisfied
either prong of the Bey test.
In the first place, unlike Bey, this matter involves neither pre nor
mid-trial publicity. Just as significant, the prosecutor's postings do not
amount to extraneous, extra-judicial information. In fact, they contain only
information that was before the jury following counsel's opening statements. In
this regard, unlike in the mentioning of the defendant's other crimes or
criminal record in Bey, we discern nothing in the prosecutor's
postings at issue here that had the capacity to prejudice [Feliciano].
State v. Feliciano, supra.
The court also explained there was
no evidence any juror was exposed to
the prosecutor's comments. Unlike extensive media coverage that could
inadvertently reach the jury, the prosecutor's Facebook posts, with his privacy
setting, could only be accessed if the juror purposefully sought them out, which
would have been a clear and direct violation of the court's repeated
instructions.
Indeed, after denying [Feliciano’s]
mistrial motion, the court expressly reinstructed the jury on the prohibitions
against researching the case, the issues, or anyone involved in the case by any
means, including electronic. The jury was repeatedly so instructed throughout
the trial. Of course, jurors are presumed to follow the court's instructions
faithfully. . . . And when asked on multiple occasions to report any
violations of the court's instructions, no juror reported any deviation
whatsoever.
Thus, in the absence of evidence that
any juror had been exposed to the prosecutor's comments on his Facebook post,
no voir dire of the jury was warranted, much less the grant of
a mistrial.
State v. Feliciano, supra.
The court therefore affirmed Feliciano’s conviction and
sentence. State v. Feliciano, supra.
For a review of cases in which courts conducted a voir dire
of jurors during trial because they were, or might have been, exposed to online
information that could undermine the defendant’s right to trial by an impartial
jury, check out the article you can find here.
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