State v. Shaffona Morgan (069967)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the

interest of brevity, portions of any opinion may not have been summarized.)

State v. Shaffona Morgan (A-119-11) (069967)

Argued March 11, 2013 -- Decided August 8, 2013

RABNER, C.J., writing for a unanimous Court.

The issues in this appeal are (1) whether the trial court erred by having ex parte communications with the

jury during deliberations and permitting the jurors to take home written jury instructions and, (2) if the trial court

erred, whether defendant was prejudiced by any errors.

Defendant Shaffona Morgan was a regular customer at the Pollo Deli in Trenton. Juan Carlos Martinez, the

victim, owned the deli, and his father, Juan Batista Martinez, operated it. Miguel Moran, Juan Batista’s nephew,

worked in the kitchen. On November 24, 2005, defendant, Juan Carlos, and Juan Batista had an altercation over a

Boost Mobile calling card purchased by defendant at the deli. When she was refused a refund, defendant took five

DVDs from the counter and told Juan Batista that she was keeping them if she did not get her money back. At trial,

Juan Carlos, Juan Batista, and Moran testified that when Juan Carlos tried to stop defendant, she pulled out a

handgun and shot Juan Carlos in the back as he tried to push his father out of the way. According to defendant, Juan

Batista pulled out a gun from behind the counter and pointed it at her, at which time defendant put the DVDs back

and ran out of the store. Defendant claimed that outside the store Juan Batista jabbed her with the gun and, with his

finger on the trigger, “[a] shot went off.”

Defendant was indicted on charges of first-degree attempted murder, first-degree robbery, second-degree

aggravated assault against Juan Carlos, fourth-degree aggravated assault against Juan Carlos and Juan Batista, and

second-degree possession of a handgun for an unlawful purpose. The trial began on February 19, 2008. The court

instructed the jury on February 27, and the jury began deliberating that afternoon. The following day, the jury sent a

note with three questions. In response to one of the questions, the judge advised the jury that she was “preparing

written instructions on robbery, theft, and attempt….” That afternoon, the trial judge entered the jury room without

counsel. In an ex parte discussion, the foreperson asked if the jury could take the written instructions home for the

weekend. The judge granted the request with the caveat: “Do not do any research, read anything, hear anything,

discuss it at all until all of you are back Monday morning at 9:00.” The jury returned that Monday, March 3, and

continued deliberating. Late in the day, the trial judge had a second ex parte discussion in the jury room. The judge

told the jury to be back at 9 a.m. the next day and that there would be a readback at 9:15. The judge further

explained that another judge would be presiding over the morning proceedings, but that she would be back in the

afternoon.

The jury delivered its verdict the next day. It acquitted defendant of attempted murder and convicted her of

second-degree aggravated assault against Juan Carlos, fourth-degree aggravated assault against Juan Carlos, and

possession of a handgun for an unlawful purpose. The jury could not reach a unanimous verdict on robbery or

aggravated assault against Juan Batista. The trial judge sentenced defendant and dismissed the two counts on which

the jury deadlocked.

On direct appeal, defendant challenged the two ex parte communications and argued that it was error for

the jurors to take home written instructions. The appellate panel strongly disapproved of the trial judge’s ex parte

communications but determined that the communications were not prejudicial to defendant. In addition, the panel

did “not discern a per se impediment to permitting the jury to take all or parts of the [jury instructions] outside the

jury room.” State v. Morgan, 423 N.J. Super. 453, 473 (App. Div. 2011). The panel declined to reverse defendant’s

conviction for a number of reasons: it found “no evidence… that anything untoward actually happened”; the trial

judge gave specific cautionary instructions; and, after receiving the charge on attempt, robbery, and theft, the jury

acquitted defendant of attempted murder and reached no verdict on the robbery count.” Id. at 472-73.

The Supreme Court granted defendant’s petition for certification limited to the following issues: “whether

the trial court erred[] by engaging in ex parte communication with the deliberating jury” and “in permitting the

jurors to take written jury instructions home with them to review over the weekend.” 210 N.J. 477 (2012).

HELD: Both ex parte communications between the trial judge and jury were improper and the trial court erred in

permitting the jurors to take written instructions home for the weekend. Despite those errors, the record

affirmatively shows that the contacts and the decision to permit the jury to take home written instructions did not

prejudice defendant and had no tendency to influence the verdict.

1. Ex parte communications between a trial judge and a jury are improper and must be avoided. Any proceedings

that take place during jury deliberations, such as readbacks, should be on the record, in open court, with counsel and

the accused present. There are no exceptions. However, a “judge’s improper entry into the jury room does not

automatically require” reversal of a conviction. State v. Brown, 275 N.J. Super. 329, 332 (App. Div. 1994). There

are three ways to evaluate a judge’s inappropriate communication with a jury: (1) if the record affirmatively reveals

that the defendant was prejudiced, reversal is required; (2) if the record does not show whether the ex parte contact

was prejudicial, prejudice is presumed; and (3) if the record affirmatively discloses “that the communication had no

tendency to influence the verdict,” the outcome should not be disturbed. State v. Auld, 2 N.J. 426, 432 (1949). An

adequate record of the contact may be able to dispel a presumption of prejudice. To be clear, though, the Court does

not in any way endorse ex parte communications between a trial judge and a jury. (pp. 11-14)

2. The court rules are clear about whether jurors may take written jury instructions home. They may not. Jurors

may only review written instructions in the jury room. R. 1:8-8(a). It is important to insulate the jury from

influences that could undermine its deliberations. Allowing jurors to take home written instructions increases the

risk that jurors will conduct independent research about the law or the facts of the case on the Internet, or in some

other manner. In addition, jurors with written instructions in hand might be more inclined to discuss the trial with

family members and friends. It is also essential that jurors deliberate as a collective group and reach a verdict

through the exchange of views among all members of the jury. (pp. 14-18)

3. Both ex parte communications with the jury were plainly improper. That said, the March 3, 2008 communication

related only to ministerial scheduling matters, and the record therefore affirmatively shows that the communication

had no tendency to influence the verdict. The ex parte communication on February 28, 2008 was not only improper,

but it was also error for the court to allow the jury to take home copies of the charge. The record discloses that the

ex parte communication was recorded and transcribed and that the court warned the jurors not to discuss the case

with others, not to do their own research, and to avoid outside sources of information. The record contains no

evidence that the jury behaved in an “untoward” manner or that any outside influences infected the verdict. In

addition, the jury acquitted defendant of attempted murder and reached no verdict on the robbery count. The Court

therefore finds that the second ex parte conversation also had no tendency to influence the verdict. The record

affirmatively overcomes any presumption of prejudice that might otherwise exist. For that reason, the Court does

not reverse defendant’s conviction. (pp. 18-22)

The judgment of the Appellate Division is AFFIRMED.

JUSTICES LaVECCHIA, ALBIN, HOENS, and PATTERSON and JUDGES RODRÍGUEZ and

CUFF (both temporarily assigned) join in CHIEF JUSTICE RABNER’s opinion.

2

SUPREME COURT OF NEW JERSEY

A-119 September Term 2011

069967

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAFFONA MORGAN,

Defendant-Appellant.

Argued March 11, 2013 – Decided August 8, 2013

On certification to the Superior Court,

Appellate Division, whose opinion is

reported at 423 N.J. Super. 453 (2011).

Stefan Van Jura, Assistant Deputy Public

Defender, argued the cause for appellant

(Joseph E. Krakora, Public Defender,

attorney; Mr. Van Jura and Daniel J. Brown,

Designated Counsel, on the briefs).

Daniel A. Matos, Assistant Prosecutor,

argued the cause for respondent (Joseph L.

Bocchini, Jr., Mercer County Prosecutor,

attorney; Mr. Matos and Dorothy A. Hersh,

Assistant Prosecutor, on the letter briefs).

Michael Noriega argued the cause for amicus

curiae American Civil Liberties Union of New

Jersey Foundation (Edward L. Barocas,

Director, attorney; Mr. Noriega and

Alexander R. Shalom, on the brief).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

In this case, a trial judge had two ex parte discussions

with a jury, while it was deliberating, and allowed the jurors

to take home written copies of part of the jury instructions.

Settled case law makes clear that ex parte communications with a

jury are improper and must always be avoided. In addition, when

a judge gives written instructions to a jury, the relevant court

rule requires that the instructions be available for review in

the jury room and nowhere else.

Both ex parte communications were recorded and transcribed.

Despite the errors in this case, the record affirmatively shows

that the contacts and the decision to permit the jury to take

home written instructions in this case did not prejudice

defendant and had no tendency to influence the verdict. We

therefore affirm the judgment of the Appellate Division, which

affirmed defendant’s convictions.

I.

We draw the following facts from the testimony at trial.

Defendant Shaffona Morgan was a regular customer at the Pollo

Deli, a small deli and grocery store in Trenton. Juan Carlos

Martinez, the victim, officially owned the deli, and his father,

Juan Batista1 Martinez, operated it. (To avoid confusion, we

refer to them by their first and middle names.) Miguel Moran, a

nephew of Juan Batista, worked in the kitchen.

1

The record contains different spellings for the father’s middle

name. We use the version in the indictment.

2

On November 24, 2005, defendant bought a Boost Mobile

calling card at the deli for twenty dollars. About thirty

minutes later, she returned to the store to complain that the

card had already been used. Defendant asked for a replacement

card and then a refund. When Juan Batista refused, defendant

grabbed five DVDs from a counter and told him that she was going

to keep them if she did not get her money back.

The witnesses’ accounts differed about what happened next,

and the jury was required to make a credibility call. Juan

Carlos, Juan Batista, and Moran testified as follows. Defendant

tried to leave the store with the DVDs. When Juan Carlos

stopped her in front of the store, his father grabbed the DVDs

out of her hand. Defendant then pulled out a handgun. As Juan

Carlos tried to push his father out of the way, defendant shot

Juan Carlos in the back. She then pointed the gun at Juan

Batista and fled.

According to defendant, after she took the DVDs and tucked

them under her jacket, Juan Batista pulled out a gun from behind

the counter and pointed it at her. She then returned the DVDs

to the counter and ran out of the store. Juan Carlos grabbed

her just outside the store and searched her pockets. Meanwhile,

Juan Batista followed them outside and pointed the gun at her

again. Right after Juan Carlos started to walk back to the

store, Juan Batista began to jab her with the gun. Defendant

3

tried to push it away. According to her testimony, Juan

Batista’s finger was on the trigger, and “[a] shot went off.”

Defendant then fled.

A Mercer County grand jury charged defendant in an

indictment with first-degree attempted murder, N.J.S.A. 2C:11-3

and 2C:5-1; first-degree robbery, N.J.S.A. 2C:15-1; second-

degree aggravated assault against Juan Carlos, N.J.S.A. 2C:12-

1b(1); fourth-degree aggravated assault against Juan Carlos,

N.J.S.A. 2C:12-1b(4); fourth-degree aggravated assault against

Juan Batista, N.J.S.A. 2C:12-1b(4); and second-degree possession

of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a.

The trial began on February 19, 2008. After four days of

testimony, the trial court instructed the jury on February 27,

2008. The jury began deliberating that afternoon and returned

the following morning. Later in the day on February 28, the

jury sent a note with three questions. Only the second question

is relevant to this appeal: the jury’s request “for the law to

be explained . . . regarding Count 2” (robbery). In a brief

discussion with counsel, the judge said, “I am preparing written

instructions on robbery, theft, and attempt, and so they should

be ready shortly . . . .” Neither the State nor defense counsel

objected.

4

At 2:40 p.m., the trial judge responded to all three

questions in open court with counsel present. As to the second

item, the judge told the jury,

[y]ou’ve asked for the law to be explained

to you regarding Count 2, robbery. I’m

having copies prepared and edited actually

as we speak so that I will send written

copies of robbery, attempt, and theft to you

because you’ll recall that an element of

robbery is that it occurred during the use

of force, occurred during the course of a

theft, and that is defined as to include not

only a theft, but an attempted theft. So I

am including the definition of theft and

attempt as elements of robbery.

The jury resumed its deliberations at 2:54 p.m.

An hour later, for reasons that are not clear from the

record, the trial judge entered the jury room without counsel.

At that time, the following ex parte discussion took place:

THE FOREPERSON: Hello, Judge. Thank you

for coming this afternoon.

Would it be possible for us to take the

explanations of attempt and robbery and

theft home with us this weekend to read, or

is that something that must remain in the

room?

THE COURT: No jury has ever asked to do

that.

THE FOREPERSON: We want homework. We’re a

studious group.

THE COURT: You know what, let me just check

with the attorneys. Did somebody --

SERGEANT-AT-ARMS: I think Bell said she was

going to call.

5

THE COURT: I don’t see any problem with it.

I don’t want you to take the verdict sheets

home, but if you wish to take those home --

but you can’t look up any words in the

dictionary or anything like that. You’re

limited to the four corners of those.

JUROR: It’s kind of rough here. It’s a lot

to read at 4:00 in the afternoon.

THE COURT: You may, but bring them back,

and as I said, don’t look for definitions of

any terms. If any need further definition,

then you can ask me that.

I told you during February we would

have off on Fridays and my calendar tomorrow

is not pretty. So I would prefer that you

come back on Monday unless you’re opposed to

that.

THE JURY: That’s perfect.

THE COURT: Because I will have a courtroom

full of people, and the movement just takes

a while. So Monday, I think would be much

more under control. So enjoy the weekend.

Do not do any research, read anything, hear

anything, discuss it at all until all of you

are back Monday morning at 9:00. Okay.

The jury returned on March 3, 2008 and continued

deliberating. Late in the day, the trial judge had a second ex

parte discussion in the jury room:

THE COURT: We won’t be able to get that

readback done by 4:15 since that’s when you

would like to be excused. I’ll excuse you

for the day and we’ll have it ready for you

tomorrow morning. So why don’t you come

tomorrow at 9:15 just so the court reporter

can get set up. She’s essentially reading

back notes taken by another reporter.

6

A JUROR: Are you saying we can go in the

courtroom at 9:15? If we wanted to review

we can come at 9?

THE COURT: That’s fine. Would you like the

readback even later than 9:15?

A JUROR: 10, 15 minutes before.

THE COURT: Then come at 9 and the readback

will begin at 9:15. I’m going to have

another judge covering [for me] in the

morning and expect to be back in the

afternoon, but I’ll be having a root canal

so don’t think I’m doing anything that’s

fun, but I can’t put it off. I’ll be

talking a little funny, but those things

happen. So there will be another judge and

I’ll bring him or her up to date on what’s

happening.

A JUROR: Back what time?

THE COURT: 9 o’clock --

A JUROR: But you’ll be back --

THE COURT: By the afternoon, I hope. Okay?

Have a pleasant evening and, again, please

don’t discuss the testimony. Wait until all

12 of you are back tomorrow before you begin

discussions again and avoid any outside

information including newspaper articles.

Thank you, and have a pleasant evening.

The jury delivered its verdict the next day. It acquitted

defendant of attempted murder and convicted her of second-degree

aggravated assault against Juan Carlos, fourth-degree aggravated

assault against Juan Carlos, and possession of a handgun for an

unlawful purpose. The jury could not reach a unanimous verdict

on robbery or aggravated assault against Juan Batista.

7

The trial judge sentenced defendant to six and one-half

years in prison, with an eighty-five percent period of parole

ineligibility under the No Early Release Act, N.J.S.A. 2C:43-

7.2. The court also granted the State’s motion to dismiss the

two counts on which the jury deadlocked.

Defendant raised nine claims on direct appeal. See State

v. Morgan, 423 N.J. Super. 453, 464–65 (App. Div. 2011). The

Appellate Division rejected each argument and affirmed the

convictions. We address two points that relate to defendant’s

appeal before this Court: her challenge to the two ex parte

communications between the trial court and the jury, and her

argument that it was error to allow the jurors to take home

written jury instructions. Id. at 465.

The appellate panel disapproved of the trial judge’s ex

parte communications with the jury “in the strongest possible

terms.” Id. at 467 (citation and internal quotation marks

omitted). It then considered whether the communications were

prejudicial. Ibid. As to the discussion on March 3, the panel

noted that the contact “addressed only innocuous scheduling

issues” and could not “have caused the jury to reach a result it

otherwise may not have reached.” Id. at 468.

The panel next considered the discussion on February 28,

when the trial court allowed the jury to take home written jury

instructions. The panel observed that a “strict reading” of the

8

relevant court rule, R. 1:8-8, “leans in favor of [a] lack of

authority because the Rule only permits the jury to take the

court’s written instructions into the jury room, not home with

them over a weekend.” Id. at 471. Nonetheless, the panel did

“not discern a per se impediment to permitting the jury to take

all or parts of the charge outside the jury room.” Id. at 473.

The Appellate Division cautioned against that practice, though,

because it “leaves the deliberative process needlessly

vulnerable to a variety of potential problems.” Ibid.

The panel declined to reverse defendant’s conviction for a

number of reasons: it found “no evidence . . . that anything

untoward actually happened”; the trial judge gave specific

cautionary instructions; and, after receiving the charge on

attempt, robbery, and theft, the jury acquitted defendant of

attempted murder and reached no verdict on the robbery count.

Id. at 472-73.

We granted certification limited to the following issues:

“whether the trial court erred[] by engaging in ex parte

communication with the deliberating jury” and “in permitting the

jurors to take written jury instructions home with them to

review over the weekend.” 210 N.J. 477 (2012). We also granted

leave to appear as amicus curiae to the American Civil Liberties

Union of New Jersey (ACLU).

9

II.

Defendant argues that deliberating juries are not allowed

to bring home written jury instructions under Rule 1:8-8. For

support, she cites the language of the Rule at the time of

trial: “The court, in its discretion, may submit a copy of all

or part of its instructions to the jury for its consideration in

the jury room.” R. 1:8-8(a) (effective Sept. 1, 2006).

Defendant asks this Court to establish a per se rule that would

bar jurors from taking home jury instructions in light of the

dangers that practice presents.

Defendant also asserts that her convictions should be

reversed because she was prejudiced by the trial court’s

improper ex parte communication with the jury. She claims that

because defense counsel was unaware of the conversation,

defendant had no opportunity to object to the written

instructions going home for the weekend, or to ask the court to

conduct a voir dire of the jurors to ensure that no outside

sources influenced their verdict.

The State claims that allowing a jury to take home written

jury instructions does not violate any rule or case law and that

trial judges have discretion to follow that course. In

addition, the State notes that the trial court admonished the

jury not to look at any outside sources.

10

The State also argues that the ex parte communications

between the trial judge and the jury did not prejudice

defendant. The discussions were recorded, and the State

contends that they did not address anything substantive. In

addition, the State points to the verdict –- an acquittal on

attempted murder and a hung jury on the robbery charge –- and

argues that “the arrangement ultimately worked to defendant’s

benefit.” As a result, the State contends that defendant’s

convictions should not be overturned.

The ACLU urges this Court to find that there is no basis to

allow jurors to ever take home any portion of criminal jury

instructions. According to the ACLU, this practice “threatens

the deliberative process by exposing it to outside influences.”

The ACLU also submits that the practice subverts the jury’s

collective deliberative process by encouraging individual

deliberation.

In addition, the ACLU challenges the judge’s discussion of

contested issues with the jury outside of counsel’s presence.

The ACLU concludes that, because in this case the court

discussed an important issue as to which counsel’s input was

critical, prejudice must be presumed and the verdict overturned.

III.

Ex parte communications between a trial judge and a jury

are improper and must be avoided. There is no place for them in

11

the trial process. The court rules make clear that “[a]ll

trials . . . shall be conducted in open court unless otherwise

provided by rule or statute.” R. 1:2-1. That approach extends

to jury deliberations in the following way: although juries of

course deliberate in private, see generally State v. Neulander,

173 N.J. 193, 210-14 (2002), cert. denied, 537 U.S. 1192, 123 S.

Ct. 1281, 154 L. Ed. 2d 1027 (2003), any proceedings that take

place during deliberations, such as readbacks, should be on the

record, in open court, with counsel and the accused present,

State v. Basit, 378 N.J. Super. 125, 131 (App. Div. 2005); see

also State v. Brown, 275 N.J. Super. 329, 331–32 (App. Div.),

certif. denied, 138 N.J. 269 (1994).

Trial courts have the responsibility “to protect jurors and

their deliberations from outside influences that threaten to

taint the verdict.” State v. Hightower, 146 N.J. 239, 263

(1996). At the same time, judges must be especially careful

about their own contacts with the jury and should not interact

with jurors outside the presence of counsel. See Basit, supra,

378 N.J. Super. at 131 (“[A] judge must scrupulously avoid

engaging in his own ex parte and unrecorded communications with

the jury.”); Brown, supra, 275 N.J. Super. at 332 (“A judge

should avoid engaging in any ex parte communications with the

jury regarding its deliberations.”); Guzzi v. Jersey Cent. Power

& Light Co., 36 N.J. Super. 255, 264 (App. Div.) (citing

12

Leonard’s of Plainfield, Inc. v. Dybas, 130 N.J.L. 135 (Sup. Ct.

1943)) (noting such contacts are forbidden), certif. denied, 19

N.J. 339 (1955). There are no exceptions. In fact, because the

dangers associated with ex parte contacts “are so great,” judges

should not ask counsel to consent to such interactions “under

any circumstances.” Brown, supra, 275 N.J. Super. at 332.

The United States Supreme Court has outlined some of the

dangers inherent in ex parte communications:

Any ex parte meeting or communication

between the judge and the foreman of a

deliberating jury is pregnant with

possibilities for error. . . . [E]ven an

experienced trial judge cannot be certain to

avoid all the pitfalls inherent in such an

enterprise. . . . [I]t is difficult to

contain, much less to anticipate, the

direction the conversation will take at such

a meeting. Unexpected questions or comments

can generate unintended and misleading

impressions of the judge’s subjective

personal views which have no place in his

instruction to the jury -- all the more so

when counsel are not present to challenge

the statements.

[United States v. U.S. Gypsum Co., 438 U.S.

422, 460, 98 S. Ct. 2864, 2885, 57 L. Ed. 2d

854, 884 (1978).]

A “judge’s improper entry into the jury room does not

automatically require” reversal of a conviction. Brown, supra,

275 N.J. Super. at 332. In one of this Court’s earliest

decisions, it outlined three ways to evaluate a judge’s

inappropriate communications with a jury: (1) if the record

13

affirmatively reveals that the defendant was prejudiced,

reversal is required; (2) if the record does not show whether

the ex parte contact was prejudicial, prejudice is presumed; and

(3) if the record affirmatively discloses “that the

communication had no tendency to influence the verdict,” the

outcome should not be disturbed. State v. Auld, 2 N.J. 426, 432

(1949).

In other words, an adequate record of the contact may be

able to dispel a presumption of prejudice. Compare Brown,

supra, 275 N.J. Super. at 331 (finding judge’s ex parte contacts

with jury “had no capacity to prejudice defendant” when purpose

of contact was to clarify meaning of jury question and, after

judge emerged from jury room, he summarized communication in

open court in front of jury, counsel, and defendant), with

Basit, supra, 378 N.J. Super. at 135-36 (finding record did not

overcome presumption of prejudice when trial judge’s ex parte

comments to jury “not only went unrecorded when given but were

never memorialized in later proceedings”). To be clear, though,

we do not in any way endorse ex parte communications between a

trial judge and a jury.

IV.

The court rules are similarly clear about whether jurors

may take written jury instructions home. They may not. Jurors

may only review written instructions in the jury room. At the

14

time of trial, Rule 1:8-8(a) provided, in relevant part, that

“[t]he court, in its discretion, may submit a copy of all or

part of its instructions to the jury for its consideration in

the jury room.” (Emphasis added). The appellate panel

correctly noted that a strict reading of the Rule suggests that

there is no authority to permit jurors to take written jury

instructions outside the jury room. See Morgan, supra, 423 N.J.

Super. at 471.

This Court addressed Rule 1:8-8 in State v. O’Brien, 200

N.J. 520 (2009). In O’Brien, a jury asked for a written copy of

the judge’s instructions at the close of trial. Id. at 533.

The trial judge declined and offered general reasons why he did

not favor the practice. Ibid. On appeal, this Court concluded

that “a judge should make an individualized decision regarding

the submission of written instructions to the jury on the basis

of what is before him and not on any preconceived policy

rationale.” Id. at 541. To consider “a more detailed standard

to guide judges in exercising their discretion” in this area,

the Court referred the matter to the Civil and Criminal Practice

Committees. Ibid.

The Criminal Practice Committee released its

recommendations in a report dated March 28, 2012. See Report of

the Supreme Court Criminal Practice Committee on Distribution of

Written Instructions to the Jury (Mar. 28, 2012) (Committee

15

Report). Among other proposals, the Committee recommended that

Rule 1:8-8 be revised to require that “written jury charges . .

. be provided to the jury in all criminal cases, unless doing so

would result in undue delay.” Id. at 21. The Committee also

recommended that the entire charge, not part of it, be given to

the jury. Id. at 27. In addition, the Committee addressed the

Appellate Division decision in this case and recommended that

“jury instructions should not be taken home.” Id. at 28. The

Committee suggested a minor change in language to highlight that

point. Id. app. at 2.

We revised the Rule but retained the same language about

where juries may review written instructions. The Rule repeats

the earlier admonition: “The court, in its discretion, may

submit a copy of its instructions to the jury for its

consideration in the jury room.” R. 1:8-8(a) (effective Sept.

4, 2012).2 In light of the explicit language in the earlier

version of the Rule, it was not necessary to add that jurors may

not take jury instructions outside the jury room during

deliberations. To the extent there is any uncertainty on this

issue, we emphasize that copies of written jury instructions are

for use in the jury room -- and only in the jury room.

2

Other aspects of Rule 1:8-8 were also changed at the same

time. See R. 1:8-8 (effective Sept. 4, 2012). None of the

additional changes relates to the issues in this case.

16

Compelling reasons support that approach. As noted

earlier, it is important to insulate the jury from influences

that could undermine its deliberations. State v. Corsaro, 107

N.J. 339, 346 (1987). As the appellate panel and other courts

have highlighted, allowing jurors to take home written

instructions increases the risk that jurors will conduct

independent research about the law or the facts of the case on

the Internet or in some other manner. Morgan, supra, 423 N.J.

Super. at 473; see also United States v. Esso, 684 F.3d 347, 351

(2d Cir.) (cautioning against jurors taking home indictment or

other trial materials), cert. denied, 568 U.S. , 133 S. Ct.

562, 184 L. Ed. 2d 365 (2012). In addition, jurors with written

instructions in hand might be more inclined to discuss the trial

with family members or friends. Esso, supra, 684 F.3d at 351;

Morgan, supra, 423 N.J. Super. at 473.

It is also essential that jurors deliberate as a collective

group and reach a verdict through the exchange of views among

all members of the jury. “[T]he essence of jury deliberations

is the joint or collective exchange of views among individual

jurors.” Corsaro, supra, 107 N.J. at 349; accord United States

v. Resko, 3 F.3d 684, 689 (3d Cir. 1993). Interactions that

take place when a single juror tries to persuade others are

critical to that process. State v. Trent, 79 N.J. 251, 256

(1979) (quoting People v. Collins, 552 P.2d 742, 746 (Cal.

17

1976)). If some jurors pore over the jury charge at home, and

form ideas about the case on their own as a result, the balance

of the group deliberative process may be upset. See Morgan,

supra, 423 N.J. Super. at 473.

Of course, we recognize that jurors may think about a trial

when they leave the courthouse, and those with better memories

might recall and consider an instruction outside of the jury

room. See People v. Ledesma, 140 P.3d 657, 722 (Cal. 2006); see

also Esso, supra, 684 F.3d at 351. That unavoidable reality,

though, does not weigh in favor of giving jurors written

instructions to take home.

V.

We now apply the above principles to the facts of this

case. Both ex parte discussions with the jury were plainly

improper, and like the Appellate Division, we caution judges to

avoid them at all costs. In light of the errors, we examine the

record for prejudice.

The ex parte communication on March 3, 2008 raises a minor

issue, and we dispense with it first. The brief exchange was

recorded, and the transcript reveals that the discussion related

only to ministerial scheduling matters. The record therefore

affirmatively shows that the communication had no tendency to

influence the verdict. See Auld, supra, 2 N.J. at 432.

18

The ex parte communication on February 28, 2008 raises two

concerns. Not only was the contact itself improper, but it was

also error for the court to allow the jury to take home copies

of the charge. Moreover, because the court handled the jury’s

request outside the presence of counsel, defendant had no

opportunity to object.

We can infer from the record that both counsel were

familiar with the materials sent home. Earlier in the

afternoon, the jury asked “for the law to be explained . . .

regarding Count 2” -- the robbery charge. In response, the

trial judge discussed the jury’s note first with counsel and

then with the jury and counsel in open court. The judge told

the jurors that she would send them written copies of the

robbery, attempt, and theft instructions, and neither counsel

voiced an objection or asked to see the document.

An hour later, the judge granted the jury’s request to take

the charges home. That ex parte discussion was recorded and

transcribed as well. The record discloses that the court also

cautioned the jurors “not to look up any words in the dictionary

or anything like that,” not to “look for definitions of any

terms,” and not to “do any research, read anything, hear

anything, [or] discuss [the case] at all” until deliberations

resumed. The judge specifically “limited” the jury “to the four

corners of” the charge. At various times throughout the trial,

19

the court gave similar warnings and directed the jurors not to

discuss the case with others, not to do their own research, and

to avoid outside sources of information. We presume that the

jurors followed those instructions. State v. Burns, 192 N.J.

312, 335 (2007) (citation omitted). In addition, we agree with

the Appellate Division that the record contains no evidence that

the jury behaved in an “untoward” manner or that any outside

influences infected the verdict. See Morgan, supra, 423 N.J.

Super. at 473.

We also consider what the jury’s verdict reveals about any

prejudice. The jury acquitted defendant of attempted murder and

reached no verdict on the robbery count. The portions of the

charge that the jurors took home related to robbery, theft, and

attempt and were directed to the jury’s question about the

robbery offense. We recognize that there was some theoretical

overlap with the second-degree aggravated assault charge, which

also involved attempt. The jury convicted defendant of that

count.

Because of the nature of the crime, though, we see little

risk that the conviction for aggravated assault stemmed from the

attempt instruction. Second-degree aggravated assault requires

proof that defendant caused serious bodily injury or attempted

to cause serious bodily injury, see N.J.S.A. 2C:12-1b, and the

judge instructed the jury accordingly. The proofs at trial,

20

however, revealed that the case involved an actual shooting, and

the victim’s injuries were not in dispute. Plus the verdict

sheet referred only to whether defendant caused serious bodily

injury and did not mention “attempt.” In addition, in light of

the evidence presented, the jurors had to decide whether the

victims were more credible than defendant, or the other way

around, and that decision was not affected by the jury

instructions in question. As a result, it appears that the

instruction on attempt had no tendency to affect the conviction

for aggravated assault.

We therefore find from the record that the second ex parte

conversation also had no tendency to influence the verdict. See

Auld, supra, 2 N.J. at 432. In other words, the record

affirmatively overcomes any presumption of prejudice that might

otherwise exist. For that reason, we do not reverse defendant’s

convictions. Cf. Esso, supra, 684 F.3d at 352 (discouraging

practice yet finding no structural error when jurors took home

indictment and received appropriate limiting instructions).

Notwithstanding the outcome here, we caution trial judges

to avoid the pitfalls this case presents. Judges should not

engage in ex parte communications with jurors, even on innocuous

scheduling matters. Also, written jury instructions are for the

jury’s use during deliberations only in the jury room.

21

VI.

For the reasons stated above, we affirm the judgment of the

Appellate Division.

JUSTICES LaVECCHIA, ALBIN, HOENS, and PATTERSON and JUDGES

RODRÍGUEZ and CUFF (both temporarily assigned) join in CHIEF

JUSTICE RABNER’s opinion.

22

SUPREME COURT OF NEW JERSEY

NO. A-119 SEPTEMBER TERM 2011

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAFFONA MORGAN,

Defendant-Appellant.

DECIDED August 8, 2013

Chief Justice Rabner PRESIDING

OPINION BY Chief Justice Rabner

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY

CHECKLIST AFFIRM

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE HOENS X

JUSTICE PATTERSON X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) X

TOTALS 7